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2011 DIGILAW 960 (PAT)

Sheo Kumar Prasad Singh v. Upendra Sharma

2011-05-03

RAVI RANJAN, SHIVA KIRTI SINGH

body2011
ORDER The preliminary issue is whether this appeal under Clause 10 of Patna High Court’s Letters Patent is maintainable. 2. Heard learned counsel for the appellant and perused the judgment of the Division Bench of this Court in the case of Durga Devi Vs. Vijay Kumar Poddar, 2010(2) PLJR 954 . In that judgment several relevant judgments of the Apex Court have been discussed including that in the case of Sadhana Lodh Vs. National Insurance Company Limited reported in (2003)3 SCC 524 for coming to the final conclusion that in appropriate cases, in spite of reduced scope of the revisional jurisdiction under Section 115 of the Code of Civil Procedure (for brevity, the Code), the High Court can exercise its power of superintendence over the Civil Courts available under Article 227 of the Constitution of India. 3. We are not persuaded to accept the submission advanced on behalf of the appellant that this Court can exercise power under Article 226 of the Constitution of India for the aforesaid purpose, i.e., for correcting jurisdictional errors in orders of Civil Courts governed by the Code. The only possible inference from the judgment noticed by the Division Bench of this Court in the case of Durga Devi (supra) is that in appropriate cases power under Article 227 of the Constitution of India may be exercised by the High Court even when power of revision under Section 115 of the Code stands curtailed. 4. Although the appellant had preferred the writ petition by labeling it under Article 226 of the Constitution of India, it had to be treated under Article 227 because the matter arose out of an order passed by the learned Munsif in a suit in exercise of power under Section 15 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. 5. Under the law existing earlier, the impugned order in an Eviction Suit could have been challenged only through a Civil revision application but in view of the amended Section 115 of the Code, this remedy is no longer available. In the light of the law laid down by the Division Bench of this Court and by the Apex Court as noticed above, the writ petition preferred by the appellant has to be treated as one under Article 227 and not under Article 226 of the Constitution of India. 6. In the light of the law laid down by the Division Bench of this Court and by the Apex Court as noticed above, the writ petition preferred by the appellant has to be treated as one under Article 227 and not under Article 226 of the Constitution of India. 6. The learned Writ Court has dismissed the writ petition after considering the matter on merits. The first issue is whether an appeal under Clause-10 of the Letters Patent of this Court would lie against the judgment of an order of the Writ Court which could be passed only in exercise of power under Article 227 of the Constitution of India. A mere look at Clause-10 of the Letters Patent makes it clear that no appeal shall lie from a judgment or order made in exercise of revisional jurisdiction or one made in exercise of power of superintendence which was earlier under the provisions of Section 107 of the Government of India Act and is now available only under Article 227 of the Constitution. 7. We have no option but to hold that this appeal is not maintainable and, hence, it is accordingly dismissed.