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PETITIONER: S. KALAWATI

       Vs.

RESPONDENT: DURGA PRASAD & ANR.

DATE OF JUDGMENT02/05/1975

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. BHAGWATI, P.N. GOSWAMI, P.K.

CITATION:  1975 AIR 1272

ACT: Constitution of India, 1950--Art. 226--Petition dismissed in limine    but    a   certificate    granted    under    Art. 133(1)(a)--Validity of certificate.

HEADNOTE: The  appellant filed a writ petition before the  High  Court under  Art. 226 of the Constitution impugning the  order  of the  Deputy  Director  of  Consolidation.   The  High  Court dismissed  he petition in limine but granted  a  certificate under Art. 133(1)(a) on the basis of valuation. On appeal to this Court, the respondent raised a preliminary objection that the certificate granted was not valid because the  judgment  of  the  High Court  was  one  affirming  the judgment of the Deputy Director, Consolidation. Setting aside the order of the High Court, HELD   :The  certificate  granted  by  the  High  Court   is competent.   An order of a High Court under Art. 226 or  227 is  an  order in a civil proceeding of a High Court  and  so falls under Art. 133.  But it cannot be said that such cases a  party is exercising any right of appeal conferred on  him by any statute nor is the High Court exercising any power of appeal.   Whatever might be the position even in respect  of petitions  under Arts. 226 or 227 of the Constitution  where the Court goes into the merits of the question, it cannot be doubted that where it dismisses such a petition in limine it simply  refuse,,; to exercise its powers under Art.  226  or 227  and such an order cannot be said to be an order  passed on  appeal  or  as  affirming the  decision  of  the  Court. immediately  below.  Therefore, the order of the High  Court in the present case is not a judgment of affirmance.  [427F, 427AB] Abdul  Majid  v. Jawahar Lal, [1904] I.L.R.  36,  All.  350, Karsondas Dharamsey v. Gangabhai. [1907] I.L.R. 32 Bom. 108, Sunder  Koer v. Chandishwar Prasad Singh I.L.R. 30 Cal.  679 Promotho  Nath  Roy  v. W. A. Lee,  [1919]  33  C.L.J.  128, Ramaswmi Udayar v. Sevu Aru Ramanathan Chettiar A.I.R.  1942 Mad’. 357.  Purnendu Nath Tagore v. Kanailal Ghoshal  [1948] 2 Col. 202, Ganesh Prasad v. Mr. Makhna A.I.R. 1948 All. 375 and Gululabchand v. Kudilal  A.I.R. 1952 M.B. 149,  referred to. (2)  The  order of the Deputy Director of  Consolidation  is

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not clear and since the High Court dismissed the  appellants petition  in limine the reasons which led the High Court  to dismiss are not known.  Hence it is necessary that the  High Court should deal with the petition before it and dispose of it by a proper order. [427 GH]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1641  of 1969. From  the  Judgment and decree dated 13-9-1967 of  the  High Court of Allahabad in Civil Writ Petition No. 2334 of 1963, R.   H.  Dhebur,  D.  V.  Desai and  P.  C.  Kapur  for  the appellant. G.   N. Dixit, Uma Mehta, S. Bagga and Raj Kumar Mehta,  for the Respondent. 425 The Judgment of the Court was delivered by ALAGIRISWAMI,  J.-The appellants is the widow of one  Gover- dhandass.   The  1st respondent is  her  husband’s  brother. Goverdhandass  and  the 1st respondent are the sons  of  one Bhojraj.  The appellant claimed 11 plots in Khata No. 97  as land  in which she was entitled to be a joint  tenant  along with the 1st respondent.  She claimed certain other plots on the ground that they were acquired by Bhojraj and  therefore it  was joint Hindu family property and she was entitled  to inherit  those  shares also as a co-tenant  along  with  1st respondent.   She  succeeded in respect of the 11  plots  in Khata No. 97 but failed in respect of the either plots. The  matter first came up before the  Consolidation  Officer and  thereafter on appeal before the Settlement Officer  and finally   before  the  Deputy  Director,  Consolidation   in revision.   Against  the  order  of  the  Deputy   Director, Consolidation she filed a petition before the High Court  of Allahabad  under Article 226.  The High, Court dismissed  it in liminine but granted a certificate under Article 133  (1) (a) of the Constitution. A  preliminary  objection was raised on behalf  of  the  1st respondent  that  the  certificate  granted  was  not  valid because the judgment of the High Court was one affirming the judgment of the Deputy Director, Consolidation.  One of  the questions on which the decision of this question depends  is whether  the Deputy Director, Consolidation as well  as  the other   two  officers  exercising  power  under   the   U.P. Consolidation of Holdings Act, 1953 are Courts.  However, in the  view we take of the decision of the High Court that  it is  not  a  judgment of affirmance this  question  does  not arise.   The  High  Court dismissed  the  writ  petition  in limine.  It did not go into the merits of the case or decide it even within the limited scope of its powers under Article 226  or  227 of the Constitution even if not as a  Court  of Appeal exercising its powers under section 96 or 100 of  the Code of Civil Procedure.  It simply refused to exercise  its powers under those Articles of the Constitution.  Unless the Court   had  applied  its  mind  to  the  case   and   after consideration affirmed it the order cannot be said to be one of affirmance. It  may  be  useful to consider earlier  decisions  in  this connection. In Abdul Majid v. Jawahar Lal (1904 ILR 36  All. 350)  the question of the starting point of  limitation  for the  execution  of  a  decree had to  be  decided  and  that question  depended upon the effect of an order of the  Privy Council  dismissing an appeal for want of  prosecution.   In that connection the Privy Council observed :

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             "The  order dismissing the appeal for-want  of               prosecution  did not deal judicially with  the               matter  of the suit and could in no  sense  be               regarded  as an order adopting  or  confirming               the   decision  appealed  from.    It   merely               recognised authoritatively that the  appellant               had  not  complied with the  conditions  under               which  the  appeal was open to  him  and  that               therefore  ’he was in the same position as  if               he had not appealed at all."                426 A,   In  Karsondas Dharanuey v. Gangabai (1907 ILR  32  Bom. 108) an order of the High Court refusing, to admit an appeal after  the period of limitation had expired was held  to  be not  a "decree passed on appeal by the High Court" under  s. 595  of the Civil Procedure Code and it was held that  there was  therefore  no  jurisdiction to grant  leave  to  appeal therefrom  to  the  Privy  Council under  cl.  (a)  of  that section.   The meaning of the words "Passed on appeal"  were specifically considered and it was observed :               "The  meaning  of the  expression  "passed  on               appeal"   has  been  settled  by  a  line   of               authorities, which it is right that we  should               follow: see Sunder Koer v. Chandishwar  Prosad               Singh  (ILR 30 Cal. 679) and the  cases  there               cited.   And applying that  interpretation  to               the  circumstances of the case, it cannot  (in               my  opinion)  be  said that there  is  here  a               decree passed on appeal by a High Court." This Bombay decision was noticed in Promotho Nath Roy v.  W. A. Lee (1919 (33) CLJ 128).  But that decision differed from the Bombay decision because in that case the appeal had been admitted  and  dismissed  whereas in the  Bombay  case-  the appeal was not admitted at all.  In Ramaswami Udayar v. Sevu Aru Ramanathan Chettiar (AIR 1942 Mad. 357) it was held by a Division  Bench  of  the Madras High  Court  that  where  an application to excuse delay, by deducting The time taken  in other proceedings in computing the time for the  application for  rehearing of an appeal, was dismissed and  consequently no  order  was passed on the application for  rehearing  the appeal,  these were not orders on appeal within the  meaning of  s. 109 (a) of the Code of Civil Procedure and  hence  no leave  could be granted.  These decisions were  followed  in Purnendu  Nath  Tagore v. Kanailal Ghoshal  (1948  (2)  Cal. 202). In Ganesh Prasad v. Mt.  Makhna (AIR 1948 All. 375)  however an  order dismissing appeal for default on account  of  non- prosecution  was  held to be a decision which  affirmed  the decision of the Court below. In  Gulabchand  v. Kudilal (AIR 1952 M.B. 149) it  was  held that the order of the Court dismissing the Special Appeal on the ground that no appeal lay under s. 25 of the Act was not an order which affirmed the decision of the Court below  and it was observed that expression "affirms the decision of the Court  immediately below" implies that the Court  had  dealt judicially  with the decision of the Court below and  upheld it and Where the Court holds that it has no jurisdiction  to entertain an appeal from the decision of the Court below and rejects  the appeal, it cannot be held that the decision  of the  Court  below  is  affirmed  by  the  rejection  of  the incompetent appeal. The principle behind the majority of the decision is thus to the  effect  that  where  an  appeal  is  dismissed  on  the preliminary  ground  that it was not competent or  for  non- prosecution  or  for  any other reason  the  appeal  is  not

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entertained,  the decision cannot be said to be a  "decision on  appeal" nor of affirmance.  It is only where the  appeal is beard and the judgment delivered thereafter the  427 judgment can be said to be a judgment of affirmance.   Where a  party applies to the Court to exercise its  powers  under Article  226  or 227 of the Constitution it cannot  be  said that  the party is exercising any right of appeal  conferred on  him by any statute nor is the High Court exercising  any power  of  appeal.  Whatever might be the position  even  in respect  of  petitions  under  Article 226  or  227  of  the Constitution  where  the Court goes into the merits  of  the question, it cannot be doubted that where it dismisses  such a  petition  in limine It simply refuses  ’to  exercise  its powers under Article 226 or 227 Such an order cannot be said to be an order passed on appeal or as affirming the decision of the Court immediately below. In  ’this connection it may be noticed that under  s.109  of the Code of Civil Procedure appeals lie to the Supreme Court from  any  judgment, decree or final order of a  High  Court where  it is passed on appeal.  A proceeding  under  Article 226 or 227 of the Constitution is not an appeal. it is  true that   the-   right  conferred  by  Article   133   of   the Constitution,  cannot  in  any  way  be  curtailed  by   the provisions  of the Code of Civil Procedure and  Article  133 does not speak of judgment, decree or final order passed  on appeal by the High Court.  All the earlier decisions of  the various   Courts  referred  to  above  are  based   on   the interpretation  of  ss.  109 and-110 of the  Code  of  Civil Procedure.   An order of a High Court in a  petition  tinder Article  226 or 227 would be an order in a civil  proceeding of a High Court and so fall under Article 133.  Where a High Court  refuses  to  entertain such  a  proceeding  the  same considerations that were applied in the earlier cases  where an  appeal  was not judicially considered  should  Tic  held applicable also on principle. We  are  therefore of opinion that an order  in  a  petition under Article 226 or 227 dismissed in limine is not a  final order in a proceeding for the purpose of Article 133 (1) (a) of  the  Constitution  and is not therefore  a  judgment  of affirmance  under  Article  133(1) (a),  and  therefore  the certificate granted by the High Court is competent. As  regards the appeal itself we must say that we  have  not been able to understand the order of the Deputy Director  of Constitution which was sought to be quashed by means of  the writ  petition.  We were invited by the respondent  to  look into  the  orders  of  the  Consolidation  Officer  and  the Settlement  Officer in order to understand the order of  the Deputy Director of Consolidation.  As the order sought to be quashed was that of the Deputy Director Consolidation we  do not feel called upon to do so.  We are therefore in the dark as  to  the reasons which might have led the High  Court  to dismiss the appellant’s petition in limine.  We consider  it necessary and proper therefore to set aside the order of the High Court and direct that the petition be dealt with by  it and disposed of by a proper order.  The High Court will bear the  matter  afresh and dispose it of by a  reasoned  order. There will be no order as to costs.  P.B.R.  Case remanded.  428