IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 490 of 2011 In SPECIAL CIVIL APPLICATION No. 981 of 2011 With CIVIL APPLICATION No. 3403 of 2011 In LETTERS PATENT APPEAL No. 490 of 2011 With LETTERS PATENT APPEAL No. 915 of 2011 In SPECIAL CIVIL APPLICATION No. 4664 of 2011 With CIVIL APPLICATION No. 6815 of 2011 In LETTERS PATENT APPEAL No. 915 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= NAVIN KANABHAI KANGAD - Appellant(s) Versus RAVINDRA KHUSALCHAND MEHTA & 1 - Respondent(s) ========================================================= Appearance :
MR MEHUL S SHAH for Appellant(s) : 1, MR SURESH M SHAH for Appellant(s) : 1, MR AY KOGJE for Respondent(s) : 1, MS MEGHA R CHITALIA for Respondent(s) : 1, MR SP MAJMUDAR for Respondent(s) : 2, MR PP MAJMUDAR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 24/02/2012 COMMON CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) As a pure question of law falls for our determination in both the captioned Appeals, they were heard together and are being disposed of by this common judgment and order.
The question of law that falls for our determination is as to having regard to the nature of the proceedings and the nature of the order passed by learned Single Judge whether Letters Patent Appeal would be maintainable against the said judgment and order passed by a learned Single Judge, in view of the recent pronouncement of a Division Bench of this High Court in the case of Gustadji Dhanjisha Buhariwala and another v/s. Nevil Bamansha Buhariwala and others, reported in 2011(2) GLH 147, wherein the Division Bench has taken a view that when a remedy for filing a revision under Section 115 of the Code of Civil Procedure is expressly barred, a petition under Article 227 of the Constitution of India would lie and not a writ under Article 226 of the Constitution of India. If a petition under Article 227 of the Constitution of India is rejected, then no appeal under clause 15 of the Letters Patent is maintainable.
Facts of Letters Patent Appeal No.490 of 2011
This Appeal arises from a judgment and order passed by a learned Single Judge dated 3rd February 2011 in Special Civil Application No.981 of 2011, whereby the learned Single Judge confirmed the order passed by the 2nd Additional Senior Civil Judge at Rajkot below Exh.20 in Regular Civil Suit No.339 of 2010, rejecting application preferred by the appellant for being impleaded as a party defendant in the said suit. Aggrieved by this order passed by the learned Single Judge, Letters Patent Appeal has been preferred challenging the same.
Facts of Letters Patent Appeal No.915 of 2011
This Appeal is directed against the judgment and order passed by a learned Single Judge dated 29th April 2011 in Special Civil Application No.4664 of 2011, whereby the learned Single Judge, while rejecting the petition, confirmed the order dated 28th February 2011 passed by the 2nd Additional Senior Civil Judge below Exh.5 in Civil Misc. Application No.47 of 2009, granting stay of execution of decree in a Summary Suit No.2 of 2005 by imposing condition to deposit Rs.25 lac @ 9% within 30 days from the date of the order.
What is discernible from the facts of both the Appeals and more particularly from the impugned orders under challenge is that both the orders have been passed by a civil judge in a suit proceeding.
Both the orders which were subject matter of challenge before the learned Single Judge could have been challenged before the High Court by way of Civil Revision Applications under Section 115 of the Code of Civil Procedure but, with the amendment in Section 115 of the Code, Revision Applications under Section 115 of the Code are not maintainable and, therefore, writ petitions have been preferred under Articles 226 and 227 of the Constitution of India, praying for a writ of certiorari to quash the orders passed by the civil courts in suit proceedings. It is manifest from the nature of the orders passed by learned Single Judges that the learned Single Judges in their exercise of supervisory jurisdiction under Article 227 of the Constitution of India refused to interfere with the impugned orders passed by the civil court. This issue has been now set at rest very exhaustively by the Division Bench of this Court, to which, one of us (J.B.Pardiwala, J.) is a party and the Division Bench has held as under :-
“The sum and substance of our discussion and findings recorded in the Judgment can be now summarized as under :
(1) When the Parliament has thought fit to restrict powers under Sec.115 of the Code with a definite object, then, under such circumstances an order which is not revisable under Sec. 115 of the Code cannot be challenged by way of filing writ petition under Article-226 of the Constitution invoking the extra-ordinary jurisdiction of the High courts and that too an interlocutory order passed by Civil Courts in a regular suit proceeding.
(2) When remedy for filing the Revision under Sec. 115 of the Civil Procedure Code has been expressly barred then in such case the petition under Article 227 of the Constitution would lie and not a writ petition under Article 226 of the Constitution of India. If a petition under Article-227 of the Constitution would lie and if the same has been dismissed, then, no appeal under clause-15 of the Letters Patent would be maintainable. A petition under Article-227 is not a writ petition. No Writ can be issued under Article-227.
(3) Where the statute bans exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article-227 of the Constitution of India since power of superintendence was not made to circumvent statutory law. Jurisdiction under Article-227 cannot be exercised as a cloak of appeal in disguise.
(4) There cannot be any distinction with regard to a proceeding under Article-226/227 and Sec. 115 of the C.P.C. when it relates to a proceeding arising out of an order of the Civil courts passed in suit proceeding.
(5) Where law provides the provision of Appeal and the same is decided by the judicial authority or where there is a scope for judicial scrutiny by the subordinate at the top, the petition challenging such order would be covered under Article-227 of the Constitution.
(6) Where a petition is filed, both under Articles-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.
(7) The cause title, averments and the prayers in the petition can be taken into account while deciding whether the petition is one under Article-226 and 227 of the Constitution. This has to be determined on the facts of each case having regard to -
i) nature and the jurisdiction invoked;
ii) the averments contained in the petition;
iii) the reliefs sought; and
iv) most importantly, the true nature of the principal order passed by the learned Single Judge. The true nature of the order passed by the learned Single Judge has to be determined on the basis of true character of the relief granted. By merely labeling the petition under Article-226 and by praying for Writ of Certiorari it cannot be said that the facts justify the party to invoke the extraordinary jurisdiction of the High court under Article-226 of the Constitution of India.
(8) As held by the Supreme Court in the case of Radhe Shyam V/s. Chhabi Nath reported in (2009) 5 SCC -616, orders and proceeding of the Judicial Courts subordinate to the High Court are not amenable to the writ jurisdiction of the High Court under Article-
226 of the Constitution, more particularly, when the orders are passed in Suit proceeding in a contest between two private parties.
(9) Writ Petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agency or a State or instrumentalities of the State within the meaning of Article-12. Private individuals cannot be equated with State or instrumentality of the State. All the respondents in a writ petition cannot be private parties. High Court can issue Writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.
(10) In a petition for relief under Article-226 of the Constitution, the Court/Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the Court can go against the Court/Tribunals, but if the petition is for relief under Article-227 of the Constitution, it is well settled that the Courts/Tribunals whose order impugned in a petition, need not be a party in the writ petition. By entertaining the petition under Article-227 of the Constitution, the High Court exercise its power of superintendence, which is analogous to the revisional jurisdiction.“ When both these Appeals were taken-up for hearing, we invited the attention of learned counsel Mr.S.M.Shah to this judgment of the Division Bench in the case of Gustadji Dhanjisha Buhariwala (supra), saying that both these Appeals are not maintainable under clause 15 of the Letters Patent. However, learned counsel Mr.S.M.Shah vehemently submitted that the law as laid down in Gustadji's case (supra) is not a good law as the Division Bench has not considered many previous Supreme Court decisions on the subject as regards the maintainability of intra-court appeal, more particularly, when a litigant has invoked both the articles i.e. Articles 226 and 227 of the Constitution of India and has prayed for a writ of certiorari. According to Mr.Shah, the judgment as rendered in the case of Gustadji (supra) deserves to be re-looked in light of the judgments of the Supreme Court. To make good his case and to substantiate his contention, he has relied upon the following judgments of the Supreme Court :-
(1) State of Madhya Pradesh and others v/s. Visan Kumar Shiv Charan Lal, reported in (2008)15 SCC 233;
(2) Kishorilal v/s. Sales Officer, District Land Development Bank and others, reported in (2006)7 SCC 496;
(3) Rajasthan Public Service Commission and another v/s. Harish Kumar Purohit and others, reported in AIR 2003 SC 3476;
(4) State of Tripura v/s. Tripura Bar Association and others, reported in AIR 1999 SC 1494;
(5) State of A.P. v/s. Subbarayudu and others, reported in AIR 1998 SC 848;
(6) Rajesh Kumar Verma v/s. State of M.P. and others, reported in AIR 1995 SC 1421;
(7) Sushilabai Laxminarayan Mudliyar and others v/s. Nihalchand Waghajibhai Shaha and others, reported in AIR 1992 SC 185;
(8) Sundardas Kanyalal Bhathija and others v/s. The Collector, Thane, Maharashtra and others, reported in AIR 1991 SC 1893; and
(9) Somabhai Mathurbhai Patel v/s. New Shorrock Mills, reported in 1983 GLH 273 (SC).
Relying on these judgments of the Supreme Court which, according to Mr.Shah, have not been considered in the case of Gustadji (supra), he submitted that pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given, the jurisdictional for perspective in the constitutional context are to be perceived and it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the subordinate courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. He also submitted that a later Division Bench cannot take different view than the one taken by earlier Division Bench and if the later Division Bench thought fit to take a different view than that taken by earlier Division Bench of this High Court on the subject then the proper course for the Division Bench was to refer the matter to a larger bench but, could not have proceeded to take a contrary view. According to Mr.Shah there are many judgments of Division Bench of this High Court taking the view that Letters Patent Appeal would be maintainable in the facts and circumstances of the case. He, therefore, vehemently urged before us that we must refer the issue to a larger bench and we should not follow the dictum as laid down in Gustadji's case (supra) for the purpose of dismissing both the Appeals.
Before we proceed to consider the contention of Mr.Shah and the case-laws which have been relied upon by Mr.Shah, we would like to look into the judgments relied upon by the Division Bench in the case of Gustadji (supra), more particularly, to understand as to what has been considered by the Division Bench in taking the view that if the remedy under Section 115 of the Code of Civil Procedure is barred then a petition under Article 227 of the Constitution of India would be maintainable and not a writ petition under Article 226 of the Constitution of India. If a petition under Article 227 of the Constitution of India is rejected by a learned Single Judge, then in that case, an appeal under clause 15 of the Letters Patent would not be maintainable.
We have noticed, on perusal of the judgment of the Division Bench in Gustadji's case (supra) that the Division Bench took into consideration six judgments of the Supreme Court :
(1) Sadhana Lodh v/s. National Insurance Co. Ltd. and another, reported in AIR 2003 SC 1561;
(2) Qamruddin v/s. Rasul Baksh, SLP (C) No.9362 of 1988 and Civil Appeal No.815 of 1989, decided on 6th February 1989;
(3) State v/s. Navjot Sandhu @ Afshan Guru, reported in (2003)6 SCC 641; and
(4) Radhey Shyam and another v/s. Chhabi Nath and others, reported in (2009)5 SCC 616;
(5) Shalini Shyam Shetty and another v/s. Rajendra Shankar Patil, reported in (2010)8 SCC 329;
(6) Naresh Shridhar Mirajkar v/s. State of Maharashtra, reported in AIR 1967 SC 1.
We have also noticed that the Division Bench took into consideration two judgments of this very High Court rendered by learned Single Judges (i) in the case of Goswami Kalyanraiji Govindraiji v/s. Goswami Vallabhraiji Govindraiji, reported in 2003(2) GLH 24; and (ii) in the case of Sushilaben Vasantbhai Randeri v/s. Abhaykumar Panachand Sukhadia (Special Civil Application No.775 of 2002 decided on 16th August 2002).
We shall now look into the ratio of the judgments which have been referred to and relied upon by the Division Bench while deciding Gustadji's case (supra).
In Sadhana Lodh's case (supra), the Supreme Court observed as under :
“Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115, C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115, C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution.”
In Qamruddin's case (supra), the Supreme Court held as under :-
“The question whether an interim injunction should be granted or not is discretionary in nature, although the exercise of discretion is regulated by the principles set out in Order 39, Rule 1 and 2 of the Code of Civil Procedure. If the order of injunction is passed by a competent Court having jurisdiction in the matter, it is not permissible for the High Court under Article 226 of the Constitution to quash the same by issuing a writ of certiorari. In the instant case the learned Single Judge of the High Court further failed to realise that a writ of mandamus could not be issued in this case. A writ of mandamus cannot be issued to a private individual unless he is under a statutory duty to perform a public duty. The dispute involved in the instant case was entirely between two private parties, which could not be a subject matter of writ of mandamus under Article 226 of the Constitution. The learned Single Judge ignored this basic principle of writ jurisdiction conferred on the High Court under Article 226 of the Constitution. There was no occasion or justification for issue of a writ of certiorari or mandamus. The High Court committed a serious error of jurisdiction in interfering with the order of the District Judge.”
In Navjot Sandhu's case (supra), the Supreme Court held as under :-
“It is a settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and Tribunals, within bounds of their authority and not to correct mere errors. Further, where the Statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since power of superintendence was not made to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised 'as the cloak of an appeal in disguise'.”
In Radhe Shyam's case (supra), which is the recent pronouncement of the Supreme Court, the Supreme Court has taken the view while dissenting with the view taken by the Supreme Court in Surya Dev Rai v/s. Ram Chander Rai, (2003)6 SCC 675 that:
“It is clear from the law laid down in Naresh Shridhar Mirajkar v/s. State of Maharashtra, AIR 1967 SC 1, in paragraph 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 (supra). The passage in the subsequent edition of Halsbury (4th Edition) which has been quoted in Surya Dev Rai (supra) does not at all show that there has been any change in law on the points in issue pointed out above.”
“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. The essential distinctions in the exercise of power between Article 226 and 227 are well known and pointed out in Surya Dev Rai (supra) and with that we have no disagreement.”
“But we are unable to agree with the legal proposition laid down in Surya Dev Rai (supra) 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 (supra), is contrary to the ratio in Mirajkar (supra) and the ratio in Mirajkar(supra) has not been overruled in Rupa Ashok Hurra.
In view of our difference of opinion with the views expressed in Surya Dev Rai (supra), 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 on the question discussed above.”
In Shalini Shyam Shetty's case (supra), which is also one of the recent pronouncements of the Supreme Court, the Supreme Court, while considering the issue of curtailment of jurisdiction under Section 115 of the Code of Civil Procedure and the effect of the same so far as the powers of the High Court under Article 227 of the Constitution of India are concerned, held as under :-
“A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. In any event, a petition under Article 227 cannot be called a writ petition.”
“On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated :
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) xxx xxx xxx
(f) xxx xxx xxx
(g) xxx xxx xxx
(h) xxx xxx xxx
(i) xxx xxx xxx
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.”
“It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.”
“Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty.”
“We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (AIR 2003 SC 3044 : 2003 AIR SCW 3872) (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115, CPC is curtailed that has not resulted in expanding High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.”
In Naresh Shridhar Mirajkar's case (supra), a Constitution Bench of seven Judges drew a distinction between judicial orders of inferior courts of civil jurisdiction and orders of inferior tribunals or courts which are not civil courts and which cannot pass judicial orders. In Mirajkar's case (supra), a nine-Judge Constitution Bench considered the history of writ of certiorari and after considering the various English and Indian decisions came to the conclusion and held as under :
“certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction.”
We shall now look into the two judgments of this High Court which have been relied upon in Gustadji's case (supra):
In the case of Goswami Kalyanraiji Govindraiji (supra), the learned Single Judge (Coram: A.M.Kapadia, J.) held as under :-
“It is also required to be noted that by virtue of the amendment made in the Civil Procedure Code vide Amended Act 1999, proviso is added to Section 115 which in terms provides that "the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except were the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings." By virtue of the aforesaid provision, power vested under Section 115 of the Code is circumscribed, therefore, what cannot be granted under Section 115 can never be granted in a petition filed under Article 227 of the Constitution. When the legislature has already provided to put restriction upon the revisional jurisdiction envisaged under Section 115 of the Code of Civil Procedure, I am afraid that same exercise can be undertaken in exercise of power under Article 227 of the Constitution of India. It is well settled that the thing which cannot be allowed to be done directly, cannot be done indirectly.”
In the case of Sushilaben Vasantbhai Randeri (supra), the learned Single Judge (Coram: Jayant Patel, J.) held as under :-
“A contention was raised on behalf of the petitioner during the course of hearing that in light of the amendments in Section 115 of the Code of Civil Procedure, this Court should exercise jurisdiction under Article 227 in case of gross violation of principles of natural justice. There can be no dispute as regards the said proposition but this is not a case where it can be stated that any gross injustice has resulted by virtue of the impugned order. The learned Advocate also submitted that as the remedy under Section 115 of the Code of Civil Procedure has been restricted now, this Court should exercise jurisdiction under Article 227 of the Constitution of India in that context, namely, expand the scope of its jurisdiction under Article 227. This contention requires to be stated to be rejected. Once the legislature in its wisdom has amended the provision of Section 115 of the Code of Civil Procedure and restricted the scope of interference by this Court, an exercise which negates the amendment cannot be undertaken; what is not permissible directly cannot be done indirectly. The Court has to bear in mind the purpose and intent of the amendment.”
(emphasis supplied) In our opinion, the issue in question is no longer res integra. The six judgments of the Supreme Court relied upon by the Division Bench in Gustadji's case (supra) make two things abundantly clear that, (i) where a remedy for filing a revision before the High Court under Section 115 of the Code of Civil Procedure has been expressly barred by a State enactment, only in such a case a petition under Article 227 of the Constitution of India would lie and not a writ petition under Article 226 of the Constitution of India, and if such be the case then against any order passed by a learned Single Judge in exercise of his supervisory jurisdiction under Article 227 of the Constitution of India, no Letters Patent Appeal would be maintainable; and secondly, judicial orders passed by a civil court cannot be examined and then corrected/reversed by the writ court under Article 226 of the Constitution of India in exercise of its power under a writ of certiorari.
In our humble opinion, there is no merit in the contention of learned counsel Mr.Shah that we should refer the issue to a larger bench as we are of the view that law has been abundantly made clear by the Division Bench in Gustadji's case (supra) after considering the six Supreme Court decisions. When these six Supreme Court decisions were being discussed, during the course of hearing, we inquired with learned counsel Mr.Shah as to whether he has any other judgment of the Supreme Court taking a contrary view than the view taken in Sadhana Lodh's case and Radhe Shyam's case (supra). We also asked Mr.Shah to show us any judgment of the Supreme Court prior to both these judgments referred to or after the delivery of the two judgments referred to, taking a view that an order passed by a civil court in a suit proceeding, interlocutory in nature, can be challenged before the High Court by way of a writ petition under Article 226 of the Constitution of India seeking writ of certiorari, and if such a petition is allowed or rejected, then either of the party has a right to prefer Letters Patent Appeal and such an appeal would be maintainable under clause 15 of the Letters Patent.
Mr.Shah invited our attention to the judgment of the Apex Court in the case of Surya Dev Rai (supra). Mr.Shah relied on paragraph 19 of the said judgment, wherein a two-Judge Bench held and observed as under :-
“orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.”
Relying on the aforesaid observation of the Apex Court, Mr.Shah contended that even if an order has been passed by a civil judge upon an interlocutory application arising from suit proceedings, the same is amenable to writ jurisdiction of the High Court under Articles 226 and/or 227 of the Constitution of India, praying for a writ of certiorari to quash such an order passed by a civil court.
We have noticed that the Division Bench in Gustadji's case (supra) considered Surya Dev Rai's case and took notice of the subsequent judgment of the Supreme Court in the case of Radhe Shyam, where a coordinate bench doubted the ratio as laid down in Surya Dev Rai's case following nine-Judge judgment in Mirajkar's case and referred the matter to Hon'ble the Chief Justice of India for constituting a larger bench. The fact is that in a subsequent judgment of the Supreme Court in Radhe Shyam's case (supra), the Supreme Court in no uncertain terms has held that the proposition laid down in Surya Dev Rai's case that judicial orders passed by a civil court can be examined and then corrected/reversed by a writ of certiorari is not a good law.
We have also noticed that the Division Bench in Gustadji's case (supra) relied on a Full Bench judgment of this Court in taking a view that if there is a conflict between two decisions of the Apex Court comprising of equal number of judges, the later in point of time should be followed, more particularly, when the subsequent judgment has explained the earlier decision.
The ratio as propounded in Surya Dev Rai's case (supra) is that the power of the High Court under Articles 226 and 227 of the Constitution of India is always in addition to the revisional jurisdiction conferred on it under Section 115 of the Code of Civil Procedure. Curtailment of the revisional jurisdiction of the High Court under Section 115 CPC does not take away nor could have taken away the constitutional jurisdiction of the High Court conferred under Articles 226 and 227 of the Constitution of India. As per Surya Dev Rai's case (supra), the power under Articles 226 and 227 of the Constitution of India is, therefore, untrammeled by the amendment to Section 115 of the Code of Civil Procedure. However, the same is available to be exercised subject to the rule of self- discipline and practice, which are as well settled.
The ratio laid down in Surya Dev Rai's case (supra) is only with reference to the power and jurisdiction of the High Court to entertain a petition either under Articles 226 or 227 of the Constitution of India to get over the restrictions imposed in Section 115, CPC, in view of the CPC (Amendment) Act 46 of 1999; but not with reference to the maintainability of appeal against such order passed under Article 227 of the Constitution of India.
The most important judgment according to us is the judgment in the case of Sadhana Lodh's case (supra). We have discussed this judgment in the earlier part of our judgment. This judgment is of three Judges. This judgment is prior in point of time then Surya Dev Rai's case (supra). However, in Surya Dev Rai's case (supra), there is no reference of the case of Sadhana Lodh (supra). In Sadhana Lodh's case (supra), a Bench of three Hon'ble Judges has very clearly held that if a remedy under Section 115 of the Code of Civil Procedure is barred, then a petition under Article 227 of the Constitution of India would be maintainable and not a writ petition under Article 226 of the Constitution of India.
We have not been shown any such decision of the Supreme Court or our High Court or any other High Court taking such a view. The judgments which Mr.Shah has relied upon to substantiate his contention that the matter should be referred to a larger bench are also not applicable so far as the principle of law as enunciated in Gustadji's case (supra) is concerned.
We shall now look into each and every judgment which has been relied upon by Mr.Shah to see as to whether the ratio of Gustadji's case (supra) is in any manner in conflict with the judgments of the Supreme Court relied upon by Mr.Shah.
In Visan Kumar Shiv Charan Lal's case (supra), the challenge before the Supreme Court was to the order passed by the Division Bench of the Madhya Pradesh High Court Jabalpur Bench holding that the Letters Patent Appeal was not maintainable. It deserves to be noted that the matter was agitated by respondent no.1 in that case before the Labour Court under reference made under Section 10 of the Industrial Disputes Act, 1947, which was decided in favour of respondent no.1. Thereafter, a writ petition was filed which was dismissed by learned Single Judge and the Division Bench dismissed the Letters Patent Appeal on the ground that it was not maintainable as the order was in term of Article 227 of the Constitution of India. As it can be seen from the very nature of the proceedings before the Supreme Court that it was not arising from any order passed by a civil court in a suit proceedings and, therefore, there was no issue before the Supreme Court as regards Section 115 of the Code of Civil Procedure and the effect of the amendment under Section 115 of the Code of Civil Procedure which came into force from the year 2002. Therefore, it cannot be said that Visan Kumar Shiv Charan Lal's case (supra) has not been considered by the Division Bench while deciding the Gustadji's case (supra). It was altogether in a different context.
In Kishorilal's case (supra), the appellant obtained a loan of Rs.6473=69 from a cooperative society. Recovery proceedings were initiated against him by the Bank. The lands mortgaged to the Bank were sold. A sale certificate was issued in the name of auction purchaser. An appeal was preferred by the appellant of that case before the Joint Registrar, Cooperative Societies, Bhopal, which came to be dismissed. A Second Appeal was preferred before the Board of Revenue where the appellant succeeded and the Sales Officer of the Bank challenged the order passed in the Second Appeal by a writ petition before the High Court, which came to be allowed. Aggrieved by the order passed by the High Court, Kishorilal came up in S.L.P. before the Supreme Court. While allowing the appeal of Kishorilal, Supreme Court held that the Division Bench of the High Court wrongly dismissed the Letters Patent Appeal without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India. However, in Kishorilal's case also, it is abundantly clear that there was no order of civil court arising from a suit proceeding and the issue of Section 115 and its amendment was not the subject matter of consideration.
In Rajasthan Public Service Commission's case (supra), the issue was altogether different. In the said case, the Supreme Court noticed in the facts of the case that a Division Bench dismissed an application containing identical prayers. Another Division Bench took a diametrically opposite view. Supreme Court also noticed that the earlier decision was brought to the notice of the subsequent Division Bench. The Division Bench hearing the subsequent applications did not refer to the conclusion arrived at by the earlier Division Bench. In this set of fact, Supreme Court held that the earlier decision of the Division Bench is binding on a bench of coordinate strength. If the bench hearing matters subsequently entertains any doubt about the correctness of the earlier decision, the only course open to it is to refer the matter to a larger bench.
There cannot be any dispute with regard to this proposition of law. If Mr.Shah would have been able to show us one judgment of Supreme Court or High Court taking a contrary view then the one which has been taken in Gustadji's case (supra), we would have been duty bound to refer the issue to a larger bench but that is not the case over here. On the contrary, at the cost of repetition we may say that Gustadji's case (supra) has been decided on the basis of two Supreme Court decisions (i) Sadhana Lodh (supra); and (ii) Radhe Shyam (supra).
In State of Tripura's case (supra), the same view has been reiterated that if a later bench wants to take a view different than that taken by the earlier bench, the proper course would be to refer the matter to a larger bench.
State of Andhra Pradesh's case (supra) relied upon is also on the practice and procedure.
Rajesh Kumar Verma's case is also on the same issue about proper course of referring the matter to a larger bench if the Division Bench of the High Court has failed to follow earlier concurrent bench's decision.
Sushilabai Laxminarayan Mudliyar's case (supra) also was not a case where the issue of Section 115 of the Code of Civil Procedure and the effect of amendment was under consideration by the Supreme Court while deciding as to whether intra-court appeal would be maintainable against an order passed by a learned Single Judge in a petition preferred under both the Articles i.e. Article 226 and Article 227 of the Constitution of India.
Sundardas Kanyalal Bhathija's case (supra) is also on the principle of precedents and procedure with which there cannot be any dispute.
Somabhai Mathurbhai Patel's case (supra) is also on the point that decision of the Single Judge of a High Court is binding on another Judge of the same Court and in case of disagreement, the matter should be referred to a larger bench.
Thus, close analysis of all the judgments which have been relied upon by Mr.Shah would go to show that in none of the cases the Supreme Court decided that if a remedy under Section 115 of the Code of Civil Procedure is barred, then in that case, an order of a civil court arising from suit proceeding can be challenged before the High Court by way of a writ petition under Article 226 of the Constitution of India seeking a writ of certiorari.
We are, thus, convinced that this is not a case where the issue should be referred to a larger bench on mere asking of a party, as we are of the view that in view of the two Supreme Court decisions relied upon by the Division Bench it cannot be said that the Division Bench, while deciding Gustadji's case (supra), has overlooked or has omitted to consider past binding precedents on the issue or the subsequent precedents, if any, on the issue taking a contrary view than the view taken in Sadhana Lodh's case (supra) and Radhe Shyam's case (supra).
We had an occasion to deal with this very issue at length in the case of Shatrushlasinhji Digvijaysinhji Jadeja v/s. State of Gujarat and others [Letters Patent Appeal No.1341 of 2011 in Special Civil Application No.333 of 2002, decided on 20th September 2011 (Coram: A.L.Dave, Actg. C.J. and J.B.Pardiwala, J.)]. After considering the landmark judgment of the Supreme Court on the subject in the case of Umaji Keshao Meshram v/s. Smt.Radhikabai, reported in AIR 1986 SC 1272, we have held in paragraphs 21 to 25 as under :-
“21. Right of appeal cannot, therefore, be availed merely by filing petition under Articles 226 and 227 unless other conditions are fulfilled. Even otherwise, filing petition under Article 226 or both under Articles 226 and 227 cannot be a free choice left solely to the pleasure of a party. The option in this regard is duly controlled, regulated and guided by the facts involved, and grievance arising therefrom. When on facts involved, the grievance can suitably and adequately be redressed under Article 227, the party acts wholly without justification in filing or styling petition under Articles 226 and 227. Further claiming a writ of certiorari in a prayer clause to quash the impugned order of Tribunal or Court by itself does not change the character or nature of the proceedings. The proceedings which are in substance and nature of a superintending jurisdiction, by reason of a claim of a writ of certiorari does not become of an original jurisdiction under Article 226. Nature of jurisdiction of character of proceedings cannot be foisted by adopting such modalities.
22. We have to bear in mind as observed by the Supreme Court, these two Articles stand on entirely different footing and operate in different field. They cannot as such mutually be exchanged by twisting, even if the result to be achieved or relief claimed may be analogous. Right of appeal under Clause 15 cannot, therefore, be said to have been vested, merely by styling petition under Article 226 or both under Articles 226 and 227 and/or by articulating the prayer clause with a claim of a writ of certiorari. The same can be invoked only on fulfilling the conditions laid down by the Supreme Court as discussed above.
23. A petition justified on facts filed both under Articles 226 and 227 can in fairness and justice be treated one under Article 226, so as not to abrogate the right of a party to appeal. However, it does not mean in our opinion according to the ratio of the Supreme Court, on facts, if the grievance can be or has been entertained exclusively or principally by exercising jurisdiction under Article 227, such exercise is to be presumed one under Article 226 so as to clothe the party with a right of appeal. As laid down, the two Articles operate in different field and with a different purpose, even in a given case result to be achieved may be identical. On facts when the dispute or grievance can be adjudicated, mainly under Article 227, then it would not be either justice or fair to treat the proceedings under Article 226 so as to enable a party to avail a remedy of appeal under Clause 15.
24. We on the question of maintainability of appeal under Clause 15 are guided by the dictum laid down by the Supreme Court in Umaji's case. We cannot afford to be generous in making the right available to the parties. Claiming relief under and amenability of the authority whose decision is impugned to the jurisdiction under Article 226 do not settle the nature of proceedings. It solely depends as per the acidic test laid down by the Supreme Court, firstly on the facts involved and secondly, nature of jurisdiction could be exercised by the Single Judge. Scope of Clause 15 cannot be permitted to dwindle according to the mechanics adopted by the parties. Right to appeal under Clause 15 is to be settled as guided by the Supreme Court according to the nature of grievance arising from the facts involved in the case.
25. The petition before the learned Single Judge was no doubt filed under Articles 226 and 227 claiming a relief to issue an appropriate writ, order or direction and quash and set aside the impugned order of the Civil Court. However, articulating, styling or designing the petition does not vest or divest in the parties a right of appeal under Clause-15. We may now consider one another important facet of the matter.”
On the contrary, we have noticed that almost all High Courts in the country have taken the view that intra-court appeal is not maintainable against an order passed by learned Single Judge in exercise of supervisory powers under Article 227 of the Constitution of India in respect of interlocutory orders passed in original suit proceedings by a civil court.
A seven-Judge special bench was constituted by the Karnataka High Court to look into this issue. The Special Bench of seven-Judge, in Tammanna D.Battal and others v/s. Miss Renuka R.Reddy and others, reported in AIR 2009 Karnataka 119, held as under :-
“9.5 Section 8 of the Karnataka High Court Act only confers the revisional jurisdiction traceable to Section 115 CPC but nothing else, because no other provision much less Article 227, refers to the revisional jurisdiction of the High Court; and there is no ambiguity whatsoever in this regard.
9.6 Essentially, Section 115 of the CPC is a source of power on the High Court to supervise the subordinate Courts, but not a power conferred on the litigant to approach the Court for any relief. Not linked with any substantive right, Section 115 CPC operates for a limited and restricted revisional jurisdiction.
9.7 We have, just above, seen the statutory changes brought into the revisional jurisdiction of the High Court conferred under Section 115, CPC.
9.8 The deletion of clause (b) in the proviso to Section 115, CPC and the addition of sub-section (3) to said Section are intended to restrict the revisional jurisdiction of the High Court conferred under Section 115, CPC, so that no revision would lie against interlocutory orders deciding an issue in the course of a suit not finally disposed of, in order to avoid unnecessary delay in dispensation of justice by interference by the High Court exercising revisional jurisdiction against an order deciding an issue, passed by any Court subordinate to the High Court, in the course of a suit or other proceedings not finally disposed of, attracting Section 115, CPC. But, in view of the settled proposition that the revisional jurisdiction of the High Court under Section 115, CPC is separate and distinct from that of the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, the supervisory jurisdiction of the High Court under Article 227 is invoked to get over the restrictions brought into Section 115, CPC.
9.9 But still the legislative intention for amending Section 115 CPC by CPC (Amendment) Act, 46 of 1999, viz.
(i) for deletion of clause (b) in proviso to Section 115 (1), CPC; and
(ii) addition of sub-section (3) to Section 115, CPC, cannot be lightly disregarded. Prior to CPC (Amendment) Act, 46 of 1999, as per proviso to Section 115(1), CPC the High Court shall not, vary or reverse any order made, or any order deciding an issue; in the course of a suit or other proceeding, except where -
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
By the CPC (Amendment) Act, 46 of 1999, clause(b) to Section 115(1), CPC was deleted. The effect of the amendment by deleting the said clause (b) is that, even the failure of justice or the irreparable injury caused to the party against whom an order was made, shall not be a ground for exercising the revisional jurisdiction under Section 115, CPC. It is, therefore, clear that the intention of the legislature is to bar the intervention in the revision against the interlocutory orders. The proposal was intended to cut the number of revisions on petitions, to bar serious injustice resulting from interlocutory orders and to avoid the unnecessary delay in dispensation of justice on account of interference of the High Court exercising revisional jurisdiction against an order deciding an issue, passed by any court subordinate to the High Court, in the course of a suit or other proceedings, not finally disposed of attracting Section 115, CPC even it would occasion a failure of justice or cause irreparable injury to the party, against whom it was made.
9.10 Obviously, it cannot be sidelined that the revisional jurisdiction of the High Court under Section 115(1), CPC, prior to the Amendment Act 46 of 1999, was exercised in complementary with Section 8 of the Karnataka High Court Act, which deals with the powers of the single Judge to dispose of a revision case by himself alone, as per Section 8(1) of the Act and whose decision or order shall be final.
9.21 Drawing a distinction between two sets of orders passed by the single Judge exercising the power conferred under Article 227 of the Constitution of India, viz.
(i) that arises against the order deciding an issue, passed by any Court subordinate to the High Court, in the course of a suit or other proceedings not finally disposed of attracting Section 115, CPC; and
(ii) from the orders of the single Judge passed in exercise of power under Article 227 of the Constitution not attracted by Section 115, CPC, otherwise, orders passed under Article 227 of the Constitution of India, are almost obliterated.
9.22 In the light of the above distinction, those matters governed under Section 8 of the Karnataka High Court Act and attracted under S.115, CPC fall outside the purview of Sections 9(xii) and 10(iv-a) and therefore no appeal will lie under Section 4 of the Act; nor they are covered under Rules 2(1), 26 and 39 of the Writ Proceedings Rules; nor Article 11(sa) of the Karnataka Court Fees and Suits Valuation Act, 1958.
19. Consequent upon the amendment to Section 115, CPC by Act No. 22/02 the High Court cannot entertain revision petitions against the interlocutory orders passed by the Civil Courts in the original proceedings except the orders that would fall under the proviso to the amended Section 115 of CPC. So far as the appeals are concerned, Section 4 of the Karnataka High Court Act, 1961 (Act for short) provides for appeals from a judgment, decree, order or sentence passed by a single Judge in exercise of the original jurisdiction of the High Court. The said Act is enacted by the Karnataka State Legislature in exercise of its legislative powers from Entry 65, Second list, VII schedule of Constitution of India with a view to regulate powers of this Court and also to confer certain statutory rights upon the public litigants. The Act has received the assent of the President of India.
26. The remedy under Articles 226 and 227 of the Constitution of India is a Public Law remedy for different purpose and the remedy provided under CPC is a Private Law remedy and for a different purpose. Therefore, the remedy provided under Section 4 of the High Court Act, 1961 read with Rules relating to Articles 226 and 227 of the Constitution of India and also as per the High Court Rules of 1959 and the Writ Petition Proceedings Rules of 1977 are special provisions and Constitutional Public Law Remedy and the remedy provided under the CPC is general and Private Law Remedy. The special provisions of the Act and Rules would prevail over the general provisions of the Act.”
The Division Bench of Rajasthan High Court in the case of Sukh Dev v/s. Prakash Chandra, reported in AIR 2010 Rajasthan 153, held as under :-
“30. From the above Articles 226 and 227 of the Constitution of India, we can notice that Article 226 may be law of general nature and is extra and discretionary jurisdiction of the High Court and Article 227 is specific law made in the Constitution itself to give power to the High Court of superintendence over the Courts and tribunals so that High Court may pass appropriate order and even those orders which cannot be passed under Article 226 and also may pass the orders which can otherwise be passed under Article 226, like quashing of the order of the subordinate Court or tribunal. When a remedy is available to the party to the civil litigation under specific provision of law, that is, Article 227 of the Constitution of India then there may not arise any reason and occasion for invoking extraordinary and discretionary jurisdiction of the High Court under Article 226 of the Constitution of India unless there is reason not to invoke jurisdiction under Article 227.
33. None of the judgment has been brought to our knowledge deciding the issue that when a writ petition is preferred to challenge the order of the subordinate Court, then whether the High Court exercises its supervisory jurisdiction under Article 227 or under Article 226 of the Constitution of India. It is settled law that jurisdiction under Article 227 is wide and is not subject to technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction as held in various judgments of the Supreme Court. Normally, mere quashing the order of the subordinate Court passed during trial in suits or hearing of appeal, may not serve any purpose and may result into re-opening of the issue decided by trial Court or appellate Court which is required to be avoided and can be avoided by exercise of power under Article 227 of the Constitution of India by not only setting aside the order of the trial Court or the appellate Court subordinate to the High Court but that order, by exercising jurisdiction under Article 227, can be modified and can be substituted by the order of the High Court resulting into final decision for the issue involved. Consequently, it will avoid the multiplicity of the proceedings. Not only this, if order of the subordinate Court is merely set aside and said subordinate Court again decides the matter afresh, then that order again may be challenged under Article 226 of the Constitution of India which again only can be quashed and set aside resulting into again same exercise by the subordinate Court. This makes clear the reason for different languages in Articles 226 and 227 of the Constitution and for Courts and tribunals orders separate and independent Articles have been made in the Constitution of India purposefully otherwise there was no need to enact Article 227 of the Constitution of India. However, there is no need to supply more reasons than what have been already given in Surya Dev Rai's case (AIR 2003 SC 3044) (supra) by Hon'ble Supreme Court and we are of considered opinion that orders passed by the subordinate Courts in civil proceedings, if are challenged, normally, leaving apart rare and exceptional cases, can be and are (required to be) challenged under Article 227 of the Constitution of India. The label and title given by the writ petitioner in the writ petition is not relevant. The order passed by the single Judge in such matters, unless specifically ordered to be under Article 226 of the Constitution of India, it is required to be accepted as an order passed by the single Judge in supervisory jurisdiction and under Article 227. This is because of the reason that labelling of petition as well as mentioning of petition has become customary, may be earlier inadvertently, but looking to the present trend, it may also be intentional (for which there is no bona fides). Hon'ble the Supreme Court in Surya Dev Rai's case (supra) also observed as under :-
Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncements.
34. We may make it clear that if any order of subordinate Court is challenged by preferring writ petition before the High Court and party intends to challenge the order under Article 226 of the Constitution of India, then it is duty of that party to specifically state reasons for preferring the writ petition under Article 226 with specific averment that petition is not under Article 227 of the Constitution of India. This is necessary in view of the fact that the petitioner should show his bona fides for not seeking relief under wider power of the High Court under Article 227 of the Constitution of India, wherein complete relief can be granted to the petitioner and final order may be passed which will avoid multiplicity of proceeding in Court/Courts and yet the petitioners has chosen to prefer writ petition under Article 226 of the Constitution of India where the order of the subordinate Court can only be set aside (and that also can be done under Article 227 of the Constitution of India). Not only this but the writ petitioner who chooses to challenge the order of the subordinate Court under Article 226 of the Constitution of India, is required to press his plea that the petition is under Article 226 of the Constitution of India so that the single Judge may pass appropriate order holding the petition to be under Article 226 or under Article 227 of the Constitution of India, by that he will be doing so by taking risk upon himself of dismissal of writ petition for not claiming any consequential relief. At this place it may be forced that the proceeding in civil Court are governed by the Code of Civil Procedure. The jurisdiction of High Court may be invoked under Article 226 or 227 of the Constitution of India to challenge the order passed in civil suit or in civil Appeal. The procedure in High Court for writs may be different than as provided for cases in subordinate Courts. But even in writ jurisdiction, facts warrant, relief can be granted only in consonance with the provisions of civil laws. There cannot be any justification for not asking the consequential relief while challenging the order of subordinate Court even if in the fact, consequential relief is the main and substantial relief and in that situation, if party deliberately did not choose to claim consequential relief so as to convert the writ under Article 227 of the Constitution of India into the writ of certiorari under Article 226 of the Constitution of India only for the purpose of getting right of intra-Court appeal then such writ petition can be dismissed on the ground of not seeking consequential relief or in appropriate case, the Court may pass the order which ought to have been passed by taking help of Order 7, Rule 7, CPC and not to pass only an order reopening the issue before the trial Court and multiply the proceedings. We are holding above so because of the reason that in spite of the Supreme Court's deprecating the practice of wrong labelling the petition under both the Articles 226 and 227 of the Constitution of India, yet the petitions are filed under Article 226 when they ought not have been filed under Article 226 of the Constitution of India. The observations of the Hon'ble Supreme Court in Umaji Keshao Meshram (AIR 1986 SC 1272) (supra), which have been considered in subsequent judgments and approved by the Hon'ble Supreme Court also in Surya Dev Rai's case (AIR 2003 SC 3044) (supra) and in the case of Ashok K. Jha (AIR 2009 SC (Supp) 2850) (supra) supports the view taken by us, as Hon'ble the Supreme Court observed that "where the facts justify a party in filling an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both the Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226." The said observations of the Hon'ble Supreme Court are required to read to cover both situations, one where the petition is filed under Articles 226 and 227 Constitution of India both or labelled as filed under only Article 226 of the Constitution of India, then in fairness and justice to party, the petition is required to be treated under appropriate provision of law and if the fact justifies then the petition be treated t6 be under Article 227 of the Constitution of India, which can give jus-
lice to the party, by treating "the party" in plural sense, that is, justice to both the parties and which can be done only by passing appropriate order, dismissing the petition, allowing the petition by setting aside the order of the subordinate Court or by passing the order in substitution to the order passed by the subordinate Court. Hon'ble the Supreme Court in Umaji Keshao Meshram also observed that "where the substantial part of the order sought to be appealed against is under Article 226 then intra- court appeal lies." This certainly means that where substantial part of the order sought to be appealed is under Article 227 of the Constitution of India then that cannot be treated to be under Article 226 of the Constitution of India merely because such type of order could also have been passed under Article 226 of the Constitution of India.
40. In fact the orders of the civil Courts which could have been challenged under Section 115, CPC by way of revision petition before the High Court, are now being challenged in High Court's writ jurisdiction because of amendment in the Code of Civil Procedure. It cannot be disputed that the orders passed by the subordinate Courts could have been challenged in revision under Section 115, CPC before amendment of the Code of Civil Procedure and in that situation, if any order would have been passed by the single Judge of the High Court, its intra-court appeal would have been barred. And in view of the availability of the alternative remedy to challenge the order in revision under the provisions of the Code of Civil Procedure itself, the writ petition would not have been maintainable. Section 115 of the Code of Civil Procedure was amended with object to reduce the delay in the proceedings before Civil Court and that amendment in Section 115 narrowed the High Court's jurisdiction in entertaining revision petition, therefore, only the orders passed by the subordinate Courts are now challenged in writ jurisdiction of the High Court. Therefore, also in fact the High Court exercises its revisional or supervisory jurisdiction only when any order of subordinate Court is challenged in writ jurisdiction. Any other interpretation resulting into providing further appeal against the order passed by the High Court in such matter will frustrate the purpose for which the Code of Civil Procedure was amended. Therefore, substantially these orders are the orders which were passed earlier in revisional jurisdiction of High Court for which there was no remedy to challenge the orders passed by the High Court in revisional jurisdiction, are now sought to be challenged in Intra-Court appeal and if Rule 134(1) is interpreted to mean to provide appeal against such order, then that will result into interpreting sub-rule (1) of Rule 134 of the Rules of 1952 providing challenge to High Court's order passed in revisional and supervisory jurisdiction where the legislature enacted the law to curtail the even first challenge to the order passed by the subordinate Court by limiting the scope under Section 115, CPC. We are of the opinion that there is no justification and reason to construe Rule 134 (1) of the Rules of 1952 as well as the nature of the order which can be passed by the High Court under Article 227 of the Constitution of India arising out of the order passed by the Court subordinate to it which will nullify the object of legislation nor it can be interpreted to enlarge the revisional jurisdiction of the High Court in the name of jurisdiction under Article 227 or reduce the supervisory jurisdiction of the High Court over subordinate Courts to a subordinate jurisdiction subject to appellate jurisdiction of High Court itself. Such contradiction cannot exist in view of the legislative intend and clear provision of Section 134(1) as well as the nature of the orders which are passed by the High Court in writ jurisdiction when orders of the subordinate Courts are challenged in writ jurisdiction in the High Court. At the cost of repetition, when wide and appropriate powers under Article 227 of the Constitution of India are available to the High Court then there cannot arise any question of exercise of jurisdiction under Article 226 of the Constitution of India unless so is required to be exercised for the reasons to be incorporated in the order passed by the single Bench of the High Court. Neither label of the petition nor incorporation of the said label or mention of Article 226 of the Constitution of India in the order itself can change the nature of the order passed when order of subordinate Court is challenged in the High Court.
41. In view of the above discussion, we are of the considered opinion that normally the single Judge of the High Court, while exercising writ jurisdiction, passes any order, for subordinate Courts order/judgment, than that is under supervisory jurisdiction of the High Court and that is under Article 227 of the Constitution of India and that is not under Article 226 of the Constitution of India. To make an order under Article 226 of the Constitution of India, in such cases, the reasons are required to be mentioned in the order of the learned single Judge for passing order not under Article 227 of the Constitution of India, but for passing the order under Article 226 of the Constitution of India. If the order is passed under Article 226 of the Constitution of India specifically, then that order may be appealable order under sub-rule (1) of Rule 134 of the Rules of 1952.
44. We may sum up :-
(i) The jurisdiction under Article 226 of the Constitution of India is original, extraordinary and discretionary jurisdiction of the High Court, whereas jurisdiction under Article 227 of the Constitution of India is not original jurisdiction of the High Court and is supervisory jurisdiction and has no fetters which are found in Article 226 of the Constitution of India,
(ii) Normally any order passed by the subordinate Court is challenged then it can be challenged under Article 227 of the Constitution of India as it is specific provision in the Constitution of India for the appropriate remedy which cannot be equated with jurisdiction of High Court under Article 226 of the Constitution of India.
(iii) Mere label of petition or mention of Article 226 in the order is not decisive and normally such orders are required to be treated to be the orders passed by the single Judge under Article 227 of the Constitution of India and not under Article 226 of the Constitution of India, unless the party challenging the orders of the subordinate Court specifically takes a plea in the writ petition that order has been challenged under Article 226 of the Constitution of India and not under Article 227 of the Constitution of India; and the single Judge passes specific order after considering such plea of the party that the order as being passed is not under Article 227 of the Constitution of India but is under Article 226 of the Constitution of India,
(iv) The intra-Court appeal, as per sub-rule (1) of rule 134 of the Rules of 1952 (as amended by Notification dated 28-6-2005) is not maintainable against any order passed by the High Court (single Judge) in supervisory jurisdiction under Article 227 of the Constitution of India,
(v) Rule 8-B of the High Court of Judicature for Rajasthan Case Flow Management Rules, 2006 is not the law itself providing right to appeal but the entire Rules of 2006 are only prescribing procedure for the High Court under Article 225 of the Constitution of India for the matters for which provisions have been made of appeal etc. by specific law which includes providing procedure for intra-Court appeal provided by specific Rule 134 of the Rules of 1952.”
PRINCIPLE OF BINDING JUDICIAL PRECEDENTS AND REFERENCE TO LARGER BENCH:
The principle of binding judicial precedent is well settled. Not only decision of higher Courts are binding on the Courts lower in hierarchy, even in the same Court it binds Bench of lower number of Judges even to equal number of Judges of co-ordinate jurisdiction. Thus judgment of a Division Bench is binding on subsequently consituted Division Bench of co-ordinate jurisdiction (equal number of Judges). It cannot decide contrary but has an option with judicial sanction to refer it to a larger Bench.
In the case of Govt. of Andhra Pradesh and another v/s. B.Satyanarayana Rao (Dead) by L.Rs and others, reported in (2000)4 SCC 262, the Supreme Court held in paragraph 8 as under :-
“8. Learned counsel for the respondent attempted to convince us that the decision in the case of State of A.P. v/s. V.Sadanandam, (AIR 1989 SC 2060 : 1989 Lab IC 2024) has to be ignored on the principle of per incuriam as certain relevant provisions of the Rules were not considered in the said case, and in any case this case requires to be referred to a larger Bench of three Judges. Rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. This is not the case here. In State of A.P. v/s. V.Sadanandam (supra) the controversy was exactly the same as it is here and this Court after considering paragraph 5 of the Presidential Order of 1975 held that the Government has power to fill a vacancy in a zone by transfer. We, therefore, find that rule of per incuriam cannot be invoked in the present case. Moreover, a case cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another co-ordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law. We, therefore, reject the arguments of learned counsel for the respondents.”
In the case of Ambika Prasad Mishra v. State of U.P., reported in (1980) 3 SCC 719, a Constitution Bench held that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It does not lose its authority 'merely' because it was badly argued, inadequately considered and fallaciously reasoned.
It is also significant what has been recorded by the distinguished Krishna lyer, J. in the case of Ambika Prasad (supra) :
"Every new discovery or argumentative novelty cannot undo or compel reconsideration of a judicial precedent."
The principle and ratio applicable to all including co-equal benches is that, for any and every veiled doubt or casually no reference should be made unsettling a settled law.
The foregoing authorities unequivocally rule down that an earlier decision is binding on a Bench of co- ordinate jurisdiction and if a subsequent Bench wants to differ from the earlier decision then the reference should be made to a larger Bench. The principle deducible from these authorities is that if there is a fundamental or grave error of such a character, which if allowed to continue, would affect the public interest, then the Court owes a duty to the public to correct that error, but a binding precedent cannot be overlooked merely because of the two plausible views,
one view is more preferable or that some new argument has been discovered which was not considered earlier. When only one view is possible and if the view already taken runs counter to the legal position, then the previous judgment containing an error has to be corrected.
In the overall conspectus of the entire matter and after thoroughly going through exhaustive case-law which has been discussed in our judgment, we are of the view that no case has been made out to refer the matter to a larger bench. We are of the firm view that both the Appeals are not maintainable.
In the above view of the matter, the Appeals fail and are hereby dismissed as not maintainable. However, there shall be no order as to costs.
As we have held that both the Appeals are not maintainable, all connected Civil Applications are also disposed of accordingly.
(A.L.DAVE, J.)
(J.B.PARDIWALA, J.)
On judgment being pronounced today, learned counsel Mr.Suresh M.Shah made a request to the Court that the civil suits which are pending before the respective Courts below may be ordered to be proceeded expeditiously within a time-bound programme.
Taking into consideration the facts and circumstances of the case, we are of the view that the request of the learned counsel is reasonable and orders in this regard can be passed.
In this view of the matter, the following order is passed :
(1) The 2nd Additional Senior Civil Judge, Rajkot is hereby directed to take up Regular Civil Suit No.339 of 2010 for hearing and dispose of the same on or before 31st December 2012. It is expected that both the parties will fully cooperate with the learned Judge in expeditious disposal of the suit as directed by us.
(2) The Principal Senior Civil Judge, Porbandar is hereby directed to take up Summary Suit No.2 of 2005 for hearing and dispose of the same on or before 31st December 2012. It is expected that both the parties will fully cooperate with the learned Judge in expeditious disposal of the suit as directed by us.
(A.L.DAVE, J.)
(J.B.PARDIWALA, J.)
/moin