In an earlier post, I had discussed the scope of revisionary powers of the High Court under section 115 of the CPC. I concluded the post raising the issue of a remedy against the rejection a revision application by the High Court wondering which of the two Articles (226 and 227) would suit the purpose. The relevant portion of the post reads thus:
“Can the decision of a High Court in a revision application be challenged? If yes, how? A decision or order of the High Court in a revision application is not an appealable order under Order 43 of the CPC nor can it be appealed as a decree (under Sections 96 or 100) because the order of the High Court in the revision application is not a decree. Therefore, for a remedy against the order of a Court under Section 115, one has to look beyond the CPC. This would mean the Constitution, but would it be Article 226 or 227?
Article 227 vests the Court with supervisory jurisdiction which it can exercise over subordinate Courts. Since we have already concluded that the High Court is not subordinate to itself, I am assuming Article 226 would be the right provision to invoke in such situations. Of course, I am not very sure of this conclusion, but it seems plausible.”
The question itself has a flaw because instead of seeking a remedy from the rejection of the revision application, one must look for an alternative to the revision application, which may be used despite the rejection of the revision application. To rephrase the question accurately now, one must ask if a writ under Articles 226 or 227 may lie from the order of a subordinate Court after the rejection of a revision petition under Section 115 of the CPC?
The answer is in the affirmative, but which of these is technically the correct provision to be invoked needs to looked into carefully since Courts have often used them interchangeably, and have blurred subtle yet definite distinctions between the two. A 2003 judgment of the Supreme Court compares the two Articles to explain the powers vested in a High Court under each of them.
I am still not clear in my own head, which explains all the more why one needs to think it aloud. The Court in this case has drawn from several sources, commentaries and judgments, to understand the scope of Art.226. The Court observed that a writ of certiorari is but one of the writs that may be issued under Art.226. This writ is employed to keep authorities and Courts subordinate to a High Court within their limits.
This writ may lie from the order of any authority where the authority in question has acted in a judicial or quasi-judicial manner. Further, the Court plays a supervisory role and not an appellate role, therefore it cannot embark on reviewing findings of fact unless there’s a patent error i.e. error which is grossly against the provisions of law. The Court’s primary function is to set right jurisdictional wrongs and to verify if principles of natural justice have been observed where the Court has rightly seized itself of the matter.
In contrast, Art.227 is wider in scope in that it is not bound by technicalities which limit the working of Art.226. Art.227 vests the Court with the power of superintendence which exists independent of its revisional powers under any other law (i.e. CPC). While Art.226, which is the Original jurisdiction of the High Court, may be set into motion only by a party, Art.227 gives a High Court power to call for records suo motu. It can be invoked regardless of a possible alternative to the High Court in the form of an appeal or revision.
Under Art.226, the Court may merely quash the order of the sub-ordinate Court, whereas under Art.227, the Court may direct the sub-ordinate Court as to its proper course of action or may pass an order which replaces the subordinate Court’s order. This explains why a High Court, under Art.227, exercises powers which are similar to appellate powers and hence uses it in parsimony. Only if an appeal is proved to be less efficacious than a writ under Art.227, may the Court entertain such a petition.
That said the situations where Art.227 may be validly raised are similar to the specific situations where a revision may lie before a High Court under section 115(1). This answers our question- when a revision petition is rejected by a High Court, a party may choose to file a writ under Art.226 or a petition under Art.227 depending upon the kind of relief he seeks to elicit from the Court. If he wants the Court to merely set aside the order of the subordinate Court, he may file for a writ of certiorari under Art.226, however if he wants the Court to re-appreciate the case on merits, legal not factual, and chart a course for the sub-ordinate Court, he may file a petition under Art.227.