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2014 DIGILAW 340 (JHR)

Devi Agarwal v. Rajesh Kumar Agarwal

2014-03-05

R.BANUMATHI, SHREE CHANDRASHEKHAR

body2014
ORDER The present Letters Patent Appeal is directed against the order dated 09.09.2013 passed by learned Single Judge in W.P.(C) No.5068 of 2012 in and by which the learned Single Judge dismissed the writ petition filed by the appellant rejecting the prayer of the appellants to quash the order dated 14.08.2012 passed by Sub Judge-IX, Ranchi in Partition Suit No. 212 of 2006, whereby and whereunder the Sub-Judge IX, Ranchi rejected the compromise petition filed by the parties and proceeded to decide the dispute between the parties through regular trial on the merit of the case. 2. The facts of the case, leading to filing of this Letters Patent Appeal, in brief, are as under:- 3. A Partition Suit No. 212 of 2006 (Annexure-2) was filed in the Court of Sub Judge-IX, Ranchi by plaintiffs [namely, respondent no. 1, 2 and one Most. Pramila Devi (not party here)] against defendants, [namely, respondent nos. 3,4,5,6,7,8&9 and husband of appellant no.1and father of appellant nos. 2 to 4]. The said Partition Suit is still pending. During the pendency of the said Partition Suit a joint petition of compromise was filed in the above Suit on 24.03.2009 (Annexure-3) and it is stated by the appellants that the said compromise petition has been duly signed by defendant no. 2 (husband of appellant no. 1 and father of appellant nos. 2 to 4), respondent nos.1,3,4,5,6&9 and plaintiff no.2 (not party here). Thereafter, a withdrawal application was filed by the 3rd defendant (respondent no. 9 herein) on 10.12.2009 seeking withdrawal of the compromise petition. On 23.3.2010 (Annexure 7), an application was filed by respondent nos. 3 to 8 before the Court below praying therein that the compromise petition be given effect to, except few. Thereafter, the father of the appellant nos. 2 to 4, filed a petition on 2.3.2012 (Annexure 8) before the Court below praying therein to decree the suit in terms of the compromise dated 24.3.2009, which was dismissed by the Court below vide order dated 14.08.2012. 4. The appellants being aggrieved by order dated 14.08.2012 passed by the Court below in Partition Suit No. 212 of 2006 filed W.P.(C) No. 5068 of 2012 to set aside the order passed by the Court below on 14.8.2012. Vide order dated 9.09.2013, the learned Single Judge dismissed the writ petition holding that the plaintiff no. 3, defendant nos. 4. The appellants being aggrieved by order dated 14.08.2012 passed by the Court below in Partition Suit No. 212 of 2006 filed W.P.(C) No. 5068 of 2012 to set aside the order passed by the Court below on 14.8.2012. Vide order dated 9.09.2013, the learned Single Judge dismissed the writ petition holding that the plaintiff no. 3, defendant nos. 1 (d) and 1(e) have denied having put their signature in the compromise petition and in such circumstances, the compromise petition filed in the suit cannot be accepted. On this finding, the learned Single Judge dismissed the writ petition, which is challenged in this Letters Patent Appeal. 5. When the matter came up for admission, we directed the learned counsel for the appellants to advance argument on the question of maintainability of the appeal. 6. The learned counsel for the appellant submitted that even though the writ petition, W.P. (C) No. 5068 of 2012 was filed to quash the order dated 14.08.2012 passed by Sub-Judge IX, Ranchi rejecting the compromise petition, the writ petition was filed by the appellants is to be treated as a writ petition filed under both Articles 226 and 227 of the Constitution of India. Pointing out that the writ petition has to be treated as writ petition filed under Article 226 and as against the order passed in the writ petition intra Court appeal is maintainable, the learned counsel for the appellant placed reliance on the number of judgments, which are as under:- 1. AIR 2006 Jhr. 19 (FB) {Swapan Kumar Bandopadhyay and etc. Vs. SAIL & Ors.} 2. 2013 Lawsuit (J&K) 251 {Sudershana Gupta and Ors Vs. Girdhari Lal} 3. AIR 2009 Supreme Court 1999 {State of M.P. & Ors. Vs. Visan Kumar Shiv Charan Lal} 4. AIR 2009 SC (Supp) 2850 {Ashok Kumar Jha & Ors. Vs. Garden Silk Mills & Anr.) 5. AIR 2001 Supreme Court 3645 {Kanhaiyalal Agrawal & Ors. Vs. Factory Manager, Gwalior Sugar Co. Ltd.} 6. AIR 1999 Supreme Court 2423 (1) {M/s Lokmat Newspaper Pvt. Ltd. Vs. Shankarprasad} 7. AIR 1992 Supreme Court 185 (1) {Sushilabai Laxminarayan Mudliyar & Ors. Vs. Nihalchand Waghajibhai Shaha & Ors.} 8. AIR 1986 Supreme Court 1272 (1) {Umaji Keshao Meshram & Ors Vs. Smt. Radhikabai and another} 7. We have heard Mr. Ayush Aditya, learned counsel appearing for the respondents. 8. Shankarprasad} 7. AIR 1992 Supreme Court 185 (1) {Sushilabai Laxminarayan Mudliyar & Ors. Vs. Nihalchand Waghajibhai Shaha & Ors.} 8. AIR 1986 Supreme Court 1272 (1) {Umaji Keshao Meshram & Ors Vs. Smt. Radhikabai and another} 7. We have heard Mr. Ayush Aditya, learned counsel appearing for the respondents. 8. Learned counsel appearing for the respondents submitted that writ petition was filed by the appellants before the High Court by virtue of its supervisory jurisdiction and as against order passed by the learned Single Judge exercising jurisdiction under Article 227 of the Constitution of India, the intra Court appeal does not lie by reason of such appeal being expressly barred. 9. We have considered the submissions of learned counsel for the appellant and learned counsel for the respondents. 10. While considering the nature of the writ petition, the determining factor is nature of the principal order and the order passed by learned Single Judge, which is appealed against. In our opinion, mere mentioning of Articles 226 and 227 in the cause title of the application is not relevant, rather the order passed by the learned Single Judge would be relevant. The Court has to consider the substance of the judgment under appeal to ascertain whether the writ petition was filed mainly under Article 226 or 227 of the Constitution of India. In AIR 1986 Supreme Court 1272 (1) {Umaji Keshao Meshram & Ors Vs. Smt. Radhikabai and another}, while making clear distinction between, Article 226 which is a original proceeding, and Article 227, which is exercised under the supervisory jurisdiction of the High Court, the Hon'ble Supreme Court has made clear distinction in paragraphs 100 to 103 of the said judgment, which reads as under:- 100. Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate Court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or tribunal has acted within its authority and according to law. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate Court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or tribunal has acted within its authority and according to law. Prior to the commencement of the Constitution, the Chartered High Courts as also the Judicial Committee had held that the power to issue prerogative writs possessed by the Chartered High Courts was an exercise of original jurisdiction (see Mahomedalli Allabux v. Ismailji Abdulali, (AIR 1926 Bom 332), Raghunath Keshav Khadilkar v. Poona Municipality, (AIR 1945 Born 7), Ryots of Garabandho and other villages v. Zamindar of Parlakimedi, (AIR 1943 PC 164) and Moulvi Hamid Hasan Nomani v. Banwarilal Roy (1946-47) 74 Ind App 120, 130-31; AIR 1947 PC 90, 98). In the last, mentioned case which dealt with the nature of a writ of quo warranto, the Judicial Committee held : "In their Lordships' opinion any original civil jurisdiction possessed by the High Court and not in express terms conferred by the Letters Patent or later enactments falls within the description of ordinary original civil jurisdiction." By Article 226 the power of issuing prerogative writs possessed by the Chartered High Courts prior to the commencement of the Constitution has been made wider and more extensive and conferred upon every High Court. The nature of the exercise of the power under Article 226, however, remains the same as in the case of the power of issuing prerogative writs possessed by the Chartered High Courts.A series of decisions of this Court has firmly established .that a proceeding,, under Article 226 is an original proceeding and when it concerns civil rights". it is an original civil proceeding (see, for instance, State of Uttar Pradesh v. Dr. Vijay Anand Maharaj (1963) 1 SCR 1 , 16 : ( AIR 1963 SC 946 at p. 951), Commr, of Income-tax, Bombay v. Ishwarlal Bhagwandas (1966) 1 SCR 190,197-8 : ( AIR 1965 SC 1818 at p. 18-2211, Ramesh v. Gendalal Motilal Patni (1966) 3 SCR 198 , 203 : ( AIR 1966 SC 1445 at p. 1447), Arbind Kumar Singh v. Nand Kishore Prasad (1968) 3 SCR 322 , 324 : ( AIR 1968 SC 1227 at pp. 1228-29) and Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ramtahel Ramnand ( AIR 1972 SC 1598 ). 101. 1228-29) and Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ramtahel Ramnand ( AIR 1972 SC 1598 ). 101. Consequently, where a petition filed under Article 226 of the Constitution is according to the rules of a particular High Court heard by a single Judge, an intra-Court appeal will lie from that judgment if such a right of appeal is provided in the charter of that High Court, whether such Charter be Letters Patent or a Statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-Court appeal and, therefore, the decision of a single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High Court. 102. It is equally well-settled in law that a proceeding under Article 227 is not an original 'proceeding. In this connection, we need refer to only two decisions of this Court. In Ahmedabad Mfg. and Calico Ptg. Co.'s case this Court said (at pages 193-4) (of 1973(1) SCR 185 : at p. 1603 of AIR 1972 SC 1598 ) : "Article 227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary Court of appeal. The material part of this Article substantially reproduces the provisions of S. 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by this Article to Tribunals as well. Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdiction. The power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate Courts and Tribunals within the bounds of their authority and, not for correcting mere errors : see Waryam Singh v. Amar Nath, (1954) SCR 565 : ( AIR 1954 SC 215 ). The power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate Courts and Tribunals within the bounds of their authority and, not for correcting mere errors : see Waryam Singh v. Amar Nath, (1954) SCR 565 : ( AIR 1954 SC 215 ). Under Art. 226 of the Constitution it may in this connection be pointed out the High Court does not hear an appeal or a revision : that Court is moved to interfere after bringing before itself the record of a case decided by or pending before a Court, a Tribunal or an authority, within its jurisdiction." The origin and nature of the power of superintendence conferred upon the High Courts by Article 227 was thus stated by this' Court in Waryam Singh v. Amarnath 1954 SCR 565 : ( AIR 1954 SC 215 ). It reads as follows (at pages 570-1) (of SCR) (at p. 217 of AIR) : "The material part of Article 427 substantially reproduces the provisions of, Section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by the Article also to Tribunals....... The only question raised is as to the nature of the power of superintendence conferred by the Article. Reference is made to Clause (2) of the article in support of the contention that this article only confers on the High Court administrative superintendence over the subordinate Courts and Tribunals. We are unable to accept this contention because Clause (2) is expressed to be without prejudice to the generality of the provisions in Clause (1). Further, the preponderance of judicial opinion in India was that Section 107 which was similar in terms to Section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. In this connection it has to be remembered that Section 107 of the Government of India Act, 1915, was reproduced in the Government of India Act, 1935, as Section 224. In this connection it has to be remembered that Section 107 of the Government of India Act, 1915, was reproduced in the Government of India Act, 1935, as Section 224. Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above. Section 224 of the 1935 Act has been reproduced with certain modifications in Article 227 of the Constitution. It is significant to note that subsection (2) to Section 224 of the 1935 Act has been omitted from Article 227. This significant omission has been regarded by all High Courts in India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under Section 15 of the High Courts Act, 1861, and Section 107 of the Government of India Act, 1915." 103. Under Clause 15 of the Letters Patent of the' Bombay High Court no intra-Court appeal lay against an "order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act". By the same process of interpretation by reason of which the phrase "pursuant to Section 108 of Government of India Act" in Clause 15 is to be read as "pursuant to Article 225 of the Constitution of India", the phrase "order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act" is to be read as "order passed or made in the exercise of superintendence under the provisions of Article 227 of the Constitution". The result is that an intra-Court appeal does not lie against the judgment of a single Judge of the Bombay High Court given in a petition under Art. 227 by reason of such appeal being expressly barred by Clause 15 of the Letters Patent of that High Court. The result is that an intra-Court appeal does not lie against the judgment of a single Judge of the Bombay High Court given in a petition under Art. 227 by reason of such appeal being expressly barred by Clause 15 of the Letters Patent of that High Court. This is the view also taken by different High Courts (see, for instance, Jagannath Ganbaji Chikhale v. Gulabrao Raghobaji Bobde (1965) 67 Bom LR 609), Sukhendu Bikash v. Hare Krishna De, AIR 1953 Cal 636 , Shrinivasa Reddiar v. Krishnaswami Reddiar, AIR 1955 Mad 72 , In re V. Tirupuliswamy Naidu, ILR (1955) Mad 1033 (SC) : AIR 1955 Mad 287 , J. and K. Cooperative Bank v. Shams-ud-din-Bacha, AIR 1970 J. and K. 190 and Ishwar Singh v. Ram Piari, AIR 1978 Him Pra 39). 11. It is well settled that a proceeding under Article 226 of the Constitution is an original proceeding and if it is filed in terms of the High Court Rules, the intra Court appeal would be maintainable. It is also well settled that a proceeding under Article 227 of the Constitution of India is not an original proceeding and in that event an intra Court appeal would not lie against the judgment of learned Single Judge. A perusal of the memo of writ petition indicates that the writ petitioner challenged the order dated 14.8.2012 passed by the learned Trial Judge on the ground of jurisdictional error only. 12. Considering the subject matter of challenge before the learned Single Judge, it is to be pointed out that what was under challenge before the learned Single Judge was the order of Sub-Judge IX, Ranchi rejecting the compromise petition filed by the parties and the learned Sub-Judge proceeded to decide the dispute between the parties through regular trial. Thus the order passed by the Sub-Judge, IX Ranchi in Partition Suit No. 212 of 2006 rejecting the compromise petition was the subject matter of challenge before the learned Single Judge. Evidently the substance of the order under challenge before the learned Single Judge was under Article 227 of the Constitution of India. Thus the order passed by the Sub-Judge, IX Ranchi in Partition Suit No. 212 of 2006 rejecting the compromise petition was the subject matter of challenge before the learned Single Judge. Evidently the substance of the order under challenge before the learned Single Judge was under Article 227 of the Constitution of India. Even though the learned counsel for the appellant contended that the writ petition was filed under Article 226 and 227 of the Constitution of India, considering the substance of the matter under challenge before the learned Single Judge, we are of the view that the writ petition was filed under Article 227 of the Constitution of India invoking supervisory jurisdiction of the Court. The writ petition, W.P.(C) No. 5068 of 2012 was not filed under original jurisdiction of the Court so as to entertain this Letters Patent Appeal. 13. Hence, this Letters Patent Appeal is dismissed as not maintainable. It is made clear that we have not expressed any opinion on the merit of the case. It is open to the parties to move an application before the concerned Court under proviso 2 of Order XXIII Rule 3 of the Code of Civil Procedure.