Research › Search › Judgment

Andhra High Court · body

2013 DIGILAW 376 (AP)

D. Anil Kumar v. Shiv Balak

2013-06-03

VILAS V.AFZULPURKAR

body2013
JUDGMENT 1. Heard the learned counsel for the petitioner and learned counsel for the respondent. 2. This revision raises an interesting question as to whether the petitioner is entitled to quantification of costs as per the common order of the lower appellate Court while dismissing R.A.Nos.94 of 2003, 11 of 2005 and 87 of 2003 with costs. The revisions preferred against the said common order, being CRP.Nos.6996, 7000 and 7001 of 2005, were dismissed by this Court on 30.12.2005 wherein the order of eviction was confirmed by a common order passed by this Court in the said revisions. Petitioner/landlord, thereafter, filed separate applications, being I.A. (SR).Nos.6776, 6777 and 6778 of 2006, in each of the rent appeals seeking quantification of the costs by the lower appellate Court may be awarded. The said applications containing detailed memo of costs in each of the appeals were not entertained by the registry and the IA(SR)’s were placed before the lower appellate Court for appropriate orders. A notice was given to the respondent/tenant, who filed a counter pointing out that against the orders passed by the lower appellate Court in the rent appeals, revisions were preferred and further common order was passed by this Court on 30.12.2005 while disposing of the aforesaid revision petitions. It was pointed out that this Court specifically directed that there would be no order as to costs. Thus, the claim of the petitioner/landlord that he is entitled to costs, as per the common order in the rent appeals, was seriously contested on the ground of principle of merger. 3. The lower appellate Court heard the IA’s at the SR stage and on agreeing with the applicability of principle of merger rejected all the applications by the impugned common order dated 07.03.2007. This revision is preferred to the extent of one of the applications i.e. I.A. (SR).No.6776 of 2006 in RA.No.94 of 2003. 4. Mr. P. Vinod Kumar, learned counsel for the petitioner, contends that the order of the lower appellate Court awarding costs was confirmed by this Court while disposing of the revision petitions, referred to above and thereby, the costs awarded by the lower appellate Court has to be taken as having been confirmed by this Court and justifies that the petitioner/landlord is entitled to costs as it was already awarded by the lower appellate Court. Learned counsel also submits that the order of this Court awarding ‘no costs’ is only applicable so far as the revision petitions are concerned and as such, the costs awarded by the lower appellate Court while passing order in the rent appeals is justified. 5. The issue is directly covered by a decision of the Supreme Court in SHANKAR RAMCHANDRA ABHYANKAR v. KRISHNAJI DATTATRAYA BAPAT ( AIR 1970 SC 1 )where principle of merger is discussed and laid down by the Supreme Court and relevant portions whereof are as under: “…The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the orders of the subordinate court has become merged in the order of the High Court. If it has got merged and the order is only of the High Court, the order of the subordinate court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Article 226 or 227 of the Constitution… …In U.J.S. Chopra v. State of Bombay [ AIR 1955 SC 633 ] the principal of merger was considered with reference to Section 439 of the Criminal Procedure Code which confers revisional jurisdiction on the High Court. In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower court thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below…” 6. It is, therefore, clear from the above that once an order of an inferior Court is superceded by further order of the superior Court, the operative order, which would be put to execution or otherwise would be the last of the orders i.e. that of the superior Court. It is, therefore, clear from the above that once an order of an inferior Court is superceded by further order of the superior Court, the operative order, which would be put to execution or otherwise would be the last of the orders i.e. that of the superior Court. On the said principle, therefore, once this Court has disposed of the revision petitions by a common order, the common order of the lower appellate Court, which was impugned in the said revision petitions, does not any more survive and what is operative is only the last order i.e. the order passed by this Court in the revisions petitions. The said order specifically states ‘No order as to costs’ towards the end of the order, which also nullifies any order as to costs between the parties. I am, therefore, unable to see any error on the part of the lower appellate Court in rejecting the petitioner’s applications. 7. In addition to that it would be seen that the petitioner made three identical applications before the lower appellate Court seeking costs in each of the three rent appeals. The said applications were rejected by common order dated 07.03.2007 impugned herein. Petitioner has, however, preferred one revision only against one of the said applications i.e. IA(SR)/No.6776 of 2006 in RA.No.94 of 2003. Consequently, therefore, the said common order to the extent of other two applications in R.A.No.11 of 2005 and RA.No.87 of 2003 stands confirmed, as not having appealed against nor a revision is sought against them. In the circumstances, therefore, even on the principle of res judicata the impugned order cannot be varied so far as one of the applications is concerned. The civil revision petition devoid of merits and is accordingly dismissed. As a sequel, the miscellaneous applications, if any, shall stand disposed of as infructuous. There shall be no order as to costs.