By LE Staff

Mumbai, July 2, 2021: A letters patent appeal challenging the order passed by a Single Judge in a writ petition filed under Articles 226 and 227 of the Constitution, in which an order passed by the Civil Court was impugned, is not maintainable, the Bombay High Court has held.

A Bench of Justice A.S Chandurkar observed that the mere fact of admission of letters patent appeal is no reason to preclude the Court for examining the jurisdictional aspect of its tenability, especially when the objection raised is that it was not maintainable in law.

In view of decisions in the cases of Radhey Shyam & Another Versus Chhabi Nath & Others, Jogendrasinhji Vijaysinghji Versus State of Gujarat & Others, and Ram Kishan Fauji Versus State of Haryana & others, the Bench found that an order passed by the Civil Court could be scrutinised by the High Court in exercise of jurisdiction only under Article 227 of the Constitution and as no writ of certiorari could be issued for quashing the order passed by the Civil Court, a letters patent appeal challenging such adjudication by the Single Judge would not be maintainable.

“What was impugned in the writ petition filed by the petitioners was an order passed by the Civil Court in execution proceedings for executing a decree passed by the Civil Court,” observed the Bench. 

As per the Bench, objections of various natures could be raised to the maintainability of proceedings which could include the proceedings itself not being tenable or on the ground of availability of an alternate remedy. The nature of objection to the maintainability of the proceedings would be relevant. 

Justice Chandurkar stated that an objection to the maintainability of proceedings based on lack of jurisdiction is not one that could be waived and would warrant adjudication irrespective of the stage of the proceedings it is raised. On the other hand, an objection based on availability of an alternate remedy can be considered in the backdrop of self-imposed restrictions as laid down and discretion can be exercised by considering the stage at which such objection is raised. 

In the passing note, it was clarified that once a petition has been admitted it could never be dismissed on the ground of alternate remedy, is not an absolute proposition of law. 

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