IN THE SUPREME COURT OF INDIA                                                      CIVIL APPELLATE JURISDICTION

        CIVIL APPEAL NO. 7445 OF 2008 (Arising out of SLP (Civil) No.16040 of 2007

                              Mangaji Lalaji Thakor     Appellant(s)

     Versus

Ajay Heeralal Patel & ors.    Respondent(s)     

                      O R D E R

Leave granted.

This  appeal  is  directed against  order  dated June  15,  2006 passed by  a

Division Bench of High Court of Gujarat at  Ahmadabad in Letters Patent Appeal

No.80 of 2006.  By the said order the High Court has dismissed the appeal preferred

by the appellant  on the short ground that  since the order passed by the learned

Single Judge was in exercise of power of superintendence under Article 227 of the

Constitution, an intra court appeal under the Letters Patent was not maintainable.

Learned counsel for the appellant submits that since in the present case,

the writ petition, in which the order impugned before the Appellate Bench had been

preferred, both

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under Articles 226 and 227, in the light of the ratio of the decisions rendered by this

Court  in  Kishorilal Vs.  Sales  Officer,  District  Land Development Bank  & Ors.

(2006) 7 SCC 496,  Civil  Appeal No.6418 of 2008 decided on November 03, 2008

entitled  M/s  M.M.T.C.  Ltd. vs.  Commissioner  of  Commercial  Taxes  &  Ors.and

Mavji C. Lakum vs. Central Bank of India 2008 (7) SCALE 32, the order passed by

the Division Bench is unsustainable and the matter needs to be remanded back to the

High Court.

We find substance in the stand of learned counsel for the parties.  It is well

settled that for determining the question of maintainability of an appeal against the

decision of a Single Judge, neither the mentioning in the cause title of both Articles

226 and 227 of the Constitution nor the granting of ancillary orders thereupon made

by the Single Judge would be relevant.  The expression “ancillary” means, in the

context, incidental or consequential to the main part of the order.  The determining

factor is the real nature of the principal order passed by the Single Judge which is

appealed against.  (See: Sushilabai Laxminarayan Mudliyar & Ors. Vs. Nihalchand

Waghajibhai Shaha & Ors. 1993 Supp (1) SCC 11).

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Thus, in each case, the Division Bench has to examine the substance of the

judgment  under  appeal  to  ascertain  whether  the  Single  Judge  has  mainly  or

principally exercised his jurisdiction in the matter under Articles 226 and 227.

In the present case, it is manifest that while arriving at the aforementioned

conclusion, the High Court laid emphasis only on para 1 of the order passed by the

learned Single Judge, which reads as under :

“In  this  petition  under  Article  227  of  the  Constitution  of India,  the  petitioner  has  challenged  the  legality  and  validity  of  the order  passed  by  the  Gujarat  Revenue  Tribunal,  Ahmedabad  ('the Tribunal'  for  short)  dated  27-10-2004 passed  in  Review Application No.TEN.C.A. 22 of 2003 in rejecting the application of the petitioner to review the order dated 01-02-2002 passed by the Tribunal in Revision Application No.TEN.B.A.396 of 2000 which came to be disposed of as withdrawn at the instance of the petitioner.”

According to the Division Bench, when the petition was under Article 227

and the  learned Single  Judge has  exercised his  power under  Article  227  of  the

Constitution, appeal is not maintainable. In our opinion, the order of the  Division

Bench is not only factually incorrect inasmuch as the cause tile of the petition did

mention both the said Articles, in the light of the settled principles,  briefly

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noted above, the approach of the Division Bench on the issue was also erroneous.

Having perused the writ petition and the grounds taken therein; we are

convinced that though the learned Single Judge had recorded that it was a petition

under Article 227 of the Constitution, in fact the petition was under Article 226 and

the order passed by the learned Single Judge was also in substance under the said

Article.   Therefore,  the Division  Bench was wrong in holding that the impugned

order  of  the  learned  Single  Judge  being  under  Article  227,  the  appeal  was  not

maintainable.

Accordingly, the appeal is allowed; the impugned order is set aside and the

appeal is restored  to the file of the Division Bench of the High Court for decision on

merits.

In view of the fact that the matter is old, we request the High Court to

decide the matter as expeditiously as possible.

There shall be no order as to costs.

    .................J.          [D.K. JAIN ]   

 ................J.                                

        [R.M. LODHA]         NEW DELHI,       DECEMBER 19, 2008.