Bar Council of lndia v. High Court of Kerala

Counsel for the Petitioner: SRI A.USHI REDDY Counsel for the Respondents: -- The Court made the following: ORDER THE HON'BLE SRI JUSTICE P.SAM KOSHY AND THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA WRIT PETITION No.5530 of 2025 ORDER: (per the Hon'ble Sri Justice P. Sam Koshy) Heard llr.A.Ushi Reddy, leamed counsel for the petitioners. Perused the rnaterial available under law.

2. The present writ petition has been filed under Amicles 226 & 227 along rvith Article 215 of the Constitution of India by the petitioners assailing the order dated 04.02.2025 passed E.P.No.165 o1'2023 in O.S.No.171 of 2014 by the VII Senior Civil Judge, City Civil Court, Hyderabad.

3. It would be relevant at this juncture to reflect the brief facts of the case which lead to the filing of the instant writ petitic'n

4. The petitioners herein were the defendant Nos.l to 3 in O.S.No.17l of 2014 which was filed by the plaintiffs seeking for recovery of money to the tune of Rs.4,93,000/- with interest. The plaintiffs claim themselves to be the absolute owners of shop 2 n No.107, Municipal No.l6-10-1/5/107 in Survey No'127/1, situated at Mahboob Mansion Malakpet, Hyderbad.

5. The plaintiffs earlier filed a civil suit i.e., O'S'No'2387 of 2004 before the VII Senior Civil Judge, City Civil Court at Hyderabad seeking for eviction of the defendants from the suit schedule premises. The subject matter of that suit was compromised and the suit was decreed in terms of the compromise' dated 16.10.2006. The defendants in the compromise decree accepted their tenancy from the plaintiffs in respect of the suit schedule property on a monthly rent of Rs'8,500/-, exclusive of electricity charges and property tax. In terms of the compromise decree dated 16.10.2006, the defendants were required to vacate the premises on or before 3 1.07.2008. The defendants seem to have not vacated the suit premises, hence a notice was issued by the plaintiffs to the defendants for vacating the suit premises as also to pay the arrears ofrent. Upon failure on the part ofthe defendants in vacating the premises, plaintiffs filed E'P'No'107 of 2008 in O.S.No.2387 of 2004. Immediately thereafter, the defendants herein frled another suit i.e., O.S.No.2899 of 2008 before the XIX Junior Civil Judge, City Civil Court, at Hyderabad seeking for \ \ \ 3 declaration rlnd injunction. An exparte interim injunction was obtained in l.A.No.76 of 2008 in the said suit, which was subsequently rejected/dismissed by the trial court on 13.04.2009. The defendanl.s thereafter preferred a Civil Miscellaneous Appeal No.89 of 2009. The Civil Miscellaneous Appeal also stood dismissed by the II Additional Chief Judge, City CiviJ Court Subsequently, the defendants agreed to vacate the suit premises by

31.07.2008

6. Subseqtrently, the plaintiffs filed yet another suit i.e., O.S.No.l7l of 2004 seeking for arrears of rent to the tune of Rs.4,93,000/- with interest against the defendants. .Alt the defendants were seled with the notices, they engaged a counsel by executing a vakalat in their favor and thereafter, the suit was proceeded. l-he defendants inspite of engaging a counsel and also filing their res,pective written statements did not contest thereafter, as it is evident from paragraph No.l2 of the judgment passed in O.S.No. 1 7 I ot 201 4 on 21 .12.2022, paragraph No. 1 2 is reproduced herein under: 4 ' P.12. On behalf of plaintiffs, plaintiff No'1 was examined in chief PW-l and Exs.Al to A3 were got marked. Even though sufhcient time was given and even though conditional orders passed, the Defendants failed to proceed with the cross examination of PW-01 , hence this court was constrained to close the cross examination of PW- 01. Defendants failed to proceed with Trial, to prove their case, even though sufficient time was given. Hence this court was constrained and Defendants side evidence was closed.

7. Meanwhile, the development that has been occurred is the death of the 4'h defendant which was duly communicated by way of an interlocutory application before the trial court' Since there was no substitution made, the suit continued to be decided against the other three defendants i.e., defendant Nos.1 to 3, the petitioners in the present writ Petition.

8. As such a decree was passed allowing the suit directing the defendants to pay Rs.4,93,000/- along with interest @ l2%o from the date of suit till the date of its realization. g. The said judgment of 21.12-2022 inspite of being in tuIl knowledge. of the same was not challenged UV \tlq petitioners \ \ i 5 before any cor-rrt of appeal, either by way of first appeal or by way of writ petition and by efflux of time the judgment has attained finality. $u$ss,quently an E.P. was filed by the plaintiffs for the execution of the said judgment and decree dated21.12.2022.The petitioners again failed to enter appearance upon notice of rhe E.P which lead to the executing court i.e., XII Senior Civil Judge, to issue warrant of arrest against the judgment debtors Nos.1, 2 & 3 (for shon JDRs), under Order XXI Rule 27 Rule 37 & 38 r:f Code of Civil Pror:edure on payment of process. As per the warrant of arrest issued, the JDR.No.2 was produced before the executing court on 20.02.2025 in terms of its previous order.

10. Howeve'r, though the JDR.No.2 was produced belbre the courl on 20.(12.2025 and since there was no application filed on his behalf, either seeking release or challenging his arrest, the court ordered fol se'nding the JDR.No.2 to civil prison till 06.(.t3.2025. The JDR.Nos.1 to 3 by engaging a counsel had entered appearance before the executing court and had moved a petition under Oder XXI rule 26 rr:ad with section 151 of C.P.C. seeking for stay of the E.P. proceedirLgs and also had hled a petition under Section 152 of C.P.C. seekirrg to set aside the judgment and decree dated 6

21.02.2022 on the ground that the said judgment has been passed against a dead person, as such the entire judgment would be nullity in the eye of law. The said two applications under Sections 15 I & 152 of C.P.C. were rejected by the executing court on 3O'Ol '2025 '

11. It is thereafter, the present writ petition now has been filed challenging the said action of the court that to after JDR.No'2 was sent to civil prison.

12. The matter is taken up for hearing at length, the learned counsel for the petitioners contended that the most efficacious remedy he has on date JDR.No.2 is being sent to civil prison is that of Article 227 and he has no other altemative remedy' He further contended that in exercise of powers of superintendence under Article 227, this Court has to visualize the manner under which the judgment dated 21.72.2022 was passed and also the proceedings that have been drawn subsequently, leading to the JDR being sent to civil prison. According to the petitioners, instead of relegating the petitioners to approach the hierarchy of courts that is available, and which shows from the two impugned orders, the sending of JDR.No.2 to civil prison is highly arbitrary on the part of the executing court and that it did not even have the jurisdiction to \ \ 7 decide the sanre. Moreover, the execution proceedings itself was not maintainat,le so also the civil suit as the 4th defendant has also expired which in other words means that the judgment has been passed against a dead person. Thus, holding the entire judgment and decree itself to be nullity in the eye of law.

13. Perusal of the pleadings would go to show that the executing couft was infact made known of the fact in respect of the death of the 4th defendzLnt during the pendency ofthe trial itself and it is for this reason that the judgment was passed and a decree was issued only against the remaining defendants and not against the dead person.

14. Another aspect which needs to be viewed seriously is the fact that inspite of proper service of summons being made upon the petitioners. th,ey in turn having engaged a counsel by executing a vakalat, the counsel in tum with the consent of the petitioners had also filed theil written statement. However, for reasons best known to the petitioners, the petitioners choose not to contest the case, there from. IJttimately, the judgment dated 21.12.2022 was passed decreeing in favour of the plaintiffs for an amount of Rs.4,93,000/- along.with arrears ofrent. For reasons not explained or disclosed in 6 the pleadings, the saidjudgment has gone un-challenged by any of the judgment debtors by way of an appeal. In the absence of an appeal preferred by the petitioners against the judgment dated

21.12.2022, the plaintiffs had availed the remedy available under the statutes by initiating execution proceedings. It is the service of notice in the execution proceedings which lead to the filing of an application under Sections 151 & 152 of C'P.C. before the execution court, seeking for stay of the executing proceedings and also seeking for the quashment of the judgment and decree dated

21.12.2022.It is these two applications which have been dismissed which has led to the filing of the present writ petition before this High Court under Articles 226 and227 of the Constitution of lndia'

15. At the outset, this Bench had raised a question of maintainability of the writ petition when the petitioners have an altemate remedy under the provision of C.P.C. itself both against the j udgment dated 2l .12 .2022 as also against the order passed on the E.As. hled by the petitioners/JDRs having been rejected by the execution court.

16. Leamed counsel for the petitioners have relied upon dozen of judgments, trying to convince this Bench so far as the \ I maintainabilit), of the writ petition is concemed, particularly in the teeth of the availability of remedy of first appeal against the judgment datcd 21.12.2022 and also the remedy of preferring civil revision petitions against the order of rejection of E.As., under Sections 151 &ic 152 of C.P.C.

17. The plain reading of the principles of law laid down by the Hon'ble Supreme Court in these catena of judgments relied upon by the petitioners, we find that most of these judgrnents have been pronounced arrd ratio of law laid down in those judgments are all in an entirely dilferent contextual backdrop, so also under altogether different statutory provisions, and therefore, we do not intend to deal with each of those cases in detail, rather, would like to deal with those judgment in brief as there was an insistence made by the leamed couns,3l for the petitioners to deal with the judgments that he has cited in support of his contention. r. The de<:ision of the Hon'ble Supreme Court in the case of Surya l)ev Rai v. Ram Chander Rait, the said judgment is a landmark judgment of the Hon'b1e Supreme Courl. on the '2003 6 SCC 1575 , 10 question of law whether a petition under Section ll5 of C.P.C. i.e., remedy of civil revision or whether it iould be a remedy under Article 226 or 227 of the Constitution of India, i.e., the issuance of writ of certiorari in the said judgment, the Hon'ble Supreme Court has in a very categorical terms hold that the jurisdictional High Court is always there so far as issuance of certiorari is concemed. However, it was categorically laid down that the said power can be exercised only invoking the supervisory jurisdiction to keep the said subordinate courts within its boundaries. The same judgment cannot be applied to the facts of the present case. In the case of Ratital Jhaverbhai Parmar v- State of 2 Gujarat, which in the opinion of this courl also not be applicable in the present case as that was a case where though the court had pronounced the judgment but reasons and the judgments which was said to be pronounced was not made available to the parties to know reasons on which the judgment was pronounced. Which again is not the facts of the present case. So the same was not applicable. '2024 SCC online SC 2985. \ 11 :. In the ca.se of Sundar Dass v. Ram Prakash:r, this again is a judgment of the Hon'ble Supreme Court where the question of law was whether in an execution proceedings, the question of maintainability of the original suit could have been maintainable, particularly when a dispute so raised in the execution proceedings was that the suit of the judgment debtor to be that oftenant and the provisions of Rent Control Act beirLg applicable and therefore the civil court was barred of its jurisdiction and the judgment so rendered by the civil court u'hether it could be held to be in-executable in execution proceedings or not. This again is not the facts of the pres,ent case or the question raised by the petitioners while challenging the orders passed in the E.As., filed under Sections 151 & 152 of C.P.C. +. In the case of Jolly Geroge Varghese v.. The Bank of Cochina, where the Supreme Court has enterlained a petition pureiy on humanitarian ground dealing with the aspect of human :dghts violation. The case of the petitioner r.vho had . t977 3 SCR (t0 "1980 2) SCC 360 72 n approached the Hon'ble Supreme Court is an entirely different than the case of the petitioners in the present case. Except for the fact that in that case also there was an order of civil imprisonment imposed by the execution court' It was a petition seeking for the release of the petitioner, whereas in the present case the petitions under Sections 151 & 152 was not for the purpose of release of the said person and therefore, the said judgment cannot also be made applicable to the facts ofthe Present case. In the case of Federation of Railway OfJicers Association v' 5 Union of Indias, is out rightly not applicable to the present case as that was a petition which was duly filed before the High Court challenging the formation of particular railway association by the railways with alleged malafied grounds which again is on facts distinguishable to the facts of the present case. In the case of M.K.Raniitsingh v. Union of India6, which 6 again would not be a case which can be relied upon by the '2003 4 SCC 289. .2021 (15) scc 1. \ 13 petitioners for the reason that the said judgment was passed in the context of PIL filed for the protection of two species of bird s'hich has got nothing to do with the factual matrix of the insl.arrt case.

7. In the case of Radhey shyam v. Chhabi Nat&?, though the counsel lor the petitioner relied upon paragraph No.18 of the said judgment, but we are of the considered opinion rhat the said judgment would not come to the rescue of the petition€:rs, as what the Hon'ble Supreme Court, had said in the said case was one that against an order of civil cotLrt what would be maintainable is that a petition tnder Article 227 and one not under Article 226. Infact, it is the same ratio of law laid. down in the same judgment in paragraph No.23. Hence, the said judgment also would not cotne to the rescue of the petitioner as in the event if it could have been a petition under Article 227 alone the petitioners ought to had frled ,;ivil revision petition under Article 227 as is the practice in this High Court and not writ petition under Article')-26 & 227 of the Constitution of India. '2ot5 (5) SCC 423. 14 n B. 2014 3 SCC 373 arrd 2022 7 KHC 248, both of these judgments have been rendered by the Hon'ble Supreme Court under the provisions of contempt jurisdiction and under the provisions contempt jurisdiction of the courts act which again in the opinion of this Bench cannot be made applicable to the facts of the present case. g. In the case of Smre of Bihar v. Kalika Kuet Singhs, this judgment also in the opinion of this Bench cannot be made applicable to the facts of the present case as in the said judgment what has been primarily laid down by the Hon'ble Supreme Court is in respect of the judgment of the High Court on a similar facts is binding upon the Bench hearing a similar same dispute, subsequently or not and whether the Bench of similar combination can hold the earlier judgment and give an different opinion which again is not the disputed facts ofthe present case. ^2003 5 SCC 448. 15

10. In the case of Thatipamula Naresh Kumar v. The State of Telanganae, one that was passed by this l{igh Court that again in the opinion of this Court would not be applicable to the prt:sent factual matrix as what was dealt with by the Learned Single Bench hearing the matter was in respect of the so called abuse of process of law by playing fi'aud on court. In the instant case the facts are entirely d ifferent though there contention of the petitioner is that of the decree being olrtained by fraud, but since there is a judgment and decree already obtained which has gone un-challenged moreover, the petitioners were duly served with the notices and had also contested the suit up-till the stage of filing the written statement, thereafter had not pursued the suit. Hence, the said judgment carmot be made applicable to the instant case.

11. The other two judgments relied upon by the petitioners i.e., one which was decided by the Hon'ble Supreme Court in the case of T.C.Basappav. T.Nagappato, decided on 05.05.1954 "2022 4 ALt' t5. 'o civilAppeal No.4ti of 1954 16 and yet another larger bench decision of the Hon'ble Supreme Court in the case of Natesh Shridhar Mirajkar v' Stute of Maharashlratt, decided on 03.03.1966, the Hon'ble ' Supreme Court have infact in a very categorical terms hold that unless there is a blatant error, the writ of certiorari cannot be invoked. It has further gone to hold that mere wrong decisions again, would not be a ground for exercising the writ certiorari more particularly where the parties have a remedy of aPPeal available.

18. We would like to highlight the observations made by the Hon'ble Supreme Court in the case of Naresh Shridhar v' State of Maharashtra supra, wherein in paragraph Nos'39, 55 and 65 have very authoritatively held as under: Parasraph No.39. The argument that the imPugned order affects the firndamental rights of the petitioners under Art' 19(l), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he hrst decides questions ,of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the 'W.P:Nos.5, Z ana g of lg) / t7 Judge aro right or wrong, and whether the conclusion of larv drawn bv him suffers from any infrrmity, can be considered and decirled if the party aggrieved by the decision ofthe Judgr' takes thr: matter up before the appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or itr relation Lo a matter brought before him for adjudication can affect tht: fundamental rights of the citizens under Art. 19(1 ) What thr: judicial decision purports to do is to decide the contro\re"sy between the parties brought before the court and nothing rnore. If this basic and essential aspect of the .iudicial process is bome in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought :efore it for its decision cannot be said tc, affect th,: fundamental rights of citizens under Art. 19 1 The impugned order is, in a sense, an order of a collateral nature; it has no direct relation with the decision of the disputc which had been brought before the Court in the proceedings between the parties. The leamed Judge however. thought that in ordcr that he should be able to do full justice between the parties. rt was necessary to pass the impugned older. Thus, though the order in a sense is collateral to the proceedings which rvere pending before the Court, it was directly connected with the said proceedings in as much as the leamerl Judge found that he could not do justice between the parties and decide the matter satisfactorily unless the publication of Mr. Goda's evidence was prohibited pending the trial. The order is not collateral in the sense that the jurisdiction of the Judge to pass that order can be challenged otherwise than by a proccedi:rg in appeal. Just as an order passed by the court on 18 the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fi[rdamental rights of the litigants before the Court, so could the impugned irrder be challenged in appeal under Art. 136 ofthe Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective' On this view ofthe matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Art. 19(1), must fail' Parasraoh No.55. Accord ing to the majority decision in the case of Ujjam Bai,(l) it appears that where a quasi-judicial authority makes an order in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is intra vires, an error of law or fact committed by that authority cannot be impeached otherwise than on appeal, unless the erroneous determination relates to a matter on which the jurisdiction of that body depends, and the relevant law does not confer on that body jurisdiction to determine that matter' ParagraDh No.65. We are , therefore, satisfied that so far as the jurisdiction of this Court to issue writs of certiorari is concemed, it is impossible to accept the argument of the petitioners that-judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction' We have no doubt that it would be unreasonable to attempt to rationalise the assumption of lurisdiction by this Court under Art' 32 to correct such judicial orders on the fanciful hypothesis that \ 19 IIigh Clor:rts may p:lss extravagant orders in or in relation to matters Jrending before them and that a remedy b1' way of a wdt ol' oertiorari should, therefore, be sought for and bt: deemecl 1o be included within the scope of Art. 32. The words used in,\rt. 32 are no doubt wide; but having regard to thc considerations which we have set out in the course of thiil judgmen., we are satisfied that the impugned order cannot bt: brought ,r,,ithin the scope of this Cout's jurisdiction to issue ir writ ol certiorari under Art. 32: to hold otherwise would be repugnart to the well-recognised limitations within which the jurisdiction to issue writs of certiorari can be exercised antl inconsistent with the uniform trend of this Court's decisions iu relation to the said point.

19. We are cf the firm view that is the law that stands as on date as well.

20. When ra,e look into the facts of the present case as has been narrated in the past, the petitioners were party defendant Nos.l to 3 in the suit O.S.No.l71 of 2014. They entered appearance, contested the case by fi ling written statements and chose thereafter not to lead any evidence or participate in the proceedings. The suit was decreed as early as on 21.12:2022.It is not a case of the petitioners that they wele not aware of the aforesaid judgment and decree. Yet they did chose not to challenge the same by way ofan appeal. Even if the courl had proceeded exparte against them, the petitioners 20 have also not made an attempt for taking steps under Order IX Rule 13 of the C.P.C. The petitioners finally moved a petition under Sections l5l & 152 of C.P.C. before the execution court, we are of the considered opinion that once when the suit stands finally decided on merits and a decree has been passed, party aggrieved of the same has to prefer an appeal before the competent appellate forum. Section 151 which prescribed for exercising of powers of the court and Section 152 which remains the court for a correction of judgment so far as any clerical or arithmetical error that has crept in the course of passing of the judgment. Under both these provisions, the JDRs cannot be permitted to seek reopening of the case or for cancellation of the judgment and decree passed' In view of the same, the decision so passed by the trial court cannot be found fault with nor can it be said to be or held to be a case of jurisdictional error committed by the court in the course of initiating execution proceedings. 2l . Coming to the aspect of the petitioners being sent to civil prison, we are of the considered opinion again that against the said order the petitioners has to approach the same court by moving an appropriate application for the release of the said person or as we 27 have mentioned earlier, the petitioners have to avail remedy of revision before the appropriate higher forum, if the petitioners so wants. Both these facts also cannot be a ground which could permit the petitioner for invoking the writ jurisdiction to challenge the order of re.jection of petitions filed by the petitioners under Sections l5l lL 152 of C.P.C. the same accordingly stands rejected.

22. The writ petition being not maintainable is liable to be and is accordingly r:e jected As a se:quel, miscellaneous petitions pending if any, shall stand closed. ).lo costs. //TRUE COPY// SD/.A.V.S. PRASAD ASSISTANT REGISTRAR USECTION OFFICER To,

1. One CC to SRI A.USHI REDDY, Advocate [OPUC] 2. Two CD Copies BSR BS tP HIGH COURT DATED: 2510212025 CC TODAY ; STA]F o q f, o Z n 0 5 t'l\B ?s5 * ,) (l r{ ? ORDER WP.No.5530 of 2025 REJECTING THE WRIT PETITION, WITHOUT COSTS