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2012 DIGILAW 90 (PAT)

Sanjay Kumar Singh v. Bishram Sharma

2012-01-16

BIRENDRA PRASAD VERMA, R.M.DOSHIT

body2012
ORDER : Feeling aggrieved by the common JUDGMENT : and ORDER :dated 23rd August 2011 passed by the learned single Judge insofar as C.W.J.C. No. 803 of 2011 filed by the present appellant has been rejected, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 2. A preliminary question arises whether the appeal under Clause 10 of the Letters Patent would lie. 3. The matter at dispute is a plot of land. The disputed plot of land had been sold in Court auction in execution of a decree to the respondent no.2, one Narendra Pratap Singh. The respondent no.1, Bishram Sharma has instituted Title Suit No.444 of 2006 in the Court of Sub-Judge-IV, Patna to challenge the decree passed by the trial court and also the sale of the suit land in execution of the decree. In the said suit the appellant has joined as defendant no.7 and has lodged a counter-claim. The appellant claims title to the suit land through the will made by the original owner one Brahmdeo Sinha, late grandfather of the appellant. Pending the suit the plaintiff filed application for interim injunction which came to be rejected by the trial court. The ORDER :of the trial court was confirmed by the lower appellate court. The said ORDER :has been confirmed by the learned single Judge in C.W.J.C. No. 12647 of 2011. 4. The appellant also filed application for injunction pending the suit. The trial court rejected the application. The ORDER :of the trial court has been confirmed by the lower appellate court as well as by this Court. Therefore, this Appeal. 5. Learned advocate Mr. Nawal Kishore Singh has appeared for the appellant. He has relied upon the Division Bench JUDGMENT : of this Court (coram : Justice Smt. T. Meena Kumari and Justice Vikash Jain) passed in Letters Patent Appeal No.1056 of 2009 (arising from C.W.J.C. No. 2757 of 2007 Smt. Savitri Sharma v. The State of Bihar & Ors decided on 12th December 2011). He has submitted that the Division Bench of this Court has held that appeal against the ORDER :of the learned single Judge in a writ petition arising from the ORDER :of the civil Court is maintainable. He has submitted that the Division Bench of this Court has held that appeal against the ORDER :of the learned single Judge in a writ petition arising from the ORDER :of the civil Court is maintainable. He has also relied upon the JUDGMENT : of the Hon'ble Supreme Court in the matter of Ashok K. Jha and others v. Garden Silk Mills Limited and another, [ (2009) 10 SCC 584 ]. 6. In the matter of Savitri Sharma (supra) the matter indeed arose from the ORDER :of the trial court. The Bench, however, held that the appellant had filed petition under Article 226 of the Constitution, the appeal to the Division Bench under the Letters Patent would, therefore, lie. In the matter of Ashok K. Jha and others (supra) a similar question arose in respect of the maintainability of the Letters Patent Appeal. The matter arose from an award passed under the Bombay Industrial Relations Act, 1946. The Hon'ble Supreme Court held that, “If the petition is filed under Article 226 of the Constitution or under Articles 226 and 227 of the Constitution, an intra-court appeal under Letters Patent may lie. The Hon'ble Supreme Court, however, observed, “If the JUDGMENT : under appeal falls squarely within four corners of Article 227, it goes without saying that intra-court appeal from such JUDGMENT : would not be maintainable.” 7. The High Court of Judicature at Patna is established under the King’s Letters Patent. In Clause 10 of the said Letters Patent provision for intra-court appeal from the JUDGMENT : not being a JUDGMENT : passed in exercise of appellate jurisdiction in respect of a decree or ORDER :made in exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court or made in exercise of power of superintendence under the provisions of Section 107 of the Government of India Act has been made. The matter does not require elaborate discussion as Clause 10 of the Letters Patent is very specific about the intra-court appeal and it is settled time and again that no intra-court appeal shall lie against the ORDER :made in exercise of power conferred by Article 227 of the Constitution. 8. In the present proceeding against the ORDER :of the trial court rejecting the application for interim injunction the appeal preferred before the lower appellate court was rejected. 8. In the present proceeding against the ORDER :of the trial court rejecting the application for interim injunction the appeal preferred before the lower appellate court was rejected. Feeling aggrieved the appellant filed C.W.J.C. No. 803 of 2011 specifically under Article 227 of the Constitution. In our opinion, not only the writ petition was filed under Article 227 of the Constitution, the dispute being between private persons a petition under Article 226 of the Constitution would not lie. The impugned ORDER :could not have been made by the learned single Judge except in exercise of power of superintendence conferred by Article 227 of the Constitution. 9. Learned advocate Mr. Singh has submitted that although the petition was filed under Article 227 of the Constitution, the learned single Judge proceeded to examine the merits of the rival claims and to adjudicate upon it. The petition should, therefore, be treated to have been decided in exercise of power of judicial review under Article 226 of the Constitution. We are afraid, we are unable to agree with Mr. Singh. It is the fallacy to say that the learned single Judge has adjudicated upon the rights of the parties. The learned single Judge has indeed written a detail JUDGMENT : incorporating the facts and the controversies. However, it cannot be said that the learned single Judge has adjudicated upon the rights of the parties. In fact the Title Suit is pending before the trial court and it is yet to be decided. So long as the Suit is pending, the appellate Court or this Court would not decide upon the merits of the Suit. 10. The present Appeal is not maintainable for one more reason. Against the impugned JUDGMENT : and ORDER :passed by the lower appellate court a revision application under Section 115 CPC would have lain but for its amendment made in 1999, effective from 1st July 2002. The aforesaid amendment was made with a view to curtailing the procedural delay. An appeal under the Letters Patent against the ORDER :made on revision application did not lie. If a letters patent appeal is entertained against the ORDER :made on a petition under Article 227 of the Constitution arising from a civil court proceeding, the very purpose of bringing 1999 amendment would be defeated. Further, another Division Bench of this Court (coram: Justice Shiva Kirti Singh and Justice Dr. If a letters patent appeal is entertained against the ORDER :made on a petition under Article 227 of the Constitution arising from a civil court proceeding, the very purpose of bringing 1999 amendment would be defeated. Further, another Division Bench of this Court (coram: Justice Shiva Kirti Singh and Justice Dr. Ravi Ranjan) also has, in the matter of Sheo Kumar Prasad Singh vs. Upendra Sharma (Letters Patent Appeal No.138 of 2011 decided on 3rd May 2011), held the appeal not maintainable. 11. For the aforesaid reason, we hold that the present Appeal is not maintainable. 12. Appeal is dismissed in limine.