# THIRUMALA TIRUPA TI DEV ASTHANAMS AND ANR v. THALLAPPAKA ANANTHACHARYULU AND ORS

- **Citation:** [2003] Supp. 3 S.C.R. 538
- **Court:** Supreme Court of India
- **Decided:** 2003-09-10
- **Case number:** Civil Appeal Nos. 16727- B 16728 of 1996
- **Bench:** S.N. Varjava, H.K. Sema
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thirumala-tirupa-ti-dev-asthanams-and-anr-v-thallappaka-ananthacharyulu-and-ors-19369
- **Pages:** 23

## Headnote

Constitution of India, 1950 : Articles 32 and 226.
Writ of Prohibition-Writ Jurisdiction-Power of Court-Plaintiff's
appeal against grant of patta to defendants in respect of suit land
C dismissed-Writ petition also dismissed-Appeal and review petitions too
dismissed by Supreme Court-Subsequently, plaintiffs filed civil suit for
declaration of ownership and also filed appeal against grant of patta to
defendants-But High Court issued writ of Prohibition restraining the
courts below from proceeding in the matters on the grounds that the suit
D was barred under Section 14 and also on the principles of res judicata/
estoppel-Correctness of-Held: A writ of Prohibition must be issued only
in rarest of rare cases-such power cannot be allowed to be used "as a
cloak of an appeal in disguise"-Civil court had jurisdiction to decide
whether suit could be entertained and whether the proceedings were
E barred on principles of res judicata/estoppel-High Court should not have
usurped the jurisdiction of civil court-Writ of Prohibition set aside-Civil
court directed to decide maintainability of suit as a preliminary issue and
also whether the suit was barred on the principles of res judicata/
estoppel-Andhra Pradesh (Andhra Area) lnams (Abolition and Conversion
F into Ryotwari) Act, 1956, S. 14.
Code of Civil Procedure, 1908:
Order 7 Rule 11 and Order 14 Rule 2-Scope and ambit of-Held:
Civil Court competent to decide its own jurisdiction and questions regarding
G maintainability of suit-Civil court also competent to decide whether a suit
was barred on principles of res judicata/estoppel.
The appellants-plaintiffs filed an appeal against grant of patta to
the respondents-defendant in respect of the suit land, which was
dismissed. Writ Petition was also dismissed. Appeal and review petitions
H too dismissed by this Court.
538
TIURUMALA TIRUPATI DEVASTHANAMS r. THALLAPPAKA ANANTHACHARYULU
539
Thereafter, the appellants filed a civil suit seeking a declaration A
that it was the absolute owner of the suit land and for a direction to
the respondents to surrender possession of the same. The appellant also
filed an appeal before the Revenue Divisional Officer (RDO) under
Section 7(2) of the Andhra Pradesh (Andhra Area) Inams (Abolition
and Conversion into Ryotwari) Act, 1956 challenging the grant ofpatta B
in favour of the respondents.
The respondents filed two writ petitions before the High Court for
issuance of a writ of Prohibition: one concerning the suit and the other
concerniRg the appeal before the RDO restraining them from proceeding
further in the matters on the grounds that the suit and appeal were C
barred under Section 14 of the Act and also on the principles of res
judicata/estoppel. The High Court aHowed the writ petitioos. Hence tire
appeal.
Disposing of the appeal, the Court
HELD : I. A writ of prohibition must be issued only in rarest of
rare cases. Judicial disciplines of the highest order have to be exer4:ised
whilst issuing such writs. The writ jurisdiction is original jurisdiction
distinct from the appellate jurisdiction. An appeal cannot be allowed
D
to be disguised in the form of a writ. In other words, this power cannot E
be allowed to be used "as a cloak of an appeal in disguise". Lax use
of such a power would impair the dignity and integrity of the
subordinate court and could also lead to chaotic consequences. It would
undermine the confidence of the subordinate court. There was no total
lack of jurisdiction in the civil court. It could not be denied that the
civil court, before which the suit was pending, had powers to decide F
on the maintainability of the suit and to decide on the questions of its
jurisdiction. The civil court had jurisdiction to decide whether the suit
was barred by Section 14 of the Andhra Pradesh (Andhra Area) Inams
{Abo1ition and Conversion into Ryotwari) Act, 1956 or on principles
of res judicata/estoppel. Thus unless there was some very cogent or G
strong reason the High Court should not have prevent

## Text

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A
THIRUMALA TIRUPA TI DEV ASTHANAMS AND ANR.
v.
THALLAPPAKA ANANTHACHARYULU AND ORS.
SEPTEMBER 10, 2003
B
[S.N. VARJAVA AND H.K. SEMA, JJ.]
Constitution of India, 1950 : Articles 32 and 226.
Writ of Prohibition-Writ Jurisdiction-Power of Court-Plaintiff's
appeal against grant of patta to defendants in respect of suit land
C dismissed-Writ petition also dismissed-Appeal and review petitions too
dismissed by Supreme Court-Subsequently, plaintiffs filed civil suit for
declaration of ownership and also filed appeal against grant of patta to
defendants-But High Court issued writ of Prohibition restraining the
courts below from proceeding in the matters on the grounds that the suit
D was barred under Section 14 and also on the principles of res judicata/
estoppel-Correctness of-Held: A writ of Prohibition must be issued only
in rarest of rare cases-such power cannot be allowed to be used "as a
cloak of an appeal in disguise"-Civil court had jurisdiction to decide
whether suit could be entertained and whether the proceedings were
E barred on principles of res judicata/estoppel-High Court should not have
usurped the jurisdiction of civil court-Writ of Prohibition set aside-Civil
court directed to decide maintainability of suit as a preliminary issue and
also whether the suit was barred on the principles of res judicata/
estoppel-Andhra Pradesh (Andhra Area) lnams (Abolition and Conversion
F into Ryotwari) Act, 1956, S. 14.
Code of Civil Procedure, 1908:
Order 7 Rule 11 and Order 14 Rule 2-Scope and ambit of-Held:
Civil Court competent to decide its own jurisdiction and questions regarding
G maintainability of suit-Civil court also competent to decide whether a suit
was barred on principles of res judicata/estoppel.
The appellants-plaintiffs filed an appeal against grant of patta to
the respondents-defendant in respect of the suit land, which was
dismissed. Writ Petition was also dismissed. Appeal and review petitions
H too dismissed by this Court.
538
TIURUMALA TIRUPATI DEVASTHANAMS r. THALLAPPAKA ANANTHACHARYULU
539
Thereafter, the appellants filed a civil suit seeking a declaration A
that it was the absolute owner of the suit land and for a direction to
the respondents to surrender possession of the same. The appellant also
filed an appeal before the Revenue Divisional Officer (RDO) under
Section 7(2) of the Andhra Pradesh (Andhra Area) Inams (Abolition
and Conversion into Ryotwari) Act, 1956 challenging the grant ofpatta B
in favour of the respondents.
The respondents filed two writ petitions before the High Court for
issuance of a writ of Prohibition: one concerning the suit and the other
concerniRg the appeal before the RDO restraining them from proceeding
further in the matters on the grounds that the suit and appeal were C
barred under Section 14 of the Act and also on the principles of res
judicata/estoppel. The High Court aHowed the writ petitioos. Hence tire
appeal.
Disposing of the appeal, the Court
HELD : I. A writ of prohibition must be issued only in rarest of
rare cases. Judicial disciplines of the highest order have to be exer4:ised
whilst issuing such writs. The writ jurisdiction is original jurisdiction
distinct from the appellate jurisdiction. An appeal cannot be allowed
D
to be disguised in the form of a writ. In other words, this power cannot E
be allowed to be used "as a cloak of an appeal in disguise". Lax use
of such a power would impair the dignity and integrity of the
subordinate court and could also lead to chaotic consequences. It would
undermine the confidence of the subordinate court. There was no total
lack of jurisdiction in the civil court. It could not be denied that the
civil court, before which the suit was pending, had powers to decide F
on the maintainability of the suit and to decide on the questions of its
jurisdiction. The civil court had jurisdiction to decide whether the suit
was barred by Section 14 of the Andhra Pradesh (Andhra Area) Inams
{Abo1ition and Conversion into Ryotwari) Act, 1956 or on principles
of res judicata/estoppel. Thus unless there was some very cogent or G
strong reason the High Court should not have prevented the court of
competent jurisdiction from deciding these questions. In other words,
the High Court should not usurp the jurisdiction of the civil court to
decide these questions. [554-B-E]
2. In the Code of Civil Procedure, 1908 there are sufficient H
540
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A provisions, particularly Order 7 Rule 11 and Order 14 Rule 2, which
give to the civil court powers to decide its own jurisdiction and
questions regarding the maintainability of the suit. The civil court is
also competent to decide whether a suit before it is barred on principles
of estoppel or res judicata. (554-DI
B
c
3. The High Court's judgment is set aside to the extent that it
prohibits the civil court from proceeding with the suit. The civil court
is directed to frame and decide the preliminary issues as to
maintainability of the suit in view of Section 14 of the Act and whether
the suit is barred on principles of res judicata/estoppel. [560-B]
Vatticherukuru Village Panchayat v. Nori V. Deekshithu/u, [ 1991)
Supp. 3 SCC 228; Peddinti Venkata Murali Ranganatha Desika Iyengar
v. Government of A.P., [1996] 9 SCC 202; S. Vanathan Muthuraja v.
Ramalingam, (1997] 6 SCC 143; State of Tamil Nadu v. Ramalinga
D Samigal Madam, {1985] 4 SCC 10; R. Manicka Naicker v. E. E/umalai
Naicker, [1995] 4 SCC 156; SayyedA/iv. A.P. WakfBoard, [1998] 2 SCC
156; Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal v. T. Parvathi
Amma/, [1998] 9 SCC 603; Navinchandra N. Majithia v. State of
Maharashtra, [2000] 7 SCC 640; Mirjakar v. State of Maharashtra,
E (1966] 3 SCR 779; /.S. Lulla v. Smt. Hari, AIR (1962) Mad 458; V.P.
Sales Tax Service Association v. Taxation Bar Association, [1995] 5
SCC 716; The Failika Dabva/i Transport Co. Pvt. Ltd. v. Madan La/,
[1977)2 SCC 435; Chhedi La/ Gupta v. Mohammad Sattar, AIR (1963)
All 448; Hari Vishnu Kamath v. Syed Ahmed Ishaque, [1955)
SCR 1104; Smt. Ujjam Bai v. State of V.P., [1963] 1 SCR 778;
F Ramamoorthy v. State of Madras, (1970) ILR 788; Thal/appaka
In Re: (1993) 1 ALT 293; Gulabchand Parekh v. State of Bombay, [1965]
2 SCR 547; N.Y Lakshminarasimachari v. Sri Agasthewaraswami Varu
of Kolakalur, {1960]2 SCR 768; Shri Vallabharaya Swami Varu (Deity)
ofSwarna v. Deevi Hanumancharyulu, [1979] 3 SCC 778 and Subramania
G Gurukka/ v. Shri Patteswaraswami Devasthanam, [1993] Supp. 4 sec
519, referred to.
R. v. Northumberland Compensation Appeal Tribunal: Ex parte
Shaw, (1951) I K.B. 711; R. v. Northumberland Compensation Appeal
H Tribunal Ex parte Shaw, 11952] 1 K.B. 338; Veerappa Pi//ai v. Raman
THIRUMALA TIRUPA TI DEVASTHANAMS v. THALLAPPAKA ANANTHACHAR YULU [VARIA VA, J.]
541
& Raman Ltd, [1952] SCR583; TC. Basappav. T Nagappa, (1955) SCR A
250 and R. v. Bolten, [1841) 1 Q.B. 66, cited.
S. Sunderraja Iyengar: Land Tenures in the Madras Presidenc)"f
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 16727- B
16728 of 1996.
From the Judgment and Order dated 25.9.96 of the Andhra Pradesh
High Court in W.P. Nos. 5997 and 8347 of 1996.
K.K. Venugopal and R. Sundaravardan, K. Ram Kumar and B. C
Sridhar for the Appellants.
Prabha Shankar Mishra, P.Venkat Reddy, N. Sudhakaran and B.
Kanta Rao for the Respondents.
The Judgment of the Court was delivered by
S. N. VARIA VA, J. : These Appeals are against the Judgment dated
25th September, 1996 by which two Writ Petitions seeking writs of
prohibition and a contempt petition have been disposed of.
The dispute in these proceedings relates to 28.58 acres in Survey
Numbers 686, 645 and 679 of Tirumala Village. This land is situated on
Tirumala Hills where the temple of Sri Venkateshwara Swamy ts situated.
The Appellants are the statutory Devasthanam in control and management
D
E
of the temple. The·facts leading to the present litigation are set out in the
impugned Judgment. In the impugned Judgment the Appellants are F
referred to as "T.T.D." whereas the Respondents are referred to as "the
Tallapaka people". The facts, as set out in the impugned Judgment, are as
follows:
"4. Sri Krishna Devaraya one of the greatest Emperors who ruled G
southern India in the 15th century granted an extent of Ac.
27-04 cents of land on Tirumala Hills (now covered by Survey
Nos. 586 and 645) to Sri Tallapaka Annamacharya, the celebrated
saint, composer and reformer, the progenitor of the petitioners
herein (for short ''the Tallapaka people"). Annamacharya was a
great devotee of Lord Venkateswara, in whose praise he wrote and H
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SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
compoted mwsic for 32,000 devotional songs.
He attained
immortality as the greatest devotee of Lord Venkateswara and
also the founder of the Bhakti cult, propagating the philosophy of
Sri Ramanuja. Kings and emperors showered upon him honours
and granted large number of inams in recognition of the spiritual
service he rendered. He and his descendants, for over centuries,
endowed vast properties for religious and charitable purposes.
Tallapaka Venkata Seshacharyulu, the father of the petitioner in
W. P. No. 8347 of 1996 and C.C. No. 373 of 1996 was the 12th
descendant of Annamach~uya.
5. The T.T.D. filed an application before the Revenue Divisional
Officer, Chandragiri in 1962 under the Madras Hindu Religious
and Charitable Endowments Act, 1951 against Tallapaka Venkata
Seshacharyulu seeking resumption of the inam alleging that it was
a grant in favour of the "Manager for the time being of
Nandanavanam at Tirumala or Tirupati to be held for the support
of Sri Venkateswara Swamy Pagoda at Tirumala and to be held
so long as the conditions of the grant are duly fulfilled". The
T. T.D. contended that the grant was for the maintenance of flower
and Tulasi garden and fruit bearing trees for the daily worship of
and offering to Lord Venkateswara but neither offerings were
made nor plants and trees maintained much less flowers and
Tulasi plants were supplied from the Nandanavanam to the deity
by the inamdars. The T.T.D. therefore, prayed for: (i) resumption
of the inam and determining it as a grant of both melwaram and
kudiwaram (land revenue as well as proprietary right); and (ii)
regranting the inam to the T.T.D. as an endowment.
That
application was disposed of by the Revenue Divisional Officer
holding that the Inams Deputy Tahsildar, Chandragiri had already
issued a ryotwari patta under the Inams Abolition Act in favour
of the T.T.D. and, therefore, no further relief was called for. The
inamdars carried the matter in revision to the Commissioner,
Survey, Settlements and Land Records (for short "the
Commissioner") under S,ection 14·A of the Andhra Pradesh
(Andhra Area) Inams (Abolition and Conversion into Ryotwari)
Act, 1956 (for short "the Inams Abolition Act'') and the
Commissioner, while allowing the revision, remitted the matter to
the Tahsildar for fresh enquiry on the ground that while granting
THIRUMALA TIRUPATI DEVASTHANAMS ''· THALLAPPAKA ANANTHACHAR'l1JLU [VARIA VA, J.]
543
patta in favour of the T. T.D. the Deputy Tahsildar had not issued A
notices to the parties.
6. After the remand, the Deputy Tahsildar conducted an enqYiry
under Section 3 of the lnams Abolition Act after notices to both
the Institution (T.T.D.) and the Inamdars and recorded a finding B
that the land in question is an inam land in Ryotwari village and
that it was not held by an institution. On appeal, preferred by the
T. T.D., the Revenue Divisional Officer affirmed the order of the
Deputy Tahsildar. The T.T.D. carried the matter in revision to
the Commissioner who, while recording the concession made by
the Counsel for the T.T.D., that the lands in question were in C
possession of the inamdars on the crucial dates (as envisaged by
Section 4 of the Inams Abolition Act) and that the inamdars had
been in possession of the lands since 7-6-193 3, dismissed the
revision petition.
XXX
XXX
XXX
D
7. The T.T.D. filed W.P. No. 11895 of 1986 challenging the order
of the Commissioner affirming the orders of the subordinate
statutory tribunals and the inamdar filed W. P. No. 11437 of 1986
contending that an extent of Ac. 3-05 cents of land in question E
was illegally occupied by the T. T.D. without paying compensation
and, therefore, he was entitled to be compensated for the wrongful
deprivation. A learned single judge heard both the matters together
and by a common judgment, allowed the writ petition filed by the
T.T.D. holding that the grant in question was to the institution and
that the possession of the land "on the relevant dates" by the F
inamdars was only on behalf of the institution but not in recognition
of their rights as inamdars and that the view of the Commissioner
that the inam was burdened with service was contrary to . the
recitals in the two title deeds. The learned Judge by his common
judgment dated 17-4-1987 quashed the revisional order of the G
Commissioner and consequently dismissed W.P. No. 11437 of
1986 filed by the inamdar. Two Writ Appeals W.A. Nos. 1752
of 1987 and 4 of 1993 arising out of the above two writ petitions
were allowed by a common judgment dated 23-12-1992.
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SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
8 ............... .......................... The judgment of the Division
Bench was carried in appeal to the Supreme Court in Civil Appeal
Nos. 3468-69 of 1993 ................... the Supreme Court dismissed
both the appeals on 11-1-1995 ....................... Review Petition
Nos. 683-684 of 1995 seeking review of the aforesaid order of
the Supreme Court 9th May, 1995 were dismissed.
9. After the dismissal of the review petitions by the Supreme Court
the Tallapaka people (inamdars) filed an application before the
Inams Deputy Tahsildar for grant of patta under Section 7(1) of
the Inams Abolition Act and the same was granted by the Deputy
Tahsil dar by an order dated 9-8-1995.
10. The T. T.D. filed a suit O.S. No. 69 of 1995 in the Court of
the Principal Subordinate Judge, Tirupati seeking a declaration
that it is the absolute owner of the Ac. 25-08 cents of land covered
by Survey Nos. 686 and 679/92 and for a consequential direction
to the Tallapaka people to surrender possession of the same. The
T.T.D. also filed an appeal under Section 7(2) of the Inams
Abolition Act before the Revenue Divisional Officer challenging
the grant of patta by the Deputy Tahsildar in favour of the
Tallapaka people. In the plaint filed in O.S. No. 69 of 1995, it
was averred by the T.T.D. inter alia, that the entire property lying
within the limits of Tirumala belongs to the deity. Lord
Venkateswara. The question of title to the suit land was not the
subject matter of the earlier litigation between the T.T.D. and the
Tallapaka people and in spite of the failure of the T.T.D. in the
revenue proceedings and the judgment in the writ appeals (the ftrst
Tallapaka case), the question oftitle can still be agitated in a Civil
Court. After adverting to certain G.O's. and the earlier proceedings
before the revenue authorities it was averred by the T.T.D. in the
plaint that the inam was to the temple and not a personal grant
to the Tallapaka people. As already stated at the very outset, the
inamdars (the Tallapaka people) filed the present two writ petitions,
each for a writ of Prohibition: one in regard to the suit and the
other in regard to the appeal before the Revenue Divisional
Officer, Tirupati restraining them from proceeding further in the
matters. In the contempt case it was alleged by the inamdars that
THIRUMALA TIRUPATI DEVASTHANAMS v. THALLAPPAKA ANANTHACHARYULU [VARIA VA, J.]
54 5
the T.T.D. in deliberate disobedience of the judgment of this Court ·A
in the first Tallapaka case had instituted the suit and, therefore,
it is liable to be punished for contempt "
By the impugned Judgment the contempt petition has been dismissed.
However, writs of prohibition have been issued in the following terms: B
"34. In the result, both the W.Ps. are allowed.
A writ of
prohibition will issue in W.P. No. 5997 of 1996 prohibiting the
principal Subordinate Judge Tirupati from proceeding with the
suit 0. S. No. 69 of 1995.
Likewise, a writ of prohibition will
issue in W .P. No. 834 7 of 1996 prohibiting the Revenue Divisional C
Officer, Tirupati from proceeding with the appeal preferred by the
T.T.D. against the order of the Inams Deputy Tahsildar, Chittoor
in S.R. No. 1/95 dated 9.8.1995."
The reasoning adopted in the impugned judgment, in granting the writ of D
prohibition, is that having urged all contentions in the earlier round of
litigation Appellants were now estopped from claiming any rights. The
High Court held that the principles of res judicata applied. The High Court
justified issuance of writs of prohibition on the following reasoning:
"If the Civil Court and the Court of the Revenue Divisional E
Officer were permitted to proceed with the trial and the appeal,
they would be acting outside their powers. A writ of prohibition
can be issued to prevent a person from acting or continuing to act
in such a way as to abuse jurisdiction of a judicial or quasi-judicial
body. It is not necessary for the petitioners to wait until the F
decisions are rendered by the Civil Court and the Revenue
Divisional Officer and then move this Court for a writ of
certiorari."
At this stage it is necessary to set out Section 14 of the Andhra Pradesh
(Andhara Area) lnams (Abolition and Conversion into Ryotwari) Act, 1956 G
(hereinafter called the said Act) which reads as follows:
"Bar ofjurisdiction of Civil Courts:- No suit or other proceedings
shall be instituted in any Civil Court to set aside or modify any
decision of the Tehsildar, the revenue Court, or the Collector H
546
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SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.
under this Act, except where such decision is obtained by
misrepresentation, fraud or collusion of parties."
Mr. Venugopal submitted that proceedings under the said Act are summary
in nature. He su9Jnitted that such summary proceedings can never bar a
B suit on title. l:l£ submitted that on the question, whether a civil Court's
jurisdiction is barred, because a patta has been granted under the said Act,
there are a number of authorities of this Court. He fairly pointed out
the Judgments in the cases of Vatticherukuru Village Panchayat v. Nori
V. Deekshirhulu reported in [ 1991] Supp 3 SCC 228, Peddinti Venkata
Murali Ranganatha Desika Iyengar v. Government of A. P., reported in
C [1996] 3 SCC 75, Pushpagiri Math v. Kopparaju Veerabhadra Rao
reported in [1996] 9 sec 202, s. Vanathan Muthuraja V. Ramalingam
reported in [ 1997] 6 SCC 143. In all these cases it has been held that the
suit on title was barred. He submitted that there are identical provisions
in the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act,
D 1948 and the Madras Minor Inams (Abolition and Conversion into
Ryotwari) Act, 1963. He submitted that there are a number of decisions
of this Court where it has been held that merely because a patta has been
granted the jurisdiction of the civil courts to decide title is not barred. He
pointed out the judgments in the cases of State of Tamil Nadu v. Rama/inga
E Samigal Madam reported in [1985] 4 sec 10, R. Manicka Naicker v. E.
Elumalai Naicker reported in [1995] 4 SCC 156, Sayyed Ali v. A.P. Wakf
Board, Hyderabad reported in [ 1998] 2 SCC 642 and Sri-La-Sri Sivaprakasa
Pandara Sannadhi Avarga/ v. T Parvathi Ammal reported in [ 1998] 9 SCC
603. He submitted that there is a conflict of opinion between the abovementioned two sets of decisions. He submitted that in view of the conflict
F of decisions the question whether a civil court has jurisdiction to try a suit
on title should be referred to a larger bench. We are unable to except this
submission. One set of Judgments are under the said Act whereas the other
set of judgments are under
legislations in Tamil Nadu. In Sri-LaSivaprakasa Pandara Sannadhi Avargal's case (supra) reliance had been
G placed on Vatticherukuru 's case (supra) in support of the proposition that
a suit on title was barred. The three Judge bench distinguished that case
on the ground that the provisions of the Andhra Pradesh Act and the Tamil
Nadu Acts are different. Once a three Judge bench has taken a view that
the provisions of the Andhra Pradesh Act are different from those of the
H Tamil Nadu Acts it cannot be said that there is any conflict of decisions.
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THIRUMALA TIRUPA Tl DEVASTHANAMS ''· THALLAPPAKA ANANTHACHARYULU [VARIA VA, J]
54 7
The decision of the three Judge bench is binding on this Court. It will thus A
have to be held that in respect of the said Act the first set of Judgments
would apply whereas in respect of the legislations in Tamil Nadu the
second set of Judgments would apply. It must be mentioned that in support
of the submission that the title suit is not barred Mr. Venugopal had also
re.lied upon a full bench judgment of the Madras High Court reported in B
(I 998) The Madras Law Journal Reports 722.
Thus as per the law laid down by this Court in Andhra Pradesh the
civil Court would have jurisdiction only in cases of misrepresentation,
fraud or collusion of parties. The question still remains whether the High
Court could or should have, in exercise of its writ jurisdiction, issued writs C
of prohibition against the civil Court from proceeding with the suit before
it and against the Revenue Divisional Officer, Tirupati from proceeding
with the appeal preferred by the Appellants against the order of the Inams
Deputy Tahsildar, Chittoor. It must be remembered that in the Civil
Procedure Code there are sufficient provisions, particularly Order 7 Rule D
11 and Order 14 Rule 2, which give to the civil Court powers to decide
its own jurisdiction and questions regarding maintainability of the suit. The
civil Court is also competent to decide whether a suit before it is barred
on principles of estoppal or res judicata.
Mr. Venugopal submitted that apart from Certiorari, this is the first E
time where a High Court has issued a writ, against a Civil Court,
prohibiting it from proceeding with a civil suit instituted before it. He
submitted that there are elaborate provisions in the Civil Procedure Code
for rejecting a plaint and/or deciding questions of maintainability and for
trying issues of its own jurisdiction as preliminary issues. Mr. Venugopal F
submitted that the precedent set has enormous potential of being misutilised and for multiplying litigation. He submitted that if this is permitted,
a defendant who does not want an interim order to be passed against him
would seek writs of prohibition against the Court from proceeding with
the hearing and disposal of the suit. Mr. Venugopal submitted that the
consequences would be far reaching. He submitted that if this is permitted, G
a writ of prohibition can be issued by a High Court in one State against
the trial of a suit in another State provided summons are served or interim
orders are received in that State, so that part of the cause of action arises
in the former State. In support of this submission he relied upon the case
of Navinchandra N. Majithia v. State of Maharashtra and Ors. reported H
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SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A in [2000] 7 sec 640.
Mr. Venugopal showed to this Court the case of Mirajkar v. State of
Maharashtra reported in [ 1966] 3 SCR 779. In this case the High Court
had stopped publication of the proceedings of a trial before it. A writ under
B Article 32 of the Constitution of India was filed challenging the validity
of that order on the ground that it infringed fundamental rights under
Article 19 (1) (a) of the Constitution of India. It was held, by the majority,
that if a judicial Tribunal makes an order, which it has jurisdiction to make,
the order cannot offend a fundamental right. It was held that an order is
within the jurisdiction of the Tribunal if the Tribunal had jurisdiction to
C decide the matters that were litigated before it. It was held that the Tribunal
having jurisdiction does not act without jurisdiction if it makes an error
in the application of law. It was held that if a judicial order is erroneous
any person aggrieved by the order, even a stranger, can file an appeal. It
was held that the question about existence of jurisdiction as well as va1idity
D and propriety of the order cannot be raised in writ proceedings.
Mr. Venugopal also relied upon a well reasoned judgment of the
Madras High Court in the case of I. S. Lui/a v Smt. Hari and Ors. reported
in AIR (1962) Madras 458 wherein it has been held that Article 226 does
not clothe the High Court with jurisdiction to quash the orders of a
E subordinate Court. It has been held that orders susceptible to appeal or
revision cannot be quashed by a Writ of certiorari or a writ of prohibition
restraining or prohibiting the subordinate Court from proceeding to
exercise jurisdiction in any matter before it. It has been held that the
jurisdiction to issue writ is not a cloak of an appeal in disguise. It has been
F held that jurisdiction under Article 226 is an original jurisdiction which is
quite distinct and separate from the appellate jurisdiction.
Mr. Venugopal also relied upon the case of U P. Sales Tax Service
Association v. Taxation Bar Association reported in [1995] 5 SCC 716. In
G this case it has been held that the writ of Prohibition can only be issued
when the inferior Court or Tribunal (a) proceeds to act without or in excess
of jurisdiction, (b) proceeds to act in violation of rules of natural justice,
(c) proceeds to act under law which is itself ultra vires or unconstitutional,
or (d) proceeds to act in contravention of fundamental rights.
H
Mr Venugopal very fairly brought to the notice of this Court the case
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THIRUMALA TIRUPATI DEVASTHANAMS v. THALLAPPAKA ANANTHACHARYULU [VARIA VA, J.]
549
of The Failika Dabvali Transport Co. Pvt. Ltd. v. Madan La/ reported in A
[ 1977] 2 SCC 43 5 where a Writ of certiorari was issued against a judgment
on the footing that the Court had acted illegally and there was an error
apparent on the face of the record. It is however to be noted that there is
no discussion, in this case, as to the circumstances under which a Writ of
certiorari or prohibition can be issued. He also fairly pointed out the case B
of Chhedi La/ Gupta & Ors. v. Mohammad Sattar reported in AIR (1963)
Allahabad 448 wherein it had been mentioned that the Writ of Prohibition
had been issued earlier by the High Court from proceeding with the trial
on the ground that the suit was one for infringement of trademark and could
thus, by virtue of Section 73 of the Trademark Act, be filed only in the
Court of the District Judge at Allahabad. However, it must be noted that C
in this case it had been held that the Writ of Prohibition did not prevent
the trial Court from returning the plaint for presentation to the proper Court
under Order 7 Rule 10 of the Civil Procedure Code.
On the other hand Mr. Mishra submitted that Article 226 of the D
Constitution oflndia makes no distinction with respect to the power which
a Writ Court can exercise for any of the prerogative writs which can be
issued for enforcement of any of the rights conferred by Part III of the
Constitution oflndia or for any other purpose. He submitted that mandamus,
prohibition and certiorari are exercised in the same manner depending upon
the nature of the controversy and the stage at which they can be effective. E
He submitted that a certiorari was a writ addressed to a proceeding in the
Court and order passed therein whereas a prohibition was directed to the
subordinate Court or to any other judicial or quasHudicial authorities.
Mr. Mishra submitted that the instant case was one where a suit was F
being entertained in the teeth of a specific bar under the said Act and even
though the suit was hit by res-judicata. He submitted that all the issues
were adjudicated by the competent quasi-judicial authorities and affirmed
by the Division Bench of the High Court and this Hon'ble Court in the
earlier round of litigation. He submitted that the Civil Court has acted
without jurisdiction in entertaining and proceedings with the suit. He G
submitted that the inferior court cannot traverse the findings in the
judgment of the High Court and this Hon'ble Court. Mr. Mishra submitted
that the primary rule is that a writ of prohibition is issued to a Court which
also is an authority and since it is issued to a Court it is also issued to such
persons or authorities who exercise judicial or quasi-judicial powers.
H
550
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A
In support of the submission that the High Court has power to issue
directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari. Mr. Mishra relied
upon the case of Hari Vishnu Kamath v. Syed Ahmed lshaque reported in
[ 19551 SCR II 04. In this case the question was whether a writ of certiorari
B could be issued against an Ele~tion Tribunal after it had become functous
officio. It was held that the intention of the Constitution was to vest in the
High Court a power to supervise decisions of Tribunals by issue of
appropriate writs and directions and that the exercise of that power cannot
be defeated by technical consideration of fonn and procedure. It was held
that the High Courts must however observe the principles which regulate
C the exercise of such jurisdiction. It was held that before a writ of certiorari
can be issued there must be an error apparent on the face of the record.
Observations in following cases were cited with approval:
D
E
F
G
"The decision in Rex v. Northumberland Compensation
Appeal Tribunal; Ex parte Shaw [1951] I K.B. 711 was taken in
appeal, and was affinned by the Court of Appeal in Rex v.
Northumberland Compensation Appeal Tribunal; Ex parte Shaw
[ 1952] I K.B. 338. In laying down that an error of law was a
ground for granting certiorari, the learned Judges emphasised that
it must be apparent on the face of the record. Denning, L.J. who
stated the power in broad and general terms observed :
"It will have been seen that throughout all the cases there is
one governing rule: certiorari is only available to quash a decision
for error of law if the error appears on the face of the recordn.
The position was thus summed up by Morris, L.J. :
"It is plain that certiorari will not issue as the cloak of an
appeal in disguise. It does not lie in order to bring an order or
decision for rehearing of the issue raised in the proceedings. It
exists to correct error of law where revealed on the face of an
order or decision, or irregularity, or absence of, or excess of,
jurisdiction where shown".
In Veerappa Pillai v. Raman & Raman Ltd. and Ors., [1952]
H
S.C.R. 583, it was observed by this court that under article 226
THIRUMALA TIRUP ATI DEVASTHANAMS v. THALLAPPAKA ANANTHACHARYULU (VARIA VA, 1.}
5 51
the writ should be issued "in grave cases where the subordinate A
tribunals or bodies or officers act wholly without jurisdiction, or
in excess of it, or in violation of the principles of natural justice,
or refuse to exercise a jurisdiction vested in them, or there is an
error apparent on the face of the record". In T C. Basappa v. T.
Nagappa, [1955] S.C.R. 250 the law was thus stated :
B
"An error in the decision or determination itself may also be
amenable to a writ of 'certiorari' but it must be a manifest error
apparent on the face of the proceedings, e.g., when it is based on
clear ignorance or disregard of the provisions of law. In other
words, it is a patent error which can be corrected by 'certiorari' C
but not a mere wrong decision
11
•
Mr. Mishra also relied upon the case of Union of India and Ors. v.
Upendra Singh reported in [1994] 3 SCC 357. In this case the Central
Administrative Tribunal had examined the correctness of charges framed D
in a disciplinary proceedings. It was held that the jurisdiction of the
Tribunal was akin to the jurisdiCtion of the High Court under Article 226.
It has then been held that:
"4. .. .. .. .. .. .. .. .. .. .. .. .. .. .
A writ of prohibition is issued only
when patent lack of jurisdiction is made out. It is true that a High E
Court acting under Article 226 is not bound by the technical rules
applying to the issuance of prerogative writs like certiorari,
prohibition and mandamus in United Kingdom, yet the basic
principles and norms applying to the said writs must be kept in
view, as observed by this Court in T C. Basappa v. T. Nagappa, F
[1955] I SCR 250 : AIR (1954) SC 440. It was observed by
Mukherjea, J. speaking for the Constitution Bench :
"The language used in Articles 32 and 226 of our Constitution
is very wide and the powers of the Supreme Court as well
as of all the High Courts in India extend to issuing of orders, G
writs and directions including writs in the nature of 'habeas
corpus, mandamus, quo warranto, prohibition and certiorari'
as may be considered necessary for enforcement of the
fundamental rights and in the case of the High Courts, for
other purposes as well. In view of the express provisions in H
A
B
c
D
E
552
SUPREME COURT REPORTS {2003) SUPP. 3 S.C.R.
our Constitution we need not now look back to the early
history or the procedural technicalities of these writs in
English law, nor feel oppressed by any difference or change
of opinion expressed in particular cases by English Judges.
We can make an order or issue a writ in the nature of
'certiorari' in all appropriate cases and in appropriate manner,
so long as we keep to the broad and fundamental principles
that regulate the exercise of jurisdiction in the matter of
granting such writs in English law."
5. The said statement of law was expressly affirmed by a sevenJudge Bench in Ujjam Bai v. State of UP., AIR {1962) SC 1621,
1625. The reason for this dictum is self-evident. If we do not keep
to the broad and fundamental principles that regulate the exercise
of jurisdiction in the matter of granting such writs in English law,
the exercise of jurisdiction becomes rudderless and unguided; it
tends to become arbitrary and capricious. There will be no
uniformity of approach and there will be the danger of the
jurisdiction becoming personalised. The parameters ofjurisdiction
would vary from Judge to Judge and from Court to Court.
(emphasis supplied)
Mr. Mishra also relied upon the case of Smt. Ujjam Bai v. State of
Uttar Pradesh reported in [1963] 1 SCR 778. In this case the question was
whether a writ petition under Article 32 of the Constitution of India was
maintainable against an assessment made by a sales tax officer under a
F valid act. The majority held that the writ petition was not maintainable. In
this case it has been held by Aiyar J as follows:
"Now, I come to the controversial area. What is the position with
regard to an order made by a quasi-judicial authority in the
undoubted exercise of its jurisdiction in pursuance of a provision
G
of law which is admittedly intra vires? It is necessary first to
clarify the concept of jurisdiction. Jurisdiction means authority to
decide. Whenever a judicial or quasi-judicial tribunal is empowered
or required to enquire into a question of law or fact for the purpose
of giving a decision on it, its findings thereon cannot be impeached
H
collaterally or on an application for certiorari but are binding until
THIRUMALA TJRUPATI DEVASTHANAMS v. THALLAPPAKA ANANTHACHARYIJLU (VARIA VA, J.]
553
reversed on appeal. Where a quasHudicial authority has jurisdiction A
to decide a matter, it does not lose its jurisdiction by coming to
a wrong conclusion whether it is wrong in law or in fact. The
question, whether a. tribunal has jurisdiction depends not on the
truth or falsehood of the facts into which it has to enquire, or upon
the correctness of its findings on these facts, but upon their nature, B
and it is determinable "at the commencement, not at the conclusion,
of the inquiry". Rex v. Bolten, [1841] I Q.B. 66, 74. Thus, a
tribunal empowered to determine claims for compensation for loss
of office has jurisdiction to determine all questions of law and fact
relating to the measure of compensation and the tenure of the C
office, and it does not exceed its jurisdiction by determine any of
those questions incorrectly but it has no jurisdiction to entertain
a claim for reinstatement or damages for wrongful dismissal, and
it will exceed its jurisdiction if it makes an order in such terms,
for it has no legal power to give any decision whatsoever on those D
matters. A tribunal may lack jurisdiction if it is improperly
constituted, or if it fails to observe certain essential preliminaries
to the inquiry. But it does not exceed its jurisdiction by basing its
decision upon an incorrect determination of any question that it
is empowered or required (i.e.,) had jurisdiction to determine.
.................... The characteristic attribute of judicial act or
decision is that it binds, whether it be right or wrong. An error
of law or fact committed by a judicial or quasi-judicial body
cannot, in general, be impeached otherwise than on appeal unless
E
the erroneous determination relates to a matter on which the
jurisdiction of that body depends. These principles govern not F
only the findings of inferior courts stricto sensu but also the
findings of administrative bodies which are held to be acting in
a judicial capacity. Such bodies are deemed to have been invested
with power to err within the limits of their jurisdiction; and
provided that they keep within those limits, their decisions must G
be accepted as valid unless set aside on appeal. Even the doctrine
of res judicata has been applied to such decisions."
On the basis of the authorities it is clear that the Supreme Court and
the High Courts have power to issue writs, including a writ of prohibition. H
554
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A A writ of prohibition is nonnally issued only when the inferior Court or
Tribunal (a) proceeds to act without or in excess of jurisdiction, (b)
proceeds to act in violation of rules of natural justice, (c) proceeds to act
under law which is itself ultra vires or unconstitutional, or (d) proceeds
to act in contravention of fundamental rights. The principles, which govern
B exercise of such power, must be strictly observed. A writ of prohibition
must be issued only in rarest of rare cases. Judicial disciplines of the
highest order has to be exercised whilst issuing such writs.
It must be
remembered that the writ jurisdiction is original jurisdiction distinct from
appellate jurisdiction. An appeal cannot be allowed to be disguised in the
fonn of a writ. In other words, this power cannot be allowed to be used
C "as a cloak of an appeal in disguise". Lax use of such a power would impair
the dignity and integrity of the subordinate Court and could also lead to
chaotic consequences.ltwould undermine the confidence of the subordinate
Court. It was not even argued that there was total lack of jurisdiction in
the civil Court. It could not be denied that the civiJ Court, before which
D the suit was pending, had powers to decide on the maintainability of the
suit and to decide on questions of its jurisdiction. The civil Court had
jurisdiction to decide whether the suit was barred by Section 14 of the said
Act or on principles of res judicata/estoppel. Thus unless there was some
very cogent or strong reason the High Court should not have prevented the
E Court of competent jurisdiction from deciding these questions. In other
words the High Court should not usurp the jurisdiction of the civil Court
to decide these questions. In the impugned Judgment no reason, much Jess
a cogent or strong reason, has been given as to why the civil Court could
not be allowed to decide these questions.