Writ Petition against Judicial Order Not Maintainable: SC

In the case of Neelam Manmohan Attavar vs Manmohan Attavar (Transfer Case Criminal No.1 of 2020), the Supreme Court held that a Writ Petition is not maintainable against a Judicial Order.

Background:

Neelam Manmohan Attavar instituted proceedings under Section 12 of the Protection of Women from Domestic Violence Act 20053. On 30 July 2015, the petition was dismissed by the Metropolitan Magistrate, Traffic Court-II, Bengaluru. On 5 November 2015, in an appeal.’ arising out of the dismissal of the proceedings, the interim relief seeking residence and expenses was initially refused by the Additional Sessions Judge, Bengaluru. 

Subsequently, on 19 September 2016 in a petition under Article 226 filed by the petitioner, the Single Judge recognised a right of residence to the petitioner in a house situated at Bengaluru and, on 24 October 2016, directed the withdrawal of the appeal to the High Court. These orders of the High Court became the subject matter of proceedings before the Supreme Court in Civil Appeal Nos 2500 and 2502 of 2017. 

On 14 July 2017, the Supreme Court set aside the orders passed by the High Court in regard to residence and for the withdrawal of the appeal to itself. As a consequence of the judgment rendered by the Supreme Court Court, the appeal filed by the petitioner before the Additional City Civil and Sessions Judge was heard on merits and was eventually dismissed by an order dated 17 February 2018. 

The petitioner carried the matter in revision which was dismissed by the High Court on 31 July 2018. Challenging the order of the High Court, the petitioner filed a writ petition under Article 226 of the Constitution. The Petitioner/Appellant sought relief that the Judgment of the Single Judge “may be declared void/disabled/ recalled”. The Prayer made is quoted herein under:

  • The Writ may be permitted.
  • Judgment dt 31.7.2018 passed in Crl RP 282/2018 may be declared void/disabled/recalled to protect rights and secure probity in public life.
  • De novo/Fresh – Free hearing may be recommended before a higher/full Bench.”

Under Article 139A of the Constitution, the Writ Petition was Transferred to Supreme Court on 13.12.2019.

Contention of the Petitioner:

  1. Writ Petition under Article 226 is maintainable on the ground that the order dated 31 July 2018 of the High Court is void ab initio
  2. Petitioner submitted that the order has not been written by the Judge of the High Court.
  3. The High Court, while disposing of the criminal revision, has not exercised its jurisdiction in a manner consistent with the provisions of Section 397 of the Code of Criminal Procedure 1973.

A Bench of Justice D.Y. Chandrachud and Justice K.M. Jospeh after hearing the parties held that:

  1. A writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. 
  2. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. 
  3. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal or by way of a review.
  4. A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.

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