Rajasthan High Court - Jodhpur
Amar Singh vs Kailash Chandra & Ors on 30 January, 2018
Bench: Gopal Krishan Vyas, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Spl. Appl. Writ No. 566 / 2008
Amar Singh S/o Dalbara Singh, By caste Jat Sikh, aged about 52
years, Resident of Village Akkanvali, Tehsil and District Sri
Ganganagar.
----Appellant
Versus
1. Kailash Chandra S/o Shri Suraimal Agarwal, aged about 54
years, R/o 24-A, Purani Dhan Mandi, Sri Ganganagar,
Proprietor, Firm Kailash Chandra Kedarnath.
2. The Addl. District Judge No. Sri Ganganagar.
3. The Debt Relief Court and Civil Judge (Senior Division), Sri
Ganganagar.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. Vishal Singhal.
For Respondent(s) : Ms. Anjana Jawa on behalf of
Mr. R.S. Saluja.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
JUDGMENT
Date of Judgment 30/01/2018 In both these special appeals, filed by appellant Raldu Singh, the order dated 17.12.2007 passed by learned Single Judge in (2 of 6) [SAW-566/2008] SBCWP No.635/2005 is under challenge, whereby the learned Single Judge allowed the writ petition filed by the respondent Kailash Chandra, while accepting the application filed by the petitioner under Order 41 Rule 27 CPC, remitted the case to the trial court (Debt Relief Court-cum-Civil Judge (Sr. Division), Sri Ganganagar) to decide the case after providing an opportunity of hearing to the applicant to produce Books of Accounts as admissible evidence and proceed further in accordance with law.
Admittedly, by the impugned order the learned Single Judge allowed the application filed by the appellant before the revisional court for taking certain documents on record and remitted the case to the trial court while exercising power under Article 227 of the Constitution of India.
Learned counsel for the appellant submits that respondent No.1- Kailash Chandra, challenged the order dated 23.02.2004 whereby the revision petition filed by him against the order dated 19.08.2001 was dismissed thereby prayer for amendment and accepting application under Order 41 Rule 27 CPC was rejected, therefore, the instant special appeal is maintainable.
A specific query was made by this Court as to how this special appeal is maintainable in view of judgment rendered by this Court in DBSAW No.345/2015- Hindustan Petroleum Corporation Ltd. Vs. M/s Shyam Narayan Mehra & Brothers, decided on 29.07.2015 whereby the Division Bench of this Court held that intra-court appeal against the order of learned Single Judge in exercise of powers of superintendence under Article 227 (3 of 6) [SAW-566/2008] of the Constitution of India is not maintainable.
In reply to the aforesaid query, learned counsel for the appellant invited our attention towards the judgment of Division Bench of this Court in the case of Kartar Singh Vs. Board of Revenue & Ors. reported in AIR 2010 Raj. 136 and judgment of full bench of this Court in the case of Ramesh Chand Tiwari & etc. Vs. Board of Revenue & Ors. reported in AIR 2005 Raj. 208, and submits that this appeal is maintainable.
After hearing the learned counsel for the appellant, we have perused the judgment passed in the case of Hindustan Petroleum Corporation Ltd. (supra), in which the Division Bench of this Court after considering the judgments rendered in the case of Ramesh Chand Tiwari (supra) and Kartar Singh (supra) gave verdict that appeal against the order passed by learned Single Judge in exercise of power of superintendence under Article 227 of the Constitution of India is not maintainable.
The following adjudication was made by Division Bench of this Court, which reads as under: -
"13. Learned counsel for the appellant, on the other hand, has relied on the judgment of the Full Bench of this Court in Ramesh Chand Tiwari V/s Board of Revenue and ors. (AIR 2005 Raj. 208), in which the Full Court answered the questions referred to it in paragraph 29 as follows:-
" 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 (4 of 6) [SAW-566/2008] 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. Jurisdiction under Article 227 is not an original 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."
1 4. Reliance has also been placed by learned counsel for the appellant on the judgment of the Supreme Court in M.M.T.C. Limited V/s Commissioner of Commercial Tax and Ors. (AIR 2009 SC 1349) and the Division Bench judgment of this Court in Kartar Singh V/s Board of Revenue & ors. (AIR 2010 Raj.136), which had distinguished the judgment of this Court in Sukh Dev V/s Prakash Chandra (supra). It is submitted that the High Court may not go merely by the nomenclature of the writ petition filed under Article 226 or 227 of the Constitution of India, but It should consider the controversy involved and the prayers sought and where the prayers were made to quash the impugned order passed by the Tribunal, the Special Appeal was maintainable. The judgment arising out of the orders passed by the Assistant Commissioner, Commercial Taxes was held to be amenable both under Article 226 or 227 of the Constitution of India and the Court should see the substance of the case and not the nomenclature of the petition. The Supreme Court in M.M.T.C. Ltd. V/s Commissioner of Commercial Tax & ors. (supra) held as follows:-
(5 of 6) [SAW-566/2008] "In addition, the High Court seems to have gone by the nomenclature, i.e. the description given in the writ petition to be one under Article 227 of the Constitution. The High Court did not consider the nature of the controversy and the prayer involved in the writ petition. The prayer was to quash the order of assessment passed by the Asstt.CCT levying purchase tax as well as entry tax.
Therefore, the order of the High Court that LPA was not maintainable was erroneous and not justified; same, therefore, set aside."
1 5. We have considered the submissions and find that there is a clear bar of filing intra-court Special Appeal under Rule 134(i) of the Rules of 1952, against the judgment or final order (not being a Judgment passed in the exercise of appellate Jurisdiction in respect of a decree or order made in the exercise of appellate Jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional Jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence or in the exercise of criminal Jurisdiction) of one Judge of the High Court. The Rule is more than clear that where the High Court had exercised the power of superintendence in a writ petition, which is vested in it under Article 227 of the Constitution of India, in a matter arising out of th e orders of the Rent Tribunal and Appellate Rent Tribunal in a landlord-tenant dispute, the exercise of power would be under Article 227 and not under Article 226, as in the case of power under Article 226 of the Constitution, the High Court, in view of the pronouncements of the Supreme Court in Shalini Shyam Shetty V/s Rajendra Shankar Patil (supra) and Jacky V/s Tiny Alias Antony and ors. (supra), could not have entertained such prayers under Article 226 of the Constitution.
(6 of 6) [SAW-566/2008] 1 6. The legal position, In view of the judgments of the Supreme Court in Shalini Shyam Shetty V/s Rajendra Shankar Patil (supra) and Jacky V/s Tiny Alias Antony and ors. (supra), is now settled and thus, since the appeal is not a matter of right and can be filed only if there is a statutory provision, the intra-court Special Appeal against the order of learned Single Judge passed in exercise of the power of superintendence under Article 227, is not maintainable, in view of Rule 134(i) of the Rules of 1952, which clearly bars the filing of Special Appeal against the judgment of the High Court rendered in exercise of power under Article 227 of the Constitution.
1 7. The Special Appeal is held to be not maintainable, and is accordingly dismissed."
Accordingly, and in view of above judgment passed by this Court in the case of Hindustan Petroleum Corporation Ltd.
(supra), the instant special appeal filed against the order of learned Single Judge, is hereby dismissed.
(VINIT KUMAR MATHUR) J. (GOPAL KRISHAN VYAS) J.
DJ/-
9