SAW-929/2006 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH *** D.B.SPECIAL APPEAL (WRIT) NO.929/2006 Dharam Chand Vs. Kishan Gopal & ors. DATE OF ORDER : 19/11/2010 HON'BLE THE ACTING CHIEF JUSTICE MR.ARUN MISHRA HON'BLE MR. JUSTICE AJAY RASTOGI *** None present for the parties. This intra court appeal has been preferred as against the order dated 7.8.2006 passed in S.B. Civil Writ Petition No.5071/2006 by Single Bench in the matter of interlocutory order dated 18/5/2006 passed by the Additional Civil Judge (Junior Division) No.1, Bharatpur in Civil Suit No. 179/2005 allowing application under Order 1 Rule 10(2) CPC moved by the respondent No.1 for impleading as party to the suit. The learned Single Judge has declined to make interference under Article 226 of the Constitution of India against the interlocutory order passed by the trial court. In the instant case, we are of the opinion that the intra court appeal cannot be said to be maintainable as it arises out of an interim order passed by the civil court in a pending civil suit. The writ petition is maintainable against such a decision as no revision lies. The scope of revision has been curtailed by SAW-929/2006 2 the legislature under Section 115 of the Code of Civil Procedure for the purpose to avoid the challenge to interlocutory orders before conclusion of the trial, however, against such a decision, writ petition can be preferred in exceptional circumstances invoking extraordinary jurisdiction of this Court where failure of justice is caused or order is patently illegal. In such a matter, this Court essentially exercises its jurisdiction under Article 227 of the Constitution and label of the petition is not material. In Sukh Dev, supra, Rule 134 of the Rajasthan High Court Rules, 1952, providing the special appeal, has been considered and on due consideration of various decisions of the Apex Court, decision has been rendered by division bench that intra court appeal against such a decision is not maintainable. The division bench of this Court in Sukh Dev, supra, has opined thus: “22. In another case delivered in the case of Kishorilal v. Sales Officer, District Land Development Bank and others ( (2006) 7 SCC 496), observations made by the Hon'ble Supreme Court have been relied upon which are in para 13, which reads as under:- “13. The learned Single Judge of the High Court, in our opinion, committed an error in interfering with the findings of fact arrived at by the Board of Revenue. The Division Bench of the High Court also wrongly dismissed the LPA without noticing SAW-929/2006 3 that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha 1993 Supp(1) SCC 11) (emphasis supplied). 24.After considering the various judgments of the Hon'ble Supreme Court, including the judgment of the Umaji Keshao Meshram (supra), Hon'ble the Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai and others ((2003) 6 SCC 675) held that the nature and ambit of power under Article 227 is wider than one conferred on the High Court by Article 226 in the sense that power of superintendence is not subject to technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. It has been held that it is well settled that the power of superintendence conferred on the High Court under Article 227 is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paying the path of justice and removing any obstacles therein. Hon'ble the Supreme Court in the case of Surya Dev Rai's made clear the distinction between the jurisdiction under writ of certiorari and supervisory jurisdiction of High Court and did not appreciate obliteration of distinction between Articles 226 and 227 of the Constitution of India and the Hon'ble Supreme Court observed “Probably, this is the reason why it has become customary with the lawyers SAW-929/2006 4 labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncements.” The detail discussion on the above subject and the decision given by the Hon'ble Supreme Court in above case gives sufficient guide-lines for finding out the nature of the order sought to be challenged in intra-court appeal because in view of the various judgments, it is clear that intra-court appeal lies against the order passed by the Single Judge of the High Court in original jurisdiction and not against the order passed in supervisory jurisdiction including the jurisdiction of the High Court under Article 227 which is not original jurisdiction but is supervisory jurisdiction. Further, intra- court appeal lies only if intra-court appeal is provided by the statutory provision. From Surya Dev Rai's case (supra), it is very clear that mere labelling the petition under Article 226 of the Constitution of India or because in the order passed by Single Judge words Article 226 have been mentioned, will not be decisive for drawing inference that the petition or even order passed by the Single Judge is passed under Article 226. In the Constitution of India, in spite of having Article 226, Article 227 has been provided purposely and particularly to meet with situation like challenge to orders passed by the subordinate courts and to empower the High Court to do more than what High Court could have done under Article 226 of the Constitution. Hon'ble the Supreme Court specifically held that while exercising jurisdiction to issue a writ of certiorari, SAW-929/2006 5 the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction, the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. 32.None of the judgment has been brought to our knowledge deciding the issue that when a writ petition is preferred to challenge the order of the subordinate court, then whether the High Court exercises its supervisory jurisdiction under Article 227 or under Article 226 of the Constitution of India ? It is settled law that jurisdiction under Article 227 is wide and is not subject to technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction as held in various judgments of the Supreme Court. Normally, mere quashing the order of the subordinate court passed during trial in suits or hearing of appeal, may not serve any purpose and may result into reopening of the issue decided by trial court or appellate court which is required to be avoided and can be avoided by exercise of power under Article 227 of the Constitution of India by not only setting aside the order of the trial court or the appellate court subordinate to the High Court but SAW-929/2006 6 that order, by exercising jurisdiction under Article 227, can be modified and can be substituted by the order of the High Court resulting into final decision for the issue involved. Consequently, it will avoid the multiplicity of the proceedings. Not only this, if order of the subordinate court is merely set aside and said subordinate court again decides the matter afresh, then that order again may be challenged under Article 226 of the Constitution of India which again only can be quashed and set aside resulting into again same exercise by the subordinate court. This makes clear the reason for different languages in Articles 226 and 227 of the Constitution and for court's and tribunal's orders separate and independent Articles have been made in the Constitution of India purposefully otherwise there was no need to enact Article 227 of the Constitution of India. However, there is no need to supply more reasons than what have been already given in Surya Dev Rai's case (supra) by Hon'ble Supreme Court and we are of considered opinion that orders passed by the subordinate courts in civil proceedings, if are challenged, normally, leaving apart rare and exceptional cases, can be and are (required to be) challenged under Article 227 of the Constitution of India. The label and title given by the writ petitioner in the writ petition is not relevant. The order passed by the Single Judge in such matters, unless specifically ordered to be under Article 226 of the Constitution of India, it is required to be accepted as an order passed by the Single Judge in supervisory jurisdiction and under Article 227. This is because of the reason SAW-929/2006 7 that labelling of petition as well as mentioning of petition has become customary, may be earlier inadvertently, but looking to the present trend, it may also be intentional (for which there is no bona fides). Hon'ble the Supreme Court in Surya Dev Rai's case(supra) also observed as under:- Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncements . (emphasis supplied) 35.Since appeal is creature of statute and is maintainable only if provided by law and the intra-court appeal is provided under Rule 134(1) of the Rules of 1952, therefore, is is necessary to quote Rule 134(1) of the Rules of 1952, which reads as under:- “134(1) Appeal to the High Court from Judgment of Judges of the Court- An appeal shall lie to the High Court from the Judgment or a 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 of the exercise of criminal jurisdiction) of SAW-929/2006 8 one Judge of the High Court.” Clause 15 of the Latest Patent of Bombay High Court is as under:- "15. Appeal to the High Court from Judges of the Court.-And We do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (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 said 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 under the provisions of section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the first day of February One thousand nine hundred and twenty-nine 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 said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as here in after provided." 36.The above two clauses, Rule 134(1) and clause 15 of the Letters Patent are parimateria. Clause 15, was dissected by the Hon'ble Supreme Court in Umaji Keshao Meshram's case (supra) in para 9, which is SAW-929/2006 9 as under:- “An appeal shall lie to the High Court of Judicature at Bombay - (1) from a judgment (2) of one Judge of the High Court (3) pursuant to section 108 of the Government of India Act of 1915 (4) not being - (a) 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, (b) an order made in the exercise of revisional jurisdiction, (c) a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act of 1915, or (d) a sentence or order passed or made in the exercise of criminal jurisdiction.” In sub-clause (c) of sub-para (4) of para 9 the words “under the provisions of Section 107 of the Government of India Act of 1915”, are there, for which the Division Bench of the Bombay High Court, Nagpur Bench in Jagannath Ganbali Chikhale v. Gulabrao Raghobaji Bobde (1965 Mah.LJ 426) held that “after coming into force of the Constitution, the words “Section 107 of the Government of India Act”(that is, of the Government of India Act of 1915) in Clause 15 should be read as “Article 227 of the Constitution” inasmuch as Article 227 confers a power of superintendence as wide as was available to the High Court under Section 107 of the Government of India Act of 1915.” Then several Letters Patent Appeals from the judgment of the different Single Judges were preferred against the orders passed either under Article 226 or under Article 227 of the Constitution of India and issue about maintainability of SAW-929/2006 10 these appeals were sent for consideration to the Full Bench of the three Judges of the Bombay High Court. The Full Bench of the Bombay High Court held that no appeal lay under clause 15 of the Letters Patent against the judgment of the Single Judge of the High Court in a petition under Article 226 or under Article 227 of the Constitution of India. The Full Bench was of the view that both Articles 226 and 227 of the Constitution of India, in substance, provide for the same relief, namely, scrutiny of record and control of subordinate courts and the tribunals and, therefore, the exercise of jurisdiction under these Articles would fall within the expression “revisional jurisdiction” or “power of superintendence” and hence even under clause 15 of the Letters Patent, appeal would be barred. That view of the Full Bench was reversed by the Hon'ble Supreme Court in Umaji Keshao Meshram's case (supra). Since clause 15 of the Letters Patent of Bombay High Court is parimateria to the Rule 134(1) of the Rajasthan High Court Rules referred above and which have been clearly interpreted by the Hon'ble Supreme Court, therefore, in view of that binding decision, no appeal against any order passed by the Single Judge of the High Court is maintainable before the Division Bench if the order has been passed in exercise of the power of superintendence including the order passed by exercising power under Article 227 of the Constitution of India. Same is the view taken by the Hon'ble Supreme Court in all other judgments referred above. Therefore, any other interpretation and dissection of sub-rule (1) of Rule 134 of the Rules of SAW-929/2006 11 1952 suggested by the counsels cannot be accepted as correct interpretation of Rule 134(1) of the Rules of 1952. 37. In fact the orders of the civil courts which could have been challenged under Section 115, CPC by way of revision petition before the High Court, are now being challenged in High Court's writ jurisdiction because of amendment in the Code of Civil Procedure. It cannot be disputed that the orders passed by the subordinate courts could have been challenged in revision under Section 115, CPC before amendment of the Code of Civil Procedure and in that situation, if any order would have been passed by the Single Judge of the High Court, its intra-court appeal would have been barred. And in view of the availability of the alternative remedy to challenge the order in revision under the provisions of the Code of Civil Procedure itself, the writ petition would not have been maintainable. Section 115 of the Code of Civil Procedure was amended with object to reduce the delay in the proceedings before Civil Court and that amendment in Section 115 narrowed the High Court's jurisdiction in entertaining revision petition, therefore, only the orders passed by the subordinate courts are now challenged in writ jurisdiction of the High Court. Therefore, also in fact the High Court exercises its revisional or supervisory jurisdiction only when any order of subordinate court is challenged in writ jurisdiction. Any other interpretation resulting into providing further appeal against the order passed by the High Court in such mattes will SAW-929/2006 12 frustrate the purpose for which the Code of Civil Procedure was amended. Therefore, substantially these orders are the orders which were passed earlier in revisional jurisdiction of High Court for which there was no remedy to challenge the orders passed by the High Court in revisional jurisdiction, are now sought to be challenged in intra-court appeal and if Rule 134(1) is interpreted to mean to provide appeal against such order, then that will result into interpreting sub- rule (1) of Rule 134 of the Rules of 1952 providing challenge to High Court's order passed in revisional and supervisory jurisdiction where the legislature enacted the law to curtail the even first challenge to the order passed by the subordinate court by limiting the scope under Section 115, CPC. We are of the opinion that there is no justification and reason to construe Rule 134(1) of the Rules of 1952 as well as the nature of the order which can be passed by the High Court under Article 227 of the Constitution of India arising out of the order passed by the court subordinate to it which will nullify the object of legislation nor it can be interpreted to enlarge the revisional jurisdiction of the High Court in the name of jurisdiction under Article 227 or reduce the supervisory jurisdiction of the High Court over subordinate courts to a subordinate jurisdiction subject to appellate jurisdiction of High Court itself. Such contradiction cannot exist in view of the legislative intend and clear provision of Section 134(1) as well as the nature of the orders which are passed by the High SAW-929/2006 13 Court in writ jurisdiction when orders of the subordinate courts are challenged in writ jurisdiction in the High Court. At the cost of repetition, when wide and appropriate powers under Article 227 of the Constitution of India are available to the High Court then there cannot arise any question of exercise of jurisdiction under Article 226 of the Constitution of India unless so is required to be exercised for the reasons to be incorporated in the order passed by the Single Bench of the High Court. Neither label of the petition nor incorporation of the said label or mention of Article 226 of the Constitution of India in the order itself can change the nature of the order passed when order of subordinate court is challenged in the High Court. 38. In view of the above discussion, we are of the considered opinion that normally the Single Judge of the High Court, while exercising writ jurisdiction, passes any order, for subordinate courts' order/judgment, then that is under supervisory jurisdiction of the High Court and that is under Article 227 of the Constitution of India and that is not under Article 226 of the Constitution of India. To make an order under Article 226 of the Constitution of India, in such cases, the reasons are required to be mentioned in the order of the learned Single Judge for passing order not under Article 227 of the Constitution of India, but for passing the order under Article 226 of the Constitution of India. If the order is passed under Article 226 of the Constitution of India specifically, then SAW-929/2006 14 that order may be appealable order under sub-rule(1) of Rule 134 of the Rules of 1952. 42. We may sum up:- (i) the jurisdiction under Article 226 of the Constitution of India is original, extra-ordinary and discretionary jurisdiction of the High Court, whereas jurisdiction under Article 227 of the Constitution of India is not original jurisdiction of the High Court and is supervisory jurisdiction and has no fetters which are found in Article 226 of the Constitution of India, (ii) Normally any order passed by the subordinate court is challenged then it can be challenged under Article 227 of the Constitution of India as it is specific provision in the Constitution of India for the appropriate remedy which cannot be equated with jurisdiction of High Court under Article 226 of the Constitution of India, (iii) Mere label of petition or mention of Article 226 in the order is not decisive and normally such orders are required to be treated to be the orders passed by the Single Judge under Article 227 of the Constitution of India and not under Article 226 of the Constitution of India, unless the party challenging the orders of the subordinate court specifically takes a plea in the writ petition that order has been challenged under Article 226 of the Constitution of India and not under Article 227 of the Constitution of India; and the Single Judges passes specific order after considering such plea of the party that the order as being passed is not under Article 227 of the Constitution of India but is SAW-929/2006 15 under Article 226 of the Constitution of India, (iv) The intra-court appeal, as per sub- rule(1) of rule 134 of the Rules of 1952(as amended by Notification dated 28.6.2005) is not maintainable against any order passed by the High Court (Single Judge) in supervisory jurisdiction under Article 227 of the Constitution of India, (v) Rule 8B of the High Court of Judicature for Rajasthan Case Flow Management Rules, 2006 is not the law itself providing right to appeal but the entire Rules of 2006 are only prescribing procedure for the High Court under Article 225 of the Constitution of India for the matters for which provisions have been made of appeal etc. by specific law which includes providing procedure for intracourt appeal provided by specific Rule 134 of the Rules of 1952.” In Kartar Singh, supra, the division bench of this Court has distinguished the aforesaid judgment on the ground that it was rendered in a context of a pending civil suit before the civil court, thus no dent is caused in the decision rendered in Sukh Dev, supra by the decision rendered in Kartar Singh, which was a decision arising out of Board of Revenue. In Mavji C. Lakum vs. Central Bank of India, (supra) considering the averments made and the challenge, it was held that petition was