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June 3, 2024
All Articles by: Mr. M. GOVINDARAJAN       View Profile
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Writ of certiorari

A type of writ, meant for rare use, by which an appellate court decides to review a case at its discretion.  The word certiorari comes from Law Latin and means ‘to be more fully informed.’  A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. 

The Constitution of India vests the power to issue certiorari in the Supreme Court of India, for the purpose of enforcing the fundamental rights guaranteed by Part III of the Constitution. The Parliament of India has the authority to give a similar certiorari power to any other court to enforce the fundamental rights, in addition to the certiorari power of the Supreme Court.  In addition to the power to issue certiorari to protect fundamental rights, the Supreme Court and the High Courts all have jurisdiction to issue certiorari for the protection of other legal rights.

Erroneous decision by lower court – amenable?

In MOHAMMAD RAFIQ RATHER VERSUS SARA BANOO - 2024 (5) TMI 1445 - JAMMU & KASHMIR AND LADAKH HIGH COURT, the plaintiff (the respondent in this petition) filed a suit with the averments that the parties are descendants of common ancestor.   The plaintiff, in the said civil suit, is the sister of the defendant (petitioner in this petition).  The property under dispute has fallen the share of the plaintiff on partition.  The plaintiff was enjoying the said property for more than 30 years.  The defendant, even though there is no right in the said property, was causing interference in the said property.

The defendant filed written statement to the plaint.  In the written statement the defendant controverted the contentions of the plaintiff that the property has been partitioned between the parties.  The defendant is in possession of 04 Kanal of land out of suit property yet the plaintiff has attempted to disposes him from the property which forced the defendant from filing suits seeking recovery of possession to the extent of 01 Kanal and 03 marlas as the defendant was dispossessed by the plaintiff from that piece of land. The disputed property was not in use for the past 10 years.  The plaintiff tried to use the said land in the last year.

The petitioner/defendant submitted before the High Court-

  • Both the courts, below, while passing the impugned order have not considered the facts of the case in right perspective and have based the findings which are not as per the record.
  • The courts accepted on one revenue report and ignored the other report.
  • There is no entry in the records of the revenue that the said property is in possession of the plaintiff which was accepted by the defendant.
  • The pleading regarding the defendant having alienated his share in the property is also vague assertion of the plaintiff in the suit.

The plaintiff in the civil suit submitted the following before the High Court-

  • The petition is not maintainable as the concurrent findings have been recorded by both the courts and require no interference by this Court.
  • Both the trial Courts have gone through the facts of the case extensively before passing the impugned order

The High Court considered the submissions of both the parties.  The High Court analyzed the two reports of the Revenue.  The one report dated 15.09.2021 contains the para wise reply to the WP 1541 of 2021 furnished by the Tehsildar to Sr. AAG of the High Court.  The other report was also addressed to Sr. AAG of the High Court.  One report state of 2 kanals and 17 Marlas under survey No.822 Min. having been recorded in the name of petitioner.  The other report states of 2 kanals and 17 Marlas under survey No.822 Min. having been recorded in the name of petitioner and the same was recorded in Jamabandhi.  As per another report dated 14.02.2022, the same land falling under survey No.882 is in physical possession of both the parties.

The plaintiff contended that in view of conflicting revenue the Court has to constitute a team of revenue officials to report regarding the possession of the party in the property in question.  The High Court did not agree to the same.  The High court is not to hold as to how the trial Court should have proceeded in the matter though the different revenue reports were before the trial Court for perusal.   The High Court further observed that the defendant had filed suit earlier before the Munsiff Court, Kangan and that suit was withdrawn. The order passed by the Munsiff Court on 23.06.2021 in case titled Mohd. Rafiq Rather Vs. Sara Bano and others makes out that the defendant herein had also filed suit relief of possession of the land which was subject matter of the suit.

The High Court granted liberty to the defendant to institute the suit afresh if the cause survives in his favor.  The appellate Court has considered the pleadings in the suit filed by the plaintiff and withdrawn by him and has held that the plaintiff in that suit has pleaded constructive possession generally.

The High Court held that it would not interfere with the orders passed by the Courts below unless there is manifest carriage of justice.  The High Court will not normally interfere even if there is some wrong committed on facts or law by the Courts below. Article 227 cannot be invoked only for the reason that the petitioner feels aggrieved of the order impugned in the petition. The High Court further held that 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.  It is a patent error which can be corrected by certiorari but not a mere wrong decision.

The High Court dismissed the petition.


By: Mr. M. GOVINDARAJAN - June 3, 2024



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