Karnataka High Court
Sarvajanika Vachanalaya, vs State Of Karnataka, on 28 February, 2019
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
REVIEW PETITION No.100072/2016
(in W.A. No.100393/2014)
C/w WRIT APPEAL No.100393/2014
REVIEW PETITION No.100072/2016
BETWEEN:
SARVAJANIKA VACHANALAYA,
MUDHOL, MUDHOL TALUK,
BAGALKOT DISTRICT
REPRESENTED BY
SRI THAMMANNA PARAPPA BUDANI
AGE: 82 YEARS,
R/O: CHINCHKHANDI K.D.,
MUDHOL TALUK, BAGALKOT DISTRICT,
BEING THE LEGAL REPRESENTATIVE
OF DECEASED JAGANNATHA
BHEEMRAO TANKASALI,
SOLE SURVIVING TRUSTEE ... PETITIONER
(BY SRI. GIRISH A. YADAWAD FOR SRI V.P.KULKARNI,
ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY THE DEPUTY COMMISSIONER,
BAGALKOT,
DIST: BAGALKOT - 587 101.
2
2. BASAVESHWARA
VIDYAVARDHAKA SANGHA,
REPRESENTED BY ITS
SECRETARY, BAGALKOT,
CHAIRMAN & AUTHORISED
REPRESENTATIVE OF THE GOVERNING
COUNCIL, BAGALKOT 587101. ... RESPONDENTS
(BY SMT. VEENA HEGDE, AGA FOR R-1
SRI S.B.HEBBALLI, ADVOCATE FOR R-2)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 READ WITH SECTION 114 OF CIVIL PROCEDURE CODE,
PRAYING TO REVIEW THE ORDER DATED 29.04.2014 PASSED
IN THE W.A.NO.100393/2014 ON THE FILE OF HON'BLE HIGH
COURT OF KARNATAKA, DHARWAD BENCH.
------------
IN W.A. NO.100393 OF 2014
BETWEEN:
SRI BASAVESHWARA VIDYA VARDAKA
SANGHA,
REPRESENTED BY ITS SECRETARY,
BAGALKOT
(CHAIRMAN AND AUTHORIZED
REPRESENTATIVE OF THE GOVERNING COUNCIL,
BAGALKOT-587101)
...APPELLANT
(BY SRI. S. B. HEBBALLI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY THE DEPUTY COMMISSIONER
BAGALKOT - 587 101.
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2. SARVAJANIKA VACHANALAYA MUDHOL
MUDHOL REPRESENTED BY ITS PRESIDENT
TAMMANNA PARAPPA BUDNI,
AGE: 76 YEARS,
CHINCHKHANDI K.D., MUDHOL
TALUK AND DIST.
BAGALKOT - 587 313. ... RESPONDENTS
(BY SMT VEENA HEGDE, AGA FOR R-1
SRI GIRISH YADWAD FOR SRI V.P.KULKARNI, ADVOCATES
FOR R-2)
THIS WRIT APPEAL IS FILED U/S.4 AND R/W.SECTION 10
(iv)(a) OF THE KARNATAKA HIGH COURT ACT, PRAYING TO,
CALL FOR THE RECORDS IN W.P.NO.60866 OF 2010 AND ON
PERUSAL OF THE SAME BE PLEASED TO SET ASIDE THE
JUDGMENT AND ORDER DATED 10.01.2014 PASSED BY THE
LEARNED SINGLE JUDGE IN W.P.NO.60866 OF 2010 AND TO
CONFIRM THE ORDER PASSED DTD.12.01.10 BY THE PRINCIPAL
CIVIL JUDGE (JUNIOR DIVISION), MUDHOL AT MUDHOL ON
I.A.NO.1 DATED 26.02.1998 IN FDP 8/1993.
THIS REVIEW PETITION AND WRIT APPEAL COMING ON
FOR ADMISSION THIS DAY, NAGARATHNA, J., DELIVERED
THE FOLLOWING:
JUDGMENT
IN R.P. No.100072/2016
Though this review petition is listed for admission, with the consent of learned counsel for the parties, it is heard finally.
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2. Petitioner is respondent No.2 in W.A.No.100393/2014. Petitioner has assailed order dated 29.04.2014 passed in the writ appeal. The said order reads as under:
"ASBJ & BSGJ: W.A. No.100393/2014
29.4.2014
The objection raised by the registry is not sustainable with regard to maintainability, since the appeal arising out of the common order passed by the learned single Judge is already pending consideration. Hence office objection relating to maintainability is overruled. Similarly, with regard to the certified copy of the order, since the same is available in the connected appeal, the production of the same is dispensed.
List on 30.04.2014."
3. Learned counsel for the petitioner submits that Writ Appeal No.100393/2014 has been filed by the respondent herein assailing the order of the learned single Judge passed in Writ Petition No.60866/2010. The 5 said writ petition assailed order dated 12.01.2010 passed by the Principal Civil Judge (Jr. Dn.), Mudhol, on I.A. No.1 filed under Order XXII Rule 2 / 3 of the Code of Civil Procedure, 1908 (CPC), dated 26.02.1998 in F.D.P. No.8/1993. That Sri Tammanna Parappa Budani, who is the President of the petitioner-trust, sought impleadment in F.D.P. No.8/1993. By order dated 12.01.2010, the application was rejected. Being aggrieved, he preferred writ petition No.60866/2010 invoking Article 227 of the Constitution of India. He further submits that Writ Petition Nos.65455 and 65456 of 2009 were filed by the respondents herein assailing order No.432/2003 dated 19.05.2003 assailing the entry of name of Sri. Tammanna P. Budni and eight others in the register of public trusts pertaining to Sarvajanika Vachanalaya, Mudhol, which is a public library, seeking a writ of certiorari or any other appropriate writ.
4. Learned counsel for the petitioner submits that the aforesaid three writ petitions were clubbed 6 together and were connected with C.R.P. No.749/2006 which was filed by the respondent herein assailing order dated 29.09.2006 passed on I.A. No.V in E.P.No.6/1994 by the Additional Civil Judge (Jr. Dn.), Mudhol. The said application was one filed under Order XXII Rule 3 read with Section 151 of CPC. All these cases were heard together and disposed off by a common order dated 10.01.2014 by a learned single Judge of this Court. At this stage itself, it may be mentioned that Writ Petition No.60866/2010 was filed in the category of GM-CPC and the other two writ petitions were filed in the category of GM-RES.
5. Learned counsel for the petitioner submits that the respondents herein were aggrieved by Writ Petition No.60866/2010 being allowed and by dismissal of Writ Petition Nos.65455 & 65456 of 2009. The respondents have preferred three writ appeals. That Writ Appeal No.100393/2014 arising out of Writ Petition No.60866/2010 is not maintainable having regard to the 7 dictum of the larger Bench of this Court in the case of Tamanna and Others vs. Miss Renuka and Others reported in ILR 2009 KAR 1207 as the exercise of jurisdiction by the learned single Judge while allowing the said writ petition was one under Article 227 of the Constitution of India and it is a supervisory jurisdiction. It is the submission that as far as the other two writ petitions are concerned, exercise of jurisdiction by the learned single Judge was original jurisdiction under Articles 226 & 227 of the Constitution of India and therefore, the writ petitions are maintainable; but as far as Writ Petition No.60866/2010 is concerned, the writ appeal is not maintainable. That even though a common order was passed in all the cases, nevertheless, the proceeding in W.P. No.60866/2010 being one under Article 227 of the Constitution, merely because the said writ petition was clubbed with the other two writ petitions, and a common order was passed on 10.01.2014, the writ appeal is not maintainable against 8 the order passed in W.P. No.60866/2010. In the circumstances, petitioner's counsel submits that the order dated 29.04.2014 may be recalled, reviewed and the writ appeal may be dismissed as not maintainable.
6. Per contra, learned counsel for respondent No.2, at the outset, submits that this review petition itself is not maintainable as there is no error apparent on the face of the record and the co-ordinate Bench of this Court has passed an innocuous order regarding maintainability of the writ appeal having regard to the fact that all the three writ petitions were clubbed together and a common order was passed on 10.01.2014. Therefore, the writ appeal filed against the order passed against W.P. No.60866/2010 is maintainable.
7. Learned counsel for respondent No.2 also submits that from the impugned order dated 10.01.2014, it is apparent that W.P. No.60866/2010 was 9 also treated as GM-RES writ petition and not GM-CPC and therefore, the Registry was not right in raising an objection regarding its maintainability and that the order dated 29.04.2014 would not require any review.
8. Learned Additional Government Advocate appearing for respondent No.1 submits that the review petition is maintainable and the impugned order ought to be reviewed as the writ appeal against the order passed in W.P. No.60866/2010 is not maintainable having regard to the judgment of the larger Bench of this Court in Tammanna's case (supra).
9. By way of reply, learned counsel for the petitioner would submit that merely because there was a typographical error in the order of the learned single Judge dated 10.01.2014, indicating Writ Petition No.60866/2010 as GM-RES, it would not make the said writ petition as a writ petition under the said category. What has to be seen is the substance of the matter and 10 the substance of W.P. No.60866/2010 is that it was filed by the petitioner herein being aggrieved by the interim order passed in the final decree proceeding invoking Article 227 of the Constitution. Therefore, the writ appeal is not maintainable against a writ petition filed by invoking Article 227 of the Constitution.
10. The detailed narration of facts and contentions would not call for reiteration. The impugned order is also extracted above. The sole controversy in this review petition is with regard to the maintainability of the writ appeal viz., W.A. No.100393/2014. Before answering the said question, it is noted that this review petition is maintainable as under Order XLVII Rule 1 of CPC read with Section 114, a party can seek review of an order not only when there is a mistake or an error apparent on the face of the record or even for any other sufficient reason. In the circumstances, we hold that review petition is maintainable.
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11. Secondly, on perusal of the impugned order, it is noted that a co-ordinate Bench has held that since Writ Appeal No.100393/2014 arose out of the common order passed by the learned single Judge and there are already writ appeals pending relating to other writ petitions, viz., W.P. Nos.65455 & 65456 of 2009, W.A. No.100393/2014 is also pending. With respect, we do not accept the said reasoning. It may be that there is a common order passed in respect of the writ petitions filed under Articles 226 and 227 of the Constitution and also in respect of the writ petition filed invoking Article 227 of the Constitution. The learned single Judge had the jurisdiction to hear all these matters and since there was a commonality in the controversy arising in the three writ petitions which were clubbed together, a common order was passed. But, exercise of jurisdiction in respect of W.P. No.60866/2010 filed under Article 227 of the Constitution is distinct from exercise of jurisdiction in respect of W.P. No.65455 & 65456 of 12 2009, as Writ Petition No.60866/2010 is under Article 227 of the Constitution and the other two writ petitions were under Article 226 of the Constitution. In essence, the question is, whether an order passed in exercise of jurisdiction under Article 227 of the Constitution would permit filing of an intra-court appeal under Section 4 of the Karnataka High Court Act, 1961. The categorization of the writ petition given in the order of the learned single Judge dated 10.01.2014 is wholly irrelevant. What is of relevance is the exercise of jurisdiction by the learned single Judge.
12. In the case of Tammanna (supra), it has been held that "no appeal would lie under Section 4 of the Karnataka High Court Act against the order of the Single Judge passed in exercise of the power conferred under Article 227 of the Constitution of India in the matter arising against an order made deciding an issue, passed by subordinate to the High Court, in the course of a suit or other proceedings not finally disposed of, 13 which is attracted by Section 115 CPC and is governed under Section 8 of the Karnataka High Court act; and in all other matters which are not attracted by Section 115 CPC and not governed under Section 8 of the Act, an appeal would lie under Section 10(iv-a) against the order passed under Section 9(xii) of the Karnataka High Court read with Articles 226 and 227 of the Constitution of India and Rules 2(1), 26 and 39 of the Writ Proceedings Rules as well as Article 11(sa) to Schedule II of the Karnataka Court Fees and Suits Valuation Act, 1958?". The aforesaid dictum squarely applies to the instant case.
13. As already noted, in the present case, the order impugned in W.P. No.60866/2010 was passed in final decree proceeding in F.D.P. No.8/1993 on an application filed under Order XXII Rule 3 of CPC rejecting impleadment. As against the said order, a civil revision petition under Section 115 of CPC was not maintainable. Therefore, a writ petition under Article 14 227 of the Constitution was filed. Hence, in view of the dictum in Tammanna's case, the writ appeal is not maintainable.
14. In the circumstances, the order dated 29.04.2014 is recalled. The review petition is allowed. Order in W.A. No.100393/2014
15. In view of R.P. No.100072/2016 being allowed and the order dated 29.04.2014 being reviewed and recalled by holding that this writ appeal is not maintainable, the same is dismissed as not maintainable. This is merely because a petition filed under Article 227 of the Constitution is clubbed with a petition filed under Articles 226 & 227 of the Constitution, it would not imply that the writ petition filed under Article 227 of the Constitution is also one filed under Articles 226 and 227 of the Constitution. It is noted that in W.P. No.60866/2010 filed by the petitioner herein, he did not seek for any other prayer apart from 15 seeking quashing of the order dated 12.01.2010 passed by the Principal Civil Judge (Jr. Dn.), Mudhol, on I.A. No.1 dated 26.02.1998 in F.D.P. No.8/1993.
The reasons assigned above for recalling order dated 29/04/2014 are reiterated for holding that the W.A.NO.100393/2014 is not maintainable. Hence, the same is dismissed.
No costs.
Sd/-
JUDGE Sd/-
JUDGE Kms