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PETITIONER: KRISHNAJI DATTATRYAYA BAPAT

       Vs.

RESPONDENT: KRISHNAJI DATTATRYAYA BAPAT

DATE OF JUDGMENT: 16/04/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. RAMASWAMI, V.

CITATION:  1970 AIR    1            1970 SCR  (1) 322  1969 SCC  (2)  74  CITATOR INFO :  RF         1974 SC1380  (24)  E          1980 SC 962  (76)  RF         1981 SC 960  (14,15)  RF         1983 SC1090  (5)  D          1986 SC1780  (11)

ACT: Constitution  of  India, Arts. 226 and  227-Writ  Petitions- Jurisdiction  of  High Court, after  exercising  revisionary jurisdiction-Code of Civil Procedure,   s. 115-Scope of.

HEADNOTE: Against   the  order of an appellate court,  the  respondent filed a revision under   s.   115  of  the  Code  of   Civil Procedure.  The Single Judge of the High Court dismissed the revision.   Thereupon the respondent moved a petition  under Arts.  226 and 227 of the Constitution challenging the  same order  of the appellate court.  The High Court held that  in spite  of the dismissal of the revision petition,  it  could interfere  under Arts. 226 and 227 of the Constitution on  a proper case being made out; and after going into the  merits of the case, it granted relief to the respondent.  In appeal to  this Court, the appellant contended that the High  Court could ,not interfere under arts. 226 and 227. Allowing the appeal, this Court, HELD  :  Even  on  the assumption  that  the  order  of  the appellate  court .had not merged in the order of the  Single Judge  who  had  disposed of the revision  petition  a  writ petition  ought  not to have been entertained  by  the  High Court  when  the respondent had already  chosen  the  remedy under  s. 115 of the Code of Civil Procedure.  If there  are two modes of invoking the jurisdiction of the High Court and one  of those modes has been -chosen and exhausted it  would not  be a proper and sound exercise of discretion  to  grant relief  in  the other set of proceedings in respect  of  the same  order of the subordinate court.  The refusal to  grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also  to respect and accord finality to its -own ’decisions. [327 H] When the aid of the High Court is invoked on the  revisional

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side  it is done because it is a superior court and  it  can interfere  for  the purpose of rectifying the error  of  the court  below.  Section 115 of the Code of  Civil  ’Procedure circumscribes  the  limits  of  that  jurisdiction  but  the jurisdiction  which  is  being exercised is a  part  of  the general  appellate  jurisdiction  of the  High  Court  as  a superior  court.  It is only one of the modes of  exercising power conferred by the Statute; basically and  fundamentally it is the appellate jurisdiction of the High Court which  is being  invoked  and exercised in a wider and  larger  sense. The  principle  of merger of orders of  inferior  courts  in those  superior  courts would not be affected or  would  not become  inapplicable  by  making  a  distinction  between  a petition for revision and an appeal. [327 B] Madan  Lal  Rungta  v. Secy. to the  Government  of  Orissa, [1962]  3  Supp.  S.C.R. 906, Nagendra Nath  Dey  v.  Suresh Chandra  Dey.  59  I.A. 283, 287; Raja of  Ramnad  v.  Kamid Rowthen  &  Ors. 53 I.A. 74, P. P. P.  Chidambara  Nadar  v. C.P.A. Rama Nadar & Ors.  A.I.R. 1937 Mad. 385, Secretary of State for India in Council v. British India Steam Navigation Co.  13  C.L.J. 90, Attorney-General v.  Sillem,  (1864)  10 H.L.C. 704, Chappan v. Moidin, (1898) I.L.R. Mad. 68, 80, U. J. S. Chopra v. State                             323 of  Bombay, A.I.R. 1955 S.C. 633 and Chandi Prasad  Chokhani v. state of Bihar, [1962] 2 S.C.R. 276, referred to. K.   B.  Sipahimalani  v. Fidahussein Yallibhoy,  58  B.L.R. 344, disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 870 of 1966. Appeal  by special leave from the judgment and  order  dated June  14,  1965 of the Bombay High Court  in  Special  Civil Application No. 371 of 1965. S.   S. Shukla, for the appellant. M.   C. Bhandare, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondent. The Judgment of the Court was delivered by Grover,  J. This is an appeal by special leave from a  judg- ment  of the division bench of the Bombay High  Court.   The only  question for decision is whether the High Court  could interfere under Arts. 226 & 227 of the Constitution with the order of the appellate court in proceedings under the Bombay Rents,  Hotel  and Lodging House Rates  Control  Act,  1947, hereinafter  called the "Act", when a petition for  revision under  S. 115, Civil procedure Code, against the same  order had  been  previously dismissed by a single  Judge  of  that court. The  appellant is the owner of a house in Poona.   The  res- pondent,  who  was a teacher, was the tenant of a  block  of four rooms on the first floor of the house.  In 1958 he  was transferred  to  another  town Wai  where  he  was  allotted suitable  residential  accommodation.   His  son,   however, stayed on in Poona as he was studying there.  The  appellant filed a suit in the court of Judge, Small Causes, under  the provisions  of the Act for possession of the suit  premises, inter  alia, on the ground that the respondent had  acquired suitable -accommodation elsewhere.  The position taken up by the  respondent was that his son was required to stay on  in Poona  and  for that reason it could not said that  the  had acquired  suitable residence at Wai.  Moreover he  had  gone away from Poona only temporarily and on his return the  pre- mises  would be required for his own use.  The  trial  court

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held that only a part of the premises which were required by the  son  should  be  vacated.   It  granted  a  decree  for possession   of   two  out  of  four  rooms   and   directed proportionate  reduction  of  the rent.   Both  sides  filed appeals  in  the  court of the District  Judge.   The  Extra Assistant  Judge who disposed them of was of the  view  that the  court was not empowered to bifurcate the premises.   It was  either  suitable  for the whole family or  it  was  not suitable.  But 324 he  affirmed the decree on the ground that the order of  the trial court was an equitable one.  The respondent  preferred a  petition for revision under s. 1 15 of the Code of  Civil Procedure before the High Court.  A learned Single Judge who heard the petition dismissed it as he was not satisfied that the   appellate   court  had  acted  in  exercise   of   its jurisdiction  illegally or with material irregularity.   The respondent  moved a petition under Arts. 226 and 227 of  the Constitution  challenging  the same order of  the  appellate court.  Following a decision of a full bench in K. B. Sipahi malani v. Fidahussein Vallibhoy(1) the division bench  which heard the writ petition held that in -spite of the dismissal of  the petition by the learned Single Judge there could  be interference under Arts. 226 and 227 of the Constitution  on a  proper cast being made out.  After going into the  merits the  bench  expressed the view that the respondent  had  not acquired  an  alternative suit able residence.   The  courts below  were  therefore,. wrong, in coming  to  the  contrary conclusion.   As  s.  13  (I)  (1)  of  the  Act  had   been misconstrued  and the error was apparent on the  record  the orders of the courts below were set aside. Now  as is) well known s. II 5 of the Civil  Procedure  Code empowers  the High Court to call for the record of any  cast which has been decided by any court subordinate to it and in which  no  appeal  lies  to it.  It  can  interfere  if  the subordinate court appears to have exercised the jurisdiction not  vested in it by law or to have failed to  exercise  the jurisdiction  so vested on to have acted in the exercise  of its  jurisdiction legally or with material illegality.   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  Art.  226  or  227  of   the Constitution.   It is only if by dismissal of  the  revision petition  the order of the subordinate court has not  become merged  in  that of the High Court that it may  be  open  to party to invoke the extraordinary writ jurisdiction of  that court.  There again the question will arise whether it would be right and proper for the High Court to interfere with  an order  of  a  subordinate court in a writ  petition  when  a petition for revision under S. 115, C.P.C., against the same order  has been dismissed.  Such a consideration  will  also enter  into the exercise of discretion in a  petition  under Aft. 226 or 227, (1)  58 B.L.R. 344,                             325 The Bombay High Court in K. B. Sipahimalani’s (1) case  made a  distinction  between  an  appellate  jurisdiction  and  a revisional  jurisdiction.   A right of appeal  is  a  vested

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right and an appeal is a continuation or a rehearing of  the suit.   A  revision,  however, is not a  continuation  or  a rehearing  of  the  suit;  nor is  it  obligatory  upon  the revisional court to interfere with the order even though the order  may be improper or illegal.  If the revisional  court interferes  the order of the lower court does not  merge  in the order passed by a revisional court but the order of  the revisional court simply sets aside or modifies the order  of the lower court. it was this argument which mainly prevailed before  the Bombay bench.  It would appear that  this  Court has  taken a view which runs counter to that of  the  Bombay High Court.  Although the case of Madan Lal Rungta v.  Secy. to  the Government of Orissa(2) was not one which  had  been decided  under  s. 115 of the Civil Procedure Code  but  the ratio of that decision is apposite.  The State Government of Orissa a rejected the application of the appellant there who had  applied  for  grant of a mineral  lease.   He  made  in application for review to the Central Government under  Rule 57  of the Mineral Concession Rules which was rejected.   He moved  the  High Court under Art. 226  of  the  Constitution which was also dismissed.  The appellant came up by  special leave  to  this  Court.  His main contention  was  that  the Central Government had merely dismissed the review  petition and  the effective order rejecting his application  for  the mining  lease  was that of the State Government.   The  High Court,  thus,  had jurisdiction to grant a writ  under  Art. 226.  This contention was negatived and it was held that the High  Court  was  right in taking the view that  it  had  no jurisdiction to issue a writ as the final order was that  of the Central Government which was not within its  territorial jurisdiction.  The ratio of this decision is that it was the order of the Central Government dismissing the review  peti- tion  which was the final order into which the order of  the State Government had merged. It  would appear that their lordships of the  Privy  Council regarded the revisional jurisdiction to be a part and parcel of  the appellate jurisdiction of the High Court.   This  is what was said in Nath Dey v. Suresh Chandra Dey(3).               "There is no definition of appeal in the  Code               of Civil Procedure, but their Lordship have no               doubt  that any application by a party  to  an               Appellate  Court,  asking it to set  aside  or               revise  a decision of a subordinate Court,  is               an  appeal within the ordinary acceptation  of               the term. . . . " (1) 58 B.L.R. 344.                       (2) [1962] 3  Supp. S.C.R. 906. (3) 591.A.283, 287. L13Sup.CI/69-7 326 Similarly  in Raja of Ramnad v. Kamid Rowthen & Ors.  (1)  a civil revision petition was considered to be an  appropriate form  of appeal from the judgment in a suit of small  causes nature.   A full bench of the Madras High Court in P. P.  P. Chidambara  Nadar v. C. P. A. Rama Nadar & Ors. (2)  had  to decide  whether  with  reference  to  Art.  182(2)  of   the Limitation  Act,  1908  the  term "appeal"  was  used  in  a restrictive  sense so as to exclude revision  petitions  and the  expression  "appellate court" was to be confined  to  a court  exercising  appellate,  as  opposed  to,   revisional powers.  After an exhaustive examination of the case law in- cluding  the decisions of the Privy Council mentioned  above the  full bench expressed the view that Art. 182(2)  applied to  civil revisions as well and not only to appeals  in  the narrow  sense  of that term as used in the  Civil  Procedure

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Code.  In Secretary of State for India in Council v. British India  Steam Navigation Company(3) and order passed  by  the High Court in exercise of its revisional jurisdiction  under S.  115,  Code of Civil Procedure, was held to be  an  order made or passed in appeal within the meaning, of S. 39 of the Letters Patent, Mookerji, J., who delivered the judgment  of the  division  bench referred to the  observations  of  Lord Westbury in Attorney General v. Sillem(4) and of  Subramania Ayyar, J. in Chappan v. Moidin(5) on the true nature of  the right  of  appeal.   Such  a right was  one  of  entering  a superior  Court  and invoking its aid and  interposition  to redress the error of the court below.  Two things which were required  to  constitute  appellate  jurisdiction  were  the existence of the relation of superior and inferior Court and the  power on the part of the former to review decisions  of the latter.  In the well known work of Story on Constitution (of United States) vol. 2, Art. 1761, it is stated that  the essential  criterion  of appellate jurisdiction is  that  it revises  and  corrects the proceedings in  a  cause  already instituted  and does not create that cause.   The  appellate jurisdiction  may  be exercised in a variety of  forms  and, indeed,  in any form in which the legislature may choose  to prescribe.   According to Art. 1762 the most usual modes  of exercising appellate jurisdiction, at least those which  are most known in the United States, are by a writ of error,  or by an appeal, or, by some process of removal of a suit  from an  inferior tribunal.  An appeal is a process of civil  law origin and removes a cause, entirely subjecting the fact  as well  as  the law, to a review and a retrial’.   A  writ  of error  is  a process of common law origin,  and  it  removes nothing for re-examination but the law.  The former mode is (1)53  I.A. 74. (2) A.I.R. 1937 Mad. 385. (3) 13 C.L.J.  90. (4) [1864] 10 H.L.C. 704.                             327 usually   adopted   in  cases  of   equity   and   admiralty jurisdiction; the latter, in suits at common law tried by  a jury. Now  when the aid of the High Court is invoked on the  revi- sional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court  below.   Section 115 of the Code of  Civil  Procedure circumscribes  the  limits  of  that  jurisdiction  but  the jurisdiction  which  is  being exercised is a  part  of  the general  appellate  jurisdiction  of the  High  Court  as  a superior  court.  It is only one of the modes of  exercising power conferred by the Statute; basically and  fundamentally it is the appellate jurisdiction of the High Court which  is being invoked and exercised in a wider and larger sense.  We do not, therefore, consider that the principle of merger  of orders of inferior Courts in those of superior Courts  would be  affected  or  would  become  inapplicable  by  making  a distinction between a petition for revision and an appeal. It  may be useful to refer to certain other decisions  which by  analogy can be of some assistance in deciding the  point before  us.  In U. J. S. Chopra v. State  of  Bombay(1)  the principal of merger was considered with reference to s.  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.  In  Chandi  Prasad

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Chokhani v. The State of Bihar, (2) it was said that save in exceptional  and special circumstances this Court would  not exercise its power under Art. 136 in such a way As to bypass the  High Court and ignore the latter’& decision  which  had become final and binding by entertaining an appeal  directly from orders of a Tribunal.  Such exercise of’ power would be particularly  inadvisable in a case where the  result  might lead  to a conflict of decisions of two courts of  competent _jurisdiction.  In our opinion the course which was followed by  the  High Court, in the present case, is  certainly  one which leads to a conflict of ’decisions of the same court. Even on the assumption that the order of the appellate court had not merged in the order of the single Judge who had dis- posed  of  the revision petition we are of the view  that  a writ petition ought not to have been entertained by the High Court  when  the respondent bad already  chosen  the  remedy under s. 115 of (1) A.I.R. 1955 S.C. 633. (2) [1962] 2 S.C.R. 276. 328 the  Code  of Civil Procedure.  If there are  two  modes  of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and  sound  exercise of discretion to grant  relief  in  the other set of proceedings in respect of the same order of the subordinate  court.   The  refusal to gray  relief  in  such circumstances would be in consonance with the anxiety of the court  to  prevent abuse of process as also to  respect  and accord finality to its own decisions. In the result the appeal is allowed and the judgment of  the division  bench of the High Court is hereby set aside.   The appellant shall be entitled to costs in this Court. Y.P. Appeal allowed. 329