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1993 DIGILAW 100 (KAR)

CORPORATION OF THE CITY OF BANGALORE v. DODDAIAH

1993-04-15

K.S.BHATT, R.V.RAVEENDRAN

body1993
K. SHIVASHANKAR BHAT, J. ( 1 ) THE writ appeal is filed against an interim order made in writ petition No. 28349 of 1992. The interim order made in the writ petition on 22nd september, 1992 stated that the reversion of the petitioner doddaiah from the present post was stayed thereby. The post in question was ii grade revenue inspector. It seems this order was not given effect to, on the ground that the stay order issued by this court had become infructuous by the time it was communicated. Therefore, the petitioner filed la. Ii. The learned single judge made an order on 8th december, 1992 stating that the petitioner is entitled to be posted as ii grade revenue inspector in any of the divisions within the corporation of the city of Bangalore. In view of the interim order made earlier, the learned single judge also referred to the observation made by the counsel for the corporation that as on the date when the interim order was made, the petitioner had already been reverted. Obviously, because of this submission, the court directed the continuation of the petitioner in any of the similar posts within the corporation of the city of Bangalore. Mr. Mahesh, learned counsel for the corporation placed before us a copy of the memorandum dated 18th september, 1992 which purports to appoint the promotees, i. e. , respondents 2 and 3 in the writ petition to the promotional post. It also purports to demote the petitioner doddaiah w. e. f. the evening of 17th september, 1992. Mr. Sridharan appearing for the petitioner submits that this memorandum was not brought to the notice of his client on 18th september, 1992 and therefore, actually it was not given effect to as against petitioner doddaiah. ( 2 ) IT is not possible for us to decide these rival contentions. The question for our consideration actually in writ appeal is: whether having regard to the admitted facts, the balance of convenience requires for the making of the order as made by the learned single judge assuming that respondents 2 and 3 were promoted by the time the stay order was issued by this court? The restraint required of an appellate court while considering the order under appeal which is a discretionary order has been emphasised by the Supreme Court in Uttar Pradesh co-operative federation lid. V sunder bros. The restraint required of an appellate court while considering the order under appeal which is a discretionary order has been emphasised by the Supreme Court in Uttar Pradesh co-operative federation lid. V sunder bros. , Delhi, AIR 1967 SC 249 . At page 253, Supreme Court observed:"it is well-established that where the discretion vested in the court under Section 34 of the Indian Arbitration Act has been exercised by the lower court the appellate court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. As is often said it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court to interfere with the trial court's exercise of discretion. This principle is well-established; but, as has been observed by viscount simon, l. c in charles osenton and co. V johnston, 1942 ac 130 at page 138:"the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. "the same idea is conveyed in the observations of this court in lakshminarasimhaiah v yalakki gowda, 1965 (1) mys. L. j. 370. It was pointed out that the appellate court is not to approach the case as if he were the trial judge; appellate court has only to see whether the trial judge exercised his discretion properly. "the same idea is conveyed in the observations of this court in lakshminarasimhaiah v yalakki gowda, 1965 (1) mys. L. j. 370. It was pointed out that the appellate court is not to approach the case as if he were the trial judge; appellate court has only to see whether the trial judge exercised his discretion properly. ( 3 ) MANY a times it is reasonably possible to take two or more alternative views, at the stage of making an interim order; fact that the appellate bench would prefer one view, than the view taken by the judge who made the original Order, is no reason at all to reverse the original order. If relevant factors are ignored or a patently irrelevant factor seem to have governed the making of the interim Order, or the exercise of the discretion in a particular manner would be harsh or oppressive, and in the case of an order affecting the administration may cause harm to the public interest or efficient functioning of the public office, then the appellate bench would be justified in interfering with the discretionary order of the learned single judge. The appellate bench considering a writ appeal should always be cautious of the fact that the bench is dealing with an order made by a learned judge of the same court. ( 4 ) A learned judge of the high court cannot be regarded as a court subordinate to the high court. Town house building co-operative society ltd. V special deputy commissioner, 1988 (2) kar. L. j. 510: ILR 1988 kar. 579 is a decision of a full bench of the high court; the learned chief Justice observed at page 595 (para 10) thus:"there can be no gainsaying that a learned single judge while exercising the power of deciding a writ petition (by virtue of allocation of work) does not sit as a subordinate court or judge subordinate to those who constitute a division bench as the question of subordination docs not arise at all. Resultantly the applicability of the Provisions of order 41, rules 23 to 26-a is not attracted. But a power or a jurisdiction entrusted to a particular judge as part of the function of the high court may involve the exercise of a power or jurisdiction which is subject to a superior power like an appellate power. Resultantly the applicability of the Provisions of order 41, rules 23 to 26-a is not attracted. But a power or a jurisdiction entrusted to a particular judge as part of the function of the high court may involve the exercise of a power or jurisdiction which is subject to a superior power like an appellate power. Exercise of power by a single judge of the high court depends upon the allocation of work by the chief justice. Each one exercises the power/jurisdiction of the high court. The decision of the learned single judge, by virtue of a specific statutory provision, is subject to review in appeal by the division bench. "it is true that the nature of the appellate power is not curtailed in any way merely for the reason that the writ appeal is an intra-court appeal. But the fact that it is an intra-court appeal and is in the nature of a second-look at the subject-matter/question involved, would by itself indicate the restraint required of by the appellate bench while considering the appeal. ( 5 ) AT page 601, it was observed:"as we look at the whole issue the existence of power is one thing, while its exercise is another. Great care and caution guides the exercise of an appellate power. Justice of the situation is always a guiding factor and even when an order of a single judge is based on a wrong premises, the appellate bench may not interfere, if the order appealed against has fructified the just result, as observed by a division bench of this court in state of Karnataka v g. Lakshman, ILR 1987 kar. 2223. "in the said lakshman's case, the bench pointed out:"we are sitting in appeal against the decision of the learned single judge of this court. Unless the said decision is established to be 'clearly wrong', we cannot interfere with the said decision just because it is shown to be 'not right'. In Smt. Padma uppal, etc. V State of Punjab and others, AIR 1977 SC 580 it is observed that a court of appeal interferes not when the judgment under attack is not right, but only when it is shown to be wrong. "one of us, who was a member of the full bench, held at page 618:"section 4 referred to above provides for an appellate forum. "one of us, who was a member of the full bench, held at page 618:"section 4 referred to above provides for an appellate forum. In the absence of any restriction, it should be understood that the appellate power under the said provision has all the qualities of any other appellate power. The fact that it is an intra-court appeal may be a relevant factor in considering the appropriateness of making a particular order in the course of exercising the said appellate power. "while making an interim Order, court is normally guided by the factors such as prima facie case, balance of convenience, the resultant injury caused to one of the parties by making the order in a particular manner and whether it can be appropriately compensated if necessary, while disposing of the main case, and the public interest involved in the case of writ petitioners wherein state and its instrumentalities are parties. ( 6 ) EVEN in the case of a first appeal (under the ordinary jurisdiction), where undoubtedly, the appellate power is quite wide, the appellate court has to be convinced that the judgment under appeal is "clearly wrong", before reversing it. While exercising the appellate power against an interim Order, the court shall have to be perennially conscious of this Rule and only because another order looks to be more reasonable is no ground to reverse the interim order. ( 7 ) THE petitioner was already functioning in the higher post; admittedly in the seniority list, his ranking is higher than that of the respondents 2 and 3. In the writ petitions filed by the respondents 2 and 3, there is no direction to demote the 1st respondent herein, if he is made to continue in the earlier post or in an equivalent post till the present writ petition is disposed, no public injury would result, nor the interest of the city corporation would in any way be permanently damaged. In the circumstances, we consider this not a fit case to interfere with the discretionary order of the learned single judge. ( 8 ) APPEAL is accordingly dismissed. --- *** --- .