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H. Kondal Reddy Vs. Central Bank of India, Hyderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAndhra Pradesh High Court
Decided On
Case NumberWA No. 1167 of 2001
Judge
Reported in2002(1)ALD280; 2002(1)ALT135; [2002(93)FLR245]
ActsCode of Civil Procedure (CPC), 1908 - Sections 100-A, 104 and 104(1) - Order 43, Rule 1 - Order 47, Rules 4(1) 5, 6, 7, 7(1) and 7(2); Indian High Courts Act, 1861; High Court of Judicature, Andhra Pradesh (Appellate Side) Rules - Rule 54-A; Government of India Act, 1915 - Sections 107 and 108; Constitution of India - Articles 225 and 226; Writ Proceeding Rules, 1977 - Rule 24
AppellantH. Kondal Reddy
RespondentCentral Bank of India, Hyderabad and anr.
Appellant AdvocateK. Srinivasamurthy, Adv.
Respondent AdvocateGovernment Pleader for Social Welfare
DispositionAppeal dismissed
Excerpt:
service - right of appeal - clause 15 of letters patent, order 47 rule 7 of code of civil procedure, 1908 and article 226 of constitution of india - maintainability of letters patent against order in review is in question - review of appellant against order of single judge dismissed in lamine without issuing notice to respondent - letters patent appeal against judgment in review petition is maintainable under clause 15 - review petition dismissed in limine does not amounts to judgment and not appealable under letters patent. - - (2) where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the court that he was.....s.b. sinha, c.j.1. whether an appeal against an order refusing to review a judgment passed by this court lies is the question involved in this writ appeal.facts:2. the appellant filed a petition in wpmp (sr.) no. 139192 of 2000 to review the judgment dated 10-9-1999 passed in writ petition no.4409 of 1994 by a learned single judge of this court. the learned single judge dismissed the review petition holding that the appellant has to pursue the remedy before the appellate forum and not by review application.3. the appellant herein was appointed as sub-staff in 1973 in the first respondent-bank. he was promoted as assistant cashier-cum-godown keeper in 1978. he was charge sheeted for misappropriating a sum of rs. 50,025-00 on 21-5-1984 while officiating as chief cashier of ranijgunj branch......
Judgment:

S.B. Sinha, C.J.

1. Whether an appeal against an order refusing to review a judgment passed by this Court lies is the question involved in this writ appeal.

FACTS:

2. The appellant filed a petition in WPMP (Sr.) No. 139192 of 2000 to review the judgment dated 10-9-1999 passed in Writ Petition No.4409 of 1994 by a learned single Judge of this Court. The learned single Judge dismissed the review petition holding that the appellant has to pursue the remedy before the appellate forum and not by review application.

3. The appellant herein was appointed as Sub-staff in 1973 in the first respondent-Bank. He was promoted as Assistant Cashier-cum-Godown Keeper in 1978. He was charge sheeted for misappropriating a sum of Rs. 50,025-00 on 21-5-1984 while officiating as Chief Cashier of Ranijgunj Branch. The appellant pleaded guilty in the domestic enquiry and was found guilty of misconduct. On 21-6-1985 a notice was issued calling upon him to show-cause as to why he should not be dismissed from service. Upon consideration of the cause shown, an order of dismissal from service was passed. A departmental appeal preferred by him was rejected and a prayer for review thereof was also turned down. An industrial dispute in relation to the said orders was raised before the second respondent. A miscellaneous petition was filed therein to try the validity of domestic enquiry as preliminary issue so as to enable the first respondent-Bank to adduce evidence if domestic enquiry is held to be vitiated.

4. The miscellaneous petition was allowed on 24-11-1989 holding that the domestic enquiry was vitiated on the ground the proceedings were not conducted fairly and properly.

5. Feeling aggrieved by the said order, the first respondent-Bank filed Writ Petition No. 14794 of 1994. The Industrial Tribunal, however, passed an award on 14-10-1993 upholding the dismissal of the appellant from service. The appellant filed Writ Petition No.4409 of 1994 questioning the said award, which was dismissed by this Court. Writ Petition No. 14794 of 1994 filed by the first respondent-Bank was in the aforementioned situation dismissed as infructuous. The appellant filed review petition along with a petition to condone the delay of 444 days in filing the same. Again the dismissal of the review petition, this appeal is preferred.

6. Before proceeding to advert to the question involved herein, we may place on record that having regard to the fact that the appellant had been appearing in person, we requested Sri Y. Venkata Sastri, a senior Counsel of this Court to argue the matter on his behalf. But when the matter was called on for hearing on 27-9-2001, Sri Venkata Sastri informed that the appellant wanted to argue the matter himself. However, at our request, Sri Venkata Sastri addressed us as amicus curiae.

7. Reconcilability of the provisions of Order XLVII of the Code of Civil Procedure (for short 'the Code') vis-a-vis the Writ Proceeding Rules framed by this Court has in the past engaged the attention of the Court in a number of decisions. In this reference also, the said question arises in view of the provision contained in Order XLVII, Rule 7 of the Code, which reads thus:

'(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.

(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under Sub-rule (2) unless notice of the application has been served on the opposite party.'

8. Second 141 of the Code excludes the applicability of the procedure provided in the Code in relation to proceedings under Article 226 of the Constitution of India. This Court in exercise of its jurisdiction under Article 225 of the Constitution of India framed rules known as the Writ Proceeding Rules, 1977. Rule 24 of the said rules reads thus:

'All other rules relating to causes and matters coming before the Original Side and Appellate Side of the High Court and the provisions of the Code of Civil Procedure, 1908 will apply to the Writ Petition and the writ appeals in far as they are not inconsistent with these rules.'

9. A proceeding under Article 226 of the Constitution of India is an original proceeding. It, as noticed hereinbefore, is governed by the procedure laid down in terms of the Writ Proceeding Rules and not by the Code. A right of inter-Court appeal is provided to the litigant under Clause 15 of the Letters Patent.

10. Is there any conflict between Clause 15 of the Letters Patent and Order XLVII, Rule 7 of the Code is the primary question.

11. Clause 15 of the Letters Patent of the High Court came up for consideration before the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kama, AIR 1981 SC 1786. In that case, the Apex Court was called upon to decide three questions, which are in the following terms:

'1. Whether in view of Clause 15 of the Letters Patent an appeal under Section 104 of the Code of Civil Procedure would lie?

2. Whether Clause 15 of the Letters Patent supersedes Order 43, Rule 1 of the Code of Civil Procedure?

3. Even Section 104 of the CPC has no application, whether an order refusing to grant injunction or appoint a receiver would be a judgment within the meaning of Clause 15 of the Letters Patent?'

12. However, even therein, many aspects were left untouched and the matter had been considered by a Full Bench of Calcutta High Court in Tanusree Art v. R.N. Pal, 2000 (2) CHN 213, wherein the points, which were not considered by the Apex Court, had been noticed:

'(a) As Section 104 of the CPC read with Order 43 Rule 1 would apply to suits filed in the Original Side, the same by necessary implication would exclude the right of appeal under Clause 15 of the Letters Patent inasmuch as Section 104(1) of the Code of Civil Procedure clearly states that except orders mentioned therein or any other provisions in the CPC or any other law for the time being in force and from no other orders.

(b) If Section 104 of the CPC applies in its entirety, or in other words if an appeal under Clause 15 is not an appeal under a special statute, whether any order which is not covered by any of the Clauses to substantiate in Order 43, Rule 1 would become an appealable order by force of Clause 15 of the Letters Patent.

(c) As CPC will prevail over Clause 15 of the Letters Patent inasmuch as by reason of the provisions of the CPC an appeal under Clause 15 of the Letters Patent may be barred and would not be saved by the words 'by any law for the time being in force.'

(d) Whether in view of the scheme of the CPC and particularly in view of the fact that no appeal shall lie from any order which has not been mentioned in Section 104 or any other provision of the CPC, the orders which are not provided therein would not be appealable by necessary implication.

(e) CPC contains both substantive and procedural provisions. The substantive provision of appeal having been made applicable to the Original Side of the Court, the same being a special law enacted by the Parliament would prevail over the provision of Clause 15 of the Letters Patent.'

13. The question as regards the applicability of Order XLVII, Rule 7 of the Code has to be considered in the light of the aforementioned backdrop and having regards to the earlier decisions of this Court in this regard.

14. The question came up for consideration before a Full Bench of this Court in A. Srinath v. A.P. State Transport Corporation, 0043/1996 : (1997)ILLJ255AP , in the context of applicability of Order XLVII, Rule 5 of the Code. This Court observed:

'The practice of the Madras High Court, which we have no reason to ignore as the practice of this Court and accept and say we accept, is the practice of this Court. If the Code of Civil Procedure applies perforce, a review petition has to be heard by a Judge or Judges or any of them who had passed the decree or made the order, a review of which is applied for, and no other Judge or Judges of the Court shall hear the same. If, however, it is applied as a rule of convenience or constructively as respects exercise of the Letters Patent Power, the Court has to make its own rules. Code of Civil Procedure is applied only constructively. There is no mandate of law that review must be done by the Judge or Judges whose order is sought to be reviewed.'

Considering the fact that the power of review vests in a Court and not before a particular Judge the Court observed: 'That is why it is said that a review of a Bench Order (as provided in Rule 6 of Order 47 of the Code) has to be allowed only in a case of a majority opinion in favour of the review and in the case of a Bench of equal strength, in the event of equal division, the application for review must be rejected. This rule of prudence has been followed more as a practice than as a command of the Legislature in almost every Court in India and constructively applied to the writ proceeding as well. But it will still not be open to any party to insist that his case must be heard by the Judge or Judges, who had passed the decree or made the order. There may be cases where after passing the decree or making the order, one or all of the Judges constituting the Bench may feel embarrassed in hearing the review petition. They may in such a situation, order for the case being placed before some other Judge. They need not for this purpose make an open pronouncement except indicating their disinclination to hear the matter to the Hon'ble the Chief Justice. What would be done in such a case if the Hon'ble the Chief Justice did not exercise his inherent power to constitute a new Bench to hear the review petition. There may be many other circumstances and situations in which the Hon'ble the Chief Justice exercising his inherent power to constitute a new Bench to hear the review petition. There may be many other circumstances and situations in which the Hon'ble the Chief Justice exercising his inherent power, may not think it desirable to place the review petition before the Bench, which passed the decree or made the order. As this is a rule of procedure and not a substantive right, it is not for the litigant to suggest who should hear the review petition. A prudent exercise of discretion by the Hon'ble the Chief Justice in this matter, and since this power has been held to inhere and vest with the Hon'ble the Chief Justice, in our view, by itself is a sufficient safeguard to ensure its prudential exercise, should be more than enough for the parties to accept the Constitution of the Bench or allotment of the case to a Judge or Judges for the hearing of the review petition.'

The Full Bench summed up its findings to the following effect:

'(1) Code of Civil Procedure does not apply to a writ proceeding under Article 226 of the Constitution of India. Courts, however, sometimes constructively apply certain basic principles enshrined therein to the writ proceedings, on grounds of public policy or dictates of reason or necessity whenever it is found to be essential for the effective administration of justice.

(2) A writ appeal is the continuation of the writ petition. Merely because it is an appeal under the Letters Patent of the Court, it does not change its character from being a writ proceeding to an ordinary civil proceeding.

(3) The Hon'ble the Chief Justice has the inherent power to allocate the judicial business of the High Court including who of the Judges should sit alone and who should constitute the Bench of two or more Judges. No litigant shall, upon such constitution of a Bench or allotment of a case to a particular Judge of the Court will have a right to question the jurisdiction of the Judges or the Judge hearing the case. No person can claim as a matter of right that this petition be heard by a single Judge or a Division Bench or a particular single Judge or a particular Division Bench. No Judge or a Bench of Judges will assume jurisdiction unless the case is allotted to him or them under the orders of the Hon'ble (he Chief Justice.

(4) A Judge or the Judges constituting the Bench will not decide whether to entertain a review petition or not unless the same is placed before him or them under the orders of the Hon'ble the Chief Justice.

(5) Unless it is on account of exceptional circumstances or to meet an extraordinary situation the Hon'ble the Chief Justice decides to allot the work to some other Judge or Judges, as the case may be, we consider it to be prudent as well as desirable that the Judge or Judges who passed the judgment/ decree or made the order sought to be renewed, hear the review petition and in the case of the judgment, decree or order of a Bench the Judge or the Judges who are available are associated as members of the Bench.'

15. This aspect of the matter has been considered in some details by a Full Bench of the Calcutta High Court in Ratanlal Nahta v. Nandita Bose, 1999 (1) CLJ 164, wherein it was clearly held that Order XLVII of the Code would have no application in relation to proceedings under Article 226 of the Constitution of India.

16. In Supreme Court Advocates-on-Record v. Union of India, : AIR1994SC268 , the law as regards declaration of law by the Apex Court, has been stated in the following terms:

So it falls upon the superior Courts in a large measure the responsibility of exploring the ability and potential capacity of the Constitution with a proper diagnostic insight of a new legal concept and making this flexible instrument serve the needs of the people of this great nation without sacrificing its essential features and basic principles which lie at the root of Indian democracy. However, in this process, our main objective should be to make the Constitution quite understandable by stripping away the mystique and enigma that permeates and surrounds it and by clearly focussing on the reality of the working of the constitutional system and scheme so as to make the justice delivery system more effective and resilient. Although frequent overruling of decisions will make the law uncertain and later decisions unpredictable and this Court would not normally like to reopen the issues which are concluded, it is by now well settled by a tine of judicial pronouncements that it is emphatically the province and essential duty of the superior Courts to review or reconsider their earlier decisions, if so warranted under compelling circumstances and even to overrule any questionable decisions, either fully or partly, if it had been erroneously held and that no decision enjoys absolute immunity from judicial review or reconsideration on a fresh outlook of the constitutional or legal interpretation and in the light of the development of innovative ideas, principles and perception grown along with the passage of time. This power squarely and directly falls within the rubric of judicial review or reconsideration.

17. Right of appeal is a statutory right. Clause 15 of the Letters Patent confers a right of appeal. In Sattemma v. Vishnu Murthy, : AIR1964AP162 , a Full Bench of this Court held that the right derived from Clause 15 of the Letters Patent is not affected either by Order 47, Rule 7 CPC., or by Order 43, Rule 1 CPC or any other provision of the Civil Procedure Code, which restricts the right of appeal.

18. In M Srinivas v. J.N. T. University, 1991 (3) ALT 3, a Full Bench of this Court relying upon Shah Babulal Khimji (supra) has clearly held that an appeal under Clause 15 of the Letters Patent shall be maintainable if the order under review falls within the ambit of the expression 'judgment'.

19. This aspect of the matter has been considered by the Apex Court in Bihar State Electricity Board v. Prabha Aggarwal, 2000 (9) SCC 713, and it was held that the party to a review proceeding, which was ultimately dismissed, had a right to directly file letters patent appeal against the judgment dismissing the review petition.

20. Yet again in Union of India, v. S.S. Gurayya, 2000 (9) SCC 729, the Apex Court allowed the petition to condone the delay in filing the Letters Patent Appeal by adopting a pragmatic approach and directed the Division Bench to dispose of the Letters Patent Appeal.

21. However, it appears that without noticing the Full Bench judgment, a Division Bench of this Court in Executive Officer, Group Temples, Guntur v. Dasaratha Rama Rao, : 1999(4)ALD164 , has held that no appeal lies against the order passed of single Judge in refusing to review his order when no appeal is filed against the original order.

22. The law, which therefore, emerges from the aforementioned decisions, would be that notwithstanding the bar contained in Order XL VII, Rule 7 of the Code, an appeal shall be maintainable before this Court in terms of Clause 15 of the Code as the same amounts to a judgment.

23. The question as to whether an order refusing to review would amount to a 'judgment' or not must be determined upon considering the matter on merit and thus it cannot be said no that appeal as such is maintainable.

24. By way of example we may mention that there may be cases where an error apparent on the face of the record is visable but the Bench turns a blind eye thereto. It may also sometimes become necessary to pass an order in a view petition to do complete justice to the parties in the event it is found that the Court failed to consider an important aspect of the matter.

25. The review jurisdiction is also an original jurisdiction which is exercised by the writ Court only in terms of Article 226 of the Constitution of India. (See: Shivdeo Singh v. State of Punjab - AIR 1963 SC 1909). Sometimes a prayer for review may have to be entertained at the instance of third party if he is affected thereby, although he was not a party to proceedings.

26. The jurisdiction of this Court under Article 226 of the Constitution of India is a wide one. The High Court is not only a Court of Law but also a Court of Equity. Justice is higher than law, although it may have to be administered in accordance with law. As an appeal is a continuation of the original proceeding, the appellate power cannot be held to be circumscribed by the provisions of Order 47, Rule 7 of the Code of Civil Procedure.

27. A right of appeal conferred on a suiter under Clause 15 of the Letters Patent, thus, cannot be said to have been taken away under Order 47, Rule 7 of the Code of Civil Procedure. Clause 15 of the Letters Patent would, thus, prevail over Order 47 Rule 7 of the Code of Civil Procedure. However, there cannot be any doubt that the Court should ordinarily not exercise its jurisdiction unless a strong case has been made out.

28. However, having regard to the merit of the matter, we are of the opinion that no case has been made out for interference with the impugned judgment inasmuch as the petitioner evidently has admitted his guilt. The contention to the effect that he admitted his guilt having regard to the promise made by the disciplinary authority that he shall not be removed from service cannot be accepted at this stage.

29. In WP No. 23566 of 1999, a Division Bench of this Court by an order dated 18-8-2001 has clearly held that the petitioner therein having been found guilty of grave misconduct and having accepted the punishment, cannot be permitted to approbate or reprobate; nor can he be permitted to resile from his earlier position as regards the punishment by contending that a copy of the enquiry report had not been furnished to him.

30. A delinquent employee should not ordinarily be, having regard to the scope and ambit of a domestic enquiry permitted to resile from his earlier stand. An admission by a party to the proceeding is binding on him proprio vigore. He at a subsequent stage should not be permitted to resile therefrom or explain away the same.

31. We, therefore, are of the opinion that no case has been made out to interfere with the impugned judgment. The writ appeal is, therefore, dismissed without any order as to costs.

WA No. 1167 of 2001

V.V.S. Rao, J.

32. Whether a writ appeal under Clause 15 of the Letters Patent from one Judge of the High Court to Division Bench lies when the learned single Judge declines to review original order? This is the question which always comes up before us in varied forms and the same has become seminal requiring adjudication by this three-Judge Full Bench. A Division Bench of this Court in an unreported judgment in C. Lakshmi v. Government of Andhra Pradesh, WA No. 1191 of 1999 dated 31-8-1999, has held that an order of the learned single Judge declining review cannot be termed to be judgment in terms of the tests laid down by the Supreme Court in Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1304 and therefore Letters Patent Appeal under Clause 15 is not maintainable. I am a member of the Division Bench which also comprised Hon'ble the Chief Justice M.S. Liberhan. This also is a reason for me to write a separate opinion.

33. My Lord the Chief Justice in the draft judgment circulated after referring to the relevant case law found that the appeal can be maintainable before this Court in terms of Clause 15 of the Letters Patent if the same amounts to 'judgment' and that whether or not it amounts to 'judgment' is required to be decided in each case. I broadly agree with the law that an appeal under Clause 15 does lie against every judgment of a learned single Judge but when the learned single Judge refuses to exercise the power of review at the instance of the party who set the Court proceedings in motion, no Letters Patent Appeal lies. To that extent my separate judgment has to be read along with the judgment proposed by My Lord the Chief Justice. On questions of fact, I fully agree with the findings recorded by the Hon'ble the Chief Justice.

34. The lucid and succinct narration of facts by My Lord the Chief Justice holds good and there is no necessity to repeat the same. By reason of the authority of the Full Bench judgment of this Court in A. Srinath v. A.P. State Transport Corporation, 0043/1996 : (1997)ILLJ255AP , there is no necessity to focus judicial process on the settled question of law that the provisions of Order 47 of the Code of Civil Procedure, 1908 (for brevity 'the Code') have no application to the proceedings under Article 226 of the Constitution of India.

NATURE OF JURISDICTION OF A SUPERIOR COURT

35. In this case we are concerned with an order of the learned single Judge dismissing the review application filed by the appellant in limini. The order in relation to which review was filed was an order in exercise of this Court's inherent power under Article 226 of the Constitution of India. The High Court in a way is created under the Constitution and is a Court of record. Being a superior Court, it has by definition 'general jurisdiction' and the law presumes so. Generally, nothing shall be intended to be out of jurisdiction of the superior Court unless with regard to 'persons or the subject-matter' the High Court's jurisdiction is limited or barred. The superior Court can even determine its own jurisdiction. The following statement of law from Amnon Rubinstein, JURISDICTION AND ILLEGALITY: A Study in Public Law, 1965 Oxford, at the Clarendon Press, is worth quoting.

A superior Court is thus conceived as a Court which has jurisdiction to determine its own jurisdiction. An erroneous conclusion if its jurisdictional limits is merely a wrong exercise of jurisdiction and does not constitute want of jurisdiction. It follows that want of jurisdiction can be established solely by a superior Court and that in practice no decision can be impeached collaterally by an inferior Court,

36. Article 226 or the Writ Proceedings Rules, 1977 made by the High Court of Andhra Pradesh made by the Andhra Pradesh High Court by virtue of Article 225 of the Constitution of India, do not specifically provide for a review of the orders passed under Article 226. But, being a Court of superior jurisdiction and a constitutional Court, the power of review and recall its own orders inhere in the High Court. This principle was first reiterated by the Constitution Bench of the Supreme Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 and their Lordships observed that 'it is sufficient to say that there is nothing in Article 226 of the Constitution of India to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.' Therefore, if there are circumstances (i) of miscarriage of justice and/or (ii) to correct grave and palpable errors committed by it, the High Court can exercise power under Article 226 of the Constitution itself. Indeed, every Court exercising judicial power must be presumed to have inherent power to recall the orders, which are vitiated by fraud and misrepresentation. It was so held in United India Insurance Company Limited v. Rajendra Singh, : [2000]2SCR264 . Be that as it may, the power to recall an order which was obtained by fraud is not always a power to review its own order. There could be cases where without exercising power of review the order may be recalled.

Letters Patent and jurisdiction under Article 226

37. The British Parliament by Indian High Courts Act, 1861 (24 and 25 Vict, C104) enacted a legislation for establishing the High Courts of judicature in India and accordingly in pursuance thereof, Her Majesty by Letters Patent erected and established High Courts. By Letters Patent dated 28-12-1865 the High Court of Judicature at Madras was established to have and exercise all civil, criminal, admiralty, and vice-admiralty, testamentary intestate and matrimonial jurisdiction, original and appellate, and all such powers and authority for and in relation to, the administration of justice. The said letters Patent containing 45 Clauses elaborately dealt with various aspects of administration of justice and administration of Court as well. The Letters Patent was amended in accordance with Sections 107 and 108 of the Government of India Act, 1915. Before noticing Clause 15 of Letters Patent, we may passingly mention that the High Court of Andhra Pradesh being a successor High Court to High Court of Judicature, Madras, is in relation to its exercise of jurisdiction is governed and regulated by the same Court procedures and practice as well as its Letters Patent. (See M. Subbarayudu v. State of A.P., : AIR1955AP87 (FB), and T. Veeraiah v. T. Nagalah, : AIR1959AP547 (FB).

38. The jurisdiction exercised under Article 226 of the Constitution of India is both civil and criminal and essentially public law jurisdiction. Therefore, by reason of interpretative process it has become axiomatic that Clause 15 of Letters Patent also applies in relation to orders and judgments passed by the learned single Judge. At this stage, we may read Clause 15 of Letters Patent for the High Court judicature of Presidency of Madras, which applies to the High Court of judicature, Andhra Pradesh. The same is as under:

15. Appeal from the Courts or original jurisdiction to the High Court in its appellate jurisdiction :--And We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order 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 Government of India Act, and that notwithstanding anything herein before 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 1st day of February, 1929) 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 me 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 of Successors in Our or Their Privy Council, as hereinafter provided,

39. Clause 15 providing of appeals from a learned single Judge to a Division Court is ipsisima verba with the similar provision in Letters Patent of Calcutta and Letters Patent of Madras High Courts. In National Sewing Thread Company Limited v. James Chadwick and Bros. Limited, : [1953]4SCR1028 and South Asia Industries Private Limited v. S.B. Sarup Singh, : [1965]2SCR756 , the Apex Court held that the High Court possessed all the jurisdiction which inhered at the commencement of Government of India Act, 1915 and also the jurisdiction that was conferred from time to time by the legislative power and that in the Court of Appeal (Letters Patent Appeal) under Clause 15 of Letters Patent lies against all the judgments of a single Judge of the High Court unless the same is specifically barred by a Statute and/or falls in the categories of three types of cases excluded by Clause 15 of Letters Patent.

40. In Umajiv. Radhikabai, : [1986]1SCR731 , the Apex (Coram:- Chinnappa Reddy and Madon, JJ.,) elaborately considered the nature and scope of Clause 15 of Letters Patent. After tracing the Constitutional history in relation to the establishment of High Courts of Judicature and Administration of Justice, Justice Madon in an educative and elucidating judgment held that an appeal shall lie from a judgment of one Judge of the High Court pursuant to Section 108 of the Government of India Act, 1915 and that such appeal to the Division Bench does not He if the judgment of one Judge is (i) in exercise of second appellate jurisdiction; (ii) order made in exercise of revisional jurisdiction; (iii) sentence or order passed in exercise of power of superintendence under Section 107 of the Government of India Act, 1915 and (iv) sentence or order passed in exercise of criminal jurisdiction [See paragraph 9 in Umaji case (supra)]. His Lordship Justice Madon after referring to various authorities summarised the law as under:

The position which emerges from the above discussion is that under Clause 15 of the Letters Patent of the Chartered High Courts, from the judgment (within the meaning of that term as used in that Clause) of a single Judge of the High Court an appeal lies to a Division Bench of that High Court and there is no qualification or limitation as to the nature of the jurisdiction exercised by the single Judge while passing his judgment, provided an appeal is not barred by any Statute (for example, Section 100A of the Code of Civil Procedure, 1908) and provided the conditions laid down by Clause 15 itself are fulfilled. The conditions prescribed by Clause 15 in this behalf are: (1) that it must be a judgment pursuant to Section 108 of the Government of India Act of 1915, and (2) it must not be a judgment falling within one of the excluded categories set out in clause 15.

41. Therefore, the law may be taken as well-settled that a judgment of a single Judge pursuant to Section 108 of Government of India, Act, 1915 is appealable under Clause 15 of Letters Patent unless the same is barred by any Statute and/or does not come within the meaning of 'judgment'. The orders which form excluded category under Clause 15 of Letters Patent are not appealable orders. We may also observe that an order passed by a learned single Judge in exercise of inherent jurisdiction under Article 226 of the Constitution of India to review orders does not form part of the excluded categories and therefore when the learned single Judge grants review and modifies or reverses earlier order such an order is also appealable under Clause 15 of Letters Patent. The question, however is whether an order or proceedings of the Court recording the Courts disinclination to entertain a review petition is appealable under Clause 15 of Letters Patent It is necessary, therefore, to briefly indicate the nature of review jurisdiction.

Nature of Review Jurisdiction

42. In Law Lexicon by Ramanatha Aiyar 'Review' is defined as 'a proceeding which exists by virtue of a Statute and that it is in its nature a new trial of the issue previously tried between the parties.' The power of a Court to re-examine judicially a decision is not an inherent power. In the case of inferior Courts, the same has to be specifically conferred. An order, judgment or a decision of an inferior Court binds the parties unless it is reversed by appellate Court or a revisional Court. Be it noted that the power of revision which is ordinarily given to appellate Court is part of appellate jurisdiction itself, whereas the jurisdiction to review an order is conferred on the same Court which passes the Original Order or rendered the original decision. Against a decision of original Court the superior Court is vested with appellate jurisdiction whereas an application for review is made to the same Court which made or passed the order subject to condition that such review jurisdiction is vested in the original Court. As already noticed by us, the jurisdiction to review its own order is inherent in every superior Court and High Court being a Court of Record and Constitutional Court is vested with power to review its own orders under Article 226 of the Constitution of India. When power of review is exercised modifying or altering an order in some given cases reversing its earlier orders, doctrine of merger is attracted and when review is granted and original order is reversed or modified, the original order merges in the order passed in exercise of review jurisdiction. In such an event, it is the judgment within the meaning of Clause 15 of Letters Patent and not being one of the excluded categories of orders an appeal lies to the Division Bench under Clause 15 of Letters Patent. In this context, we may refer to the following legal principle 'in relation to judgment in exercise of review jurisdiction' as described in American Jurisprudence (See Vol. 46, page 104):

Effect of Decision on Review :--With regard to the effect of the decision on review, if the first judgment is not annulled, but remains in force after the plaintiff in review has obtained judgment, it will follow, of course, that a judgment in favour of the plaintiff in review gives him no right beyond that of having his judgment enforced against the defendant in review. It will not enable him to maintain an action for money had and received, against the defendant in review, or any other person, to recover back money that has been paid in satisfaction of the first judgment, for that judgment remains in force, and not at all affected by the judgment given on the review. But if the judgment in favour of a plaintiff in review annuls the first judgment, it has precisely the effect of the reversal of judgment upon a writ of error, and the party against whom it was rendered is to be restored to all that he lost by the first judgment.

43. Dealing with operation and effect of an order passed in review of the original judgment in Corpus Juris Secundum (See Vol. 77, Page 359 it was observed:

Operation and Effect on Original Judgment

The judgment rendered on review does not in form reverse, affirm, or modify the original judgment, but actually its practical effect is to correct the errors, if any , in the original judgment.

The judgment rendered on a review does not operate in form as a reversal of the original judgment either in whole or in part. Technically the original judgment cannot be reversed; it stands, or remains in force, and any proceedings which have been regularly taken thereunder are valid, and the party in whose favour it was rendered is entitled to whatever he has obtained thereby. However, although the mere fact that a different result is reached on review than on the first trial does not necessarily render the original judgment and all acts under it void ab initio, it has been held that, when necessary to prevent injustice, the judgment on review may be considered as a substitute for the original judgment, which thereupon becomes inoperative so that no action can be maintained thereon. Also it has been stated, and it would seem that such is actually the practical result, that the original judgment may be affirmed or reversed in whole or in part or modified in any other respect.

44. A review petition, in our considered opinion, results in a judgment only when the learned single Judge comes to a conclusion that the same results in miscarriage of justice or suffers from grave and palpable errors committed by the Court. The learned single Judge merely dismissed the review application in limini. The same cannot be treated as judgment. Judgment is defined in Code of Civil Procedure, 1908 (CPC) as to mean 'a statement given by the Judge on the grounds of a decree or order'. In Shah Babulal Khimji case (supra) Justice Fazal All speaking for the majority after referring to various authorities quoted the tests laid down by Sir White, CJ., in Tuljaram Row v. Alagappa Chettiar, (1912 ) ILR 35 Madras 1, and held that 'any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment' and that the Courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct. The learned Judge also referred to Shanti Kumar R. Canji v. Home Insurance Company of New York, : [1975]1SCR550 , wherein it was held that the nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.

45. Applying tests laid down in Shah Babulal Khimji case (supra), we are of the considered opinion that when the learned single Judge dismisses review application at the initial stage even without ordering notice in limini, the same does not amount to 'judgment' within the meaning of Clause 15 of Letters Patent and no writ appeal lies to Division Bench. Be it noted that as per Rule 24 of the Writ Proceedings Rules, provisions, of CPC and all the Rules relating to cases and matters coming before the Original Side and Appellate Side of the High Court will apply to the writ petitions and the writ appeals insofar as they are not inconsistent with the Writ Proceedings Rules. Further, as per Rule 54-A of the Rules of the High Court of Judicature, Andhra Pradesh (Appellate Side), when a review petition is presented to the High Court notice is to be ordered to the opposite party and such notice shall be served on the pleader who represented the party in the main proceedings. Therefore, when the learned single Judge dismissed review petition even before ordering notice as required under Rule 54-A of the said Rules the same cannot be termed as a judgment. This is further supported by the fact that in such an event there is no fresh determination of rights and liabilities of the parties and their rights and liabilities stood determined by the order in the main proceedings.

46. In M. Srinivas v. J.N.T. University, : 1991(3)ALT1 (FB), the Full Bench considered the question whether a Letters Patent Appeal lies to Division Bench under Clause 15 of the Letters Patent (Madras) as applicable to Andhra Pradesh High Court against order of the learned single Judge refusing to review under Order 47, Rule 4(1) of CPC and whether Order 47, Rule 7(1) is a bar to the maintainability of such an appeal. Reliance was placed on Shah Babulal Khimji case and it was held that if an order of the learned single Judge refusing to review original order amounts to judgment and the same is appealable under Clause 15 of Letters Patent. In the facts and circumstances of the case therein, the Full Bench recorded a finding that the impugned order of the learned single Judge therein amounted to a judgment and therefore writ appeal lies,.

47. As observed by us when a review application is dismissed in limini even without ordering notice to other side no writ appeal lies against such order for an order dismissing review application at the threshold is not a judgment as per the tests laid down in Shah Babulal Khimji case. We hold that the Division Bench in Executive Officer v. Dasaratha Ramarao, : 1999(4)ALD164 , laid down law correctly.

48. In the result, in the facts and circumstances of the case, we hold that the impugned order is not a judgment within the meaning of Clause 15 of Letters Patent and therefore the writ appeal is not maintainable and the same is accordingly dismissed.


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