Case Note & Summary
This case arose from Special Civil Suit No. 5/1997 pending before the Civil Judge, Senior Division, Khamgaon. On 24 October 2008, the appellant, M/s. Raviraj Corporation, was impleaded as defendant no. 2 by an order of the civil court. Aggrieved by this impleadment, the appellant filed Writ Petition No. 46/2009 before the Bombay High Court under Articles 226 and 227 of the Constitution, seeking a writ of certiorari to quash the impleadment order. The appellant contended that as a third party, such an order could not have been made against him and that the scope of Order VIII Rule 23 of the Code of Civil Procedure, as amended by the Bombay High Court, had been overlooked. The Single Judge, after hearing the parties, dismissed the writ petition on 17 April 2009, finding no merit. The appellant then filed the present Letters Patent Appeal against the Single Judge's order. Before the Division Bench, respondent no. 2 (the original defendant in the suit) raised a preliminary objection regarding the maintainability of the LPA. Relying on the Supreme Court decision in Ram Kishan Fauji v. State of Haryana and others, (2017) 5 SCC 533, it was argued that since the writ petition was against an interlocutory order of a civil court, it fell exclusively under the supervisory jurisdiction of Article 227, and no LPA lies against an order passed in exercise of that jurisdiction. The appellant's counsel countered that Article 226 was rightly invoked because the appellant was not a party to the suit and the impleadment was being opposed through writ jurisdiction. In the alternative, it was submitted that if the court were to hold the LPA not maintainable, the observations of the Single Judge should not prejudice any future appeal under Section 96 of the CPC. The court agreed with the respondent's objection. It held that the challenge being to an order passed by a civil court under the CPC, the writ petition had to be construed as one under Article 227, invoking supervisory jurisdiction only. Consequently, the LPA was not maintainable. The appeal was dismissed, and rule was discharged with no order as to costs. However, the court clarified that the observations made by the Single Judge in the order dated 17 April 2009 would not be used against the appellant in any appeal under Section 96 of the CPC, should such an occasion arise.
Headnote
A) Constitutional Law - Letters Patent Appeal - Maintainability against order in petition under Article 227 - Constitution of India, Articles 226, 227; Code of Civil Procedure, 1908, Order VIII Rule 23, Section 96 - The appellant, added as defendant in a civil suit, challenged the impleadment order by filing a writ petition under Articles 226/227 seeking certiorari; the Single Judge dismissed it. In the Letters Patent Appeal, the Division Bench, relying on Ram Kishan Fauji v. State of Haryana (2017) 5 SCC 533, held that the petition challenging an interlocutory order of a civil court is essentially under Article 227, invoking supervisory jurisdiction, and no LPA lies against such order. Held, LPA is not maintainable; Rule discharged without costs. Observations of the Single Judge shall not be used in any future appeal under Section 96 CPC, if filed. (Paras 2, 3, 6, 7, 8)
Issue of Consideration
Whether a Letters Patent Appeal is maintainable against an order of a Single Judge dismissing a writ petition that challenged an interlocutory order of a Civil Court impleading a party under the Code of Civil Procedure, and whether the writ petition was maintainable under Article 226 or Article 227 of the Constitution of India
Final Decision
Letters Patent Appeal dismissed as not maintainable. Rule discharged. No costs. It is clarified that observations of Single Judge in order dated 17.04.2009 shall not be used in any appeal under Section 96 CPC if filed.
Law Points
- petition challenging civil court order under CPC falls under Article 227 of Constitution
- not Article 226
- no Letters Patent Appeal lies from order under Article 227
- interlocutory order of civil court cannot be challenged via writ petition under Article 226
- observations of Single Judge should not prejudice subsequent appeal under Section 96 CPC
