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2011 DIGILAW 416 (MP)

Vijay Chaudhary v. Vimlabai

2011-04-01

R.S.JHA, S.R.ALAM

body2011
ORDER 1. This intra-Court appeal filed under section 2 (1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyarn, 2005 (in short 'the Act of 2005') arises from the order of the learned Single Judge dated 13.10.2008 passed in Writ Petition No. 2565/2002. 2. At the outset, learned counsel appearing for the respondents raised a preliminary objection about the maintainability of this intra-Court appeal on the ground that since the learned Single Judge has exercised supervisory jurisdiction under Article 227 of Constitution of India, therefore, no appeal would lie under section 2 of the Act of 2005. 3. We have heard the learned counsel for the appellant and the learned counsel for the respondent on the question of maintainability of the appeal. 4. The learned counsel appearing for the respondents drew our attention to the proviso to section 2 of the Act of 2005 and submitted that when the learned Single Judge has exercised supervisory jurisdiction under Article 227 of the Constitution of India, no right of appeal is provided under the Act of 2005. He further placed reliance on a Full Bench judgment of this Court in the case of Dr. Jaidev Siddha and others v. Jaiprakash Siddha and others, reported in 2007 (3) JLJ 151 = ILR (2007) MP 1030, and submitted that the learned Single Judge has exercised the supervisory jurisdiction under Article 227 of the Constitution of India, hence right to appeal against such an order to a Division Bench of this Court is not available to the person not satisfied with the order of the learned Single Judge. 5. On the other hand, learned counsel appearing for the appellant relying on a judgment of the apex Court in the case of Umaji Keshao Meshram and others v. Smt. Radhaikabai and another, reported in AIR 1986 SC 1272 , sought to argue that the order of the learned Single Judge since has been passed in exercise of jurisdiction under Article 226 of the Constitution of lndia and, " therefore, the order is appealable to a Division Bench of this Court. 6. We have considered the submissions. 7. 6. We have considered the submissions. 7. From perusal of the order of the learned Single Judge, it appears that the objection regarding maintainability of the writ petiton was raise by the other party on the grounds inter alia that in exercise of jurisdiction under Article 227 of the Constitution of India, no interference in the order of the Board of Revenue is required in view of the judgment of the apex Court in the case of Surya Dev Rai v. Ram Chandra Rai and others. reported in 2004 (I) JLJ 1 = (2003) 6 SCC 675 and in view of the judgment of this Court reported in the case of 1969 JLJ 408 Curti v. Mohanlal and others, reported in 1969 MPLJ 470, and Balaji and others v. Derha and others. 1982 JLJ 713 = AIR 1982 MP 192. The learned Single Judge considered the objection and thereafter addressed the question whether such an order of the Board of Revenue is open to interference in exercise of supervisory jurisdiction under Article 227 of the Consitution of India, in para 19 of the judgment. The learned Single Judge has reproduced in para 19 the law laid down by the apex Court in Suryadev Rai (supra) and thereafter, in para 20, observed as under: "20. It has been held in the aforesaid judgment that in a case where the subordinate Court assumes jurisdiction which it does not have, the High Court can step in and exercise its supervisory jurisdiction. Present is also a case where the revenue Courts had no power to confer the status of occupancy tenant to a person in disputed cases but the Board of Revenue by restoring the order of the Tahsildar has conferred status of occupancy tenant to the respondent No.5." 8. Thus, from reading of the order of the learned Single Judge it is evident that the order under appeal has been passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India and, therefore, in view of the Full Bench judgment in the case of Dr. Jaidev Siddha (supra) and also in view of the provisions of the Act of 2005, this appeal is not maintainable and is accordingly dismissed.