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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO.  3371  OF 2003

Narendra S. Chavan & Ors. .... Appellants

Versus

Vaishali V. Bhadekar .... Respondent

O R D E R

This appeal by special leave is directed against the judgment and order  

dated 17.8.2002 of  the Division Bench of  the High Court of  Bombay whereby the  

Letters Patent Appeal filed by the respondent-tenant was allowed.   

The  respondent-tenant  after  losing  before  the  rent  control  appellate  

authority had filed a writ petition, which writ petition also came to be dismissed by  

order  dated  13.3.2002  for  non-prosecution  and  the  civil  application  filed  for  

restoration of  the same was also  dismissed by order dated 14.6.2002.   Thereafter  

possession  was  given  to  the  appellants.  Instead  of  challenging  the  order  dated  

14.6.2002 before a proper court, the respondent-tenant filed a Letters Patent Appeal  

before the Division Bench.  The said Letters Patent Appeal was allowed and while  

allowing the same, the Division Bench even set aside the orders passed by the rent  

control appellate authority on merits.   

The  learned  counsel  appearing  on  behalf  of  the  appellants-landlord

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herein contends that everything was without jurisdiction.  We entirely agree.  In fact,  

after the  dismissal  of  the restoration application  by the  learned Single  Judge,  no  

Letters Patent Appeal could have been filed against that order because that was not a  

judgment.   This  is  apart  from the  fact  that  even assuming that  a  Letters  Patent  

Appeal  was maintainable,  there was no justification  for the Division  Bench to go  

straight into the merits of the matter and all that the Division Bench could have done  

was to send back the matter to the Single Judge for being decided on merits. That  

was not done.  Instead, the Division Bench went into the merits of the matter.  It is  

stated that this course was adopted because the parties agreed that the writ petition  

should be restored to file and should be heard and disposed of on merits.  We do not  

understand as to how the Division Bench had the jurisdiction under Clause XV of the  

Letters Patent because even if the matter was decided by the Single Judge then the  

Division Bench would not have had the jurisdiction to decide the matter on merits.  

Consent does not confer jurisdiction.  In that view of the matter, we allow this appeal  

and set aside the impugned judgment and order of the Division Bench but without  

any order as to the costs.   

.....................J.        (MARKANDEY KATJU)

New Delhi; July 21, 2009        .....................J.

     (V.S. SIRPURKAR)