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2005 DIGILAW 1757 (RAJ)

Abbas Ali v. Sawai Lal

2005-07-12

MANAK MOHTA, N.N.MATHUR

body2005
Judgment 1. We have heard learned Counsel for the appellant and perused the order of the learned Single Judge dated 05.04.2005 refusing to interfere with the order of the learned Civil Judge (Senior Division), Banswara dated 15.04.2004 permitting recording of evidence in accordance with the provisions of Order 18 Rule 4 CPC, in exercise of powers under Article 227 of the Constitution of India. 2. It is contended by the learned Counsel that the learned Single Judge has committed illegality in not exercising the powers vested by Article 227 of the Constitution of India irrespective of the fact that the order of the learned Civil Judge suffered from gross illegality causing grave injustice. He has placed reliance on a decision of the Apex Court in Laxmi Kant vs. Pratap Singh, reported in 1995 (6) SCC 576 . 3. The undisputed facts are that the respondent plaintiff filed a suit for eviction on the ground of personal necessity, subletting and default in payment of rent. During trial, the defendant-appellant filed an application under Order 18 Rule 5 CPC, and prayed that the evidence be recorded in the Court as the suit will have an ultimate decree, which shall be appealable. The learned trial Court by order dated 011.2003 permitted the oral evidence as prayed. It further appears that the respondent plaintiff filed an application on 28.02.2004 under Order 18 Rule 4 CPC. It was brought to the notice of the learned trial Court that the parties have already filed affidavit of the witnesses and, therefore, appropriate order be passed for cross-examination of the respondent-plaintiff and the witnesses. This application was allowed by order dated 15.04.2004. Challenging the said order by way of writ petition under Article 227 of the Constitution of India, it was contended before the learned Single Judge that the trial Court committed an error in passing the order dated 15.04.2004, which really amounts to reviewing the order dated 011.2003. Advancing the contention, it was submitted that the power of review can be exercised only when it is conferred by statutory provisions and the Court has no inherent powers to review its own order, unless conferred by the Statute. 4. Advancing the contention, it was submitted that the power of review can be exercised only when it is conferred by statutory provisions and the Court has no inherent powers to review its own order, unless conferred by the Statute. 4. Per contra, it was submitted on behalf of the respondent-plaintiff that the learned trial Court passed the order dated 15.04.2004 as per the law laid down by the Apex Court in Ameer Trading Corporations Ltd. vs. Shapoorji Data Processing Ltd., reported in 2004 DNJ SC 123, wherein it was held that even in appealable cases, the evidence is required to be taken by the Civil Court after amendment of the Code of Civil Procedure by way of affidavit, though in such cases also, cross-examination of the deponent is necessary. 5. On appreciation of the entire material, the learned Single Judge arrived at the conclusion that by order dated 15.04.2004, the trial Court did not review its own order dated 011.2003. The learned Single Judge further found that the order dated 15.04.2004 perfectly being in accordance with law, no interference warranted in exercise of powers under Article 227 of the Constitution of India. The Court further held that the even if the order is said to be illegal, then too, the Court will not be exercising its supervisory powers under Article 227 of the Constitution. 6. Having heard learned Counsel for the appellant, we are of the view that the Special Appeal against the order of the learned Single Judge is not maintainable in view of the Full Bench decision of this Court in Ramesh Chand Tiwari vs. Board of Revenue, reported in 2005 (4) RDD 615 . It is clearly held that the Intra-Court appeal, known as Special Appeal, shall not be maintainable where the learned Single Judge has rendered the Judgment purely in exercise of the revisional jurisdiction or supervisory jurisdiction under Article 227 of the Constitution. For the convenience, the ratio as summed-up by the Full Bench in para 29 is extracted as follows:- "29. We sum up our conclusion, thus:- .(i) Thepower 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. 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. 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. Judgment s orders passed by the Single Judge in exercise of wider supervisory jurisdiction under Article 227 are amenable to intra-Court appeals." 7. In view of the aforesaid, the instant Special Appeal is not maintainable. Accordingly, the Special Appeal stands dismissed summarily.