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Shri Kishan Vs. K.S. Gandhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3561 of 1961
Judge
Reported inAIR1963All532
ActsConstitution of India - Articles 225 and 226; Government of India Act, 1915; Government of India (Amendment) Act, 1935; Uttar Pradesh High Courts (Amalgamation) Order; Code of Civil Procedure (CPC) - Sections 115
AppellantShri Kishan
RespondentK.S. Gandhi and ors.
Appellant AdvocateB.N. Katju and ;T.N. Sapru, Advs.
Respondent AdvocateG.N. Kunzru and ;Lalji Sinha, Advs.
DispositionPetition dismissed
Excerpt:
.....jurisdiction conferred by article 226 of the constitution? khandwa municipality, air 1956 nag 167. it is well established that what cannot be done directly can also not be done indirectly (see maharajah luchmeswar singh..........of the revision application a prayer had been made to the learned judges hearing the case to exercise powers under article 226 of the constitution also. the court may then have said that even through the case did not fulfil the requirements of section 115, c.p.c., it exercised powers under article 226 and quashed the order. but that was not done.9. i am, therefore, of the opinion that the present petition does not lie. but, apart from the question of jurisdiction or maintainability of the petition. i am of the opinion that in any case it is not advisable to allow this petition. i have already said above that the orders passed by this court in the exercise of its revisional jurisdiction have become final and also that the case has not yet been finally decided and will have to be.....
Judgment:

Jagdish Sahai, J.

1. The respondent No. 1, K. S. Gandhi (hereinafter referred to as Gandhi) filed a suit against the petitioner in the Court of the Judge Small Causes, Allahabad, for the recovery of a certain amount of money as rent from the petitioner for the premises 21, Canning Road, Allahabad. The suit was contested, inter alia, on the ground that the contract between the parties was void under Section 23 of the Indian Contract Act (hereinafter referred to as the Act), the that Court decreed the suit. A revision application was filed before the learned District Judge, Allahabad, under Section 25 of the Provincial Small Cause Courts Act which was allowed and the case remanded for trial to the Judge Small Cause Court. Thereafter a revision application was filed by the petitioner in this Court under Section 115, C.P.C., which was also dismissed on 1-11-1961 by Desai, C. J. and Ramabhadran, J. Thereafter the present petition was filed in this Court purporting to be under Articles 226 and 227 cf the constitution. The prayer in the petition is that the decree passed by the Judge Small Cause Court and revisional order passed by the learned District Judge, Allahabad, be quashed. There is no prayer for either setting aside or quashing the order passed by this Court in exercise of its revisional jurisdiction.

2. When this petition came up for hearing before me, wanted the learned counsel for the petitioner to satisfy me whether such a petition could be entertained. The proceedings initiated by the filing of the suit in the Court of the Judge Small Causes, so far as this Court is concerned, terminated when this Court, in exercise of its revisional jurisdiction dismissed the revision application on 1-11-1961. It cannot be matter of dispute that the proceedings now sought to be started by the instant writ petition is a completely new and different proceeding. It is well known that while exercising powers under Article 226 of the constitution of India, this Court acts on the original side, me question, therefore, that arises is that after this court has finally decided the matter in dispute between the parties by means of its order dated 1-11-1961, can it pass a completely different order in exercise of its original jurisdiction conferred by Article 226 of the Constitution? In other words, can this Court speak with two mouths, and sitting in the exercise of its revisional jurisdiction proclaim that the order passed by the learned District Judge does not require interference but sitting in the exercise of the powers conferred by Article 226 of the Constitution declare that the decree is liable to be set aside? It is in this connection that I have heard the learned counsel for the parties today and inasmuch as it appears to me that a writ petition under the present circumstances cannot be entertained, I have not gone into the merits of the case.

3. Clause 27 of the Letters Patent of this Court provided that

'any function which is hereby directed to be performed by the said High Court of Judicature at Allahabad in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof appointed or constituted for such purpose in pursuance of Section 108 of the Govt. of India Act, 1915'.

Therefore, when the Division Bench of this Court dismissed the revision application on 1-11-61, it passed an order on behalf of the entire Court.

4. Article 225 of the Constitution of India reads as follows:

'Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and or members thereof sitting alone or in Division Courts, snail be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original Jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.'

5. Clause 9 of the U.P. High Courts (Amalgamation) Order, 1948 provides that

'the law in force immediately before the appointed day with respect to practice, and procedure in the High court in Allahabad shall, with the necessary modifications, apply in relation to the new High Court, and accordingly that High Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High court in Allahabad.'

6. Section 223 of the Govt. of India Act 1935 reads asfollows:

'Subject to the provisions of this Part of the Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court, and therespective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division Courts, shall be the same as immediately before the commencement of Part Ml of this Act.'

Section 106 of the Govt. of India Act, 1915 provided that

'The several High Courts as Courts of record snail have such jurisdiction, original and appellate, including admiralty jurisdiction in respect of offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the court, and power to make rules for regulating the practice of the Court, as are vested in them by letters patent, and subject to the provisions of any such letters patent, all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of this Act,'

Section 108 of the said Act provided for constitution of Benches by the Chief Justice. It is clear that what was provided by the Letters Patent of this Court, i.e., that a single Judge or a Bench, when deciding a case, speaks on behalf of the whole Court, is the law even today. The question, therefore, immediately arises whether this Court having finally held while exercising its revisional powers on 1-11-61 that the decree passed by the learned District Judge, dm not require any interference, can now, in the exercise of its jurisdiction under Article 226 of the Constitution, reverse that order and pass another order saying that the decree is void and should be set aside. I have no hesitation in saying that the scheme of the Letters Patent and of the Govt. of India Acts, 1915 and 1935 and that of present Constitution is that it cannot be done.

It has been contended that the powers conferred by Article 226 of the Constitution are very wide and are subject to no restrictions but it cannot be said that the powers under Article 226 of the Constitution can be exercised in complete derogation of what is provided in Article 225 of the Constitution. Article 226 only confers on the High Court the right to issue prerogative writs and other directions in order to do justice. It does not deal with the circumstances in which those writs or directions can be issued. I have already said above that Article 225 of the Constitution provides that the powers of the Judges and the High Court shall remain the same as they were on the date when the Constitution came into force. Consequently, the provisions of Article 226 cannot be read in a manner which would be completely destructive of the provisions of Article 225. The two nave got to be harmoniously interpreted. The effect of Article 226 is not to abrogate the other provisions of the Constitution or the existing laws, it is a power to supplement the powers already existing. Consequently, when because of the provisions of the Letters Patent, the Constitution Acts and the Amalgamation Order, it is not possible for this court to upset the finality of an order already passed by this Court in the exercise of its revisional or appellate jurisdiction it cannot be said that by virtue of Article 225 it is possible to do so. The provisions of Article 226 of the Constitution do not proceed on the assumption that there is no law except that what is contained in Article 226. As I have said above, these are only supplementary provisions enabling the High Court to exercise some additional powers in order to advance and not to defeat the cause of justice. It would be a travesty of justice and an abuse of the process of the Court if orders, which have become final by virtue or its own orders, are reopened and set aside in the name of the exercise of its writ jurisdiction.

If this Court dismisses a second appeal under Order 41, Rule 11, C.P.C. on the ground that it does not conform to the provisions of Section 100 and 101, C.P.C., it would not say that though it is dismissing the second appeal, it will entertain a writ petition for the same cause. That the order passed by this Court on the 1-11-1961 has become final is not a matter of dispute between the parties. In tact, there can be no dispute on that point. It was held by the Federal Court in Piare Dusadh v. Emperor that it is only the legislature which can put an end to the finality of an order passed by a competent Court. This decision was followed in Jadao Bahuji v. Khandwa Municipality, AIR 1956 Nag 167. It is well established that what cannot be done directly can also not be done indirectly (see Maharajah Luchmeswar Singh v. Chairman of the Darbhanga Municipality, ILR 18 Cal 99 (PC) at p. 104). Therefore it is not open to this Court, by means of another proceedings, to reopen a case which has been finally adjudicated upon by this Court.

7. There is another way of looking at the same matter. The proceedings started by means of the suit are still pending because of the remand order passed by the learned District Judge. Is it proper for this Court to interfere with those proceedings and to quash the order passed by the District Judge, which being affirmed by this Court in the exercise of its revisional jurisdiction has become final? In my opinion, that cannot be done. The matter has not yet been finally decided and on this ground also the petition should be rejected.

8. No case has been brought to my notice where powers under Article 226 had been exercised by any Court to set aside orders passed by it in its revisional or appellate jurisdiction. Mr. Sapru has contended that inasmuch as the revision application was dismissed on the ground that it did not fulfill the requirements of Section 115, C.P.C., there was no order of this Court on merits and for that reason this Court cannot refrain from exercising its powers under Article 226 of the Constitution. As I have already said above, the effect of the order of this Court dismissing the revision application was that the order passed by the learned District Judge remanding the case to the trial Judge stood affirmed and become final. It would have been a different matter if at the time of the hearing of the revision application a prayer had been made to the learned Judges hearing the case to exercise powers under Article 226 of the Constitution also. The Court may then have said that even through the case did not fulfil the requirements of Section 115, C.P.C., it exercised powers under Article 226 and quashed the order. But that was not done.

9. I am, therefore, of the opinion that the present petition does not lie. But, apart from the question of jurisdiction or maintainability of the petition. I am of the opinion that in any case it is not advisable to allow this petition. I have already said above that the orders passed by this Court in the exercise of its revisional jurisdiction have become final and also that the case has not yet been finally decided and will have to be heard by the trial Judge because of the remand order.

10. For the reasons mentioned above, I find no merits in this petition. It is accordingly dismissed. However, in the circumstances of the case, I direct the parties to bear their own costs. The stay order is discharged.


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