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Velayudhan Kuttapan Nair Vs. S.K. Bedekar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 104 of 1963 in Misc. Petn. No. 526 of 1962
Judge
Reported inAIR1969Bom315; (1968)70BOMLR563; 1968MhLJ712
ActsConstitution (Amendment) Act, 1963 - Schedule - Articles 225 and 226(1A); Code of Civil Procedure (CPC), 1908 - Order 41, Rule 33
AppellantVelayudhan Kuttapan Nair
RespondentS.K. Bedekar and anr.
Appellant AdvocateK.K. Singhavi and ;B.W. Vaidya, Advs.
Respondent AdvocateS.J. Sorabjee and ;V.J. Taraporewalla, Advs.
Excerpt:
the case debated on dismissal of the petition prior to amendment of article 226 of the constitution of india in relevance to appeal after the amendment date - it was found that appeal could not be dismissed on non maintenance of original petition for want of jurisdiction prior to amendment - - it is not disputed that after this amendment came into force on 5th october 1963, a petition like the present one could be filed in this court. a good deal of support to this line of reasoning was available from certain observations of the supreme court in state of uttar pradesh v. 13. the principal involved was clearly laid down in the leading case quilter v. ' 14. it is well established that, in india also, appeals have the character of rehearings......or authority in the position of the first respondent. it was held in some cases that where an original authority within the jurisdiction of a high court had passed an order, and the order was confirmed without any modification by an appellate authority outside the high court's jurisdiction, the order of the original authority did not merge in the order of the appellate authority, with the result that the high court had jurisdiction to issue a writ to the original authority. a good deal of support to this line of reasoning was available from certain observations of the supreme court in state of uttar pradesh v. mohammed nooh : [1958]1scr595 . the other view was that even where the appellate authority had merely confirmed the order of the original authority without any modification,.....
Judgment:

Tarkunde, J.

1. This appeal arises from a Judgment of Mr. Justice K. K. Desai dismissing a petition filed by the appellant under Article 226 of the Constitution. We have heard this appeal for some time, but we find that it would not be possible to complete the hearing and to dispose of the appeal before the commencement of the summer vacation. We have, however, heard counsel on a preliminary issue which was raised on behalf of the respondents and we are confining this judgment to the decision on that issue.

2. The Petitioner-appellant was in the service of the Central Government and was working as a Weighment Clerk in the office of the Regional Director (Food), Western Region, Bombay. On the allegation that he had actively participated in a general strike of employees of the Central Government which commenced on 12th July 1960, a departmental inquiry was instituted against him and he was dismissed from service by the first respondent, the Regional Director (Food), Western Region, on 1st February 1961. Against the order of dismissal the petitioner appealed to the second respondent, the Director General (Food), Government of India, but the second respondent dismissed the appeal and confirmed the first respondent's order on 5th September 1962. Then on 10th December 1962 the petitioner filed the present petition under Article 226 of the Constitution for quashing the said orders of the first and second respondents and for a direction that the order of dismissal passed by the first respondent on 1st February 1961 should not be enforced against the petitioner. It is not necessary to notice at this stage the various grounds on which the petition was based. The respondents opposed the petition on the merits and also on the ground that the order of dismissal passed by the first respondent had merged in the appellate order of the second respondent, that the second respondent resided and had his office at Delhi and not within the jurisdiction of this Court, and that no writ or direction can, therefore, be issued to quash the orders either of the first or the second respondents.

3. The Petition was heard by Mr. Justice K. K. Desai. By his judgment dated 23rd September 1963 the learned Judge dismissed the petition on the merits and held that it was not necessary for him to decide and dispose of the point of jurisdiction raised by the respondents.

4. At the hearing of this appeal Mr. Sorabjee on behalf of the respondents argued that the learned trial Judge should have dismissed the petition on the ground that this Court had no jurisdiction to entertain it and that we should dismiss the appeal on that ground.

5. In appreciating this argument of Mr. Sorabjee we must notice that, with effect from 5th October 1963, Article 226 of the Constitution was amended by the Constitution (Fifteenth Amendment) Act, 1963, so as to add Clause (1A) to that Article. The effect of the amendment was to confer on every High Court the jurisdiction to issue directions, orders or writs on any Government, authority or person even if the seat of such Government or authority or the residence of such person was outside the territorial jurisdiction of the High Court, if the cause of action arose wholly or in part within the area of its jurisdiction. It is not disputed that after this amendment came into force on 5th October 1963, a petition like the present one could be filed in this Court.

6. At the time when this petition was filed, judicial opinion was divided on whether such a petition could be maintained. It was never in dispute that a High Court could not issue an order direction Court could not issue an order direction or writ to a person or authority outside its territorial jurisdiction. No writ or direction in respect of the appellate order of the second respondent could, therefore, have been issued by this Court when the petition was filed. The dispute was on the question whether a writ or direction could be issued by the High Court to a person or authority in the position of the first respondent. It was held in some cases that where an original authority within the jurisdiction of a High Court had passed an order, and the order was confirmed without any modification by an appellate authority outside the High Court's jurisdiction, the order of the original authority did not merge in the order of the appellate authority, with the result that the High Court had jurisdiction to issue a writ to the original authority. A good deal of support to this line of reasoning was available from certain observations of the Supreme Court in State of Uttar Pradesh v. Mohammed Nooh : [1958]1SCR595 . The other view was that even where the appellate authority had merely confirmed the order of the original authority without any modification, the original order merged in the appellate order and the High Court had no jurisdiction to issue a writ or direction against the original authority, if the appellate authority was outside the jurisdiction of the High Court. As far as this Court is concerned, Mr. Justice K. K. Desai had decided in D. U. Ochani v. S. Sankaran, Misc. Petn. No. 219 of 1961 (Bom), that the High Court in such circumstances had jurisdiction to issue a writ or direction to the original authority which had passed the order within its jurisdiction. A decision to the same effect was given by a Division Bench of this Court in Ramrao Laxmikant Shirkhedkar v. Accountant General of Maharashtra, : AIR1963Bom121 . The conflict of opinion was, however, finally resolved by the decision of the Supreme Court in Collector of Customs, Calcutta v. East India Commercial Co. Ltd., : [1963]2SCR563 . The Supreme Court held in that case that when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of, and that it would not be open to the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of, and that it would not be open to the High Court to issue a writ to the Original authority which may be within its territorial jurisdiction, if the appellate authority is outside its jurisdiction. It follows that the High Court had no jurisdiction to issue any writ or direction to either the first or the second respondents when this petition was filed on 10th December 1962, and that was also the position when the petition was dismissed by Mr. justice K. K. Desai on 23rd December 1963.

7. Mr. Sorabjee for the respondents is, therefore, right in so far as he contends that it would have been proper for Mr. Justice K. K. Desai to have dismissed this petition on the ground that it was not maintainable. We are, however, unable to accept Mr. Sorabjee's argument that we should dismiss the Petitioner's appeal because this petition ought to have been dismissed by Mr. Justice K. K. Desai. After Mr. Justice K. K. Desai's decision, Article 226 of the Constitution was amended, as stated above, on 5th October 1963 and this Court has jurisdiction from that date to hear and dispose of the petition on the merits. The question which falls for determination is whether the objection to the maintainability of the petition which has been raised by Mr. Sorabjee is to be decided on a consideration of the scope of Article 226 of the Constitution prior to its amendment, or the scope of that Article subsequent to its amendment.

8. It cannot be seriously disputed that the amendment which was effected in Article 226 on 5th October 1963 was a procedural amendment. It must, therefore apply retrospectively to causes of action which arose before it was made. Hence no objection on the ground of jurisdiction could have been taken to the present petition if it had been filed after 5th October 1963. The same would be the result where a petition was filed previous to that date and was pending thereafter. This conclusion has the support of a number of precedents.

9. In Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass, : AIR1952Bom365 a Division Bench considered the jurisdiction of this Court on the Original Side to entertain a suit for partition of movable and immovable properties when only the movable properties were situate within the area of Greater Bombay. The Division Bench held that the suit was maintainable for the partition of movable properties. However, after the filing of the suit, a piece of land at Vikhroli fell within the original jurisdiction of this Court because Vikhroli became a part of Greater Bombay by virtue of an enactment. The Division Bench held that, notwithstanding the fact that the Court had no jurisdiction with regard to this property at Vikhroli at the inception of the suit, the Court could try suit in respect of this property by reason of the fact that jurisdiction was subsequently conferred upon it. The reason, according to the Court, was that no party has a vested right to a particular procedure or to a particular forum and that all procedural laws are retrospective unless the Legislature expressly states to the contrary.

10. The same principle was applied by a Single Judge of this Court in Lalitabai Banwarilal v. The Dominion of India 56 Bom LR 923=AIR 1954 Bom 527. A suit in that case had been filed prior to the promulgation of the Constitution. The proviso to Art. 225 of the Constitution removed a restriction which had previously existed to the exercise of the original jurisdiction of the High Court in respect of any matter concerning the revenue or concerning any act ordered or done in connection therewith. Mr. Justice S. T. Desai, who heard, the suit, held that the change which was brought about by the proviso to Article 225 was a procedural law which he had to apply in deciding the suit was the law which was in force at the time of the decision and not when the suit was instituted.

11. A case more directly in point was decided by a Division Bench of the Rajasthan High Court in Anwar Mohammad v. Managing Officer-cum-Custodian of Evacuee Property Jaipur, . The Petitioner in that case had applied to the Rajasthan High Court under Article 226 of the Constitution for cancelling an order made by the Chief Settlement Commissioner whose office and residence were outside the jurisdiction of the Rajasthan High Court. The petition was filed prior to the amendment to Article 226 of the Constitution but was heard after the amendment. The Court held that the amendment to Article 226 was procedural in nature, that it conferred jurisdiction on the High Court in respect of causes of action that had arisen prior to the date when it came into force, and that therefore the High Court had jurisdiction to dispose of the petition had been filed before the date of the amendment.

12. In each of the cases cited above, the change of law in regard to the jurisdiction of the Court had come into effect when the suit for proceeding was pending before the trial Judge. In the present case the amendment to Article 226 of the Constitution, which expanded the jurisdiction of this Court in writ petitions, came into effect sometime after decision of Mr. Justice K. K. Desai dismissing the petition on the merits. Mr. Sorabjee argued that since the amendment came into effect after the dismissal of the petition by Mr. Justice K. K. Desai, the original petition can no longer be held to be maintainable by virtue of the amendment. This argument overlooks the principle that it is the duty of an appellate Court, not only to consider whether the order under appeal was rightly made, but to make such further or other orders as the case may require. An appellate Court not only hears the appeal but rehears the original proceeding. In deciding whether the present petition should be dismissed for want of jurisdiction, we have to consider whether, if this petition had come for hearing before the trial Court to-day, it would have been dismissed on that ground. The petition would not have been dismissed for want of jurisdiction if it were now heard by the trial Judge and that is the reason why we also should not dismiss the petition on that ground in appeal.

13. The principal involved was clearly laid down in the leading case Quilter v. Mapleson (1882) 9 QBD 672. In that case an Act having retrospective effect came into force during the pendency of an appeal and the Court of Appeal decided the rights of the parties according to the altered law, although the decree of the trial Court was correct according to the law then prevailing. In justification of this course Jessel M. R. referred to Order LVIII Rule 2 of the Rules of the Supreme Court of Judicature in England which provided that 'all appeals to the Court of Appeal shall be by way of rehearing. The learned Judge went on to say:

'On an appeal strictly so called such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given a ought to be given if the case came at that time before the Court of first instance.'

The Learned Judge then referred to Rule 5 of Order LVIII of the Rules of the Supreme Court, which laid down:

'The Court of Appeal shall have power to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require.'

With reference to this rule the learned Judge said:

'It was, in my opinion, intended to give appeals the character of rehearings, and to authorize the Court of Appeal to make such order as ought to be made according to the state of things at the time.'

14. It is well established that, in India also, appeals have the character of rehearings. This is now ensured by Order XLI Rule 33 of the Civil Procedure Code which was adapted from Order LVIII Rule 5 of the Rules of the Supreme Court relied upon by Jessel, M. R. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri , the Federal Court held that the hearing of an appeal under the procedural law of India is in the nature of re-hearing and that, therefore, in moulding the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. It was further held that the appellate Court was consequently competent to take into account legislative changes since the decision in appeal was given and its powers were not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when its decision was given.

15. Now, as observed above, Mr. Justice K. K. Desai dismissed this petition on the merits and not for want of jurisdiction. The learned Judge would have been justified in dismissing the petition on the ground of want of jurisdiciton. If we were merely to consider whether the decision of Mr. Justice K. K. Desai was correct according to law then prevailing, we would have no alternative but to uphold the decision and dismiss this appeal. But this appeal is also a re-hearing of the petition, and it is open to us to apply at the re-hearing the procedural law now in force. At the time when this petition was filed, judicial opinion was divided as to whether this High Court was the proper forum for petitions of this type. No fault can be found with the petitioner for having filed the petition in this Court in view of the conflict of opinion on that question. If Mr. Justice K. K. Desai had dismissed this petition for want of jurisdiction, the petitioner could have filed another petition in this Court on the same cause of action. That petition would have been maintainable and would not have been rejected on the ground of delay. Under the circumstances we must apply to this pending petition the present procedural law and must reject the objection raised by Mr. Sorabjee to its maintainability. The objection is accordingly overruled.

16. The appeal will be disposed of on the merits after further hearing.

17. Order accordingly.


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