TMI Blog2008 (4) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... rte decree which was dismissed for default on 14.7.2003. Again almost after one year and six months another Misc. Case being Misc. Case No. 71 of 2005 (second Misc. Case) was filed by the writ petitioner/defendant No. 1 to restore the first Misc. Case. On 06.12.2005 the second Misc. Case No. 71 of 2005 was also dismissed for default. Thereupon, notices were received by the parties in connection with appointment of Commissioner. On 26.06.2006 a C.M.A. No. 293 of 2006 along with I.A. No. 304 of 2006 was filed by the writ petitioner/defendant No. 1 for setting aside the dismissal order dated 6.12.2005 and also to restore the first Misc. Case No. 588 of 2002. Both the matters were taken up for hearing by the learned Civil Judge (Senior Division) and were dismissed by a reasoned order dated 25.10.2006. Challenging that order, the writ petition, being W.P.(C) No. 15159 of 2006, was filed on 3.11.2006. 3. The learned Judge of the writ Court by an order dated 24.9.2007 was pleased to set aside the order dated 25.10.2006 passed by the learned Civil Judge (Senior Division) and directed that I.A. No. 71 of 2005 shall be restored subject to the condition for payment of costs. 4. One basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Judge in exercising of supervisory jurisdiction of this Court under Article 227 of the Constitution of India. (b) In Paradeep Phosphates Ltd. the learned Division Bench held in paragraph 5 at page 611 of the report that ... we have held that the writ application filed against an order of a Civil Court is under Article 227 of the Constitution of India in which this Court either by the learned Single Judge or by a Division Bench only exercises the supervisory jurisdiction under the said Article 227 of the Constitution.... 10. The learned Counsel urged that since the aforesaid view has been taken by a Division Bench of this Court, this Court cannot, without referring the matter to a Larger Bench, differ from the same view. In support of this contention, learned Counsel referred to three judgments of the Supreme Court. (a) The first one was rendered in the case of Mahadeolal Kanodia v. The Administrator General of West Bengal reported in [1960]3SCR578 . In paragraphs 19-20 of the said judgment at page 941 of the report, the aforesaid observations have been made by the Hon'ble Supreme Court. (b) Reliance was also placed on the aforesaid proposition in a judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (c) But the two Articles are different, distinct and independent of each other and are intended to be used in different situations. (d) The High Court in exercise of its power under Article 226 of the Constitution can declare an act made either by the State Legislature or by the Union Parliament ultra vires the Constitution, as a result whereof the act which has been so declared shall cease to operate, but in exercise of supervisory power under Article 227 it is not possible for the High Court to declare any act ultra vires the Constitution. (e) But in exercising the Supervisory jurisdiction under Article 226, the High Court, if feels inclined, may quash the proceedings or the order and do no more and the matter will not go back to the inferior tribunal or Court for a further consideration, may be, in the light of the High Court's order. 14. But in exercise of supervisory jurisdiction under Article 227, the High Court can not only quash the proceeding or order but it may also make such direction as the facts of the case may call for, and may be by way of guiding the inferior tribunal or Court as to the manner in which it would proceed further to give further direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a supervisory jurisdiction intended to ensure that subordinate Courts and tribunals act within the limits of their authority and according to law.... (i) The learned Judges in Umaji Keshao further held that the orders, directions and writs under Article 226 are not intended for exercise of power of superintendence by the High Court. The power of superintendence conferred upon the High Courts by Article 227 is in addition to the conferred upon the High Courts by Article 226. In Umaji Keshao Meshram (supra) it has been held that a proceeding under Article 226 is an original civil proceeding. (See paragraph 101 at page 469 and paragraph 103 at pages 469-470). It has been said that it is well settled in law that a proceeding under Article 227 is not an original proceeding. (j) Except in cases of public interest litigation, the power under Article 226 can be exercised only when an aggrieved party moves the Court. But so far as Article 227 is concerned, the said power can be exercised suo motu by the High Court. In exercise of power under Article 226 the Court is concerned primarily with the enforcement of legal and fundamental rights of the parties whereas in exercise of power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution of India, such an observation or finding is contrary to the provisions of the Constitution and is also contrary to several decisions of the Supreme Court referred to hereinabove. In those decisions it has been made very clear that no writ petition is maintainable under Article 227. 16. With great respect to the learned Judges rendering the judgment in Rasmani Dei and Paradeep Phosphates, this Court is constrained to hold that the aforesaid finding of the Division Bench in those two decisions were rendered 'per incuriam'. 17. The expression 'per incuriam' has been defined in Black's Law Dictionary as through inadvertence . (See Black's Law Dictionary, 5th Edition at page 1025). The Supreme Court had also the occasion to deal with the said expression in various cases. In State of U.P. v. Synthetics and Chemicals Ltd. reported in 1993(41)ECC326 , the learned Judges dealt with the said expression in paragraph 40 at page 162. The learned Judges have said that incuria literally means carelessness . In practice 'per incuriam' appears to mean 'per ignoratium'. The learned Judges further elaborated the principle as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal, the Court ought to treat the application as having been made under Article 226 even if in deciding the matter in its final order the Court gives ancillary directions which may pertain to Article 227. (See : para 107, at page 473 of the report in SCC of Umaji Keshao Meshram) 21. Thus, going by the aforesaid ratio of the Supreme Court the appeal in this case is maintainable. 22. Now it is necessary to come to the question whether the writ Court should have interfered either under Article 226 or Article 227 of the Constitution of India with the order passed by the learned Civil Judge (Senior Division). 23. On this aspect, the Supreme Court has given clear indication and guidelines in Surya Dev Rai's case (supra). Before considering those guidelines it may be kept in mind that an ex parte decree has been passed. Such a decree is always appealable under the CPC. It is clear from the conduct of the writ petitioner that such an ex parte decree has been passed in view of his sheer carelessness and negligence. Normally a writ Court should not come to the aid of one who is indolent and careless in pursuing the litigation. Apart from that, the orders of the Civil Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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