The Orissa High Court has affirmed that a writ of certiorari under Article 226 of the Constitution cannot be invoked against orders of a civil court, including Commercial Courts, and that such orders must be challenged under Article 227. This pronouncement reshapes the procedural route for litigants seeking supervisory relief against civil-court determinations.
Background & Facts
The Dispute
M/s. Rashmi Metaliks Limited (appellant) entered into an arbitration agreement with the Union of India (respondent) concerning a commercial dispute. The arbitral tribunal rendered an award, which the appellant sought to enforce. The respondent contested the award before the Senior Civil Judge (Commercial Courts), Bhubaneswar, in Arbitration Reference (ARBP) No.9 of 2024.
Key Facts
- The appellant filed an application under Section 151 of the Code of Civil Procedure, 1908, which remains pending.
- The Commercial Court entertained an application under Section 36(2) of the Arbitration and Conciliation Act, 1996 and stayed execution of the award.
- The stay order required the appellant to deposit Rs.69,05,00,000 (Rs 69.05 crore) as a demand draft with the Registrar, Civil Courts, Khordha, and to furnish a bank guarantee of Rs.1638,24,00,000 (Rs 1,638.24 crore).
- The Union of India filed combined applications under Articles 226 and 227 of the Constitution, which were registered as W.P.(C) No.30590 of 2025, thereby classifying the petition as a writ under Article 226.
- The Single Judge set aside the Commercial Court order and granted an unconditional stay of execution pending disposal of a Section 34 application under the Arbitration Act.
Procedural History
- 02 May 2026: Hearing of the writ petition before the Orissa High Court.
- 28 July 2026: Judgment delivered.
- 2024: ARBP No.9 of 2024 filed in Senior Civil Judge (Commercial Courts).
- 2025: W.P.(C) No.30590 of 2025 registered, seeking certiorari under Article 226.
- 2026: Reference to NKC Projects Pvt. Ltd., Haryana v. Chief Engineer (Roads-1), Bhubaneswar (2026) for precedent on roster jurisdiction.
- 2003: Supreme Court decision in Surya Dev Rai v. Ram Chander Rai (AIR 2003 SC 3044).
- 2009: Supreme Court decision in Radhey Shyam v. Chhabi Nath (2009 5 SCC 616).
- 2015: Supreme Court decision in Radhey Shyam v. Chhabi Nath (2015 5 SCC 423) overruling Surya Dev Rai on certiorari scope.
- 23 Oct 2015: Commercial Courts Act, 2015 came into force.
Parties' Positions
- Appellant (Rashmi Metaliks Ltd.): Contended that the High Court, exercising certiorari under Article 226, could set aside the Commercial Court’s stay order as it was ultra vires.
- Respondent (Union of India): Argued that the High Court lacked jurisdiction under Article 226 to interfere with a civil court order and that the correct supervisory remedy lay in Article 227.
Relief Sought
The appellant sought quashing of the Commercial Court’s stay order and restoration of the award’s enforceability. The respondent sought dismissal of the certiorari petition and direction that the matter be dealt with under Article 227.
The Legal Issue
Whether a writ of certiorari under Article 226 of the Constitution of India is maintainable against an order passed by a civil court, including a Commercial Court established under the Commercial Courts Act, 2015, or whether such orders can only be challenged under the supervisory jurisdiction of Article 227.
Arguments Presented
For the Appellant
The appellant relied on the principle that the High Court’s supervisory jurisdiction under Article 226 extends to all inferior tribunals and that the stay order, being an interlocutory order, fell within the writ’s ambit. It cited NKC Projects Pvt. Ltd. for the proposition that any bench exercising jurisdiction not assigned by the Chief Justice acts ultra vires, thereby rendering the order void.
For the Respondent
The respondent invoked the Supreme Court’s pronouncements in Radhey Shyam v. Chhabi Nath that judicial orders of civil courts are not amenable to certiorari under Article 226. It emphasized the distinction between Articles 226 and 227, arguing that the High Court’s power to supervise civil court orders is confined to Article 227 and that the petition must be re-characterised accordingly.
The Court's Analysis
The Court began by reiterating that the Chief Justice is the master of the roster and that a bench may not entertain a matter outside its assigned category. Citing NKC Projects Pvt. Ltd. the Court affirmed that any order passed by a bench without proper roster assignment is per se illegal.
The Court then examined the scope of certiorati under Article 226. It referred to the two-judge Supreme Court decision in Surya Dev Rai and noted that the later three-judge decision in Radhey Shyam expressly overruled the earlier view, holding that “judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.” The Court quoted the ratio:
"The law enunciated in the report leaves no ambiguity in our mind that the writ of certiorari against an order passed by the Civil Court in a civil proceeding is not an appropriate remedy and the High Court is denuded of its power to exercise the certiorari jurisdiction."
Further, the Court analysed the nature of the Commercial Court under the Commercial Courts Act, 2015. Section 6 of the Act confers jurisdiction to try suits of a specified value, which, in ordinary sense, are civil suits. Consequently, proceedings before a Commercial Court are deemed “civil proceedings” and attract the same jurisdictional limitations as ordinary civil courts.
The Court distinguished between the remedial purposes of Articles 226 and 227. While Article 226 is a writ jurisdiction for correcting gross jurisdictional errors, Article 227 is a supervisory jurisdiction to ensure subordinate courts act within their statutory limits. The Court emphasized that certiorari cannot be used to re-appreciate evidence or correct mere errors of law; it is confined to patent jurisdictional defects that cause grave injustice.
Applying these principles, the Court held that the stay order issued by the Commercial Court was a civil court order and therefore not amenable to certiorari under Article 226. The correct avenue for challenge is the supervisory jurisdiction of Article 227. Accordingly, the petition was to be re-registered as an application under Article 227 and listed before a bench with the appropriate roster.
The Verdict
The High Court set aside the order granting stay of execution issued by the Commercial Court. The writ petition filed under Article 226 was re-stored as an application under Article 227. The Registry was directed to assign the appropriate nomenclature and list the matter before a bench possessing the requisite roster. No monetary or punitive relief was awarded.
What This Means For Similar Cases
Certiorari Cannot Reach Civil Court Orders
Practitioners must recognise that orders of civil courts, including Commercial Courts, are outside the ambit of Article 226. Any attempt to obtain a writ of certiorari against such orders will be dismissed.
Article 227 Is the Correct Remedy
- File the petition as an application under Article 227 for supervisory relief.
- Emphasise the statutory framework of the subordinate court (e.g., Commercial Courts Act) to demonstrate that the proceeding is civil in nature.
- Avoid conflating the remedial purposes of Articles 226 and 227 in pleadings.
Roster Assignment Is Determinative
- Verify that the bench hearing the petition has been assigned the correct roster by the Chief Justice.
- If the bench lacks the appropriate roster, raise a jurisdictional objection at the earliest stage to prevent orders being declared ultra vires.
Practical Checklist for Lawyers
- Identify the nature of the lower court (civil, commercial, tribunal).
- Determine whether the relief sought is supervisory (Article 227) or remedial (Article 226).
- Ensure proper roster allocation before filing.
- Cite Radhey Shyam v. Chhabi Nath and NKC Projects for authority.
- Prepare separate applications under Sections 151 CPC and 36(2) Arbitration Act where procedural compliance is required.
