# Aqama Builders & Develpers Ltd. Lucknow v. Civil Judge, Senior Division, Malihabad, Lucknow & Ors

- **Citation:** (2022) 5 ILRA 1353
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-07
- **Case number:** Matters U/A 227 No. 1388 of 2022
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aqama-builders-develpers-ltd-lucknow-v-civil-judge-senior-division-malihabad-48502
- **Pages:** 8

## Headnote

A. Civil Law - Civil Procedure Code, 1908 -
ORDER 39 RULE 1 & 2 - Wherever the
proceedings are under the Code of Civil
Procedure and the forum is the civil court, the
availability of a remedy under the CPC, will
deter the High Court, not merely as a measure
of self-imposed restriction, but as a matter of
discipline and prudence, from exercising its
power
of
superintendence
under
the
Constitution. Hence, the High Court ought not
to have entertained the revision under Article
227 especially in a case where a specific remedy
of appeal is provided under the Code of Civil
Procedure itself.

B. The judgment can be a precedent only for
that its actually held therein and not for that
which can be inferred therefrom. A Judgment
cannot be read as Statute and interpreted.
Petition Dismissed. (E-12)

List of Cases cited:-

## Text

5 All. Aqama Builders & Developers Ltd. Lucknow Vs. Civil Judge, Senior Division , Malihabad,
 Lucknow & Ors.
1353

16. Accordingly, this petition is
allowed. The order dated 12.11.2021
passed by Additional Civil Judge (Junior
Division) IIIrd, Court No. 30, Saharanpur is
hereby quashed.

17. No order as to costs.

18. So far as second prayer for
permission to file fresh application is
concerned, needless to say that it is always
open
for
the
respondents
to
move
applications in accordance with law and for
that, no permission is required. It is also
obvious that if any such application is filed,
same shall be considered and decided in
accordance with law.
----------
(2022)05ILR A1353
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Matters U/A 227 No. 1388 of 2022

Aqama Builders & Develpers Ltd. Lucknow
 ...Petitioner
Versus
Civil Judge, Senior Division, Malihabad,
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Nirmit Srivastava

Counsel for the Respondents:
Amrendra Nath Tripathi, Anand Pratap
Singh

A. Civil Law - Civil Procedure Code, 1908 -
ORDER 39 RULE 1 & 2 - Wherever the
proceedings are under the Code of Civil
Procedure and the forum is the civil court, the
availability of a remedy under the CPC, will
deter the High Court, not merely as a measure
of self-imposed restriction, but as a matter of
discipline and prudence, from exercising its
power
of
superintendence
under
the
Constitution. Hence, the High Court ought not
to have entertained the revision under Article
227 especially in a case where a specific remedy
of appeal is provided under the Code of Civil
Procedure itself.

B. The judgment can be a precedent only for
that its actually held therein and not for that
which can be inferred therefrom. A Judgment
cannot be read as Statute and interpreted.
Petition Dismissed. (E-12)

List of Cases cited:-

1. Radhey Shyam & anr. Vs Chhabi Nath & ors.
(2015) 5 SCC 423

2. Surya Dev Rai Vs Ram Chand Rai (2003) 6
SCC 675 (overruled)

3. Naresh Shridhan Mirajkar Vs St. of Mah. AIR
1967 SC 1

4. Bhavnagar University Vs Palilana Sugar Mills
(2003) 2 SCC 111,

5.
Virudhunagar
Hindu
Nadargal
Dharma
Paribalana
Sabai
Vs
Tuticorin
Educational
Society & ors. (2019) 9 SCC 538

6. A. Venkatasubbiah Naidu Vs S. Chellappan
(2000) 7 SCC 695
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri Prashant Chandra,
learned Senior Counsel assisted by Sri
Nirmit Srivastava, and Ms. Radhika Singh,
learned counsel for the petitioner and Sri
Amrendra Nath Tripathi, learned counsel
for the respondent no.2 alongwith Sri
Anand Pratap Singh, Advocate.

2. This petition has been filed under
Article 227 of the Constitution of India
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
with the prayer to set aside the order dated
12.04.2022 passed on an application under
Order 39 Rule 1 & 2 of the C.P.C. in
Regular Suit No. 297 of 2022 and to direct
the trial court to maintain the order dated
17.02.2022 by which an ex parte ad-interim
injunction for maintenance of Status quo
was passed by the trial court. An additional
prayer has been made that the private
respondents be directed not to make any
transactions in respect of any part of the
building known as Paradise Farm, situated
at IIM Road, Lucknow without leave of the
Court.

3. Sri Amrendra Nath Tripathi has
raised a preliminary objection regarding the
maintainability of this petition under
Article 227 of the Constitution of India by
referring to Order 43 Rule 1(r) of the
C.P.C., wherein it has been provided that an
appeal shall lie under Section 104 against
an Order under Rule 1 and 2, 2A, 4 or Rule
10 of Order 39.

4. It has been submitted that the order
passed on the application for temporary
injunction moved by the plaintiff/petitioner
has been passed under Order 39 Rule 1 and
2, and therefore, it is an order where the
appeal from Order would lie not a petition
under Article 227 of the Constitution of
India.

5. Learned Senior Advocate, Sri
Prashant Chandra has argued on the basis
of the Judgment rendered by the Supreme
Court in the Case of Radhey Shyam and
Another vs. Chhabi Nath and Others
(2015) 5 SCC 423 that against judicial
orders of the Civil Court though Writ under
Article 226 is not maintainable, judicial
orders can be challenged under Article 227.
He has described from paragraphs 2 and 3
of the judgment, the controversy which was
referred to the Larger Bench with regard to
the observations made by the Division
Bench in Surya Dev Rai vs. Ram Chand
Rai (2003) 6 SCC 675 and the question that
was
referred
to
was
whether
the
Constitution Bench of a corum of nine
Judges in Naresh Shridhan Mirajkar vs.
State of Maharashtra AIR 1967 SC 1
could have been ignored by two learned
Judges in Surya Deo Rai(supra). Learned
counsel for the petitioner has read out the
conclusion arrived at by the three Judges
Larger Bench as mentioned in paragraph 21
and 22 of the judgment and also read out
certain portions of paragraph 23 of Radhey
Shyam (Supra) where reference was made
to the judgment rendered in the case of
Surya
Deo
Rai(Supra)
referring
to
paragraph 19, 24 and 25 of judgement in
the case of Surya Deo Rai(Supra). Learned
Senior Counsel has also read out certain
portions of paragraph 25 and 26 of Radhey
Shyam (Supra) to argue that Article 227
confers the power of superintendence of
Subordinate Court on the High Court and
the control of working of Subordinate
Courts including illegality or perversity in
orders passed by such Subordinate Courts
can be looked into under Article 227 of the
Constitution of India.

6. It has also been argued that the
orders of the Civil Court stand on a
different footing from orders of other
authorities or Tribunals or courts other then
Judicial/Civil Courts, and while appellate
or revisional jurisdiction is regulated by the
statute, power of superintendence under
Article 227 is constitutional.

7. It has been argued by Sri Prashant
Chandra that the plaintiff/petitioner is
before this Court invoking the power of
superintendence under Article 227 of the
Constitution of India only because the trial
5 All. Aqama Builders & Developers Ltd. Lucknow Vs. Civil Judge, Senior Division , Malihabad,
 Lucknow & Ors.
1355
court has exceeded its jurisdiction and has
made observations on the merits of the case
by holding a mini trial. Reference has been
made to Builders' Agreement entered into
between
the
parties
and
subsequent
unregistered notarized agreements made
thereafter between the owner of the land,
respondent no.2, and the plaintiff/petitioner
who is the builder. Detailed arguments have
been made regarding the merits of the case
which this Court does not consider
necessary to refer to as this Court is of the
considered opinion that the judgment
rendered in the case of Radhey Shyam
(Supra) does not lay down the law that
even
where
statutory
appeal
is
maintainable, this Court should interfere in
its extraordinary power of supervision
under Article 227 of the Constitution of
India. The judgement in the case of Radhey
Shyam(Supra) was with respect to a
particular issue i.e. whether a Writ of
Certiorari could have been granted and a
Writ Petition under Article 226 was
maintainable against orders passed by the
Civil Courts in exercise of their powers
under the Civil Procedure Code. The
question that was referred to the Larger
Bench has been mentioned in paragraphs
No. 1 to 5 of the said judgment, which are
being quoted herein below:-

"A.K. Goel, J.-- This matter has
been placed before the Bench of three
Judges in pursuance of an order dated 154-2009 [Radhey Shyam v. Chhabi Nath,
(2009) 5 SCC 616] passed by the Bench of
two Hon'ble Judges to consider the
correctness of the law laid down by this
Court in Surya Dev Rai v. Ram Chander
Rai [Surya Dev Rai v. Ram Chander Rai,
(2003) 6 SCC 675] that an order of the
civil
court
was
amenable
to
writ
jurisdiction under Article 226 of the
Constitution. The reference order, inter
alia, reads: (Radhey Shyam case [Radhey
Shyam v. Chhabi Nath, (2009) 5 SCC 616] ,
SCC p. 624, paras 30-33)

"30. ... Therefore, this Court
unfortunately is in disagreement with the
view which has been expressed in Surya
Dev Rai [Surya Dev Rai v. Ram Chander
Rai, (2003) 6 SCC 675] insofar as
correction of or any interference with
judicial orders of civil court by a writ of
certiorari is concerned.

31. Under Article 227 of the
Constitution, the High Court does not issue
a writ of certiorari. Article 227 of the
Constitution vests the High Courts with a
power of superintendence which is to be
very sparingly exercised to keep tribunals
and courts within the bounds of their
authority. Under Article 227, orders of both
civil and criminal courts can be examined
only in very exceptional cases when
manifest miscarriage of justice has been
occasioned. Such power, however, is not to
be exercised to correct a mistake of fact
and of law.

32. The essential distinctions in
the exercise of power between Articles 226
and 227 are well known and pointed out in
Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] and with
that we have no disagreement. But we are
unable to agree with the legal proposition
laid down in Surya Dev Rai [Surya Dev Rai
v. Ram Chander Rai, (2003) 6 SCC 675]
that judicial orders passed by a civil court
can
be
examined
and
then
corrected/reversed by the writ court under
Article 226 in exercise of its power under a
writ of certiorari. We are of the view that
the aforesaid proposition laid down in
Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] , is
contrary to the ratio in Mirajkar [Naresh
Shridhar Mirajkar v. State of Maharashtra,
AIR 1967 SC 1 : (1966) 3 SCR 744] and
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
the ratio in Mirajkar [Naresh Shridhar
Mirajkar v. State of Maharashtra, AIR 1967
SC 1 : (1966) 3 SCR 744] has not been
overruled in Rupa Ashok Hurra [Rupa
Ashok Hurra v. Ashok Hurra, (2002) 4 SCC
388] .

33. In view of our difference of
opinion with the views expressed in Surya
Dev Rai [Surya Dev Rai v. Ram Chander
Rai, (2003) 6 SCC 675] , matter may be
placed before His Lordship the Hon'ble the
Chief Justice of India for constituting a
larger Bench, to consider the correctness
or otherwise of the law laid down in Surya
Dev Rai [Surya Dev Rai v. Ram Chander
Rai, (2003) 6 SCC 675] on the question
discussed above."

"2. Since this Bench has to decide
the referred question, it is not necessary to
mention the facts of the case in detail.
Suffice it to say that assailing an interim
order of the civil court in a pending suit,
the respondent-defendant filed a writ
petition before the Allahabad High Court
and the High Court having vacated
[Chhabi Nath v. Addl. District Judge, WritC No. 50636 of 2007, order dated 12-102007 (All)] the said interim order granted
in favour of the appellant-plaintiff, the
appellant moved this Court by way of a
special
leave
petition,
inter
alia,
contending that the writ petition under
Article 226 was not maintainable against
the order of the civil court and, thus, the
impugned order [Chhabi Nath v. Addl.
District Judge, Writ-C No. 50636 of 2007,
order dated 12-10-2007 (All)] could not be
passed by the High Court. On behalf of the
respondent, reliance was placed on the
decision of this Court in Surya Dev Rai
[Surya Dev Rai v. Ram Chander Rai,
(2003) 6 SCC 675] laying down that a writ
petition
under
Article
226
was
maintainable against the order of the civil
court and thus it was submitted that the
High Court was justified in passing the
impugned order.

"3. As already mentioned, the
Bench of two Hon'ble Judges who heard the
matter was not persuaded to follow the law
laid down in Surya Dev Rai [Surya Dev Rai
v. Ram Chander Rai, (2003) 6 SCC 675] . It
was observed that the judgment in Surya
Dev Rai [Surya Dev Rai v. Ram Chander
Rai, (2003) 6 SCC 675] did not correctly
appreciate the ratio laid down in the earlier
nine-Judge Bench judgment of this Court in
Naresh Shridhar Mirajkar v. State of
Maharashtra [Naresh Shridhar Mirajkar v.
State of Maharashtra, AIR 1967 SC 1 :
(1966) 3 SCR 744] wherein this Court
came to the conclusion that "Certiorari
does not lie to quash the judgments of
inferior courts of civil jurisdiction (para
62)."

"4.
With
reference
to
the
observations in Surya Dev Rai (Supra) for
not following the conclusion in Naresh
Shridhar Mirajkar (Supra) , the referring
Bench inter alia observed: (Radhey Shyam
case [Radhey Shyam v. Chhabi Nath,
(2009) 5 SCC 616] , SCC pp. 622-24, paras
25-30)

"25. In our view the appreciation
of the ratio in Mirajkar [Naresh Shridhar
Mirajkar v. State of Maharashtra, AIR 1967
SC 1 : (1966) 3 SCR 744] by the learned
Judges, in Surya Dev Rai [Surya Dev Rai v.
Ram Chander Rai, (2003) 6 SCC 675] ,
with great respect, was possibly a little
erroneous and with that we cannot agree.

26. The two-Judge Bench in
Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] did not,
as obviously it could not overrule the ratio
in Mirajkar [Naresh Shridhar Mirajkar v.
State of Maharashtra, AIR 1967 SC 1 :
(1966) 3 SCR 744] , a Constitution Bench
decision of a nine-Judge Bench. But the
learned Judges justified their different view
5 All. Aqama Builders & Developers Ltd. Lucknow Vs. Civil Judge, Senior Division , Malihabad,
 Lucknow & Ors.
1357
in Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] , inter
alia on the ground that the law relating to
certiorari changed both in England and in
India. In support of that opinion, the
learned Judges held that the statement of
law in Halsbury, on which the ratio in
Mirajkar [Naresh Shridhar Mirajkar v.
State of Maharashtra, AIR 1967 SC 1 :
(1966) 3 SCR 744] is based, has been
changed and in support of that quoted
paras 103 and 109 from Halsbury's Laws of
England, 4th Edn. (Reissue), Vol. 1(1).
Those paras are set out below:

''103. The prerogative remedies of
certiorari, prohibition and mandamus:
historical
development.--Historically,
prohibition was a writ whereby the royal
courts of common law prohibited other
courts from entertaining matters falling
within the exclusive jurisdiction of the
common law courts; certiorari was issued
to bring the record of an inferior court into
the King's Bench for review or to remove
indictments
for
trial
in
that
court;
mandamus was directed to inferior courts
and tribunals, and to public officers and
bodies, to order the performance of a
public
duty.
All
three
were
called
prerogative writs....

***

109. The nature of certiorari and
prohibition.--Certiorari
lies
to
bring
decisions of an inferior court, tribunal,
public authority or any other body of
persons before the High Court for review
so that the court may determine whether
they should be quashed, or to quash such
decisions. The order of prohibition is an
order issuing out of the High Court and
directed to an inferior court or tribunal or
public authority which forbids that court or
tribunal or authority to act in excess of its
jurisdiction or contrary to law. Both
certiorari and prohibition are employed for
the control of inferior courts, tribunals and
public authorities.'

The aforesaid paragraphs are
based on general principles which are
older than the time when Mirajkar [Naresh
Shridhar Mirajkar v. State of Maharashtra,
AIR 1967 SC 1 : (1966) 3 SCR 744] was
decided are still good. Those principles
nowhere indicate that judgments of an
inferior civil court of plenary jurisdiction
are amenable to correction by a writ of
certiorari. In any event, change of law in
England cannot dilute the binding nature of
the ratio in Mirajkar [Naresh Shridhar
Mirajkar v. State of Maharashtra, AIR 1967
SC 1 : (1966) 3 SCR 744] and which has
not been overruled and is holding the field
for decades.

27. It is clear from the law laid
down
in
Mirajkar
[Naresh
Shridhar
Mirajkar v. State of Maharashtra, AIR 1967
SC 1 : (1966) 3 SCR 744] in para 63 that a
distinction has been made between judicial
orders of inferior courts of civil jurisdiction
and orders of inferior tribunals or court
which are not civil courts and which cannot
pass judicial orders. Therefore, judicial
orders passed by civil courts of plenary
jurisdiction stand on a different footing in
view of the law pronounced in para 63 in
Mirajkar [Naresh Shridhar Mirajkar v.
State of Maharashtra, AIR 1967 SC 1 :
(1966) 3 SCR 744] . The passage in the
subsequent edition of Halsbury (4th Edn.)
which has been quoted in Surya Dev Rai
[Naresh Shridhar Mirajkar v. State of
Maharashtra, AIR 1967 SC 1 : (1966) 3
SCR 744] does not show at all that there
has been any change in law on the points in
issue pointed out above.

28. The learned Judges in Surya
Dev Rai [Surya Dev Rai v. Ram Chander
Rai, (2003) 6 SCC 675] stated in SCC para
18, p. 687 of the Report that the decision
rendered in Mirajkar [Naresh Shridhar
1358 INDIAN LAW REPORTS ALLAHABAD SERIES
Mirajkar v. State of Maharashtra, AIR 1967
SC 1 : (1966) 3 SCR 744] was considered
by the Constitution Bench in Rupa Ashok
Hurra v. Ashok Hurra [Rupa Ashok Hurra
v. Ashok Hurra, (2002) 4 SCC 388] and
wherein the learned Judges took a different
view and in support of that, the following
para from Rupa Ashok Hurra [Rupa Ashok
Hurra v. Ashok Hurra, (2002) 4 SCC 388]
has been quoted: (Surya Dev Rai case
[Surya Dev Rai v. Ram Chander Rai,
(2003) 6 SCC 675] , SCC pp. 687-88, para
18)

''(i) that it is a well-settled
principle that the technicalities associated
with the prerogative writs in English law
have
no
role
to
play
under
our
constitutional scheme; (ii) that a writ of
certiorari to call for records and examine
the same for passing appropriate orders, is
issued by a superior court to an inferior
court which certifies its records for
examination; and (iii) that a High Court
cannot issue a writ to another High Court,
nor can one Bench of a High Court issue a
writ to a different Bench of the High Court;
much less can the writ jurisdiction of a
High Court be invoked to seek issuance of
a writ of certiorari to the Supreme Court.
The High Courts are not constituted as
inferior
courts
in
our
constitutional
scheme.'

29. We are constrained to point
out again that in Rupa Ashok Hurra [Rupa
Ashok Hurra v. Ashok Hurra, (2002) 4 SCC
388] the Constitution Bench did not take
any view which is contrary to the views
expressed in Mirajkar [Naresh Shridhar
Mirajkar v. State of Maharashtra, AIR 1967
SC 1 : (1966) 3 SCR 744] . On the other
hand, the ratio in Mirajkar [Naresh
Shridhar Mirajkar v. State of Maharashtra,
AIR 1967 SC 1 : (1966) 3 SCR 744] was
referred to with respect and was relied on
in Rupa Ashok Hurra [Rupa Ashok Hurra
v. Ashok Hurra, (2002) 4 SCC 388] .
Mirajkar [Naresh Shridhar Mirajkar v.
State of Maharashtra, AIR 1967 SC 1 :
(1966) 3 SCR 744] was referred to in SCC
para 8, p. 399 and again in SCC para 11 on
p. 402 and again in SCC para 59, p. 418
and also in SCC para 60, p. 419 of Rupa
Ashok Hurra [Rupa Ashok Hurra v. Ashok
Hurra, (2002) 4 SCC 388] . Nowhere even
any whisper of a divergence from the ratio
in Mirajkar [Naresh Shridhar Mirajkar v.
State of Maharashtra, AIR 1967 SC 1 :
(1966) 3 SCR 744] was expressed. Rather
passages from Mirajkar [Naresh Shridhar
Mirajkar v. State of Maharashtra, AIR 1967
SC 1 : (1966) 3 SCR 744] have been quoted
with approval.

30. In fact the question which was
referred to the Constitution Bench in Rupa
Ashok Hurra [Rupa Ashok Hurra v. Ashok
Hurra, (2002) 4 SCC 388] is quoted in
para 1 of the judgment and it is clear from
the perusal of the said paragraph that the
question for consideration in Rupa Ashok
Hurra [Rupa Ashok Hurra v. Ashok Hurra,
(2002) 4 SCC 388] was totally different.
Therefore, this Court unfortunately is in
disagreement with the view which has been
expressed in Surya Dev Rai [Surya Dev Rai
v. Ram Chander Rai, (2003) 6 SCC 675]
insofar as correction of or any interference
with judicial orders of civil court by a writ
of certiorari is concerned."

"5. Thus, the question to be
decided is: whether the view taken in Surya
Dev Rai [Surya Dev Rai v. Ram Chander
Rai, (2003) 6 SCC 675] that a writ lies
under Article 226 of the Constitution
against the order of the civil court, which
has been doubted in the reference order, is
the correct view?"

8. The Supreme Court answered the
reference in paragraph 29, which is being
quoted herein below:-
5 All. Aqama Builders & Developers Ltd. Lucknow Vs. Civil Judge, Senior Division , Malihabad,
 Lucknow & Ors.
1359

"29. Accordingly, we answer the
questions referred as follows:

29.1. Judicial orders of the civil
court are not amenable to writ jurisdiction
under Article 226 of the Constitution.

29.2. Jurisdiction under Article
227 is distinct from jurisdiction under
Article 226.

29.3 Contrary view in Surya Dev
Rai is overruled."

9. It is settled law that the judgment
can be a precedent only for that its actually
held therein and not for that which can be
inferred therefrom. A Judgment cannot be
read as Statute and interpreted.

10. In Bhavnagar University vs.
Palilana Sugar Mills (2003) 2 SCC 111,
the Supreme Court observed in Para 59
thus:- "A decision, as is well known, is an
authority for which it is decided and not
what can logically be deduced therefrom. It
is also well settled that a little difference in
facts or additional facts may make a lot of
difference in the precedential value of a
decision.-----"

11.

In
Virudhunagar
Hindu
Nadargal Dharma Paribalana Sabai vs.
Tuticorin Educational Society and Others
(2019) 9 SCC 538, the Supreme Court was
considered "the Maintainability" of a
petition
under
Article
227
of
the
Constitution, against an order passed by the
Civil Court vacating the interim order of
injunction granted by the trial court. The
interlocutory application filed by the
appellants/plaintiffs in Regular Suit filed
for Declaration and Permanent Injunction
had been allowed by the trial court. The
contesting defendants filed a petition under
Article 227 of the Constitution against the
order of trial court granting injunction
whereas a Regular Appeal under Order 43
Rule 1 (r) of the Code of Civil Procedure,
1908 was filed by another defendant to the
Suit.
Despite
objections
to
the
maintainability of such petition under
Article 227, on availability of appeal
remedy under the Civil Procedure Code,
the High Court allowed the petition and set
aside the injunction granted by the trial
court. The High Court rejected the
preliminary
objection
regarding
maintainability on the basis of the few
decisions of the Supreme Court which
revolved
around
the
supervisory
jurisdiction of the High Court to keep the
subordinate courts within the bounds of
law. The High Court found fault with the
trial court for taking up, the application for
injunction and passing an order thereon, in
great haste and observed that it was a case
of justice being hurried and consequently
getting buried.

The Supreme Court observed in
paragraph 11 that "the High Court ought to
have seen that when a remedy of appeal
under Section 104(1)(i) read with Order 43,
Rule 1(r) of the Code of Civil Procedure,
1908, was directly available, Respondents 1
and 2 ought to have taken recourse to the
same. It is true that the availability of a
remedy of appeal may not always be a bar
for the exercise of supervisory jurisdiction
of the High Court. In A. Venkatasubbiah
Naidu v. S. Chellappan (2000) 7 SCC 695,
this Court held that "though no hurdle can
be put against the exercise of the
constitutional powers of the High Court, it
is a well-recognized principle which gained
judicial recognition that the High Court
should direct the party to avail himself of
such remedies before he resorts to a
constitutional remedy".

The Supreme Court also observed
in para 12 thus:- "But courts should always
bear in mind a distinction between (i) cases
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
where such alternative remedy is available
before civil courts in terms of the
provisions of Code of Civil Procedure, and

(ii) cases where such alternative
remedy is available under special enactments
and/or statutory rules and the fora provided
therein
happen
to
be
quasi-judicial
authorities and tribunals. In respect of cases
falling under the first category, which may
involve suits and other proceedings before
civil courts, the availability of an appellate
remedy in terms of the provisions of CPC,
may have to be construed as a near total bar.
Otherwise, there is a danger that someone
may challenge in a revision under Article
227, even a decree passed in a suit, on the
same grounds on which Respondents 1 and 2
invoked the jurisdiction of the High Court.
This is why, a 3-member Bench of this Court,
while overruling the decision in Surya Dev
Rai v. Ram Chander Rai (Supra), pointed out
in Radhey Shyam v. Chhabi Nath(Supra) that
"orders of civil court stand on different
footing from the orders of authorities or
tribunals or courts other than judicial/civil
courts".

The
Supreme
Court
further
observed in paragraph 13 thus:- "Therefore
wherever the proceedings are under the Code
of Civil Procedure and the forum is the civil
court, the availability of a remedy under the
CPC, will deter the High Court, not merely as
a measure of self-imposed restriction, but as
a matter of discipline and prudence, from
exercising its power of superintendence
under the Constitution. Hence, the High
Court ought not to have entertained the
revision under Article 227 especially in a
case where a specific remedy of appeal is
provided under the Code of Civil Procedure
itself."

12. This Court is only concerned with
the challenge raised to an order on an
application moved under Order 39 Rule 1
and 2 for Temporary Injunction in a Suit for
Permanent
Injunction
filed
by
the
plaintiff/petitioner and the grounds that
have been mentioned in this writ petition
and which have been read out in their
entirety by the learned Senior Counsel, Sri
Prashant Chandra can be raised in appeal
which is provided under Order 43 Rule 1(r)
of the Civil Procedure Code.

13. This petition is dismissed as not
maintainable.
----------
(2022)05ILR A1360
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Matters U/A 227 No. 5202 of 2021 (Criminal)
connected with
Matters U/A 227 No. 5204 of 2021

Abhishek Agarwal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Swetashwa Agarwal, Sri Dinkar Lal

Counsel for the Respondents:
G.A.

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 451 - Powers under
Section 451 of Cr.P.C. should be exercised
expeditiously and judiciously. it is a general rule
that case property should be released. It should
not to be retained in custody of the court or the
police for any time longer than what is
absolutely necessary and it should be directly or
indirectly disposed of and court must pass order
for its disposal. Further where the property is
subject to speedy and natural decay, resulting in
diminishing its value should not be kept lying
unattended.