Rajasthan High Court - Jodhpur
Kartar Singh vs Board Of Revenue & Ors on 23 April, 2010
Equivalent citations: AIR 2010 RAJASTHAN 136, 2010 A I H C 3398, 2010 AIHC NOC 329, (2009) 4 RAJ LW 3417, (2010) 87 ALLINDCAS 534 (RAJ), (2010) 4 CIVILCOURTC 880, (2010) 4 WLC(RAJ) 287
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER:
D.B. Civil Misc. Application No.5723/2010
in
D.B. Civil Special Appeal (Writ) No.751/2009.
(Kartar Singh Vs. Board of Revenue & Others)
DATE OF ORDER : April 23rd , 2010
PRESENT
HON'BLE MR JUSTICE A.M. KAPADIA
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
__________________________________________
Mr. B.L. Purohit/Mr. N.M. Lodha for the petitioner.
Mr. Sunil Beniwal for respondent No.5.
Mr. G.R. Punia, Addl. Advocate General.
Reportable
BY THE COURT : (Per Hon'ble Mr. Vyas, J.)
In this special appeal, an application has been moved with a prayer that in view of the judgment delivered by the Hon'ble Division Bench of this Court in D.B. Special Appeal (Writ) No.436/2009, Sukhdev Vs. Prakash Chand and other three special appeals on 16.04.2010, no intra-court appeal shall lie from an order passed by the learned Single Judge while exercising powers under Article 227 of the Constitution of India, therefore, this special appeal deserves to be 2 dismissed being not maintainable in view of the above judgment.
It is contended by learned counsel for the respondent-applicant that in this special appeal, judgment dated 31.08.2009 passed in S.B. Civil Writ Petition No.5429/2005, Kartar Singh Vs. Board of Revenue & Others, is challenged and said judgment has been passed by the learned Single Judge in exercise of power conferred by Article 227 of the Constitution of India. Further, it is contended that the learned Single Judge has examined the validity of the order passed by the Board of Revenue while exercising supervisory jurisdiction over the subordinate courts. Therefore, in view of judgment of the Division Bench dated 16.04.2010, this special appeal is not maintainable.
Per contra, learned counsel appearing on behalf of the appellant submits that judgment of the Division Bench of this Court dated 16.04.2010 is not applicable in this case because the question with regard to maintainability of the special appeal against the judgment of the learned Single Judge has already attained finality in view of the two Full Bench judgments of this Court in 2003 (2) WLC 235, State of Rajasthan Vs. V.R.C. Mishra, and 2005 (2) WLC 305, Ramesh 3 Chandra Tiwari & Others Vs. Board of Revenue & Others, in which specific question was formulated and answered in the affirmative.
Further, it is argued that in the recent judgment dated 16.04.2010 passed by the Division Bench of this Court in Sukhdev's case (supra), the Division Bench of this Court while following the recent judgment of the apex Court, reported in (2009) 10 SCC 584, Ashok K. Jha & Others Vs. Garden Silk Mills Ltd. & Others has held that no intra-court appeal is maintainable against judgment passed under Article 227 of the Constitution of India rendered by the learned Single Judge of the High Court; and, while observing the above fact, it has been held that the Full Bench decision of this Court rendered in Ramesh Chandra Tiwari's case (supra) does not lay down the law correctly.
It is argued by learned counsel for the appellant that before the Division Bench, in the case of Sukhdev Singh, D.B. Special Appeal (Writ) No.844/2009 and 3 others, the question was with regard to maintainability of those special appeals arising out from the judgment of the learned Single Judge, in which, challenge was made against interlocutory orders and while exercising powers under Articles 226 and 227 of the Constitution 4 of India the learned Single Judge decided the matter. The said writ petition was preferred under Articles 226 and 227 of the Constitution of India because earlier before the amendment in the Code of Civil Procedure, orders of civil Courts could have been challenged under Section 115 of the Code of Civil Procedure by way of revision application before the High Court. But, after amendment in the Code of Civil Procedure, the right of revision under Section 115, C.P.C. has been taken away and jurisdiction of the High Courts has been narrowed down in entertaining the revision petitions. Therefore, the orders passed by the subordinate Courts are now challenged in the writ jurisdiction of the High Court. Therefore, the learned Division Bench has examined the question whether special appeal is maintainable against the judgment of the learned Single Judge in which order of civil Court was challenged and while exercising its revisional or supervisory jurisdiction writ petition has been decided against which appeal is maintainable or not. Therefore, in view of the said judgment, it cannot be said that now no special appeal against any of the judgment rendered by the learned Single Judge while exercising powers under Articles 226 and 227 of the Constitution of India is not maintainable. 5
Further, it is argued by learned counsel for the appellant that in view of the 2 adjudications made by the Full Bench of this Court, which have attained finality, this special appeal is maintainable and it cannot be rejected on the ground that the Division Bench has held now in the case of Sukhdev Singh that appeal under Article 227 of the Constitution is not maintainable.
It is also submitted by learned counsel appearing on behalf of the appellant that Hon'ble apex Court has held in the Official Liquidator Vs. Dayanand, reported in (2008) 10 SCC 1, that there must be consistency in the orders passed by the Court and judicial discipline must be maintained. While inviting our attention towards the two judgments of the Full Bench of this Court, it is argued that all the judgments taken into consideration by the Division Bench were considered by the Full Bench and finally it has been held that special appeal is maintainable. Therefore, it is true that after amendment in the Code of Civil Procedure, whereby jurisdiction of the High Court under Section 115 was narrowed down, the matter was to be examined whether special appeal is maintainable in those matters where interlocutory orders passed by the trial Courts 6 were challenged before the learned Single Judge but it was not open for the Division Bench to assess the validity of the two Full Bench judgments, in which, it has been held that special appeal is maintainable. All the judgments except judgment in Ashok K. Jha's case, reported in (2009) 10 SCC 584, were considered by the Full Bench and after considering the judgments, the matter was finally decided, in which, it has been held that special appeal is maintainable and, if at all, it was felt necessary by the Division Bench of this Court to decide the question whether special appeal arising out from the judgment of the learned Single Judge, in which, interlocutory order of civil Court was under
challenge, then, of course the matter was to be decided to that extent. But, it was not open for the Division Bench of this Court to assess the validity of the aforesaid two decisions of the Full Bench because the subject-matter of appeal in question before the Division Bench in Sukhdev's case was altogether different and it was to the extent that whether those writ petitions decided by the learned Single Judge, in which, challenge was made against civil Court's interlocutory order.
Therefore, according to the facts of the case, in which, the learned Division Bench has decided the matter of 7 Sukhdev Singh, the said judgment is not applicable in the present case.
Further, it is argued that upon perusal of the judgment of Ashok K. Jha's case (supra), it will reveal that Hon'ble apex Court has reiterated the view taken in Umaji Keshao Meshram Vs. Radhika Bai, (1986) Suppl.
SCC 401 and several other judgments and those judgments were already considered by the Full Bench of this Court, in which, it has already been held that special appeal against the judgment of the learned Single Judge while exercising power under Articles 226 and 227 of the Constitution of India is maintainable. It is nowhere adjudicated by the Hon'ble apex Court in the case of Ashiok K. Jha (supra) that there is complete bar for entertaining special appeals arising out from the judgments of Single Judge passed in exercise of power under Article 227 of the Constitution of India, therefore, while maintaining judicial discipline as per the verdict of the apex Court in the Official Liquidator's case (supra), the objection raised by the respondent-applicant may be rejected and it may be held that this special appeal is maintainable.
We have considered the rival submissions made by both the parties.8
It is true that twice the question with regard to maintainability of the special appeals came up for consideration before the Full Bench of this Court. In the case of State of Rajasthan Vs. V.R.C. Mishra and 6 others, the following questions were referred to the larger Bench for consideration :
"1. Whether the judgment dated 13.12.2001 has a binding effect as a part of the law of precedent or not?
2. Whether the right to file intra court appeals stands abrogated with the Repealing Act coming into force on 29.8.2001 by which the Rajasthan High Court Ordinance, 1949 was repealed notwithstanding the several other existing provisions preserving the powers of the High Court in the matter of administration of justice as contained in Article 225 of the Constitution read with ss. 52, 54, 57 of the State Reorganisation Act, 1956?"
The Full Bench of this Court while considering 31 judgments, enumerated hereunder, decided question No.2 in the following terms :
"260. The right of intra-court appeal does not stand abrogated with the Repealing Act of 2001 coming into force on 29.8.2001 by which the Rajasthan High Court Ordinance, 1949 was repealed. The right to the intra-
court appeal in the High Court of Judicature for Rajasthan, and the jurisdiction of the Division Bench to hear the appeal against the judgment of the learned single Judge of this Court as was vested under Article 225 of the Constitution and later on conferred under s.52 of the State Reorganisation Act, 1956 9 and the Rajasthan High Court Rules therefore, was not affected or abrogated by the repeal of the Rajasthan High Court Ordinance, 1949 which had long ceased to be governing statute in respect of subjects dealt with under Art. 225 of Chapter V of Part VI of the Constitution and on the subject matters dealt with in Part V of the State Reorganisation Act, 1956."
(Cases considered)
1. 2002 (2) WLC (Raj.) 488
2. 2002 (2) RLW 963
3. 2002 AIR SCW 4095
4. 2002 (5) SCC 548
5. 2001 (1) WLC (Raj.) 129
6. 2001 (3) SCW 2087
7. AIR 1993 SC 1014
8. 1991 (4) SCC 139
9. AIR 1989 SC 38
10. AIR 1989 SC 1933
11. AIR 1988 SC 1531
12. 1986 SCC (supp.) 401
13. AIR 1986 SC 1272
14. AIR 1985 SC 576
15. AIR 1984 SC 1543
16. 1982 (1) SCC 125
17. 1978 (2) SCC 102
18. AIR 1975 SC 1835
19. AIR 1975 SC 17
20. AIR 1968 SC 372
21. AIR 1967 SC 1
22. AIR 1966 SC 420
23. AIR 1964 SC 907
24. AIR 1961 Kerala 96
25. AIR 1960 SC 936
26. AIR 1956 AP 161
27. AIR 1953 SC 357
28. 1947(2) All.ER 270 29. DBCSA No.53/2002 30. DBCSA No.485/2002 31. DBCSA No.9/1999 Thereafter, again, in the case of Ramesh Chandra Tiwari's case (supra), following question was referred 10 for adjudication :
"Whether intra court appeal to the Division Bench is maintainable against the order judgment rendered by the learned Single Judge in exercise of supervisory jurisdiction under Article 227 of the Constitution of India?"
Again, the Full Bench took into consideration 21 judgments, noted hereunder, and held that special appeal is maintainable and answered the reference in the following manner :
"29. We sum up our conclusion, thus: -
(i) The power of superintendence conferred on the High Court under Article 227 of the Constitution is always in addition to the revisional jurisdiction. It is wider than one conferred by Article 226 in the sense that it is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction but it is akin to appellate, revisional or corrective jurisdiction.
(ii) Any person desiring to prefer intra- court appeal from the judgment/order of the Single Judge, may present the same before the Division Bench but if the Division Bench finds that the judgment/order of the Single Judge was rendered purely in exercise of revisional jurisdiction, the intra-court appeal shall stand dismissed as not maintainable. Judgments/orders passed by the Single Judge in exercise of wider supervisory jurisdiction under Article 227 are amenable to intra-court appeals."
(Cases considered)
1. 2004 (4) WLC (Raj.) 288
2. 2003 (2) WLC (Raj.) 235 11
3. 2003 (2) WLC (SC) Civil 255
4. 2003 (6) SCC 675
5. 2003 (6) SCC 641
6. 2003 (1) WLC (SC) Civil 688
7. 2002 (1) WLC (Raj.) 67
8. 2001 (1) WLC (Raj.) 129
9. 1999 (6) SCC 275
10. AIR 1996 Raj. 154
11. 1996 (3) SCC 52
12. 1993 SCC (Supp.) 179
13. 1992 (3) SCC 448
14. AIR 1992 SC 185
15. AIR 1991 SC 1494
16. AIR 1991 SC 1494
17. 1986 SCC (Supp.) 401
18. AIR 1961 Punjab 24
19. AIR 1957 All. 414
20. AIR 1955 Madras 287
21. AIR 1953 Cal. 636.
We have carefully gone through the judgment of the Division Bench in Sukhdev's case (supra) dated 16.04.2010 relied upon by the applicant for dismissal of this special appeal as not maintainable. The Division Bench while taking into consideration almost all those judgments which were already examined by the Full Bench of this Court earlier as well as recent judgment of the apex Court rendered in Ashok K. Jha's case, has held that the Full Bench judgment does not lay down the law correctly. While giving the above finding the judgment of Umaji Keshao Meshram Vs. Radhika Bai, (1986) Suppl. S.C.C. 401, and recent judgment which is rendered afterwards in Ashok K. Jha's case were considered by the Division Bench. It is worthwhile to 12 observe that the Full Bench of this Court, in the case of Ramesh Chandra Tiwari has considered all thoses cases which were considered by the Division Bench in Sukhdev's case except the case of Ashok K. Jha (supra).
We have perused the judgment of Ashok K. Jha's case. In the said judgment, apex Court has not held that there is complete bar upon entertaining special appeal arising out from the judgment of the learned Single Judge rendered while exercising power under Article 227 of the Constitution of India. Following adjudication has been made by the apex Court in Ashok K. Jha's case :
"36. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra-court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintaianble. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers.
37. We agree with the view of this Court in Ramesh Chandra Sankla that a statement by a learned Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226.13
The vital factor for determination of maintainability of the intra-court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge.
38. Insofar as the present case is concerned, in the cause-title of the writ petition (special civil application), Articles 226 and 227 of the Constitution have been mentioned. A careful reading of the writ petition shows that the writ petition is not confined to supervisory jurisdiction of the High Court. The employer has invoked jurisdiction of the High Court by praying for a writ of certiorari. The prayer clause in the writ petition reads, "In view of the aforesaid premises Your Lordships may be pleased to issue a writ of certiorari or any other appropriate order...." The judgment of the Single Judge is, thus, traceable to Article 226. The statement made by the Single Judge in his order that no case for interference is made out under Article 227 of the Constitution is not decisive.
39. Moreover, the Division Bench in its order observed, "though long-drawn arguments were advanced on the question of maintainability of this appeal, there really was not a serious contest on the question of maintainability of the appeal".
40. For all these reasons, we hold that the letters patent appeal was maintainable from the order dated 1-10-2007 passed by the learned Single Judge. We answer Question (2) in affirmative.
41. By way of footnote, we may observe that during the course of hearing of the appeal, we were informed by the Senior Counsel for the employer that dispute has been resolved amicably with twelve employees. We gave an opportunity to the remaining employees to settle the dispute with the employer as has been done by twelve employees, and although the employer expressed their willingness, but the remaining employees found the 14 offer of the employer unacceptable.
42. In the result, the appeal fails and is dismissed with no order as to costs." It is worthwhile to observe that in the above case, Hon'ble Supreme Court has considered all those judgments including the judgment of Umaji Keshao Meshram Vs. Radhika Bai, (1986) Suppl. SCC 40. The Full Bench of this Court has also considered all those judgments as have been relied upon by the apex Court; and, thereafter held that, "Any person desiring to prefer intra-court appeal from the judgment/order of the Single Judge, may present the same before the Division Bench but if the Division Bench finds that the judgment/order of the Single Judge was rendered purely in exercise of revisional jurisdiction, the intra- court appeal shall stand dismissed as not maintainable Judgments/orders passed by the Single Judge in exercise of wider supervisory jurisdiction under Article 227 are amenable to intra-court appeals." Upon perusal of the adjudication made by Hon'ble apex Court in Ashok K. Jha's case it is abundantly clear that the view taken by the Full Bench of this Court in Ramesh Chandra Tiwari's case has been upheld while observing in para 36 that if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ 15 under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintaianble. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers. Therefore, in our considered opinion, it is for the Court to ascertain whether particular appeal is maintainable for not.
The crux of the matter is that before the Division Bench of this Court in the case of Sukhdev, decided on 16.04.2010, the question was whether intra-court appeal arising out from the judgment of learned Single Judge, in which, interlocutory order was under
consideration is maintainable or not. This was the precise question in those four appeals. Therefore, from the commencement of the judgment, following question was framed :
"The issue involved in these appeals is whether intra-court appeal lies against the order passed of the nature in writ jurisdiction by the learned Single Judge of this Court ?"
In D.B. Civil Special Appeal No.32/2010, order of the trial Court dated 12.10.2009, in which, the trial Court directed the defendant-petitioner for discovery of 16 documents under Order 11 Rule 14, C.P.C.
In D.B. Civil Special Appeal No.10/2010, the judgment under challenge was passed by the learned Single Judge dated 29.10.2009, in which, challenge was made to the order of the trial Court dated 19.01.2009 whereby the trial Court rejected the petitioner- defendant's application filed under Order 16 Rule 1(3), C.P.C. for summoning two witnesses during the course of defendant's evidence.
In D.B Civil Special Appeal No.12/2010, the judgment of the learned Single Judge dated 27.11.2009 passed in S.B. Civil Writ Petition No.714/2009 was under challenge. In that writ petition, challenge was made to the order of the trial Court dated 13.01.2009, whereby, the trial Court rejected the petitioner's application under Order 8 Rule 9, C.P.C.
In D.B. Civil Special Appeal No.844/2009, preferred against order of the learned Single Judge passed in S.B. Civil Writ Petition No.9232/2009, wherein, the appellant-petitioner challenged order of the trial Court dated 07.08.2009 whereby the trial Court rejected the appellant-petitioner's application filed under Order 8 Rule 1, C.P.C.
Above facts clearly reveal that in all the above 17 four cases, interlocutory orders of the trial Court were brought under challenge before the learned Single Judge, against which, earlier there was remedy under Section 115, C.P.C. by way of filing revision petition. But, after amendment in the Code of Civil Procedure the revisional jurisdiction of the High Court was narrowed down and remedy which was available under Section 115, C.P.C. to challenge interlocutory orders passed by the trial Court was curtailed, thereafter, Hon'ble Supreme Court gave verdict in case of Surya Dev Rai Vs. Ram Chandra, reported in AIR 2003 ACW 3672, that interlocutory orders may be challenged by way of filing writ petition under Article 227 of the Constitution of India. The purpose of narrowing down the revisional jurisdiction by the legislature was to stop unnecessary delay in civil trial. Hon'ble Supreme Court granted liberty to the litigants that if the interlocutory order is not in consonance with law, then, it can be challenged by way of filing writ petition under Article 227 of the Constitution of India.
In our opinion, the issue with regard to further appeal against those writ petitions which were filed under Article 226 of the Constitution of India was the question before the Division Bench, therefore, obviously 18 as per para 36 of the judgment in Ashok K. Jha's case, the matter was examined by the co-ordinate Division Bench; meaning thereby, the controversy involved in the instant appeal is altogether different. The judgment has not been passed in the writ petition filed under Article 226 of the Constitution of India challenging interlocutory order; but, in fact, the writ petition was filed under supervisory jurisdiction. Therefore, in our opinion, the judgment of the Full Bench in Ramesh Chandra's Tiwari's case is required to be followed because the principle laid down by the Full Bench in Ramesh Chandra Tiwari's case was, in fact, upheld by the Hon'ble Supreme Court in Ashok K. Jha's case.
In this view of the matter, while following the judgment of Hon'ble Supreme Court rendered in Official Liquidator's case (supra), we are of the opinion that to maintain judicial discipline, we are required to follow the adjudication made by the Full Bench in Ramesh Chandra Tiwari's case in the facts of the present case.
It is also worthwhile to observe that this Division Bench cannot re-assess or nullify the adjudication made by the Full Bench. In our opinion, the judgment of the co-ordinate Division Bench in Sukhdev's case is based upon particular set of facts, in which, challenge was 19 made before the learned Single Judge to interlocutory orders, that too, by way of invoking jurisdiction under Article 227 of the Constitution of India because after amendment revisional jurisdiction of the High Court under Section 115, C.P.C. has been narrowed down. Here, in the present case, writ petition was filed before the learned Single Judge against final judgment of Board of Revenue, against which, the remedy of filing writ petition under Article 227 of the Constitution of India is available. Before amendment in the Code of Civil Procedure, an order of the Revenue Board was to be challenged under Article 227 of the Constitution of India; and, after amendment of the CPC, the same remedy is available. Therefore, upon facts of this case the judgment of Sukhdev's case, cited by counsel for the respondent-applicant, is not applicable because in that case interlocutory order of trial Court was under
challenge and herein the matter of final judgment of Board of Revenue was under challenge before the learned Single Judge.
We have also examined one more judgment, reported in AIR 2009 S.C. 1999, State of Madhya Pradesh Vs. Visan Kumar Shiv Charan Lal, in which Hon'ble apex Court has held that against the judgment 20 of the Labour Court the writ petition was dismissed by the learned Single Judge, against which, Letters Patent appeal before the Division Bench is maintainable.
In this view of the matter, while following the judgment passed by the Full Bench of this Court in V.R.C. Mishra's case and Ramesh Chandra Tiwari's case (supra), we are not inclined to accept the objection raised by the applicant for dismissing this special appeal in view of the judgment of the Division Bench of this Court in Sukhdev's case dated 16.04.2010. In our view, the Division Bench judgment in Sukhdev's case and three other appeals dated 16.04.2010 has been rendered upon fact that all those four appeals were arising out from interlocutory order of trial Court against which earlier remedy under Section 115, C.P.C.
was available but, after amendment, the Legislature has purposely narrowed down the revisional jurisdiction of the High Court to prevent unnecessary delay.
On the basis of above discussion, while maintaining judicial discipline as held by the Hon'ble Supreme Court in Official Liquidator's case (supra), we are of the view that even if we apply the adjudication made by the apex Court in Ashok K. Jha's case, we are required to follow the adjudication made by the Full 21 Bench and, it cannot be said that adjudication made twice by the Full Bench of this Court is washed away in view of the recent Division Bench judgment cited by learned counsel for the applicant, rendered in Sukhdev's case on 16.04.2010. Therefore, in our opinion, even if we apply the ratio of Ashok K. Jha's case, the adjudication made by the Full Bench does not lose its juridical sanctity, in which, both the Full Bench answered the reference that special appeal is maintainable.
In view of the above, this application with regard to maintainability of the special appeal is hereby rejected.
(Gopal Krishan Vyas) J. (A.M. Kapadia) J. Ojha, a.