ORDER
1. S. 115, C.P.C. has been substituted altogether by U.P. Amendmerit Act No. XXXI of 1978 with effect from 1-8-1978. The substituted provision reads as follows :
'115. Revision.-- The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including such suits or other proceedings instituted before August 1, 1978, and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and such subordinate court appears -
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity;
the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit :
Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section :
Provided further that the High Court or theDistrict Court shall not under this section,vary or reverse any order including an orderdeciding an issue, made in the course of a suitor other proceeding, except where -
(i) The order, if so varied or reversed, would finally dispose of the suit or other proceedings; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
Explanation.-- In this section, the expression 'any case which has been decided' includes any order deciding an issue in the course of a suit or other proceedings.'
2. A Full Bench considered the meaning and effect of this provision in Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal, AIR 1979 All 218. Insofar as it is relevnt for our purposes two principles enunciated in the Full Bench are :--
(1) Against orders made in suits valued at less than rupees twenty thousand a revision lies only to the District Judge and against the orders of the District Judge in revision no revision lies to High Court.
(2) Against an order made by the District Judge in an appeal no revision lies to the High Court provided the suit is valued at less than rupees twenty thousand.
Both these aspects were affirmed by the Supreme Court in Vishesh Kumar v. Shanti Prasad AIR 1980 SC 892 and Sri Vishnu Awatar v. Shiv Awatar, AIR 1980 SC 1575 respectively. In Vishesh Kumar v. Shanti Prasad, the Supreme Court held that S. 115 as amended by U.P. Amendment Act assigns mutually exclusive jurisdiction to High Court and District Court and that recognising a revisional power in High Court over a revisional order passed by the District Judge would defeat the legislative scheme and object underlying it. In vishmi Awatar v. Shiv Autar it was held that against an order of the District Judge made in appeal no revision lies to the High Court provided the suit is valued at lessthan rupees twenty thousand. This has been the well accepted law in this State. However, in a case arising from this State reported in Qamaruddin v. Rasul Baksh 1990 All WC308 the Supreme Court disposed of the matter without noticing the U.P. amendment. It appears that by an unfortunate omission it was not brought to the notice of the Supreme Court that the said case was from U.P. and was governed by S. 115 as substituted by U.P. Amendment Act. The matter was disposed of as if it arises under S. 115 as enacted by the Central Legislature. The Supreme Court held that against an order made under O. 39 R. 1 and 2 an appeal lies under O.43 R. 1 to the District Judge and the order of the District Judge on such appeal is amenable to the revisional jurisdiction of this Court U/S. 115. In that view of the matter the Court expressed its surprise as to how the High Court could have entertained a writ petition under Art. 226 of the Constitution for issuance of a writ of certiorari and mandamus against such an appellate order of the District Judge. After narrating the facts, the appeal before the Supreme Court was disposed of in the following words :
'After hearing learned counsel for the parties we are surprised as to how the High Court entertained the writ petition under Art. 226 of the Constitution for issuing a writ of certiorari and mandamus. When a suit is filed before a Civil Court having jurisdiction to entertain the same it may issue interim injunction and the party aggrieved may pursue its remedy before the Appellate Court and if it is further aggrieved it may invoke the revisional jurisdiction of the High Court under the Code of Civil Procedure. Ordinarily an interlocutory order passed in a civil suit is not amenable to extraordinary jurisdiction of the High Court under Art. 226 of the Constitution. More so when the aggrieved party has not exhausted the remedy available to it under the Code of Civil Procedure. The High Court in the instant case failed to realise that the defendant respondents had not approached the High Court u/S. 115 of the Code of Civil Procedure. The question whether an interim injunction should be granted or not is discretionary in nature,although the exercise of discretion is regulated by the principles set out in O.39, Rules 1 and 2 of the Code of Civil Procedure. If the order of injunction is passed by a competent court having jurisdiction in the matter, it is not permissible for the High Court under Art. 226 of the Constitution to quash the same by issuing a writ of certiorari. In the instant case the learned single Judge of the High Court further failed to realise that a writ of mandamus could not be issued in this case. A writ of mandamus cannot be issued to a private individual unless he is under a statutory duty to perform a public duty. The dispute involved in the instant case was entirely between two private parties, which could not be a subject matter of writ of mandamus under Art. 226 of the Constitution. The learned single Judge ignored this basic principle of writ jurisdiction conferred on the High Court under Art. 226 of the Constitution. There was no occasion or justification for issue of a writ of certiorari or mandamus. The High Court committed serious error of jurisdiction in interfering with the order of the District Judge.
We, accordingly, allow the appeal, set aside the order of the High Court dated August 5, 1988 and restore the order of the District Judge, dated 3-2-1988. The appellant is entitled to his costs.'
3. It is this judgment which has led Hon. R. A. Sharma, J. to refer these two writ petitions to a larger Bench. The learned Judge was of the opinion that inasmuch as in Qamruddin's case (1990 All WC 308), the Supreme Court has declared that a revision is maintainable against an appellate order of the District Judge made under O.43, though without noticing the U.P. Amendment Act, the matter requires to be considered by a larger Bench to determine the effect of the said judgment on the state of law obtaining in this State.
4. Civil Misc. Writ Petition No. 29012 of 1990 arises from a suit filed by the petitioner for permanent injunction. In that suit the ' petitioner applied for a temporary injunction under O. 39, R. t C.P.C. which was allowed. Against the order granting injunction thedefendant respondent filed an appeal which has been allowed by the District Judge and the interim injunction granted by the trial Court set aside. The order of the learned District Judge is challenged in the writ petition. The facts in Civil Misc. Writ Petition No. 29035 of 1990 are practically identical.
5. When the writ petitions came up before us, we thought it appropriate to frame the questions arising for our consideration which course would also facilitate the debate before us. The two questions framed by us are :
1. Whether the judgment of the Supreme Court reported in Qamruddin v. Rasut Baksh 1990 All WC 308 has the effect of overruling the Full Bench decision of this Court in Jupiter Chit Fund (P) Ltd. v. Dwarka Diesh, AIR 1979 All 218 as affirmed by the judgment of the Supteme Court in Vishesh Kumar v. Shanti Prasad (AIR 1980 SC 892) and Sri Vishnu Awatar v. Shiv Autar (AIR 1980 SC 1575.
2. Whether a writ lies against a civil Court's decision In short whether an appellate order passed by the District Court or an order passed by it in exercise of its revisionary power conferred upon it by S. 115, S.P.C. (As amended by U.P. Amendment Act, 1978) is amenable to writ jurisdiction of this Court?
6. With respect to the first question the decision of Supreme Court in the case of Qamaruddin which is later decision on one hand and decisions in Vishesh Kumar v. Shanti Prasad (Supra) and Vishnu Awatar v. Shiv Awatar (Supra) which affirm the decision of this Court in Jupiter Chit Fund (Pvt) Limited v. Dwarka Diesh (Supra) would show that there is a direct conflict on the question of maintainability of revision in High Court u/S. 115, C.P.C. Both the judgments of the Supreme Court are by a bench consisting of two Hon'ble Judges. In such a situation the questions which arise for consideration are namely : When there is a direct conflict between the two decisions of Supreme Court rendered by Judges of equal strength, which of them should be followed by the High Court and whether later decision of the Supreme Court has effect of overrulingthe earlier decision of the Supreme Court?
7. One line of decision is that if there is a conflict in two Supreme Court decisions, the decision which is later in point of time would be binding on the High Courts. The second line of decisions is that in case there is a conflict between the judgments of Supreme Court consisting of equal authorities, incidence of time is not a relevant factor and the High Court must follow the judgment which appears it to lay down law elaborately and accurately.
8. Similar situation arose before a Full Bench of Punjab and Haryana High Court in the case of M/s Indo Swiss Time Limited, Dundahera v. Umrao, AIR 1981 Punj & Har 213. What the Full Bench in the said case held is extracted below (at pp. 219-220 of AIR) :
'Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal Benches and therefore, of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortutious circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant then both of them cannot be binding on the courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of coequal Benches of the Superior Court are earlier later is a consideration which appears to me as hardly relevant.'
This decision was followed by the Bombay High Court in the case of Special Land Acquisition Officer v. Municipal Corporation, AIR 1988 Bombay 9. The majority of Judges in the Full Bench held that if there was a conflict between the two decisions of equal benches which cannot possibly reconcile, thecourts must follow the judgment which appear to them to state the law accurately and elaborately. We are in respectful agreement with the view expressed by the Full Bench of Punjab & Haryana High Court in the case of M/s Indo Swiss Time Limited v. Umrao, (AIR 1981 Punj & Har 213) (Supra) especially when the Supreme Court while deciding Qamaruddin's case (1990 All WC 308) (Supra) did not notice the U.P. amendment to S. 115, C.P.C. and earlier decision of the Supreme Court. In the light of the view expressed in this case it is to be examined as to which of the case decided by the Supreme Court lays down the law accurately. As noticed earlier the U.P. Amendment Act No. XXXI of 1978 amended S. 115 of Code of Civil Procedure. By virtue of this amendment, revision u/S. 115, S.P.C. did not lie to the High Court against the appellate or revisional order passed by the District Court where the valuation of the suit is less than Rs. 20,000/-. This amendment came up for consideration in M/s Jupiter Chit Fund (Pvt) Ltd. v. Dwarka Diesh, (AIR 1979 All 218) (FB) (Supra) and it was held that S. 115, C.P.C. as amended by U.P. Amendment Act assigns mutually exclusive jurisdiction to the High Court and district Court. This full bench decision was affirmed by Supreme Court in its two decisions namely in the cases of Vishesh Kumar v. Shanti Prasad, (AIR 1980 SC 892) and Vishnu Awatar v. Shiv Autar (AIR 1980 SC 1575) (supra). A perusal of the judgment of the Supreme Court in the case of Qamaruddin's case (1990 All WC 309) (Supra) indicates that it was not brought to the notice of the bench deciding' the case that it was a case from U.P. and that S. 115, C.P.C. amended by U.P. Amendment Act No. XXXI of 1978 governed the matter. The matter was disposed of as if S. 115, C.P.C. as originally enacted applied.
9. In such a situation it cannot be held that the case of Qamaruddin (Supra) lays| down the law accurately. Further it also cannot be held that the decision of the Supreme Court in Qamaruddin's case overruled the decision of Full Bench of this Court which as noticed already, has been specifically affirmed in two decisions of the Supreme Court. It would not be reasonable to say thateven though Qamaruddin's case does not notice U.P. Amendment Act and the earlier decision of Supreme Court approving the Full Bench decision of this Court, it must be deemed to have dissented or departed from earlier decisions or that it has over-ruled the Full Bench decision of this Court. It goes without saying that even the decision of the Supreme Court must be understood reasonably. It would not be reasonable to say that the Supreme Court would depart or dissent from its earlier decision without even referring to them or without even referring to the relevant provisions of law.
10. For the above reasons it must be held that the decision of Supreme Court in Qamaruddin's case (1990 All WC 308) (Supra) to the extent it holds that revision against an appellate or revisional order passed by the district court is maintainable u/S. 115, C.P.C. (as amended by U.P. Act 31/78) to the High Court does not state the law accurately or overrule the decision of the Full Bench of this Court in Jupiter Chit Fund (Pvt) Ltd. v. Dwarka Diesh (AIR 1979 All 218) (Supra) particularly when it has specifically been approved by the two earlier decisions of the Supreme Court.
11. With respect to the second question to be answered by us, we are not inclined to deal it elaborately here. Suffice it to say that the view of the Supreme Court in Qamaruddin's case (Supra) that ordinarily an interlocutory order passed in civil suit is not amenable to extra-ordinary jurisdiction of the High Court under Art. 226 of the Constitution, no doubt is based upon recognised principle taken into consideration by the Court in refusing the writ. In our opinion, this view of the Supreme Court in Qamaruddin's case is based on assumption that a revision u/S. 115, C.P.C. to High Court is maintainable and the party aggrieved can invoke revisional jurisdiction of the High Court. But in a situation where a revision is barred against the appellate or revisional order passed by the district courts and the said order suffers from patent error of law and further causes manifest injustice to the party aggrieved, can it be said that such an order is not amenable to extra-ordinary juris-diction of the High Court under Art. 226 of the Constitution, in our opinion, although every interlocutory order passed in a Civil Suit is not subject to review under Art. 226 of the Constitution but if it is found from the order impugned that fundamental principle of law has been violated and further such an order causes substantial injustice to the party aggrieved, the view taken by the Supreme Court in Qamaruddin's case (supra) will not preclude such a writ being issued by the High Court under Art. 226 of the Constitution. But only such writ petition under Arts. 226 or 227 of the Constitution would be maintainable where writ can be issued within the ambit of the well-established and recognised principles laid down by the Supreme Court as well as by the various High Courts in that regard. The opinion expressed by the Supreme Court in Qamaruddin's case (supra) to the extent that a writ of mandamus cannot be issued to a private individual unless he is under statutory duty to perform a duty is in accord with well-established principles regarding writ of certiorari and mandamus and need no reiteration or elaboration at our hand. Indeed in one case counsel for the respondent did appear but the said counsel contented himself by saying that the matter may be sent back to the lower court after quashing the impugned order if a writ of mandamus cannot be issued to a private individual under Art. 226 of the Constitution. This contention is not correct. Where an aggrieved party approaches High Court under Art. 226 of the Constitution against an order passed in civil suit refusing to issue injunction to a private individual who is not under statutory duty to perform public duty or vacating an order of injunction, the main relief is for issue of a writ of mandamus to a private individual and such a writ petition under Art. 226 of the Constitution would not be maintainable. Following the decision of the Supreme Court in Qamaruddin's case (Supra) this Court cannot issue a writ of mandamus to a private party unless he is under a statutory duty to perform a public duty. It is not shown to us that the respondents in these petitions are under any statutory duty and, therefore, these petitions are not maintainable.
12. Our answer to the two questions framed by us are these :
Answer to Question No. I :
In the negative.
Answer to Question No. II :
In the affirmative only to this extent that where it is found from the order impugned that fundamental principle of law has been violated and further such an order causes substantial injustice to the party aggrieved, the principle that ordinarily interlocutory order passed in the civil suit is not amenable to extra-ordinary jurisdiction of the High Court, will not preclude such a writ petition being issued by the High Court under Art. 226 of the Constitution within the ambit of well-established and recognised principles laid down by the Supreme Court.
13. Let the papers be laid before the learned single Judge with this opinion and answer.
14. Order accordingly.