WA/543/2026 of SURENDRA KUMAR DAS Vs M/S. SAI KRUPA REAL ESTATE PVT.LTD on 13 May 2026

ORDER

13.05.2026

02.

1. This Writ Appeal arises out of the judgment dated 11.03.2026 passed in W.P.(C) No.2152 of 2026 rendered by a learned Single Judge of this Court. The unsuccessful writ petitioner assailed an order dated 07.01.2026 passed by the learned Civil Judge (Senior Division), Commercial Court, Bhubaneswar in Arbitration (P) No.29 of 2025 in the aforesaid writ petition, styled as “application under Articles 226 and 227 of Constitution of India”.

2. As it appears from the order of the said Commercial Court that the petition of the appellant for declaration that the mandate of the Arbitrator has expired upon its termination and to substitute the Arbitrator got dismissed, which was the subject-matter in the writ petition.

3. The learned Single Judge, having discussed the merit of the matter upon hearing the counsel for both sides, came to hold that the prayer of the appellant to declare the

Arbitrator de jure ineligible is unsustainable and consequently found no merit in the writ petition to entertain the prayer of the appellant to terminate the mandate and to substituted the Arbitrator. Accordingly, the writ petition has been dismissed.

4. Seminal question has arisen whether the learned Single Judge was competent to entertain the writ petition on merits by exercising jurisdiction under Article 226 of the Constitution of India wherein the order of learned Civil Judge (Senior Division), Commercial Court was the subject-matter of challenge. It goes to the root of the matter, when the very jurisdiction to entertain the writ petition under Article 226 of Constitution of India by the learned Single Judge is questioned.

5. It is trite that an order passed by any Court having no jurisdiction or lack of jurisdiction is a nullity. (See, Judgment of five-Judge Bench of Hon’ble Supreme Court of India in Central Potteries Ltd. Vrs. State of Maharashtra, (1963) 1 SCR 166 wherein the following has been propounded:

“In this connection, it should be remembered that there is a fundamental distinction between want of jurisdiction and irregular assumption of jurisdiction, and that whereas an order passed by an authority with respect to a matter over which it has no jurisdiction is a nullity and is open to collateral attack, an order passed by an which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack.”

6. Such being the position of law, on a query from the Bench whether judicial order(s) of the Commercial Court can be entertained under Article 226 of Constitution of India, it is submitted at the Bar that such a question fell for consideration in the case of M/s. NKC Projects Pvt. Ltd., Haryana Vs. Chief Engineer (Roads-1), Bhubaneswar, W.A.No.237 of 2026. In the said case, the challenge was made to an order passed by the learned Single Judge of this Court passed in exercise of powers conferred under Article 226 of the Constitution of India, wherein the order passed by the Commercial Court arising out of an Arbitration proceeding under the Arbitration and Conciliation Act, 1996 was the subject matter. Having taken note of Judgment of the Hon’ble Supreme Court of India rendered in Surya Dev Rai Vrs. Ram Chander Rai and others, AIR 2003 SC 3044, Radhey Shaym and another Vs. Chhabi Nath and others, AIR 2015 SC 3269, Mahammed Saud Vs. Dr. (Maj) Shaikh Mahfooz, 2008 (II) OLR (FB) 725 as affirmed by Hon’ble Supreme Court in Mahamad Saud Vrs. Dr. (Maj) Shaikh Mahfooz, (2010) 13 SCC 517, this Court came to hold that the writ petition under Article 226 of Constitution of India against a judicial order is not entertainable. In the said case, it is held as follows:

“11.Be that as it may, the judgment rendered in Radhey Shyam (supra) has created an embargo in entertaining an application under Article 226 of the Constitution of India, more particularly, the writ of certiorari against the judicial order passed by the Court in a civil proceeding, and, therefore, the writ in the nature of certiorari is not an appropriate remedy for an aggrieved person.

12. It leads to another aspect as to whether power of superintendence has also been taken away in relation to a judicial order passed in a civil proceeding; the answer is negatived. The power of superintendence encapsulated within its fold to keep the Court and the tribunals subordinate to it within its territories to travel within the circumference of law and in the event, it is found that the Court has transgressed such boundary, the High Court may pass an appropriate order which is just in tune with the settled legal provisions. There is no fetter either in Surya Dev Rai (supra) or Radhey Shyam (supra) created in entertaining an application under Article 227 of the Constitution of India against a judicial order passed in a civil proceeding, and, therefore, we have no hesitation to hold that the application under Article 227 of the Constitution is maintainable in such situations.

13. A piquant situation has arisen when the application is captioned as an application under Articles 226 and 227 of the Constitution of India. Both the provisions have been resorted to, but the categorization of the case appears to have been done treating such application to have been filed under Article 226 of the Constitution of India and the learned Single Judge who passed the impugned order was conferred with the jurisdiction/determination to deal with such application(s). There is no incongruity on our part in proceeding on such basis that an application under Article 226 of the Constitution is entertained by the Single Bench against an order passed in execution of decree by the Commercial Court and being the judicial order, the writ of certiorari is not an appropriate remedy as the same is not maintainable in view of the law laid down in Radhey Shyam (supra).

14. It admits no ambiguity in a settled proposition of law that an order passed by a forum, the Tribunal, Authority and the Court having no jurisdiction, is a nullity and, therefore, shall not be permitted to occupy a space in the judicial parlance. Once the order is passed without any jurisdiction, such order needs to be effaced. It leads to another aspect which cannot be ignored that the power under Articles 226 and 227 of the Constitution of India is conferred upon the High Court, and therefore, if such order is passed, whether it would be termed as a nullity having passed without jurisdiction.”

7. In view of the above, in the instant Appeal, it is perceived that the question of jurisdiction strikes at the root of exercise of power under Article 226 of the Constitution of India against the order of learned Civil Judge (Senior Division), Commercial Court, Bhubaneswar.

8. This Court, therefore, cannot uphold the order passed in the writ petition under Article 226 of Constitution of India as it is not maintainable against the judicial order passed in a civil proceeding. Nonetheless, the writ petition is maintainable under Article 227 of Constitution of India.

9. Hence, the impugned judgment dated 11.03.2026 passed in W.P.(C) No.2152 of 2026 is hereby set aside and the writ petition is revived. This Court, hence, directs the Registry to assign appropriate number as is assigned to an application under Article 227 of Constitution of India. After undertaking such exercise, the writ petition shall be placed before the Bench having roster of an application under Article 227 of Constitution of India.

10. The Writ Appeal is accordingly disposed of. Pending Interlocutory Application (s) if any, shall also stand disposed of.

(Harish Tandon) Chief Justice

(M.S. Raman) Judge

Bichi Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-May-2026 19:58:15 Signature Not Verified