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Case Number

Review Petn. No. 80 of 1973, in Writ Appeal No. 75 of 1973

Advocates

For the Appellant: Government Pleader

Judges

P. Govindan Nair, C.J
K. Sadasivan, J.

Acts

provisions of the Code of Civil Procedure including the provisions in Order 47
provisions of Order 47 of the CPC
provisions of Order 9, Rule 9
Section 4(1) of the CPC

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Smart Summary

Structured Summary of the Opinion (Sadasivan, J.)

Factual and Procedural Background

This matter concerns a question of jurisdiction in a review application arising out of Writ Appeal No. 75 of 1973. The original petition (O.P.) was filed under Article 226 of the Constitution by P.K. Abdul Kareem, a hospital attender, seeking to quash certain orders passed by the District Medical Officer of Health and the Director of Health Services. A learned Single Judge dismissed the O.P. A Division Bench (Raghavan C.J. and Khalid, J.) then dismissed the writ appeal in limine. Subsequently an application for review of the Division Bench's order was presented to Khalid, J.; however, Raghavan C.J. had retired, raising the jurisdictional question whether the review itself was maintainable and whether a judge who was one of the original bench but who continues to be attached to the court can hear the review under Order XLVII, Rule 5 of the Code of Civil Procedure (CPC). Khalid, J. considered that the jurisdictional question should be decided by a Division Bench and therefore passed an order of reference, leading to the present opinion from Sadasivan, J.

Legal Issues Presented

Whether proceedings under Article 226 of the Constitution are "civil proceedings" such that the procedure and principles of the Code of Civil Procedure (CPC) apply to them under Section 141 of the CPC.
Whether the provisions of the CPC (specifically including Order 47) are applicable to writ proceedings under Article 226, to the extent they are not inconsistent with Rules of the High Court governing writ jurisdiction.
Whether an application for review against an order of a Division Bench under Article 226 is maintainable where one of the judges who passed the order continues to be attached to the High Court at the time the review is presented (i.e., the application of Order XLVII, Rule 5 CPC by analogy).

Arguments of the Parties

The opinion records a specific argument made on behalf of the government but does not set out an extended catalogue of party submissions.

Government Pleader's Argument

The Government Pleader relied on Hajee Suleman v. Custodian, Evacuee Property (AIR 1955 Madh B. 108) to contend that the power to review is not inherent in a court and, because there is no provision for review of orders under Article 226 in Indian law, the High Court cannot review an order passed in a writ case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ramsingh v. State of Rajasthan, AIR 1969 Raj 41	Observed that the provisions of the CPC will not apply in terms to writ jurisdiction because Section 4(1) CPC preserves special procedure; nevertheless principles of the CPC may be applied insofar as they are not inconsistent with High Court Rules.	Used to show that although CPC provisions may not apply verbatim to Article 226 proceedings, analogous principles may govern where not inconsistent with Rules of Court.
Chenchanna Naidu v. Praja Seva Transport Ltd., AIR 1953 Mad 39	Held that when an application for a writ under Article 226 is made on the civil side, the High Court is governed by the provisions of the CPC and has jurisdiction to review its order under Article 226.	Relied on to support that CPC procedure and review jurisdiction can apply in writ proceedings heard by the civil side of the High Court.
(Earlier) Madras High Court decision, AIR 1938 Mad 722	Earlier Madras decision relied on by the Chenchanna Naidu bench in support of CPC applicability to writs.	Referred to as antecedent authority underpinning the view in Chenchanna Naidu that CPC provisions can govern writ proceedings.
Income-tax Officer v. Srinivasa Rao, AIR 1969 Andh Pra 441	Applied the above Madras authority and held that the provisions of Order 47 of the CPC would apply to proceedings under Article 226.	Invoked to show authority for the applicability of Order 47 CPC to Article 226 proceedings.
Narayan Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818	Held that the expression "civil proceeding" should not be restricted only to proceedings arising out of civil suits; proceedings under Article 226 fall within "civil proceedings" where civil rights are affected.	Relied upon for the proposition that writ petitions under Article 226 are civil proceedings and thus fall within the ambit of procedural rules applicable to civil proceedings.
Ramesh v. Gendalal, AIR 1966 SC 1445	Clarified that "civil proceeding" is used in the widest sense to include proceedings affecting civil rights (non-criminal), and that proceedings under Article 226 concerning civil rights are civil proceedings.	Used to reinforce the Supreme Court's view that Article 226 proceedings are civil in nature and therefore amenable to CPC principles.
Jay Engineering Works Ltd. v. State of West Bengal, AIR 1968 Cal 407 (SB) at p. 489	Held there was no ground for restricting "civil proceeding" and that writ petitions tried by the High Court under Article 226 are civil proceedings.	Followed as further support for treating Article 226 proceedings as civil proceedings for procedural applicability.
Asst. District Panchayat Officer Rae Bareli v. Jai Narain Pradhan, AIR 1967 All 334	Held that when writ proceedings relate to civil rights they are civil proceedings and the provisions of the CPC apply under Section 141, subject to non-inconsistency with Rules of Court.	Adopted to show consistent High Court authority that Section 141 brings CPC procedure to bear on Article 226 matters to the extent practicable.
Ibrahimbhai Karimbhai v. State of Gujarat, AIR 1968 Guj 202 at p. 206	Observed that Article 226 jurisdiction is original, civil in nature, and writ proceedings are proceedings of the court of civil jurisdiction.	Used to support the conclusion that Article 226 proceedings are of civil jurisdiction and therefore within Section 141's compass.
Hajee Suleman v. Custodian, Evacuee Property, AIR 1955 Madh B. 108	Held that the power to review is not inherent in a court and, lacking statutory provision for review under Article 226, the High Court could not review an order passed in a writ case.	Cited by the Government Pleader to argue that review under Article 226 is not available; the opinion notes this authority as contrary to the majority of other authorities relied upon by the court.
Rain Bow Dyeing Factory, Salem v. Industrial Tribunal, AIR 1959 Mad 137	Contains an observation that Order 1 CPC cannot apply to writ proceedings since a writ proceeding cannot be held to be in the nature of a civil suit.	Noted by the court as a "stray observation" and treated as not decisive for the question whether CPC provisions generally can apply to Article 226 proceedings.
Balan v. District Collector, Trichur, 1972 Ker LJ 798 (AIR 1973 Ker 88)	Held that Order 33 CPC can apply only to suits and therefore cannot apply to Article 226 proceedings which are not suits; Supreme Court had held in another decision that Article 226 proceedings are not suits (AIR 1961 SC 532).	Noted by the court but treated as inapposite to the question whether CPC provisions (such as Order 47) apply to Article 226 proceedings to the extent consistent with Rules of Court.
Thakur Prasad's case (1895) ILR 17 All 106 (PC)	Referred to as authority for the proposition that proceedings contemplated by Section 141 include original matters in the nature of a suit.	Quoted by the Gujarat High Court and noted in the opinion as part of the supporting jurisprudence that Article 226 proceedings are original and civil in nature.
AIR 1961 SC 532 (referenced)	Supreme Court holding that proceedings under Article 226 are not suits (as referenced in connection with Order 33 applicability).	Noted in the opinion to explain why certain decisions concerning applicability of specific Orders (e.g., Order 33) to writs are of limited relevance to the question at hand.

Court's Reasoning and Analysis

The court began by identifying the threshold jurisdictional issue: whether a review of a Division Bench order in a matter arising under Article 226 is maintainable where one of the judges who passed the order continues to be attached to the High Court when the review is presented (bringing Order XLVII, Rule 5 CPC into consideration by analogy).

The opinion then analysed the applicability of the Code of Civil Procedure to writ proceedings under Article 226, in light of Section 141 CPC which requires that the procedure in suits be followed "as far as it can be made applicable" in all civil jurisdiction proceedings. The court considered a line of authorities from different High Courts and the Supreme Court.

Key analytical steps (as stated in the opinion):

Noted that some authorities (Ramsingh v. State of Rajasthan) stress that CPC provisions do not apply to writ jurisdiction "in terms" because Section 4(1) CPC preserves special procedures, but those same authorities accept that the principles of the CPC may be applied analogously insofar as they do not conflict with Rules of Court.
Examined High Court decisions (Madras, Andhra Pradesh, Calcutta, Allahabad, Gujarat) which collectively held that where writ proceedings affect civil rights they are "civil proceedings" and that CPC provisions, including Order 47, can be applied to Article 226 proceedings subject to non-inconsistency with the Rules of the High Court.
Relied on Supreme Court authority (Narayan Row; Ramesh v. Gendalal) confirming that the term "civil proceeding" is broad and embraces proceedings under Article 226 that affect civil rights—thereby bringing Article 226 proceedings within the scope of procedural principles applicable to civil proceedings.
Considered contrary or limiting authorities cited by the Government Pleader (notably Hajee Suleman and stray observations in other High Court decisions denying applicability of certain CPC Orders to writs). The court treated these as inconsistent with the prevailing line of decisions and of no decisive consequence for the specific question whether CPC provisions (including Order 47) can apply to Article 226 proceedings insofar as they do not conflict with Rules of Court.
On the basis of the authorities and analysis, the court concluded that proceedings under Article 226 are proceedings of a civil nature. Consequently, the provisions of the CPC, including Order 47, apply to Article 226 proceedings so far as they are not inconsistent with the Rules of the High Court governing writ jurisdiction.
Applying that conclusion to the jurisdictional question, the court held that the application for review was entertainable by the learned judge who continued to be attached to the High Court at the time the review was presented (i.e., the situation contemplated by Order XLVII, Rule 5 CPC by analogy).

Holding and Implications

Holding: The court answered the reference by holding that proceedings under Article 226 are civil proceedings and that the provisions of the Code of Civil Procedure (including the provisions in Order 47), insofar as they are not inconsistent with the Rules of the High Court governing writ jurisdiction, apply to Article 226 proceedings. Consequently, the application for review was held to be entertainable by the learned Judge who continued to be attached to the High Court at the time the review was presented. The court remitted the application for review to the learned Single Judge for disposal.

Implications:

Direct effect on the parties: The review application filed against the Division Bench order is to be considered and disposed of by the learned Single Judge to whom it is remitted.
Procedural implication: The opinion endorses the application of CPC procedural provisions (including Order 47) to Article 226 writ proceedings to the extent those provisions are not inconsistent with the High Court's Rules for writ jurisdiction.
Scope of precedent: The court's conclusion relies on and synthesises extant High Court and Supreme Court authority; the opinion resolves the specific reference accordingly. The opinion does not purport to announce an expansive new doctrine beyond applying settled authorities to the jurisdictional question presented.

Reference answered.

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Abdul Kareem v. D.M.O, Ernakulam Opposite Party.

Sadasivan, J.:— A question of jurisdiction arises in this review and as Khalid, J., thought the question has to be decided by a Division Bench this has come up before us on an order of reference passed by the learned Judge.

2. Writ Appeal 75 of 1973 was decided by a Division Bench composing of Raghavan C.J, and Khalid, J. Since then Raghavan C.J, retired from service and the application for review was, therefore, presented before Khalid, J. the O.P from which the Writ Appeal arose was one under Article 226 of the Constitution to quash certain orders passed by the District Medical Officer of Health and the Director of Health Services against the petitioner one P.K Abdul Kareem, a hospital attender. The learned Single Judge dismissed the O.P Against it the Writ Appeal was filed before a Division Bench and that was dismissed in limine. It is against the order of the Division Bench that the review has been filed. Under O. XLVII, R. 5 of the CPC where one of the judges who passed the decree or order continues to be attached to the court at the time the application for review is presented can hear the application; but the question here is whether the review itself is maintainable. Section 141 of the CPC lays down that the procedure provided in the code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. Article 226 of the Constitution has conferred an extraordinary jurisdiction on the High Court and the mode of exercising the same is governed by Rules that the court has framed. A Division Bench of the Rajasthan High Court in Ramsingh v. State of Rajasthan, AIR 1969 Raj 41 has, in similar circumstances, held:

“The provisions contained in the Code of Civil Procedure will not be attracted to this special jurisdiction in terms, because Section 4(1) of the CPC provides that in the absence of any specific provision to the contrary, nothing in this code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. It is thus clear that special procedure has been provided in the Rules of the High Court for writ proceedings under Article 226 of the Constitution and, therefore, the provisions of the Code of Civil Procedure cannot apply in terms to such proceedings. This, however, does not mean that the principles contained in the Code of Civil Procedure would have no application at all to the writ proceedings. Those provisions of the Code of Civil Procedure which do not come in conflict with the Rides matte by the High Court of Rajasthan and which can be suit ably made applicable to the writ proceedings, will apply to writ proceedings. In other words, even though the provisions of the Code of Civil Procedure may not apply with full rigour to writ proceedings, writ proceedings would nonetheless be governed by the principles analogous to those contained in the Code of Civil Procedure as far as they are not inconsistent with the Roles made by the High Court on the subject.”

3. These observations were made by the learned Judges in connection with the question whether the provisions of Order 9, Rule 9 can suitably be applied to writ proceedings. A Division Bench of the Madras High Court in Chenchanna Naidu v. Praja Seva Transport Ltd., AIR 1953 Mad 39 held that:

“If the application for the issue of a writ under Article 226 is made on the civil side, in dealing with such an application the High Court is governed by the provisions of the Code of Civil Procedure and the High Court has jurisdiction to review its order under Article 226.”

4. In coming to this conclusion the learned Judges of the Division Bench examined the entire case-law and relied on an earlier decision of the Madras High Court in AIR 1938 Mad 722. The Andhra Pradesh High Court in Income-tax Officer v. Srinivasa Rao, AIR 1969 Andh Pra 441 following the above decision of the Madras High Court has observed that the provisions of Order 47 of the CPC would apply to the proceedings under Article 226 of the Constitution.

5. The Supreme Court has observed in Narayan Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818 that:

“there is no ground for restricting the expression ‘civil proceeding’ only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits nor is there any rational basis for excluding from its purview proceedings instituted and tried in the High Court in exercise of its jurisdiction under Article 226, where the aggrieved party seeks relief against infringement of civil rights by authorities purporting to act in exercise of the powers conferred upon them by revenue statutes.”

6. In Ramesh v. Gendalal, AIR 1966 SC 1445 the matter has further been clarified. On page 1447 the learned Judges would observe:

“The question is whether the proceedings in the High Court can be described as civil proceedings…………………. The term civil proceeding has been held in this court to include at least all proceedings affecting civil rights, which are not criminal. The dichotomy between civil and criminal proceedings made by the Civil Law Jurists is apparently followed in Articles 133 and 134 and any proceeding affecting civil i.e, in private rights, which is not criminal in nature, is civil. This view was expressed recently by this court in Harayana Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818, Shah, J., speaking for the majority, first summarises all the provisions in the Constitution bearing upon appeals to this court and after analysis, holds that the words ‘civil proceeding’ are used in the widest sense, that in contradistinction to criminal proceedings they cover all proceedings which affect directly civil rights. A proceeding under Article 226 for a writ to bring up a proceeding for consideration must be a civil proceeding, if the original proceeding concerned civil rights. Here the civil rights parties were directly involved and the proceeding before the High Court was thus a civil proceeding.”

7. A Proceeding under Article 226 of the Constitution being civil proceeding, the procedure provided in the Code of Civil Procedure must, therefore, apply to such proceedings.

8. Following the decision of the Supreme Court, the Calcutta High Court in Jay Engineering Works Ltd. v. State of West Bengal, AIR 1968 Cal 407 (SB) at p. 489 held that:

“there was no ground for restricting the expression ‘civil proceeding’ only to those proceedings which arose out of cml suits or proceedings and for excluding from the purview of civil proceedings the writ petitions tried by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. Writ petitions must, therefore, be held to be a civil proceeding although it is heard by this court in its extraordinary original or civil revisional jurisdiction.”

9. The same view has been shared by various other High Courts also. The Allahabad High Court, for instance, has held in Asst. District Panchayat Officer Rae Bareli v. Jai Narain Pradhan, AIR 1967 All 334 that:—

“When the proceedings in a High Court on a petition under Article 226 of the Constitution relate to civil rights, they are civil proceedings. Being civil proceedings, the provisions of Code of Civil Procedure apply to them under Section 141 of the CPC, in so far as the provisions of the Code can be made applicable. The last qualifying clause means that the provisions of the Code would apply to the proceedings under Article 226, except to the extent to which their applicability may be affected by the Rules of Court or any special law or rule applicable to these proceedings.”

10. The Gujarat High Court in Ibrahimbhai Karimbhai v. State of Gujarat, AIR 1968 Guj 202 at p. 206 has observed:—

“An application under Article 226 praying for issuance of a writ, direction or order, is a proceeding in a court. The proceedings contemplated by Section 141 of the CPC, include the original matters in the nature of the suit as has been laid down by the Privy Council in Thakur Prasad's case (1895) ILR 17 All 106 (PC). The jurisdiction which the High Court exercises under Article 226 is an original jurisdiction. Therefore the writ proceedings are the proceedings of original nature. The jurisdiction which the court exercises in issuing the writs of certiorari is a civil jurisdiction. We, therefore hold that the proceedings under Article 226 are the proceedings in the court of civil jurisdiction.”

11. As against the above array of judicial pronouncements in favour of the view that the procedure laid down in the Code of Civil Procedure is applicable to writ proceedings in so far as they are not inconsistent with the Rules of the High Court, the learned Government Pleader cited Hajee Suleman v. Custodian, Evacuee Property (AIR 1955 Madh B. 108), where it was held that:

“the power to review is not inherent in a court. As there is no provision for the review of orders under Article 226 in Indian law, it cannot be availed of as a remedy. The High Court therefore cannot review an order passed in a writ case.”

12. A stray observation is seen in Rain Bow Dyeing Factory, Salem v. Industrial Tribunal, Madras (AIR 1959 Mad 137) also to the effect that O. 1 of the CPC cannot apply to writ proceedings inasmuch as a writ proceeding cannot be held to be in the nature of a civil suit. Our attention was drawn also to a Division Bench ruling of this court in Balan v. District Collector, Trichur, 1972 Ker LJ 798 : (AIR 1973 Ker 88) where the court had to consider the question whether Order 33 of the CPC would apply to writ proceedings under Article 226 and it was held that Order 33 of the CPC can apply only to suits and in so far as proceedings under Article 226 are not suits Order 33 can have no application; (in AIR 1961 SC 532 the Supreme Court has held that the proceedings under Article 226 are not suits). These decisions, therefore, are of no consequence in deciding the question whether the Code of Civil Procedure can have application to proceedings under Article 226 of the Constitution. Our conclusion, therefore, is that proceedings under Article 226 are proceedings of a civil nature, even though writ jurisdiction is exercised by the High Court in its special original jurisdiction. The provisions of the Code of Civil Procedure including the provisions in Order 47 in so far as they are not inconsistent with the Rules of the High Court governing writ jurisdiction, must apply to proceedings under Article 226. The application for review is, therefore, entertainable by the learned Judge who continues to be attached to the High Court at the time the review was presented. With these observations, we remit the application for review to the learned Single Judge for disposal.

13. Reference answered.

Abdul Kareem v. D.M.O, Ernakulam Opposite Party.

Structured Summary of the Opinion (Sadasivan, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Government Pleader's Argument

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Abdul Kareem v. D.M.O, Ernakulam Opposite Party.

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