Article 227 petition maintainable against interlocutory orders of Commercial Courts, Gujarat High Court [Read judgment]

The Gujarat High Court has ruled that writ petitions under Article 227 of the Constitution of India can be entertained by High Court against interlocutory orders passed by commercial courts..A Bench of Justices MR Shah and AY Kogje rule that the bar contained under Section 8 of the Commercial Courts Act against entertainability of “civil revision application or petition” against the interlocutory orders passed by the subordinate/ Commercial Courts, shall not be applicable to the writ petitions under Article 227 of the Constitution of India..Background.The case has its genesis in a Special Civil Suit instituted in the Court of Principal Senior Civil Judge, Dahod by State of Gujarat (petitioner/ plaintiff) against Central government and railway authorities for recovery of money claimed as due towards the usage of water from “Kali” river for domestic and non-domestic purposes by railway authorities. Thereafter, the suit came to be transferred to the Commercial Court, Vadodara..In the Commercial Court, the plaintiffs filed an application seeking permission to place certain documents on record and to exhibit those documents. The application was rejected on the ground that it was filed at a belated stage and the documents are not pleaded in the plaint..This prompted the State of Gujarat to move the High Court under Article 227..Arguments .The preliminary objection raised by respondent railway authorities was on the maintainability of the petition under Article 227 of the Constitution of India against the order passed by the Commercial Court..Advocate Archana Amin, appearing for the respondents submitted that the order passed by the Commercial Court was an interlocutory order and therefore, the petition under Article 227 cannot be entertained considering the bar contained in Section 8 of the Commercial Courts Act..Section 8 of the Commercial Courts Act provides that no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdictional challenge..It was further submitted that the object of Section 8 of the Commercial Courts Act is to ensure that the time-frame stipulated for hearing, does not become redundant by the frequent filing of civil revision applications and petitions against every interlocutory order and the Commercial Court Act was enacted to ensure the expedited disposal of cases..It was the argument of the respondents that if it is held that the bar contained in Section 8 of the Commercial Courts Act shall not be applicable to writ petitions under Articles 227 against interlocutory orders, then it will open a flood-gate of petitions before the High Court under Article 227 and it may defeat the object and purpose of enactment of the Commercial Courts Act..Advocate General Kamal B Trivedi, appearing for the petitioners submitted that the bar under Section 8 of the Commercial Courts Act does not apply to the petitions under Article 227. It was his argument that the bar under Section 8 of the Commercial Courts Act shall be applicable only against the entertainability of the revision application/ revision petitions against the interlocutory orders passed by the Commercial courts..Trivedi argued that the remedy provided under Article 227 of the Constitution of India is a Constitutional right guaranteed under the Constitution of India and therefore, the same cannot be taken away by any statute and/or a special statute and/or by any legislation..Placing reliance upon Supreme Court judgments including L Chandra Kumar v. Union of India And Others, Trivedi contended that the jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable Basic Structure of the Constitution..Judgment.For answering the above issues, the Court adverted to the judgments of the Supreme Court, particularly L Chandra Kumar v. Union of India And Others. .It observed that in L Chandra Kumar, the Supreme Court has specifically held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and Tribunals within their respective jurisdictions is also part of the Basic Structure of the Constitution..“It is further held and observed by the Hon’ble Supreme Court that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 of the Constitution of India cannot wholly be excluded.”.Reliance was also placed on Surya Dev Rai v. Ram Chander Rai and Others in which the Supreme Court while considering the effect of the amendment to Section 115 of the Code of Civil Procedure on the jurisdiction of the High Court under Articles 226 and 227, held that the amendment cannot and does not in any manner affect the jurisdiction under Articles 226 and 227..“In the aforesaid decision, it is held by the Hon’ble Supreme Court that the decision of the subordinate Court shall be subjected to the supervisory jurisdiction of the High Courts under Article 227 of the Constitution.”.The Court therefore, held that the bar contained under Section 8 of the Commercial Courts Act shall not affect the jurisdiction of the High Court under Article 227 of the Constitution of India..The power vested in the High Courts to exercise judicial superintendence over the decisions of the courts and Tribunals within their respective jurisdictions is part of the Basic Structure of the Constitution and no legislature can take away such power of superintendence conferred under Article 227, the Court held..Addressing the submission of the petitioners that entertaining writ petition under Article 227 will be against the object and purpose of establishment of Commercial Courts and will open a flood gate of litigation, the Court held that such submission was considered and turned down by the Supreme Court in Coal India Ltd. And Others v. Saroj Kumar Mishra [(2007) 9 SCC 625], Zee Telefilms Ltd. And Another v. Union of India And Others [(2005) 4 SCC 649] and other cases..Conclusions.The Court arrived at the following conclusions:.(1) The bar contained under Section 8 of the Commercial Courts Act against entertainability of “civil revision application or petition” against the interlocutory orders passed by the subordinate/ Commercial Courts, shall not be applicable to writ petitions under Article 227 of the Constitution of India..(2) The bar contained in Section 8 of the Commercial Courts Act shall not affect the supervisory jurisdiction of the High Courts under Article 227 of the Constitution of India in respect of the orders, including interlocutory orders, passed by the Commercial Court and writ petitions under Article 227 of the Constitution of India may be entertained subject to certain restrictions..(3) Though while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court may annul or set aside the act, order or proceedings of the subordinate courts, it may not substitute its own decision in place thereof..(4) In exercise of supervisory jurisdiction, the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases, itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case..(5) While exercising powers under Article 227 of the Constitution of India, the High Court would have to consider the observations made by the Hon’ble Supreme Court in Paragraph-39 in the case of Surya Dev Rai v. Ram Chander Rai And Others..Read the judgment below.