By way of the present Letters Patent Appeal under Clause 15 of the Letters Patent, the appellants – original petitioners have challenged the order dated 9.2.2011 passed by the learned Single Judge in Special Civil Application No.12793 of 2010 by which the learned Single Judge has issued rule in the Special Civil Application and has expedited the matter. By the said order, the learned Single Judge has also permitted the respondent to withdraw the amount which was deposited by the petitioners before this Court pursuant to the interim order passed by the learned Single Judge. 2. The writ petition was filed by the appellant challenging the order dated 27.8.2010 passed by the learned 10th Additional Senior Civil Judge, Surat below application Exh.13 in Summary Civil Suit No.11 of 2007 by which the petitioners – original defendants were permitted to defend the suit on depositing a sum of Rs.2,27,125/-. The writ petition was filed under Article 227 of the Constitution of India.
3. The Division Bench of this Court in Gustadji Dhanjisha Buhariwala and another v. Nevil Bamansha Buhariwala and others, 2011 (2) GLH 147, in paragraphs 39 and 43 has held as under :-
“39. To our mind, the test which is required to be applied while determining whether an order made by the learned Single Judge is appealable to a Division Bench under Clause 15 of the Letters Patent is not whether the party has invoked Article 226 or 227 or whether the one Article confers such jurisdiction while the other Article does not do so. But the real test is whether what the learned Single Judge has done is to revise the judicial order. If the order which was challenged before him was a judicial order and if he examined that order and recorded his decision he did nothing else except to revise it. Further, the test whether a particular order is a judicial order or not lies in determining whether the Court below has decided the lis between the contesting parties and adjudicated upon their rights.
43. We may also lay down one more test in determining whether the High Court has exercised the supervisory jurisdiction or otherwise. Where a petition is filed both under Article 226 and 227 of the Constitution it will have to be considered whether the point raised in the petition arose for adjudication for the first time before the High Court. If the challenge in the petition is with respect to the point already adjudicated upon by the subordinate court, then, it will have to be held that the supervisory jurisdiction of the High Court was invoked and not the original. In the instant case, the appellants-petitioners filed petition under Article 226 and 227 of the Constitution challenging the order of the district court passed in appeal as erroneous and contrary to law, then the petitioner can be said to be invoking the supervisory jurisdiction of the High Court and not the original jurisdiction. Therefore, the appeal against the decision therein would not be maintainable as they are not directed against the impugned order passed by the learned Single Judge in exercise of the original jurisdiction of the High Court.”
4. In view of the aforesaid decision of this Court, this Letters Patent Appeal challenging the judgment of learned single judge passed under Article 227 of the Constitution is not maintainable.
5. In the result, this Letters Patent Appeal is devoid of any merits and it is accordingly dismissed as not maintainable.
6. Since the Letters Patent Appeal is dismissed as not maintainable, Civil Application does not survive and it is accordingly dismissed.
Sd/-
[V. M. SAHAI, J.] Sd/-
[A. J. DESAI, J.] Savariya