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2022 DIGILAW 2283 (RAJ)

Axis Bank Ltd. v. Hemlata Garg

2022-08-22

ANOOP KUMAR DHAND, MANINDRA MOHAN SHRIVASTAVA

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JUDGMENT 1. Heard on preliminary objection to the maintainability of this appeal. 2. Learned counsel appearing for the respondents would submit that the petition was filed by the appellant before the learned Single Judge seeking to invoke only supervisory jurisdiction under Article 227 of the Constitution of India and the order of the learned Single Judge has been passed only under Article 227 of the Constitution of India in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, and therefore, writ appeal would not be maintainable. 3. On the other hand, learned counsel appearing for the appellant would argue that in the present case though the title of the petition is that it was petition under Article 227 of the Constitution of India, the appellant could have also invoked Article 226 of the Constitution of India. Therefore, it is contended, the appeal against that order would be maintainable under Rule 134 of the Rajasthan High Court Rules, 1952. In support of his submissions, he places reliance upon the judgment delivered by the Hon'ble Supreme Court in the case of Bhargavi Construction & Anr. v. Kothakapu Muthyam Reddy & Ors. (Civil Appeal No. 11345 of 2017) and New Okhla Industrial Development Authority (Noida) v. Yunus & Ors. (Civil Appeal No. 901 of 2022). 4. We have considered the submissions made by learned counsel appearing for the parties. 5. It is well settled legal position that where the order has been passed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India and it is not a case where the party sought to invoke writ jurisdiction under Article 226 of the Constitution of India, writ appeal would not be maintainable. 6. The argument of learned counsel for the appellant that even though the appellant has filed petition only under Article 227 of the Constitution of India, it would be treated as petition under Article 226 of the Constitution of India as well, cannot be accepted. We have gone through the petition filed by the appellant. The petition is titled as "Writ petition under Article 227 of the Constitution of India". The contents of the petition and the reliefs which have been sought also do not show that the appellant/petitioner sought to invoke jurisdiction under Article 226 of the Constitution of India. 7. We have gone through the petition filed by the appellant. The petition is titled as "Writ petition under Article 227 of the Constitution of India". The contents of the petition and the reliefs which have been sought also do not show that the appellant/petitioner sought to invoke jurisdiction under Article 226 of the Constitution of India. 7. The petition was against an award passed by the Lok Adalat. 8. Therefore in such a situation, the petition in form as well as in substance was only a petition under Article 227 of the Constitution of India. 9. A Division Bench of this Court in the case of The New India Assurance Company Ltd. v. M/s. Suncity Holding & Trading Ltd. And Anr. vide its order dated 08.03.2018 passed in DB Special Appeal Writ No. 556/2018 has held that where an award passed by the Lok Adalat is challenged by filing a petition under Article 227 of the Constitution of India, remedy of intra-Court appeal would not be available. In the aforesaid order, it has been held as below:- "Admittedly, the Permanent Lok Adalat was created under the Legal Service Authority Act, 1987, against the order of Permanent Lok Adalat, there is no provision of appeal, therefore, the appellant preferred writ petition under Article 227 of the Constitution of India and the learned Single Judge dismissed the writ petition filed against the award of Permanent Lok Adalat and now this special appeal has been filed by the appellant Insurance Company against the judgment of learned Single Judge. However, in view of judgment rendered by Division Bench of this Court DBSAW No. 345/2015-Hindustan Petroleum Corporation Limited v. M/s. Shyam Narain Mehra & Brothers, decided on 29.07.2015, the instant appeal is not maintainable because it has been filed against the order passed by a writ court in exercise of power under Article 227 of the Constitution of India. The relevant discussion made by a coordinate bench of this Court in the Hindustan Petroleum Corporation Limited v. M/s. Shyam Narain Mehra & Brothers (supra), made in paragraph 15, reads as infra: "15. The relevant discussion made by a coordinate bench of this Court in the Hindustan Petroleum Corporation Limited v. M/s. Shyam Narain Mehra & Brothers (supra), made in paragraph 15, reads as infra: "15. We have considered the submissions and find that there is a clear bar of filing intra-court Special Appeal under Rule 134(i) of the Rules of 1952, against the judgment or final order (not being a Judgment passed in the exercise of appellate Jurisdiction in respect of a decree or order made in the exercise of appellate Jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional Jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence or in the exercise of criminal Jurisdiction) of one Judge of the High Court. The Rule is more than clear that where the High Court had exercised the power of superintendence in a writ petition, which is vested in it under Article 227 of the Constitution of India, in a matter arising out of the orders of the Rent Tribunal and Appellate Rent Tribunal in a landlord-tenant dispute, the exercise of power would be under Article 227 and not under Article 226, as in the case of power under Article 226 of the Constitution, the High Court, in view of the pronouncements of the Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil (supra) and Jacky v. Tiny Alias Antony and ors. (supra), could not have entertained such prayers under Article 226 of the Constitution. 16. The legal position, In view of the judgments of the Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil (supra) and Jacky v. Tiny Alias Antony and ors. (supra), is now settled and thus, since the appeal is not a matter of right and can be filed only if there is a statutory provision, the intra-court Special Appeal against the order of learned Single Judge passed in exercise of the power of superintendence under Article 227, is not maintainable, in view of Rule 134(i) of the Rules of 1952, which clearly bars the filing of Special Appeal against the judgment of the High Court rendered in exercise of power under Article 227 of the Constitution. 17. 17. The Special Appeal is held to be not maintainable, and is accordingly dismissed." In view of above, we are of the opinion that the instant special appeal is not maintainable and the same is hereby dismissed. However, the appellant will be at liberty to avail remedy which is available to it under the law." 10. Reliance has been placed on two decisions of the Hon'ble Supreme court to support the contention that intra-Court appeal in the present case would be maintainable. 11. In the case of Bhargavi Construction (supra), issue was different. A writ petition under Article 226 or/and 227 of the Constitution of India was held maintainable against an award passed by the Lok Adalat. The Hon'ble Supreme Court in that case has ruled that against an award passed by the Lok Adalat a petition under Article 226 and/or 227 of the Constitution of the India would be maintainable, relying upon its earlier decision in the case of State of Punjab & Anr. v. Jalour Singh & Ors., (2008) 2 SCC 660 . That was not a case where an issue of intra-Court appeal was either raised or decided. 12. The aforesaid decision of the Hon'ble Supreme Court is not an authority for the proposition that where supervisory jurisdiction of the High Court is invoked against an order passed by the Lok Adalat, an intra-Court appeal would be maintainable. 13. The other decision of the Hon'ble Supreme Court in the case of New Okhla Industrial Development Authority (Noida) (supra) also does not deal with the issue in hand. That was a case where Their Lordships in the Hon'ble Supreme Court were considering a question whether the award passed by the Lok Adalat under Section 20 of the Legal Services Authorities Act, 1987 can form the basis for re-determination of compensation as contemplated under Section 28A of the Land Acquisition Act, 1894. 14. We do not find that in the aforesaid case Their Lordships in the Hon'ble Supreme Court have declared that even where only supervisory jurisdiction under Article 227 of the Constitution of India is invoked, it being not a writ petition under Article 226 of the Constitution of India, then also intra-Court appeal remedy would be available. 15. 14. We do not find that in the aforesaid case Their Lordships in the Hon'ble Supreme Court have declared that even where only supervisory jurisdiction under Article 227 of the Constitution of India is invoked, it being not a writ petition under Article 226 of the Constitution of India, then also intra-Court appeal remedy would be available. 15. In view of the above consideration and the law laid by this Court in the case of The New India Assurance Company Ltd. v. M/s. Suncity Holding & Trading Ltd. And Anr. (Supra), further considering that the appellant only sought to invoke supervisory jurisdiction under Article 227 of the Constitution of India and petition filed by him cannot be said to be a petition filed both under Articles 226 and 227 of the Constitution of India, either in form or in substance, we are of the view that this appeal is not maintainable and therefore, dismissed as not maintainable.