KRISHNAJI DAITATRYAYA BAPAT v. KRISHNAJI DAITATRYAYA BAPAT

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 In 19 5 8 he was trans rooms on the first floor of the house. ferred to another town Wai where he was allotted suitable resi dential accommodation. His son, however, stayed on in POQna as he was studying there. Th~ appellant filed a suit in the court of Judge, Small Causes, under the provisions of the Act for possession of the suit premises, inter a/ia, on the ground that the respondent had acquired suitable accommodation elsewhere. The position takein 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 aind on his return the pre mises would be required for his own use. The trial court held that only a part of the premises which were required by the son It granted a decree for possession of two out should be vacated. 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 C D E F G H SUPRl!ME COURT P.EPORTS [ 1970] l S.C.R. he atlinncd 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. 115 of the Code o( Civil Procedure before the High Court. A learned Single Judge who beard the petition disr issed it as be was not satisfied that the appellate court had acted in exercise of its jurisdiction illegally or with material irre· gularity. The respondent moved a petition under Arts. 226 and 227 of the Constitution challenging the same order of the appel· late court. Following a decision of a full bench in K. B. Sipahi mala11i v. Fidahussein Val/ibhoy (1) the division bench which beard 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 case being made out. After going into the merits the bench expressed the ;iew that the respondent had :not acquir.:d an alternative suit able residence. The courts below were therefore, wrong coming ro the contrary conclusion. As s. 13 (1 )(I) of the Act had been misconstrued and the error wa> apparent on the record the orders of the courts below were set lliide. It can interfer if the Now as is well known s. 115 of the Civil Procedure Code empowers the High Court to call for the record of any case which has been decided by any court subordinate to it and in subordinate which no appeal lies to it. court appears to have exerci~ the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise ol its jurisdiction legally or with meterial illegality. The limits of the jurisdiction of the High Court under this ~ection arc well !lefined by a long course of judicial ,If the rev1Sional jurisdiction is invoked and both p'll'· decisions. ties are heard and an order is made the question is whether the orde1> 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 chall~ed or attacked by another set of proceedings in the High Court, naniely, by means of a petition . under Art.

226 or 227 of 1he <.;onstitution. ft is only if by dismisslll of the revision petition J4e. orcler of the .subordinate court has not become merged IP that. of t)le Hjgh Court that it may. be open 'to party to invoke ihe cxtraord.inary . writ jurisdiction of that court. There again the qu!4ition 'Yill arise whether it would be right and proper ·for the lJigh. Court Jo interfere with an order of .a subordinate court ih a'writ petition when 11 petition for revision under s. 115, C.P.C., against the <am~ order has been dismissed. Such 11 consideration wij.I alsP enter into. the exercise of discretion in a petition under Aft. 2•6 or 227 (1) 58 B.L.R. '.144. - - - - - A B c D G H SHANKAR v. KRISHNAJI (Grover, ].) 325 A B c D E F G H The Bombay High Court in K. B. Sipahimalani's(') case. J?ade a distinction between an appellate jurisdiction and a rev1S1on'.11 jurisdiction. A right of appeal is a vested right and an appeal ~ a continuation or a rehearing of the suit.

A revision, however, is nC'' a continuation or a rehearing of the suit; nor is it obligatory upon the revisional court to interfere with the ord~r even though the order may be improper or illegal. If the revisional court in terferes the order of the lower court does not merge in the order passed by a revisJonal 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 Conrt. Although the case of Madan Lal Rungl'll v. Secy. to the Governm.ent of Orissa(') 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 had r~jected the application of the appellant there who had applied for grant o_f a mineral lease.

He made an application for review to the Central Government under Rule 57 of the Mineral Concession Rules which was re jected. He moved the High Court under Art. 226 of the Consti tution which was also dismissed. The appellant came up by special leave to t' is Court. His main contention was that the Central Government had merely dismissed the review petition and the effective order reje.;ting his application for the mining lease was that of the State Government. The High Court, thus, had jurisdictioo to grant a writ under Art. 226. This contention was negatived and it was held that the High Court was rig.lit 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 wilhin 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 Co:mcil regarded the revisional jurisdiction to be a part and parcel of the appeliate jurisdiction of the High Court.

This is what was said in Nagendra Nath Dey v. Suresh Chandra Dey("). "There is no definition c,f appeal iJ11 the Code of Civil Procedure, but their Lordship have no doubt that any application by a party to an Appellate Court, ask ing it to set aside or revise a decision of a subordinate Cou;t, is an appeal within the ordinary acceptation of the term .... " (!) 58 B.L.R. 344. (2) [1962] 3 Suro. S.C.R. 906. LIJSup.CI/69-7 (3) 59 I.A. 283, 287. 326 SUPREME COURT REPORTS [1970] l S.C.R. Similarly in Raja of Ramnad v. Kamid Rowthen & Ors. (') 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. (') had to decide whether with reference to Art. 182(2) of the Limitation Act, 1908 the to exclude term "appeal" was used in a restrictive sense so as revi~ion petitions and the expression "appellate court" was to be confined to a court exercising appellate, as opposed to, rcvisional 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 In Secretary of that term as used in the Civil Procedure Code. State for India in Council v. British India Steam Navigation Com· ) and ordet passed by the High Court in exercise of its pany ( 3 revisiona! 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 deli vered the judgment of the division bench referred to the obser vations of Lord Westbury in Attorney General v. Sil/em(') and of Subramania Ayyar, J. in Chappan v. Moidin(') on the 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, i: is stated that the essential criterion of appellate jurisdiction is that . it revises and corrects the proceedings in a cause alreadv instituted and does not create that cause. The appellate jurisdic tion may be exercised ir. a variety of forms and, indeed, in any ~orm in which the legislature may choose to prescribe. Accord mg to Art. 1762 the most usual modes of exercising appel:ate 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 remova~ <!fa suit ~o.m an inferior tribunal. 'An appeal rs a proces.~ of civil law ongm and removes a cause, entirely subjecting the fact as well as the Jaw, 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 A B c D F G (I) SJ I.A. 74. (3) 13 C.LJ. 90. 12) A.l.R. 1937 Mnd. 385. (4) (1864) 10 H.L.C. 704. II (5) 11898) 1.1 .. R. MJd. 68. J<O. SHANKAR V. KRISHNAJI (Grover, !.) 327 A 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 th: 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 jurisdictio:i which is beirig exer· cised is a -part of the general appellate jurisdiction _of the ?igh Court as a superior court. It is only one of the modes of exercising power conferred by the Statute; basically and fundo.nentally it is the appellate jurisdiction of the High Court which is being in· voked and exercised in a wider and larger sense.

We do not, therefore, consider that the principle of merger of orcf~rs of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a peti tion 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(') the principal of merger was considered with reference to s. 439 of the Crinlinal Proce dure 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 Cou:t 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 ¢Onstituting the judgment of the High Court-the only final judgment to be executed in accordance with· law by the court below.

In Chandi Prasad Clwkhani v. The State of Bihar,(') it was said that save in exceptional and special cir cumstances this Court would not exercise its power under Art. 136 in such a way as to bypass the High Court and ignore the latter's 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 re sult might lead to a conflict of decisions of two courts of compe In our opinion the course which was followed tent jurisdiction. by the High Cqurt, 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 peti tion ought not to have been entertained by the High Court when the respondent had already chosen the remedy under s.