[2009] 10 S.C.R. 1218

NARENDRA S. CHAVAN & ORS.

VAISHALI V. BHADEKAR (Civil Appeal No.3371 of 2003)

JULY 21, 2009

[MARKANDEY KAT JU AND V.S. SIRPURKAR, JJ.)

LETTERS PA TENT (Bombay High Court):

c Clause 15 - Letters patent appeal - Maintainability of - Tenant after losing before rent control appellate authority filing writ petition before High court - Writ petition dismissed for nonprosecution - Application for restoration filed by tenant also dismissed by order dated 14.6.2002 - Possession of

D premises delivered to landlords - Order dated 14.6.2002 challenged by tenant in letters patent appeal - Division Bench of High Court deciding the matter on merits, set aside the order of rent control appellate authority - Held: The judgment of Division Bench was without jurisdiction - No letters patent

E appeal could have been filed against the order rejecting the

application for restoration as that was not a judgment - Even otherwise, there was no justification for the Division Bench to go into the merits of the matter and all that it could have done was to remit the ma Tter to the Single Judge for decision on

F merits - Even if there was consent of parties, it would not confer jurisdiction - Accordingly, judgment of Division Bench set aside - Practice and procedure - Jurisdiction.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3371 of 2003.

G From the Judgment & Order dated 17.8.2002 of the High •·

Court of Judicature at Bombay in Letter Patent Appeal No. 249 of 2002.

H 1218

NARENDRA S. CHAVAN & ORS. v. VAISHALI V. 1219

BHADEKAR

N.S. Gahlot, R.K. Singh and A.S. Pundirforthe Appellants.

K. Sarada Devi for the Respondents.

The following Order of the Court was delivered

ORDER B

1. 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 where by the Letters Patent Appeal

file~ by the respondent-tenant was allowed . c

2. 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 nonprosBcution and the civil application filed for restoration of the same was also dismissed by order dated 14.6. 2002.

D 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 E the orders passed by the rent control appellate authority on merits.

3: The learned counsel appearing on behalf of the

appllants-landlord herein contends that every thing was without F juifsdiction . 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 G l ... 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 H


A 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 B 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. c R.P.

Appeal allowed.