Holding

Writ jurisdiction under Article 226 does not extend to civil court orders in private disputes between individuals; such orders are not subject to certiorari.

Summary

The appeal challenged a High Court order that interfered with pending civil suit proceedings concerning an injunction over disputed land. The Supreme Court examined whether Article 226 writ jurisdiction extends to private disputes between individuals, particularly whether a writ of certiorari can quash civil court orders. Relying on the precedent set in Naresh Shridhar Mirajkar, the Court reaffirmed that certiorari does not lie against judgments of inferior civil courts and that writ jurisdiction is a remedy in public law, not for private property disputes. The Court noted that earlier decisions such as Sohan Lal, Hanif, and others consistently held that writ courts should not decide private rights where ordinary civil remedies are available. It rejected the view expressed in Surya Dev Rai that civil court orders are amenable to writ jurisdiction, and consequently referred the matter to a larger Bench for further consideration.

Issues considered

Whether decisions of civil courts arising out of private disputes are amenable to writ jurisdiction under Article 226 of the Constitution.
Whether a writ of certiorari can be issued to quash judgments of inferior civil courts.
Whether Article 227 provides a basis for superintendence over civil court orders in private disputes.

Legislation cited

Constitution of Indias. Article 226, s. Article 227

Subjects

writ jurisdictionArticle 226civil court ordersprivate disputecertiorariArticle 227property disputelarger bench

Judgment

[2009] 6 $.C.R. 236

A RADHEY SHYAM & ANOTHER
v.
CHHABI NATH & OTHERS
(Civil Appeal No. 2548 of 2009)
APRIL 15, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]

CONSTITUTION bF IND/A, 1950:
c
Article 226 - Writ jurisdiction - Whether decisions of civil
court arising out of disputes between private parties are
subject to jurisdiction of writ court under Article 226 - Matter
referred to larger Bench.
D The instant apPiel was filed challenging a decision
of the High Court whereby it, in a writ petition filed under
Article 226 of the Constitution of India, interfered with the
proceedings pending before the civil court in a suit for ,
injunction between private parties. The question for
E consideration before the Court was: Whether private
individuals are amenable to the jurisdiction of writ court
in connection with the private disputes relating to
property, possession and title etc. between them.

F · Referring the matter to the larger Bench, the Court

HELD: 1.1 In the case of Mirajkar*, a nine-Judge
Constitution Bench of this Court held that certiorari does
not lie to quash the judgments of infer[or courts of civil
jurisdiction. In view of the principle laid down by this
G Court, a writ court cannot intervene in a dispute over ...
property rights between private individuals. Remedy
provided under Article 226 of the Constitution of India is
a remedy in public law. [Para 12 , 13 and 20] [245-B; 242-
B; 242-G].
.H 236
- RADHEY SHYAM & ANR. v. CHHABI NATH & ORS. 237

· ·, *Naresh Shridhar Mirajkar and Others v. State of A
Maharashtra 1966 SCR 744 = A.l.R. 1967 SC 1(V54 C 1),
Shri Soha Lal v. Union of India and Another 1957 SCR 738 =
AIR 1957 SC 529; Mohd. lkram Hussain v. The State of Uttar
Pradesh and others 1964 SCR 86 = AIR 1964 SC 1625;
Mohd. Hanif v. The State of Assam 1969 (2) SCC 782; B
Basappa v. Nagappa 1955 (1) SCR 250; Hindustan Steel
.. - Limited, Rourke/a v. Smt. Kalyani Banerjee and Others 1973
=
( 3 ) SCR 1 1973 (1) SCC 273; State of Rajasthan v.
Bhawani Singh AIR 19~2 SC 1018; Mohan Pandey v. Usha
Rani Rajgaria 1992 ( 3 ) SCR 904 = AIR 1993 SC 1226; c
Prasanna Kumar Roy Karrnakar v. State of West Bengal and
others 1 1996 ( 3 ) SCR 912 = 996 (3) SCC 403 and
P.R.Murlidharan and others v. Swami Dhannanda Theertha
Padar and others 2006 (2) SCR 1163 = 2006 (4) SCC 501,
relied on. D ,
1.2. In Rupa Ashok Hurra**the Constitution Bench did
not take any view which is contrary to the views
expressed in Mirajkar. On the other hand, the ratio in
Mirajkar was referred to with respect and was relied on
in Rupa Ashok Hurra. Nowhere even any whisper of a E
divergence from the ratio in Mirajkarwas expressed. [Para
26]
> **Rupa Ashok Hurra v. Ashok Hurra and another (2002)
4 SCC ·388 and Naresh Shridhar Mirajkar and others v. State F
of Maharashtra - AIR 1967 SC 1 (V 54 C 1), relied on.
'- .
' 1.3 .. Under Article 227 of the Constitution, the High
Court does not issue a writ of certiorari. Article 227 vests
the High Courts with the power of superintendence which
is to be very sparingly exercised to keep tribunals and · G
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 occasioned. Such power,
H
238 SUPREME COURT REPORTS [2009) 6 S.C.R.
-
A however, is not to be exercised to correct a mistake of
fact and of law. [Para 29] [248-E]

1.4. The legal proposition laid down in Surya Dev Rai*
that judicial orders passed by a civil court can be
8 examined and then corrected/reversed by the writ Court
under Article 226 in exercise of its power under a writ of
certiorari, is contrary to the ratio in Mirajkarwhich has not
been overruled in Rupa Ashok Hurra. In the
circumstances, the matter may be placed before the
C Hon'ble the Chief Justice of India for constituting a larger
Bench, to consider the correctness or otherwise of the
law laid down in Surya Dev Rai.

Surya Dev Rai v. Ram Chander Rai and Ors. 2003 (6)
sec 675, referred to.
D
Case Law Reference:
1957 SCR 738 relied on para 10
1964 SCR 86 relied on para 11
E 1969 (2) sec 182 relied on para 12
1955 (1) SCR 250 relied on para 13
1973 ( 3 ) SCR 1 relied on para 14

F AIR 1992 SC 1018 relied on para 15
1992 ( 3 ) SCR 904 relied on para 16
1996 ( 3 ) SCR 912 relied on para 17
2006 (2) SCR 1163 relied on para 18
G
1966 SCR 744 relied on para 20
(2002) 4 sec 388 relied on para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H
RADHEY SHYAM & ANR. v. CHHABI NATH & ORS. 239

2548 of 2009. A
From the Judgment & Order dated 12.10.2007 of the High
Court of Judicature at Allahabad Civil Writ Petition No. 50636
of 2007.

Deba Prasad Mukherjee, for the Appellant. B

Dr. Madan Sharma, Vijay Kumar Pandita, Asha Upadhyay
and R.D. Upadhyay for the Respondents.

The Judgment of the Court was delivered by
c
GANGULY, J. 1. Leave granted~

2. The subject matter of challenge In this appeal is an
order dated 12.10.2007 passed by a learned Single Judge of
Allahabad High Court, whereby the learned Judge interfered in D
a writ petition with the proceedings which were pending before
a Civil Court.

3. From a perusal of the record, it appears that the
appellants on 16.5.2005 filed a Civil Suit being No. 462 of 2005
in the Court of learned Clvil Judge (Junior Division) Jaunpur, E
for injunction restraining the defendants from interfering with the
possession of the disputed land. In that suit, an application
seeking temporary injunction (numbered 6C) was also filed. It
appears that initially the trial court issued notices to the
defendants but did not grant any ad interim ex parte injunction. F

4. Being aggrieved thereby, the appellants filed a civil
revision being C.R. No.246 of 2005 before the District Judge,
Jaunpur and that was admitted by the learned District Judge
and an order of maintenance of status quo was passeg till the G
disposal of the application for temporary injunction -
(Application No. 6-C). It was also observed by the District
Judge that after the plaintiffs suit is decided, the revision
petition would become infructuous.
H
240 SUPREME COURT REPORTS (2009] 6 S.C.R.

A 5. Against the said order, the defendants-respondents filed
a writ petition before the High Court (Writ Petition No. 4215 of
2005) and the same was dismissed by the High Court. It
appears that the said application for temporary injunction No.
6-C was renumbered as No.58-C. Thereafter, by an order dated
B 9.11.2005, interim application for injunction- 6-C/58-C was
allowed on merits by the learned Single Judge, Jaunpur. Being
aggrieved thereby, the defendants-respondents filed Misc. Civil
Appeal being No. 198 of 2005 before the learned Addi. District
Judge, Jaunpur. The said civil appeal was heard by the learned
c Addi. District Judge, Jaunpur and the same was allowed and
the order dated 9.11.2005 was set aside and the matter was
remanded to the trial court with a direction to re-hear the said
application No.6·C. It was further directed that the parties were
to appear before the trial court on 25.11.2006 and the trial court
D was directed to dispose of the application without granting
unnecessary adjournments. On 5.2.2007, the trial court was
however pleased to dismiss the application No. 58-C as
according to the trial court, the order dated 9.11.2005 passed
by the Civil Judge, Jaunpur became infructuous by the effect
of the order dated 4.11.2006 passed by the Addi. District
E Judge, Jaunpur in Civil Misc. Appeal No. 198 of 2005. Against
the said order of the trial court i.e. 5.2.2007, the appellants
preferred a revision before the Addi. District Judge, Jaunpur
and it was numbered as Civil Revision No. 39 of 2007, which
was allowed by an order dated 5.9.2007. Against the said order '
F dated 5.9.2007, the respondents filed a writ petition, in which
the impugned order was passed which is challenged before this
court in this appeal.

6. In the impugned order, the Hon'ble High Court after
G noting the earlier stages of the proceedings held that the
revision.court committed an error in remanding the matter to
the trial court for disposal of the application No. 58-Ga, when
in fact the said application became infructuous. By saying so,
the High Court allowed the writ petition and held that the
ri impugned order of the District Judge cannot be sustained.
RADHEY SHYAM & ANR. v. CHHABI NATH & ORS. 241
[ASOK KUMAR GANGULY, J.]
7. One of the grounds raised in this appeal before this court A
is, whether the High Court in exercise of its extraordinary writ
jurisdiction can interfere with a judicial order passed by a civil
court of competent jurisdiction.

8. From the aforesaid narration of events, it is clear that 8
the proceedings in this case arose out of purely civil disputes
relating to property and the parties have filed suits before the
.. ,. Civil Court, and the suits are pending. The parties to the
proceedings are all private individuals. Neither the State nor a
'State' nor an authority under Article 12 Is a party to this C
proceeding. This Is clear from the cause title of this appeal.

9. Now the question Is, whether private individuals are
amenable to the jurisdiction of writ court in connection with the
._ private disputes relating to property, possession and title
between private individuals. D

10. As early as in 1957, a Constitution Bench of this Court
in the case of Shri Sohan Lal v. Union of India and Another -
AIR 1957 SC 529 - held that a writ of mandamus or an order
in the nature of mandamus is not to be made against a private E
individual. A writ of and/or in the nature of Mandamus normally
is issued asking a peraon to do a particular thing which is in
the nature of his public duty: In SohanLal (supra) rival claims
> of property were in issue and the learned Judges held in
paragraph 5 that the writ court should refrain themselves from F
entering the said field. Since in view of the court such an
exercise calls for "entering into a field of investigation which - -
is more appropriate for a Civil Court in a property constituted
suit to do rather than for a Court exercising the prerogative of
issuing writs"(see para 5, page 531). The learned Judges held
that if only it can be proved that the appellant-Sohan Lal acted G
in collusion with Union of India in evicting the respondent-Jagan
Nath, then an order of mandamus can be issued (see para 7),
but it will not issue otherwise. ·

11. Only in the case of a writ of Habeas Corpus, it can be H·
242 SUPREME COURT REPORTS [2009) 6 S.C.R.

A issued against private individual, if it is proved that the private '
individua.I is illegally holding another person in detention (see
Mohd. lkram Hussain v. The State of Uttar Pradesh and others
- AIR 1964 SC 1625)

12. following the aforesaid principle, this Court fails to
B
understand how can the writ court intervene in a dispute over
property rights between private individuals. Apart from the
decision in the case of Sohan Lal (supra), subsequently in the
case of Mohd. Hanif v. The State of Assam - 1969 (2) SCC
782 - a three-Judge Bench of this Court explaining the general
c principle relating to High Court's jurisdiction under Article 226
held that the jurisdiction of the High Court is extraordinary in
nature and is vested in the High Court not for the purpose of
declaring the private rights of the parties but it is conferred for
the purpose of ensuring that the law of the land is implicitly
D obeyed and that the various tribunals and public authorities are
kept within the limits of the jurisdiction (see para 5). The
learned Judges reiterated the principle further by saying:-
-
"... In a proceeding under Article 226 the High Court
E is not concerned merely with the determination of the
private rights of the parties; the only object of such a
proceeding under Article 226 is to ensure that the law of
the land is implicitly obeyed and that various authorities and
tribunals act within the limits of their respective jurisdiction.•
~

F 13. The learned Judges in Hanif (supra) referred to the ,,.
decision of this Court in Basappa v. Nagappa- 1955 (1) SCR
250 - and held that "it is obvious that the remedy provided under
Article 226 is a remedy against the violation of the rights of a
citizen by the State or statutory authority. In other words, it is a
G remedy in public law." This principle holds good till today.

14. Subsequently also in Hindustan Steel Limited,
"
Rourke/a v. Smt. Kalyani Banerjee and Others - 1973 (1)
SCC 273 - this Court relying on the ratio in Sohan Lal (supra)
H held that since serious questions as to the validity of the
RADHEY SHYAM & ANR. v. CHHABI NATH & ORS. 243
[ASOK KUMAR GANGULY, J.]
respondent's title was raised and dispute is on the possession A
of land and as the respondent failed to produce any clear,
· conclusive and unimpeachable documentary evidence, the
matter cannot be dealt with by a writ court. Referring to Sohan
Lal (supra) in paragraph 16, the learned Judges held :-
B
"... proceedings by way of a writ were not appropriate
in a case where the decision of the court would amount to
a decree declaring a party's title and ordering restoration
of possession. This Court further held that the proper
remedy in such a case is by way of a title suit in a civil
court and the alternative remedy of obtaining relief by a writ C
of mandamus or an order in the nature of mandamus could
only be had if the facts were not in dispute and the title of
the property in dispute was clear.".

15. Similarly, in the case of State of Rajasthan v. Bhawani D '
Singh - AIR 1992 SC 1018 - this Court held that the writ
petition is not the appropriate remedy in order to give a
declaration of a person's title to property, the Court made it very
clear that disputed questions of title cannot be satisfactorily
adjudicated in a writ petition (para 7, page 1020 of the report). E
16. Same caution was sounded in a subsequent decision
of the case of Mohan Pandey v. Usha Rani Rajgaria - AIR
1993 SC 1225 - wherein the learned Judges held that regular
> suit is the appropriate remedy for settlement of disputes relating F
to property rights between private persons. Remedy under
Article 226 of the Constitution is not available except where
violation of some statutory duty on the part of a statutory
authority is complained of. The Court made it very clear by
making the following observations:-
G
.> "The High Court cannot allow the constitutional jurisdiction
to be used for deciding disputes, for which remedies, under
.. the general law, civil or criminal, are available. It is not
intended to replace the ordinary remedies by way of a suit
or application available to a litigant. The jurisdiction is H
244 SUPREME COURT REPORTS [2009] 6 S.C.R.

A special and extra-ordinary and should not be exercised
casually or lightly."

17. Relying on the ratio in the case of Mohan Pandey
(supra), this Court again in Prasanna Kumar Roy Karmakar
B v. State of West Bengal and others - 1996 (3) SCC 403 - held
that in a dispute between the landlord and tenant, a tenant
cannot be evicted from the premises by a writ court on the basis
of an order under Section 144 Cr.P.C. This Court, therefore,
;; . deprecated the practice of writ court intervening In private ·
C disputes.
18. Rather, recently in P.R. Murlidharan and others v.
Swami Dhannananda Theertha Padar and others - 2006 (4)
SCC 501 - Justice P.K. Balasubramanyan (as His Lordship
then was) in a concurring but a separate opinion held that it
D would be an abuse of the process for the petitioner to approach
the writ court seeking for a writ of mandamus directing the police .
authorities to protect his property without first establishing his
possession in an appropriate civil court. The learned Judge
made very pertinent observations by saying that:-
E "... The temptation to grant relief in casas of this
nature should be resisted by the High Court. The wide
jurisdiction under Article 226 of the Constitution would
remain effective and meaningful only when it is exercised
prudently and in appropriate situations."
F
19. It is only in the case of Surya Dev Rai v. Ram Chander
Rai and others - 2003 (6) SCC 675 - a two-Judge Bench of
this Court held, possibly for the first time the "orders and
proceedings of a judicial court subordinate to the High Court
G are amenable to the writ jurisdiction of the High Court under
Article 226 of the Constitution (para 19, page 688 of the report).
The attention of the Court was not drawn to the earlier -
Constitution Bench judgment in Sohan Lal (supra) or the three-
Judge Bench judgment in Hanif (supra). Both these judgments
H are still holding the field.
RADHEY SHYAM & ANR. v. .CHHABI NATH & ORS. 245
[ASOK KUMAR GANGULY, J.]
~

20. Before coming to the aforesaid conclusion, the learned A
~.
judges in Surya Dev Rai (supra) noticed the contrary view
expressed in a Nine-Judge Constitution Bench judgment of this ·
Court in the case of Naresh Shridhar Mirajkar and others v.
State of Maharashtra - AIR 1967 SC 1 0/ 54 C 1).
B
In Mirajkar (supra) a nine-Judge Constitution Bench
considered the history of writ of Certiorari and after
considering various English and Indian decisions came to
the conclusion "Certiorari does not fie to quash the
judgments of inferior Courts of civil jurisdiction." (See
paragraph 63 page 18 of the Report). The learned judges
c
in saying so followed the law relating to Certiorari as
prevalent in England and held that in England the judicial
orders passed by civil Courts of plenary jurisdiction in
relation to matters brought before them are nqt amenable
to the jurisdiction of Certiorari. D
...
21. The learned judges in Surya Dev Rai (supra), however,
opined that the judges never held in Mirajkar (supra) that the
law relating to Certiorari in England was accepted by Supreme
Court. But this observation in Surya Dev Rai (supra) appears E
to have been made without property considering the concurring
and a separate opinion given by Justice Sarkar in Mirajkar
(supra) wherein His Lordship clearly held "As certiorari is a
> technical word of English law and had its origin in that law, for
determining its scope and contents w~ have necessarily to F.
resort to English law." (See Para 82 page 23).

22. In our view the appreciation of the ratio in Mirajkar .
(supra) by learned judges, in Surya Dev Rai (supra), with great
respect, was possibly a little erroneous and with that we cannot
agree. ' G
,,.
23. The two-Judge Bench in Surya Dev Rai (supra), did
· not, as obviously it could not, overrule the ratio in Mirjakar
(supra), a Constitution Bench decision of a nine-Judge Bench.
But the learned Judges justified their different view in Surya Dev H
246 SUPREME COURT REPORTS [2009] 6 S.C.R.

A Rai (supra), inter a/ia on the ground that law relating to
Certiorari changed both in England and in India. In support of
that opinion, the learned Judges held that the statement of law
·-
in Halsbury, on which the ratio in Mirajkar(supra) is based, has
been changed and In support of that quoted the paragraphs
B 103 and 109 from Halsbury's Laws of England, 4th Edn.
(Reissue), Vol. 1(1). Those paragraphs are set out below:-

"103. Historically, prohibition was a writ whereby the royal
courts of common law prohibited other courts from
entertaining matters falling within the exclusive jurisdiction
c of the common law courts; certiorari was issued to bring
the record of an inferior court into the King's Bench for
review or to remove indictments for trial in that court;
mandamus was directed to inferior courts and tribunals,
and to public officers and bodies, to order the performance
D of a public duty. All three were called prerogative writs;
* *
109. Certiorari lies to bring decisions of an inferior court,
tribunal, public authority or any other body of persons
E
before the High Court for review so that the Court may
determine whether they should be quashed, or to quash
such decisions. The order of prohibition is an order issuing
out of the High Court and directed to an inferior court or
tribunal or public authority which forbids that court or tribunal
F or authority to act in excess of its jurisdiction or contrary
to law. Both certiorari and prohibition are employed for the
control of inferior courts, tribunals and public authorities."

24. The aforesaid paragraphs are based on general
G principles which are older than the time when Mirajkar (supra)
was decided are still good. Those principles nowhere indicate '
that judgments of an inferior civil court of plenary jurisdiction are
amenable to correction by a writ of certiorari. In any event,
change of law in England cannot dilute the binding nature of
H the ratio in Mirjakar (supra) and which has not been overruled
RADHEY SHYAM & ANR. v. CHHABI NATH & ORS. 247
4
[ASOK KUMAR GANGULY, J.]
and is holding the field for decades. It is clear from the law laid A
down in Mirajkar (supra) in paragraph 63 that a distinction has
.:';
; been made between judicial orders of inferior courts of civil
l jurisdiction and orders of inferior tribunals or court which are
not civil courts and which cannot pass judicial orders. Therefore,
judicial orders passed by civil courts of plenary jurisdiction stand B
on a different footing in view of the law pronounced In para 63
in Mirajkar (supra). The passage in the subsequent edition of
·" Halsbury (4th Edition) which has been quoted in Surya Dev
Rai (supra) does not at all show that there has been any change
'- in law on the points in issue pointed out above. c
25. Learned judges in Surya Dev Rai (supra) stated in
_,., paragraph 18, page 687 of the report that decision rendered
. in Mirajkar (supra) was considered by the Constitution Bench
·' in Rupa Ashok Hurra v. Ashok Hurra and another - (2002) 4
~
sec 388 • and wherein the learned judges took a different view D
and in support of that, the following paragraph from Rupa
Ashok Hurra (supra) has been quoted: "(i) that it is a well-
settled principle that the technicalities associated with the
prerogative writs in English law have no role to play under our
constitutional scheme; (ii) that a writ of certiorari to call for E
records and examine the same for passing appropriate orders,
is issued by a superior court to an inferior court which certifies
its records for examination; and (iii) that a High Court cannot
... issue a writ to another High Court, nor can one Bench of a High
,.
Court issue a writ to a different Bench of the High Court; much F
less can the writ jurisdiction of a High Court be invoked to seek
issuance of a writ of certiorari to the Supreme Court. The High
Courts are not constituted as inferior courts in our constitutional
scheme."
G
~ 26. We are constrained to point out again that in Rupa
· - Ashok Hurra (supra) the Constitution Bench did not take any
view which is contrary to th·e views expressed in Mirajkar
(supra). On the other hand, the ratio in Mirajkar (supra) was
referred to with respect and was relied on in Rupa Ashok Hurra
H
248 SUPREME COt!RT REPORTS [2009] 6 S.C.R.

A (supra). Mirajkar (supra) was referred to in paragraph 8 page
399 and again in paragraph 11 in page 402 and again in
, __
paragraph 59 page 418 and als.o in paragraph 60 page 419
of Rupa Ashok Hurra (supra). Nowhere even any whisper of a
divergence from the ratio in Mirajkar (supra) was expressed.
B Rather passages from Mirajkar (supra) have been quoted with
approval.

27, In fact the question which was referred to the
Constitution Bench in Rupa Ashok Hurra.(supra) is quoted in
•
-
paragraph 1 of the judgment and it is clear from the perusal of
c the said paragraph that the question for consideration in Rupa ..
Ashok Hurra (supra) was totally different.
28. Therefore, this Court unfortunately is in disagreement ...
with the view which has been expressed in Surya Dev Rai
- D (supra) in so far as correction of or any interference with judicial
orders of Civil Court by a writ of certiorari is concerned. .
2.9. Under Article 227 of the Constitution, the High Court
does not issue a writ of certiorari. Article 227 of the Constitution
vests the High Courts with a power of superintendence which
E
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. Such power, however, is not to be exercised ..
F to correct a mistake of fact and of law. The essential .,
distinctions in the exercise of power between Article 226 and
227 are well known and pointed out in Surya Dev Rai (supra)
and with that we have no disagreement

G 30. But we are unable to agree with the legal proposition
laid down in Surya Dev Rai (supra) that judicial orders passed .
by a Civil Court can be examined and then corrected/reversed
by the writ Court under Article 226 in exercise of its power
under a writ of certiorari.
H
RADHEY SHYAM & ANR. v. CHHABI NATH & ORS. 249
[ASOK KUMAR GANGULY, J.]
31. We are of the view that the aforesaid proposition laid A
down in Surya Dev Rai (supra), is contrary to the ratio in
Mirajkar (supra) and the ratio in Mirajkar (supra) has not been
overruled in Rupa Ashok Hurra (supra).

32. In view of our difference of opinion with the views 8
expressed in Surya Dev Rai (supra), matter may be placed
before His Lordship the Hon'ble the Chief Justice of India for
constituting a Larger Bench, to consider the correctness or
otheiwise of the law laid down in Surya Dev Rai (supra) on the
question discussed above.
c.
R.P. Matter referred to larger Bench.

"

)