1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: JUDGMENT (1) Sukh Dev Vs. Prakash Chandra D.B. Civil Special Appeal (Writ) No.844/2009 (2) LRs of Late Vs. Nain Singh & anr. Sh. Jetha Ram D.B. Civil Special Appeal (Writ) No.10/2010 (3) Basant Lal Mehta Vs. Chandra Lal & anr. & Ors. D.B. Civil Special Appeal (Writ) No.12/2010 (4)Ramesh Kumar Vs. Smt. Magi Bai D.B. Civil Special Appeal (Writ) No.32/2010 under Rule 134 of the Rajasthan High Court Rules, 1952. DATE OF ORDER :: 16th April , 2010 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. JUSTICE DINESH MAHESHWARI,J. Mr. Manoj Bohra ] Mr. Mahesh Joshi ] Mr. CS Kotwani ] for the appellants. Mr. Dinesh Mehta ] Mr. Rajesh Shah ] Mr. M.R. Singhvi ] Mr. Sunil Bhandari ] Mr. Vikas Balia ], intervenors. Mr. Manish Shishodia ] Dr. Sachin Achrya ] <><><> REPORTABLE BY THE COURT: [Per Hon'ble Tatia, J.] The issue involved in these appeals is whether intra- court appeal lies against the order passed of the nature in 2 writ jurisdiction by the learned Single Judge of this Court ? In D.B.Civil Special Appeal No.32/2010, the writ petition was labelled under Articles 226 and 227 of the Constitution of India. This appeal is against the order of the learned Single Judge dated 17.12.2009 passed in S.B.Civil Writ Petition No.11796/2009. The learned Single Judge dismissed the writ petition after taking note of the fact that by impugned order of the trial court dated 12.10.2009, the trial court directed defendant-petitioner for discovery of documents under Order 11 Rule 14, CPC as according to the plaintiff, those documents were in possession of the defendant. This rejection of the writ petition of the writ petitioner is under challenge in D.B.Civil Special Appeal No.32/2010. In the writ petition, the writ petitioner prayed that the impugned order of the trial court 12.10.2009 may be set aside and the application of the plaintiff-respondent under Order 11 Rule 14 read with Section 151 CPC may be rejected. D.B.Civil Special Appeal No.10/2010 is against the order of the learned Single Judge dated 29.10.2009 in S.B.Civil Writ Petition No.1034/2009. In this case, the petitioner challenged the order of the trial court dated 19.1.2009 whereby the trial court rejected the defendant- petitioner's application filed under Order 16 Rule 1(3), CPC for summoning two witnesses during the course of defendant's evidence. In the writ petition, the petitioner 3 not only prayed for quashing the order of the trial court dated 19.1.2009 but also prayed that the writ petitioner's application filed under Order 16 Rule 1(3) CPC may be allowed and the witnesses referred in the application may be summoned. The writ petition was labelled as under Articles 226 and 227 of the Constitution of India. D.B. Civil Special Appeal No.12/2010 has been preferred to challenge the order of the learned Single Judge dated 27.11.2009 passed in S.B.Civil Writ Petition No.714/09. The writ petition was filed by the writ petitioners challenging the order of the trial court dated 13.1.2009 whereby the trial court rejected the petitioner's application under Order 8 Rule 9, CPC and refused to take on record the rejoinder filed by the petitioner-plaintiff to the written statement. In the writ petition, the petitioner sought relief of setting aside the order dated 13.1.2009 as well as for allowing the application of the writ petition filed under Order 8 Rule 9, CPC in the trial court so as to get the rejoinder filed by the plaintiff on record. The writ petition was labelled under Articles 226 and 227 of the Constitution of India. D.B.Civil Special Appeal No.844/2009 has been preferred against the order of the learned Single Judge in S.B.Civil Writ Petition No.9232/09 wherein the appellant- petitioner challenged the order of the trial court dated 7.8.2009 whereby the trial court rejected the writ 4 petitioner's application filed under Order 8 Rule 1, CPC, which was filed for production of some documents by the defendant. The writ petitioner, in the writ petition, prayed for quashing the order dated 7.8.2009 by specifically mentioning that the writ, order or direction in the nature of mandamus or certiorari, be issued and the order dated 7.8.2009 passed by the trial court may be set aside and further the documents may be taken on record. The writ petition has been labelled under Articles 226 and 227 of the Constitution of India. From the above facts, it is clear that all the writ petitioners labelled their writ petitions not only under Article 226 of the Constitution of India but also under Article 227 of the Constitution of India. The writ petitioners in their Writ Petition, S.B.Civil Writ Petition No.1034/2009, 714/2009, 9232/2009, prayed for not only quashing of the orders of the trial courts but prayed further for allowing the applications which could have been done only by substitution of the order of the trial court by the order of the High Court. The above facts are relevant because of the reason that Hon'ble the Supreme Court has already taken note of the fact that labelling of the writ petition both under Articles 226 and 227 of the Constitution of India has became customary, though said practice has been deprecated and Hon'ble the Supreme Court held that mere label of the writ petition is not relevant for the purpose of 5 finding out the nature of the order passed in the writ jurisdiction. Further, Hon'ble the Supreme Court held that what is the nature of the order is required to be gathered from the order itself. Any ancillary relief or direction given in the order may not change the substance of the order and substance in fact in the order alone can determine, whether it is under Article 226 of the Constitution of India or under Article 227 of the Constitution of India. Learned counsel for the appellants S/Sh. Manoj Bohra, Mahesh Joshi, C.S Kotwani, Dinesh Mehta, Rajesh Shah and learned counsels S/Sh. M.R. Singhvi, Sunil Bhandari, Vikas Balia, Manish Shishodia and Sachin Acharya who appeared as intervenors have argued that in view of Rule 134 (1) as amended by notification dated 28th June, 2005, the present intra-court appeal is maintainable and it has also been argued by learned counsel Sh. M.R. Singhvi that in view of Rule 8B of the High Court of Judicature for Rajasthan Case Flow Rules, 2006 also the intra-court appeal is maintainable. Learned counsel for the appellants as well as counsels who appeared as intervenors who argued for maintainability of the intra-court appeal, relied upon various judgments delivered by Hon'ble Supreme Court and judgments of this Court wherein the issue of intra-court appeal with reference to letters patent law or the Rule 18 of the Rajasthan High Court Ordinance, 1949 and the Rule 134 of the Rules of 1952 – unamended and amended were 6 considered. Learned counsel for the appellants submitted that writs are issued under Article 226 of the Constitution of India of the nature specified under Article 226 of the Constitution of India itself and the High Court has jurisdiction to issue writ of certiorari in matters arising out of the orders passed by civil courts and that jurisdiction of the High Court is in addition to the High Court's jurisdiction under Article 227 of the Constitution of India. It is also vehemently submitted that even if a petition is filed under Article 227 of the Constitution of India then also, the writ, order or direction can be issued only by exercising the jurisdiction under Article 226 of the Constitution of India, which is only Article wherein the High Court has been given power to issue writ, order or direction. Therefore, the Article 226 of the Constitution of India is the source of power to exercise jurisdiction under Article 227 of the Constitution of India under which only writ, order or direction can be issued including any order even of supervisory nature. In sum and substance, according to learned counsel for the appellants every order passed by the Single Judge of the High Court in writ jurisdiction, either under Article 226 or Article 227 of the Constitution of India is appealable order as it is passed in High Court's original jurisdiction. In support of their arguments, learned counsels relied upon the judgment of this Court delivered in the case 7 of Ramesh Chand Tiwari and ors. vs. Board of Revenue and others (2005(2) WLC (Raj.) 305) and the judgment of the Hon'ble Supreme Court delivered in the case of Sushilabai Laxminarayan Mudliyar & Ors. Vs. Nihalchand Waghajibai Saha & Ors (1993 Supp. (1) SCC 11) and it has been argued that where facts justify a party in filing a petition either under Article 226 or 227 of the Constitution of India and party chooses to file his petition under both the Articles or files a petition under Article 227 of the Constitution of India or in a petition under Article 226 of the Constitution of India and the court gives some direction which may pertain to Article 227 of the Constitution of India then also, the aggrieved party may not be deprived from right of appeal. In addition to above, learned counsels also relied upon the judgment of the Hon'ble Supreme Court and this Hon'ble Court delivered in Kishorilal Vs. Sales Officer, District Land Development Bank & Ors reported in (2006) 7 SCC 496 wherein the Hon'ble Supreme Court held that Division Bench of the High Court wrongly dismissed Letters Patent appeal without noticing that the appeal would be maintainable if the writ petition was filed under Article 226 and 227 of the Constitution of India in view of the judgment delivered in Sushilabai Laxminarayan Mudliyar's case. Division Bench of this Court in Anandilal Vs. State of Rajasthan & Ors, reported in 1996(2) WLC (Raj.) 36, after considering the various judgments of the Hon'ble Supreme Court held that 8 question as to whether the intra-court appeal or special appeal in the same High Court would be maintainable, would depend upon the facts of the case. PS Sathappan (Dead) by LRs Vs. Andhra Bank Ltd & Ors (AIR 2004 SC 5152) has also been cited to argue that Hon'ble Supreme Court after considering the amendments made in the Civil Procedure Code held that Letters Patent appeal against the order passed by the Single Judge of the High Court is maintainable under clause 15 of the Letters Patent of the High Court. Then it has been argued that in the case delivered in Central Mine Planning & Design Institute Ltd Vs. Union of India & Anr.((2001) 2 SCC 588) the Hon'ble Supreme Court held that the judgment includes intermediary and interlocutory judgments also and interlocutory order, which is a final determination affecting valuable rights and obligations of the parties is a judgment within the meaning of clause 10 of Letters Patent of Patna and so has been held, after considering the law of Letters Patent of Calcutta, Bombay and Madras High Court also. We considered the submissions advanced by learned counsels and the judgments relied upon. The same issue which is under consideration before us, has been considered in several judgments of this Court in the light of the prevailing provisions of intra-court appeal like Section 18 of the Rajasthan High Court Ordinance, 1949 and after its repeal, under Rule 134 of the Rules of High 9 Court of Judicature for Rajasthan, 1952 as well as in the light of the various judgments of the Hon'ble Supreme Court rendered after considering the Letters Patent Rules of different High Courts. Different views were taken while interpreting the nature of order which can be passed under Articles 226 and 227 of the Constitution of India as well as on the issue whether appeal lies against the orders passed under Article 226 and orders passed under Article 227 of the Constitution of India and further whether intra-court appeal lies even if there is no specific rule providing for intra-court appeal and if rule provides intra-court appeal then whether the order passed under Article 226 and also under Article 227 of the Constitution of India both can be challenged in intra-court appeal. Before proceeding to consider other judgments, we would like to refer a few earlier judgments of this Court which are Anandi Lal v. State of Rajasthan & others (1996(2) WLC(Raj.) 36, Mohan Lal vs. Lal Chand (2001(1) WLC(Raj.) 129), Punjab National Bank v. Purewell (2002(1) WLC (Raj.) 67), Sher Singh Meena v. Chief Engineer (2004(4) WLC (Raj.) 288 and the Full Bench decision in the State of Rajasthan vs. VRC Mishra (2003(2) WLC(Raj.) 235) and lastly, the Full Bench decision of this Court delivered in the case of Ramesh Chand Tiwari & ors. vs. Board of Revenue & ors. (2005(2) WLC 305). The Division Bench of this Court in Anandi Lal's case (supra) held that proceedings under Article 227 of the 10 Constitution of India is not an original proceeding and intra- court appeal does not lie against the judgment of the Single Judge given in the petition under Article 227. The Division Bench also considered the Section 18 of the Rajasthan High Court Ordinance, 1949 and thereafter held that whether intra-court appeal or special appeal in the same High Court can be maintainable or not, would depend upon the facts of the case. The ratio is that if order is under Article 226 and the rule provides for intra-court appeal, then intra-court appeal lies and the order under Article 227 of the Constitution of India is in supervisory jurisdiction, therefore, against the order passed in supervisory jurisdiction, no intra-court appeal lies. Before repeal of Section 18 of the Rajasthan High Court Ordinance, 1949, intra-court appeals were maintainable under Section 18 of the Rajasthan High Court Ordinance, 1949. Said Ordinance was repealed w.e.f. 29.8.2001. Because of that repeal of Ordinance of 1949, the question arose that in absence of Section 18 of the Rajasthan High Court Ordinance, 1949 whether any intra- court appeal is maintainable ? This issue came up for consideration before the Division Bench of this Court in the case of State of Rajasthan & another vs. Vasna Ram and another (D.B.Special Appeal No.846/2001) decided on 13.1.2001. In Vasna Ram's case, it has been held that there is no other provision existing in any Statute, Ordinance or 11 Rules providing for an appeal against the judgment and order of the Single Judge and as the Ordinance of 1949 stood repealed, therefore, the intra-court appeal is not maintainable. Another Division Bench, after recording detail reasons and after considering the provisions of Article 225 and Section 52, 54, 57 of the State Reorganisation Act, 1956, took a different view than the view taken in Vasna Ram's case and referred the matter to the Larger Bench to decide two questions. But for our purpose, only question no.2 is relevant which is as under:- “2. Whether right to file intra-court appeals stands abrogated with the Repealing Act coming into force on 29.8.2001 by which the Rajasthan High Court Ordinance, 1949 was repealed notwithstanding the several other existing provisions preserving the powers of the High Court in the matter of administration of justice as contained in Article 225 of the Constitution read with Sections 52, 54 and 57 of the State Reorganisation Act, 1956?” In detail judgment, the Full Bench of this Court in the State of Rajasthan & anr. v. V.R.C. Mishra & ors. (2003(2) WLC(Raj.) 235) answered the above question and held that decision given in Vasna Ram's case,as well as the judgment taking similar view in the case of New India Asurance Company Ltd. vs. Smt. Pushpa Devi and another (DBCSA No.53/2002 and Chhotu Lal v. Rajasthan Spinning Weaving 12 Mills Ltd. & anr. (DBCSA No.485/2002) decided on 3.10.2002, do not lay down the law correctly. The Full Bench held that intra-court appeal is maintainable, even after repeal of the Rajasthan High Court Ordinance, 1949. The Full Bench also held that Rule 134 of the Rules of 1952 would still survives to the repeal of the Rajasthan High Court Ordinance, 1949. However, what is the difference in the nature of order passed one under Article 226 and another under Article 227 of the Constitution, was not under consideration of the Full Bench in the case of V.R.C. Mishra's case (supra). This proposition is not in dispute that intra- court appeal in the Rajasthan High Court is permissible by Rule 134 and only question involved is about the scope of Rule 134 as amended by Notification dated 28.6.2005 and under Rule 8B of the High Court of Judicature for Rajasthan Case Flow Management Rules, 2006, as the contention of the learned counsels is that all orders passed by learned Single Judge in writ jurisdiction, whether under Articles 226 or 227 of the Constitution of India and of the nature which have been challenged are also appealable. After above full Bench decision of this court(V.R.C. Mishra's case) ,again a specific question was referred to the Full Bench in the case of Ramesh Chand Tiwari & ors. v. Board of Revenue & ors. (2005(2) WLC(Raj.) 305). The question referred was that:- “Whether intra-court appeal to the Division Bench is maintainable against the 13 order/judgment rendered by the learned Single Judge in exercise of supervisory jurisdiction under Article 227 of the Constitution of India ?” The Full Bench after considering various earlier judgments of this Court including the Full Bench judgment of this Court delivered in V.R.C. Mishra's case and several Supreme Court judgements and after considering un- amended Rule 134 of the Rules of 1952, answered the question in para 29 of the judgment. Para Nos.28 and 29 both are relevant which are as under:- “28. As we have earlier noticed that the Apex Court in Baby Vs. Travancore Devasram Board(supra) enlarged and magnified the scope of supervisory jurisdiction under Article 227 of the Constitution. This myth has been smashed that under the power of superintendence the High Court exercises only the revisional jurisdiction. The Apex Court propounded that the powers of revision conferred on it by other Legislation. Ratio indicated in Baby v. T.D. Board and mandate of Rule 134 of Rules of 1952 escaped notice in Sher Singh Meena vs. Chief Engineer. We support, to the limited extent the view expressed by the Division Bench in Sher Singh Meena's case i.e. Where the Single Judge exercise only revisional powers under Article 227, the intra-court appeal shall be dismissed as not maintainable. But we disagree with this opinion of the Division Bench that all judgments/orders passed by the Single Judge in exercise of 14 supervisory jurisdiction under Article 227 are not amenable to intra-court appeals, since the supervisory jurisdiction under Article 2227 is much wider and akin to appellate, revisional or corrective jurisdiction. 29. We sum up our conclusion, thus:- (i) The power of superintendence conferred on the High Court under Article 227 of the Constitution is always in addition to the revisional jurisdiction. It is wider than one conferred by Article 226 in the sense that it is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Jurisdiction under Article 227 is not an original jurisdiction but it is akin to appellate, revisional or corrective jurisdiction. (ii) Any person desiring to prefer intra-court appeal from the judgment/order of the Single Judge, may present the same before the Division Bench but if the Division Bench finds that the judgment/order of the Single Judge was rendered purely in exercise of revisional jurisdiction, the intra-court appeal shall stand dismissed as not maintainable. Judgements/orders passed by the Single Judge in exercise of wider supervisory jurisdiction under Article 227 are amenable to intra-court appeals.”(emphasis supplied.) In this Full Bench judgment delivered in Ramesh Chand Tiwari's case, as mentioned above, even after holding that “jurisdiction under Article 227 of the Constitution of India is not original jurisdiction but it is akin to appellate, 15 revisional or corrective jurisdiction”, in first part of para 29 itself, in second part of para 29, specifically held that “judgments/orders passed by the Single Judge in exercise of supervisory jurisdiction under Article 227 are amenable to intra-court appeal”. This proposition we have to examine in the light of earlier as well as subsequent judgments of the Supreme Court. In above Ramesh Chand Tiwari's case, the Full Bench noticed that Hon'ble Apex Court in the cases of Umaji Keshao Meshram vs. Radhikabai(1986(Supp.)SCC 40), Sushila Bai Laxminarayan Mudliyar vs. Nihal Chand (AIR 1992 SC 185), Ratnagir D.C. Cooperative Bank vs. Dinkar Kashinath Watve (1993 Supp.(1) SCC 9), Likmat News Papers vs. Shanker Prasad ((1999) 6 SCC 275) held that the order passed in Article 227 of the Constitution if not in original jurisdiction of the High Court but is under supervisory jurisdiction and the Supreme Court held that intra-court appeal is not maintainable. However, in para 28, by relying upon the judgment of the Baby vs. Travancore Devashram Board( (1998) 8 SCC 310), disagreed with the opinion of the Division Bench of this Court that all the judgments/orders passed by the Single Judge in exercise of supervisory jurisdiction under Article 227 of the Constitution of India are not amenable to intra-court appeals. Therefore, there are number of judgments referred in the Full Bench judgment of Ramesh Chand Tiwari's case(supra) rendered 16 by the Hon'ble Supreme Court, holding that intra-court appeal is not maintainable against the order/judgment rendered under Article 227 of the Constitution of India. Subsequent to Full Bench decision, Hon'ble Supreme Court after considering the all judgments which were considered by the Full Bench, in the case of Ashok K. Jha and others vs. Garden Silk Mills Limited and another ((2009) 10 SCC 584) held that no intra-court appeal is maintainable against the judgment under Article 227 of the Constitution rendered by the Single Judge of High Court. Therefore, the Full Bench decision of this Court rendered in Ramesh Chand Tiwari's case (supra) do not lay down the law correctly. This judgment by Full Bench in Ramesh Chandra Tiwari's case was delivered on 24.3.2005. Thereafter Rule 134(1) in the Rules of 1952 was amended by Notification dated 28.6.2005 and, therefore, it appears that the appellants again raised the same issue with additional support as the Rule 134(1) was amended subsequent to the Full Court decision of this Court and, therefore, we are proceeding to decide the effect of amendment in the Rule 134(1) of the Rules of 1952. In the judgment of Umaji Keshao Meshram(supra), the same question was for consideration before the Hon'ble Supreme Court and that was whether intra-court appeal before Division Bench against judgment of Single Judge is maintainable or not. Hon'ble the Apex Court considered 17 clause 15 of the Letters Patent of Bombay High Court as well as the law which was in force before the clause 15 of the Letters Patent of Bombay High Court, like Section 107 of the Government of India Act, 1915, General Clauses Act, 1897 and several judgments on the point, and after detail discussion, held in para 102 of the judgment that if such right of appeal is provided under the Charter of the High Court then intra-court appeal will lie from the judgment passed by the Single Judge of the High Court. It can be provided in the Charter of the High Court or may be by Letters Patent or by a statute. In para 103 of the judgment of Umaji Keshao Meshram(supra), Hon'ble the Supreme Court held that it is equally well-settled in law that a proceeding under Article 227 is not an original proceeding. Then further it has been held that where the facts justify a q party in filing an application either under Article 226 or Article 227 of the Constitution, and the party chooses to file his application under both the Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the court ought to treat the application as being made under Article 226, and if in deciding