Disposed

Union of India and 2 Ors. v. Rumi Boro

Gauhati HC16 Mar 2025WP(C)/1246/2025

Case brief

AI extract

What is this about?

Union sought writ relief against a civil court's temporary injunction restraining eviction of a shop tenant pending title suit. Relying on Supreme Court precedent that civil court judicial orders are not amenable to Article 226 jurisdiction, the High Court declined entertainment and permitted withdrawal with liberty to appeal.

What did the court decide?

Writ petition not entertained; liberty granted to withdraw and prefer appeal under Order XLIII Rule (r) CPC, appellate court directed to consider limitation period spent on the petition and any Sectio

Union of India and 2 Ors. Vs Rumi Boro — Property and Title | Gauhati HC (2025)

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GAHC010034762025

2025:GAU-AS:2784

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/1246/2025

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UNION OF INDIA AND 2 ORS.

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REPRESENTED BY THE SECRETARY IN THE MINISTRY OF DEFENCE , SOUTH BLOCK, NEW DELHI

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2: THE STATION HQ. MISAMARI C/O 99 APO

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3: THE COMMANDING OFFICER 571 ASC BN C/O 99 APO

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VERSUS

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RUMI BORO

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W/O- SRI BARMA BABU RAI ,SHOP NO.14 A, PROP OF APSARA BEAUTY PARLOUR, CENTRAL SHOPPING CENTRE, MISAMARI DISTRICT ,SONITPUR, ASSAM- 784506, HOME ADDRESS- NABIL PATHAR, NEPALI BASTI, MISSAMARI DIST- SONITPUR, ASSAM.

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Advocate for the Petitioner : MRS. A GAYAN,

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Advocate for the Respondent : ,

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 17-03-2025

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Heard Ms. A. Gayan, learned CGC for the writ petitioners.

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The instant writ petition, preferred under Article 226 of the Constitution of India, is directed against an Order dated 09.01.2024 passed by the Court of the learned Civil Judge [Junior Division] No. 1, Sonitpur, Tezpur [‘the Trial Court’, for short] in Misc.[J] Case no. 15/2022. By the impugned Order dated 09.01.2024, the Court of learned Civil Judge [Junior Division] No. 1, Sonitpur, Tezpur has restrained and prohibited the opposite parties therein, that is, the writ petitioners herein from evicting the applicant forcibly from her shop room no. 14A, that is, the suit premises and to allow her to run her business in peaceful environment with uninterrupted supply of electricity till disposal of the corresponding title suit, Title Suit no. 15/2022.

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The applicant who is the plaintiff in Title Suit no. 15/2022, had preferred an application under Order XXXIX, Rule 1 and 2 read with Section 151, Code of Civil Procedure [CPC] for grant of temporary injunction and the said application was registered and numbered as Misc.[J] Case no. 15/2022. The applicant as the plaintiff has instituted the connected title suit, Title Suit no. 15/2022 seeking inter-alia a declaration of confirmation of possession of the suit premises, that is, shop room no. 14A located inside Central Shopping Center within the Cantonment area of Missamari, District – Sonitpur; and for the permanent injunction against the defendants therein, that is, the writ petitioners herein for prohibiting them from evicting the plaintiff from the suit premises.

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Ms. Gayan, learned CGC, by referring to the a number of orders passed in

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Page No.# 3/5

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writ petitions, annexed to this writ petition, has submitted that the learned Trial Court had failed to appreciate the case projected by the opposite parties/defendants/writ petitioners in Misc.[J] Case no. 15/2022 in proper and correct perspective.

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A three-Judge Bench of the Hon’ble Supreme Court of India in Radhey Shyam vs. Chhabi Nath, [2009] 5 SCC 616 , has referred to the majority view given in a nine-Judge Bench decision in Naresh Shridhar Mirajkar vs. State of Maharashtra, AIR 1967 SC 1, wherein it is held that a judicial order of a competent court could not violate a fundamental right and even if there is any incidental violation, it could not be held to be violative of the fundamental right. What the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more. After making reference also to other judgments, the three-Judge Bench has observed that a challenge to judicial orders could lie by way of appeal or revision or under Article 227 and not by way of a writ petition under Article 226 or under Article 32. It has been further observed in Radhey Shyam vs. Chhabi Nath [supra] that 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. After analyzing the provisions of Article 226 and Article 227 of the Constitution and the ratio laid down in the nine-Judge Bench in Naresh Shridhar Mirajkar [supra] and other decisions, the reference has been answered as follows :-

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29.1. Judicial orders of civil court are not amenable to writ jurisdiction under

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Page No.# 4/5

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Article 226 of the Constitution;

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

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It is further noticed that against an Order passed under Order XXXIX Rule 1 and 2, CPC, an appeal would lie before the appellate court under Order XLIII, Rule [r], CPC.

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Ms. Gayan, learned CGC appearing for the petitioners has fairly submitted that the writ petitioners would like to prefer an appeal before the appropriate appeal court after withdrawal of the instant writ petition and has prayed accordingly.

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Since the remedy of appeal against the Order dated 09.01.2024 is available under Order XLIII Rule [r], CPC and the Order dated 09.01.2024 is undoubtedly a judicial order of a civil court, a writ petition under Article 226 of the Constitution against the Order dated 09.01.2024 is not to be entertained.

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Having regard to the submission made by Ms. Gayan, learned CGC that the writ petitioners would like to withdraw this writ petition and would prefer an appeal against the impugned Order dated 09.01.2024 under Order XLIII Rule [r], CPC before the appropriate appellate forum, this writ petition is not entertained, reserving the liberty to the petitioner to take recourse to proper remedy of appeal as available under the law.

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Since the instant writ petition was filed on 19.02.2025, it is observed that in the event the writ petitioners prefer an appeal before the appropriate appellate forum, the appellate forum will duly consider the period spent by the writ petitioners in pursuing the instant write petition from 19.02.2025 till today

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[17.03.2025] vis-à-vis Section 14 of the Limitation Act, 1963. It is further observed that as the statutory period of limitation for an appeal has since expired, if the petitioners prefer an appeal and an application under Section 5 of the Limitation Act, 1963 showing cause as to why the appeal could not be presented within the statutory period of limitation, the appellate shall consider the same in accordance with law and on its own merits. It is further clarified that as the writ petition itself has not been entertained, this Court has not made any observations as regards the merits of the case of the petitioners.

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JUDGE

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Comparing Assistant

Union of India and 2 Ors. v. Rumi Boro

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Union of India and 2 Ors. v. Rumi Boro

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