• Maintainability of article 227 of Indian constitution

I had filed a suit for partition of our ancestor property, along with an application for permanent injunction was also filed in view that defendant may create third party interest, However the said application was rejected by trial court. 

Therefore I filed an appeal in appellate court against trial court’s order, which was confirmed in my favour.

Therefore the respondent (original defendant) moved a WP under article 227 of Indian constitution in HC and challenged the order of appellate court, which is confirmed in my favour.

The single bench of HC set aside the order of appellate court. 

Question : 
I wish to file LPA to set aside the order of HC on below ground

 WP under article 227 is not maintainable and can 
 not be used to set aside the order of appellate 
 court.

please reply whether I am right OR if not then what is remedy in my case?
Asked 7 years ago in Civil Law

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8 Answers

1. Firstly a petition under article 227 cannot be called a writ petition. Its only a petition

2. Writs are issued only under Article 226 and not 227

3. Writs under article 226 cannot be issued against orders of civil courts of original jurisdiction. Writs only lie against orders of courts subordinate to high courts

4. In your case the petition is filed under article 227 and not 226. 227 is for general superintendence of lower courts. So the petition under 227 is maintanable

5. LPA has been long abolished. You have to file SLP in SC


Also, the defendant can technically also file a writ petition under 226 to challenge order of appellate court as its a court subordinate to HC

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

Sir in you case you need file a petition before the Supreme court challenging the order of the high court,


Further the writ is under 226 under 227 high court have jurisdiction over the subordinate courts, 

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

LPA is not maintainable now as it is repealed. You can try review for the same before the court. Or appeal in sc.

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

1. Even though it is mentioned that its a 'writ' petition, technically it is not

2. Its merely a petition under 227

3. Lawyers write writ petition while invoking 227 because this is perhaps the requirement of the stupid HC registry

4. So just because its a petition filed under 227 but mentioned as a 'writ petition'  that doesn't mean that the petition itself is not maintanable

5. The word 'writ' used in the 227 petition can at best be ignored

6. But that's not my point

7. I am saying that it is very much possible to file a 227 petition in HC to challenge the appellate order of a court which is subordinate to HC

8. If you check text of 227, it says its for superintendence over lower courts

9. So even if there may be a remedy of appeal available against the order of appellate court itself, that would not preclude one from filing a 227 petition, because the petition merely complaints that there is something patently wrong in the order which is under challenge in the petition

10. Yes, had it been a 226 petition, then petitioner would have to first exhaust alternate remedies available to him against the offending order and if he fails in all such remedies, then he can file 226 petition requesting for issuing any of the prerogative writs mentioned in 226

11. In your case, there is remedy available to petitioner to file a second appeal under CPC with HC. But he can very well file a 227 petition to challenge the appellate court order. Had he filed a 226 petition, the court itself would have asked petitioner to exhaust his remedy of second appeal first and if he fails there, then he could complain to HC in 226 petition against the second appellate order

12. There is a big difference between 226 and 227

13. LPA is abolished. There is an act for the same uploaded on Bom HC website. Check that. Or just go to the registry and ask some sane person whether LPA is still allowed. I dont think it can be filed now, but still you can confirm

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

Dear Client,

WRIT petition was not valid but second appeal under section 100 CPC.

 

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

If the writ was not maintainable then how could the high court pass an order under section 227 article of the constitution. However you want to waste time and money by filing another petition before the same court challenging the said order. If you can spare time, money and energy on such issues then you may proceed, however your main suit will be getting delayed inordinately due to all such unnecessary issues, hence you may think about it again.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

The Writ Petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction under Order XXXIX, Rules 1 and 2 of the CPC could very well be maintainable.
- Writ Courts Can Order Revaluation Even When There Is No Provision For It: SC

The court was considering an appeal filed by the state against one such Jharkhand High Court order which had entertained a writ petition under Article 226. The court refused to set aside the high court order on this sole ground, because its maintainability was not challenged by the state before the high court.

Had the Appellants raised the above objection regarding maintainability of the Writ Petition, the course open for Plaintiffs/Respondent Nos. 1 to 3 was to amend the cause title of the writ petition under Article 227 of the Constitution, and such a Writ Petition under Article 227 would have been clearly maintainable," the court said while referring to judgment by three-judge bench in Radhey Shyam v. Chhabi Nath & Ors. "The Writ Petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction under Order XXXIX, Rules 1 and 2 of the CPC could very well be maintainable, and the opportunity to amend the cause title by Respondent Nos. 1 to 3 by raising any objection to that effect having been denied to them, we, instead of setting aside the judgment of the High Court on the above ground, proceed to examine the contentions on merits," it said while deciding to hear the case on merits.

The above is an extract of the judgment referred therein.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

You had chances to object the same while it was heard and you were impleaded as a respondent ion that writ petition, whereas you lost your opportunity then and now you are claiming the maintainability question on it.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

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