Mrs. Sangeeta Chandra,J.

1. Heard Sri Prashant Chandra, learned Senior Counsel assisted by Sri Nirmit Srivastava, and Ms. Radhika Singh, learned counsel for the petitioner and Sri Amrendra Nath Tripathi, learned counsel for the respondent no.2 alongwith Sri Anand Pratap Singh, Advocate.

2. This petition has been filed under Article 227 of the Constitution of India with the prayer to set aside the order dated 12.04.2022 passed on an application under Order 39 Rule 1 & 2 of the C.P.C. in Regular Suit No. 297 of 2022 and to direct the trial court to maintain the order dated 17.02.2022 by which an ex parte ad-interim injunction for maintenance of Status quo was passed by the trial court. An additional prayer has been made that the private respondents be directed not to make any transactions in respect of any part of the building known as Paradise Farm, situated at IIM Road, Lucknow without leave of the Court.

3. Sri Amrendra Nath Tripathi has raised a preliminary objection regarding the maintainability of this petition under Article 227 of the Constitution of India by referring to Order 43 Rule 1(r) of the C.P.C., wherein it has been provided that an appeal shall lie under Section 104 against an Order under Rule 1 and 2, 2A, 4 or Rule 10 of Order 39.

4. It has been submitted that the order passed on the application for temporary injunction moved by the plaintiff/petitioner has been passed under Order 39 Rule 1 and 2, and therefore, it is an order where the appeal from Order would lie not a petition under Article 227 of the Constitution of India.

5. Learned Senior Advocate, Sri Prashant Chandra has argued on the basis of the Judgment rendered by the Supreme Court in the Case of Radhey Shyam and Another vs. Chhabi Nath and Others (2015) 5 SCC 423 [LQ/SC/2015/292] that against judicial orders of the Civil Court though Writ under Article 226 is not maintainable, judicial orders can be challenged under Article 227. He has described from paragraphs 2 and 3 of the judgment, the controversy which was referred to the Larger Bench with regard to the observations made by the Division Bench in Surya Dev Rai vs. Ram Chand Rai (2003) 6 SCC 675 [LQ/SC/2003/758] and the question that was referred to was whether the Constitution Bench of a corum of nine Judges in Naresh Shridhan Mirajkar vs. State of Maharashtra AIR 1967 SC 1 [LQ/SC/1966/75] could have been ignored by two learned Judges in Surya Deo Rai(supra). Learned counsel for the petitioner has read out the conclusion arrived at by the three Judges Larger Bench as mentioned in paragraph 21 and 22 of the judgment and also read out certain portions of paragraph 23 of Radhey Shyam (Supra) where reference was made to the judgment rendered in the case of Surya Deo Rai(Supra) referring to paragraph 19, 24 and 25 of judgement in the case of Surya Deo Rai(Supra). Learned Senior Counsel has also read out certain portions of paragraph 25 and 26 of Radhey Shyam (Supra) to argue that Article 227 confers the power of superintendence of Subordinate Court on the High Court and the control of working of Subordinate Courts including illegality or perversity in orders passed by such Subordinate Courts can be looked into under Article 227 of the Constitution of India.

6. It has also been argued that the orders of the Civil Court stand on a different footing from orders of other authorities or Tribunals or courts other then Judicial/Civil Courts, and while appellate or revisional jurisdiction is regulated by the statute, power of superintendence under Article 227 is constitutional.

7. It has been argued by Sri Prashant Chandra that the plaintiff/petitioner is before this Court invoking the power of superintendence under Article 227 of the Constitution of India only because the trial court has exceeded its jurisdiction and has made observations on the merits of the case by holding a mini trial. Reference has been made to Builders’ Agreement entered into between the parties and subsequent unregistered notarized agreements made thereafter between the owner of the land, respondent no.2, and the plaintiff/petitioner who is the builder. Detailed arguments have been made regarding the merits of the case which this Court does not consider necessary to refer to as this Court is of the considered opinion that the judgment rendered in the case of Radhey Shyam (Supra) does not lay down the law that even where statutory appeal is maintainable, this Court should interfere in its extraordinary power of supervision under Article 227 of the Constitution of India. The judgement in the case of Radhey Shyam(Supra) was with respect to a particular issue i.e. whether a Writ of Certiorari could have been granted and a Writ Petition under Article 226 was maintainable against orders passed by the Civil Courts in exercise of their powers under the Civil Procedure Code.

The question that was referred to the Larger Bench has been mentioned in paragraphs No. 1 to 5 of the said judgment, which are being quoted herein below:-

“A.K. Goel, J.— This matter has been placed before the Bench of three Judges in pursuance of an order dated 15-4-2009 [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] [LQ/SC/2009/845 ;] ">(2009) 5 SCC 616] [LQ/SC/2009/845 ;] [LQ/SC/2009/845 ;] passed by the Bench of two Hon'ble Judges to consider the correctness of the law laid down by this Court in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] that an order of the civil court was amenable to writ jurisdiction under Article 226 of the Constitution. The reference order, inter alia, reads: (Radhey Shyam case [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] [LQ/SC/2009/845 ;] ">(2009) 5 SCC 616] [LQ/SC/2009/845 ;] [LQ/SC/2009/845 ;] , SCC p. 624, paras 30-33)

“30. Therefore, this Court unfortunately is in … Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned.

31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.

32. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] , is contrary to the ratio in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] and the ratio in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] has not been overruled in Rupa Ashok Hurra [Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388] [LQ/SC/2002/462] .

33. In view of our difference of opinion with the views expressed in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] , matter may be placed before His Lordship the Hon'ble the Chief Justice of India for constituting a larger Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] on the question discussed above.”

"2. Since this Bench has to decide the referred question, it is not necessary to mention the facts of the case in detail. Suffice it to say that assailing an interim order of the civil court in a pending suit, the respondent-defendant filed a writ petition before the Allahabad High Court and the High Court having vacated [Chhabi Nath v. Addl. District Judge, Writ-C No. 50636 of 2007, order dated 12- 10-2007 (All)] the said interim order granted in favour of the appellant-plaintiff, the appellant moved this Court by way of a special leave petition, inter alia, contending that the writ petition under Article 226 was not maintainable against the order of the civil court and, thus, the impugned order [Chhabi Nath v. Addl. District Judge, Writ-C No. 50636 of 2007, order dated 12-10-2007 (All)] could not be passed by the High Court. On behalf of the respondent, reliance was placed on the decision of this Court in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] laying down that a writ petition under Article 226 was maintainable against the order of the civil court and thus it was submitted that the High Court was justified in passing the impugned order

“3. As already mentioned, the Bench of two Hon'ble Judges who heard the matter was not persuaded to follow the law laid down in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] . It was observed that the judgment in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] did not correctly appreciate the ratio laid down in the earlier nine-Judge Bench judgment of this Court in Naresh Shridhar Mirajkar v. State of Maharashtra [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] wherein this Court came to the conclusion that “Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction (para 62).”

“4. With reference to the observations in Surya Dev Rai (Supra) for not following the conclusion in Naresh Shridhar Mirajkar (Supra) , the referring Bench inter alia observed: (Radhey Shyam case [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] [LQ/SC/2009/845 ;] ">(2009) 5 SCC 616] [LQ/SC/2009/845 ;] [LQ/SC/2009/845 ;] , SCC pp. 622-24, paras 25-30)

“25. In our view the appreciation of the ratio in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] by the learned Judges, in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] , with great respect, was possibly a little erroneous and with that we cannot agree.

26. The two-Judge Bench in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] did not, as obviously it could not overrule the ratio in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] , a Constitution Bench decision of a nine-Judge Bench. But the learned Judges justified their different view in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] , inter alia on the ground that the law relating to certiorari changed both in England and in India. In support of that opinion, the learned Judges held that the statement of law in Halsbury, on which the ratio in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] is based, has been changed and in support of that quoted paras 103 and 109 from Halsbury's Laws of England, 4th Edn. (Reissue), Vol. 1(1). Those paras are set out below:

‘103. The prerogative remedies of certiorari, prohibition and mandamus: historical development.— Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into the King's Bench for review or to remove indictments for trial in that court; mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs.…

***

109. The nature of certiorari and prohibition. —Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons before the High Court for review so that the court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior court or tribunal or public authority which forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities.’

The aforesaid paragraphs are based on general principles which are older than the time when Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] was decided are still good. Those principles nowhere indicate that judgments of an inferior civil court of plenary jurisdiction are amenable to correction by a writ of certiorari. In any event, change of law in England cannot dilute the binding nature of the ratio in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] and which has not been overruled and is holding the field for decades.

27. It is clear from the law laid down in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] in para 63 that a distinction has been made between judicial orders of inferior courts of civil jurisdiction and orders of inferior tribunals or court which are not civil courts and which cannot pass judicial orders. Therefore, judicial orders passed by civil courts of plenary jurisdiction stand on a different footing in view of the law pronounced in para 63 in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] . The passage in the subsequent edition of Halsbury (4th Edn.) which has been quoted in Surya Dev Rai [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] does not show at all that there has been any change in law on the points in issue pointed out above.

28. The learned Judges in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] stated in SCC para 18, p. 687 of the Report that the decision rendered in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] was considered by the Constitution Bench in Rupa Ashok Hurra v. Ashok Hurra [Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388] [LQ/SC/2002/462] and wherein the learned Judges took a different view and in support of that, the following para from Rupa Ashok Hurra [Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388] [LQ/SC/2002/462] has been quoted: (Surya Dev Rai case [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] , SCC pp. 687-88, para 18)

‘(i) that it is a well-settled principle that the technicalities associated with the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination; and (iii) that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less can the writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme.’

29. We are constrained to point out again that in Rupa Ashok Hurra [Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388] [LQ/SC/2002/462] the Constitution Bench did not take any view which is contrary to the views expressed in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] . On the other hand, the ratio in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] was referred to with respect and was relied on in Rupa Ashok Hurra [Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388] [LQ/SC/2002/462] . Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] was referred to in SCC para 8, p. 399 and again in SCC para 11 on p. 402 and again in SCC para 59, p. 418 and also in SCC para 60, p. 419 of Rupa Ashok Hurra [Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388] [LQ/SC/2002/462] . Nowhere even any whisper of a divergence from the ratio in Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] was expressed. Rather passages from Mirajkar [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] : (1966) 3 SCR 744 [LQ/SC/1966/75] ] have been quoted with approval.

30. In fact the question which was referred to the Constitution Bench in Rupa Ashok Hurra [Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388] [LQ/SC/2002/462] is quoted in para 1 of the judgment and it is clear from the perusal of the said paragraph that the question for consideration in Rupa Ashok Hurra [Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388] [LQ/SC/2002/462] was totally different. Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned.”

“5. Thus, the question to be decided is: whether the view taken in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] [LQ/SC/2003/758] that a writ lies under Article 226 of the Constitution against the order of the civil court, which has been doubted in the reference order, is the correct view”

8. The Supreme Court answered the reference in paragraph 29, which is being quoted herein below:-

"29. Accordingly, we answer the questions referred as follows:

29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.

29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.

29.3 Contrary view in Surya Dev Rai is overruled."

9. It is settled law that the judgment can be a precedent only for that its actually held therein and not for that which can be inferred therefrom. A Judgment cannot be read as Statute and interpreted.

10. In Bhavnagar University vs. Palilana Sugar Mills (2003) 2 SCC 111, [LQ/SC/2002/1277] the Supreme Court observed in Para 59 thus:- “A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.-----”

11. In Virudhunagar Hindu Nadargal Dharma Paribalana Sabai vs. Tuticorin Educational Society and Others (2019) 9 SCC 538, [LQ/SC/2019/1531] the Supreme Court was considered “the Maintainability” of a petition under Article 227 of the Constitution, against an order passed by the Civil Court vacating the interim order of injunction granted by the trial court. The interlocutory application filed by the appellants/plaintiffs in Regular Suit filed for Declaration and Permanent Injunction had been allowed by the trial court. The contesting defendants filed a petition under Article 227 of the Constitution against the order of trial court granting injunction whereas a Regular Appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure, 1908 was filed by another defendant to the Suit. Despite objections to the maintainability of such petition under Article 227, on availability of appeal remedy under the Civil Procedure Code, the High Court allowed the petition and set aside the injunction granted by the trial court. The High Court rejected the preliminary objection regarding maintainability on the basis of the few decisions of the Supreme Court which revolved around the supervisory jurisdiction of the High Court to keep the subordinate courts within the bounds of law. The High Court found fault with the trial court for taking up, the application for injunction and passing an order thereon, in great haste and observed that it was a case of justice being hurried and consequently getting buried.

The Supreme Court observed in paragraph 11 that “the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan (2000) 7 SCC 695, [LQ/SC/2000/1396] this Court held that “though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well-recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy”.

The Supreme Court also observed in para 12 thus:- “But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai (Supra), pointed out in Radhey Shyam v. Chhabi Nath(Supra) that “orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts”.

The Supreme Court further observed in paragraph 13 thus:- “Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.”

12. This Court is only concerned with the challenge raised to an order on an application moved under Order 39 Rule 1 and 2 for Temporary Injunction in a Suit for Permanent Injunction filed by the plaintiff/petitioner and the grounds that have been mentioned in this writ petition and which have been read out in their entirety by the learned Senior Counsel, Sri Prashant Chandra can be raised in appeal which is provided under Order 43 Rule 1(r) of the Civil Procedure Code.

13. This petition is dismissed as not maintainable.