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Sampat Raj Vs. Ladu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 50 of 1966
Judge
Reported inAIR1968Raj179
ActsRajasthan High Court Ordinance, 1949 - Sections 18(1) and 18(2); Code of Civil Procedure (CPC) , 1908 - Sections 114 - Order 47
AppellantSampat Raj
RespondentLadu Ram and ors.
Appellant Advocate H.M. Parekh, Adv.
Respondent Advocate H.N. Kalla, Adv.
DispositionAppeal dismissed
Cases ReferredKallo v. Nathu Sah
Excerpt:
.....court ordinance are clearly attracted. we are satisfied that the learned single judge having refused leave for appeal the appellant had no right to file it and the appeal is, therefore, not..........order 43, rule 1 (w) of the code of civil procedure and is directed against the order of a learned single judge of this court dated 31st august, 1966 whereby the learned judge granted the review application of the defendants-respondents and set aside his previous judgment dated 22nd february, 1966 passed in a second appeal filed by the defendants before this court. 2. learned counsel for the respondents has raised a preliminary objection that the appeal before the d. b. is not maintainable under section 18 of the rajasthan high court ordinance as the appellant has failed to obtain a certificate of fitness under section 18(2) of the ordinance from the learned judge. 3. mr. hasti mal appearing on behalf of the appellant has urged that the present appeal has been filed by him under.....
Judgment:

Tyagi, J.

1. This special appeal has been filed by plaintiff Sampat Raj under Section 18 of the Rajasthan High Court Ordinance end Order 43, Rule 1 (w) of the Code of Civil Procedure and is directed against the order of a learned single Judge of this Court dated 31st August, 1966 whereby the learned Judge granted the review application of the defendants-respondents and set aside his previous judgment dated 22nd February, 1966 passed in a second appeal filed by the defendants before this Court.

2. Learned counsel for the respondents has raised a preliminary objection that the appeal before the D. B. is not maintainable under Section 18 of the Rajasthan High Court Ordinance as the appellant has failed to obtain a certificate of fitness under Section 18(2) of the Ordinance from the learned Judge.

3. Mr. Hasti Mal appearing on behalf of the appellant has urged that the present appeal has been filed by him under Sub-section (1) of Section 18 of the Rajasthan High Court Ordinance read with Order 43 Rule 1 of the Code of Civil Procedure which provides an appeal to the D. B. against, the order of the learned single Judge of this Court. He also argued that the learned single Judge, while deciding the review application did not pass the impugned order in the exercise of his appellate jurisdiction but the order under appeal was passed by him in the exercise of his 'review jurisdiction' which vested in him by virtue of Order 47 of the Code of Civil Procedure and therefore in these circumstances the provisions of Sub-section (2) of Section 18 of the Rajasthan High Court Ordinance cannot be attracted.

He further submitted that Sub-section (1) of Section 18 has been couched by the legislature in a very wide term and it permits appeal against every order of a single Judge to a D. B. of the same Court, provided order impugned was not passed by him while deciding an appeal in respect of a decree or order made in the exercise of appellate jurisdiction by a court subordinate to it, and since the order impugned in this appeal was not passed by the learned single Judge in respect of an order and decree of a subordinate court in its appellate jurisdiction, the application of Sub-section (2) of Section 18 of the Ordinance is ruled out.

4. Mr. Kalla appearing for the respondents urged that the impugned order passed by the learned single Judge while reviewing his own judgment in a second appeal cannot be said to have been made by him in original jurisdiction or in the first appellate jurisdiction, but as the review was of an order which was passed by the learned single Judge in the second appeal it shall be said that he passed the impugned order in respect of a decree or order passed by the subordinate court in its appellate jurisdiction and hence the provisions of Sub-section (2) of Section 18 of the Rajasthan High Court Ordinance are clearly attracted. In these circumstances his contention is that without obtaining necessary certificate under Section 18(2) of the Ordinance from the learned single Judge an appeal was not maintainable before a Division Bench.

5. These rival contentions give rise to an important question relating to the interpretation of Section 18 of the Rajasthan High Court Ordinance. It would, therefore, be convenient to reproduce the provisions of this section here:

'Appeal to the High Court from Judges of the Court. (1) An appeal shall lie to the High Court, from the judgment (not being a judgment passed 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 High Court and not being an order made in the exercise of re-visional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under Section 43 or in the exercise of criminal jurisdiction of one Judge of the High Court.

(2) Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made 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 High Court where the Judge who passed the judgment declares that the case is a fit one for appeal.'

Sub-section (1) of Section 18 provides that an appeal shall lie to the High Court from the judgment or order of one Judge of the High Court provided that judgment is not a judgment passed 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 High Court. In other words, the judgment or order of a single Judge is appealable to the High Court (i.e. to the Division Bench) provided that judgment or order is not passed while deciding a second appeal, which is ordinarily filed against the appellate judgment of the subordinate court. There is an exception to this general rule and it is embodied in Sub-section (2) of Section 18 of the Ordinance which permits an appeal from the judgment of a single Judge to a Division Bench in the matter of second appeal but it can be filed only after obtaining a declaration from a single Judge that the case is a fit one for appeal to a Division Bench.

6. We have now to see whether the impugned order passed by the learned single Judge in this case while deciding the review petition can be said to have been passed by him in the exercise of his appellate jurisdiction in respect of a decree or order made by a subordinate court in the exercise of its appellate jurisdiction or it is an order made by the learned Judge in the exercise of a jurisdiction which is different from that, of the second appellate jurisdiction and which has been termed by Mr. Hasti Mal as 'review jurisdiction'.

7. The argument of learned counsel for the appellant is that review is a separate jurisdiction conferred on a Court by the provisions of the Code of Civil Procedure and therefore while reviewing a judgment passed by the court in a second appeal it cannot be said that the court was exercising its appellate jurisdiction in respect of an appellate decree or order of the subordinate court. We regret we cannot accept this contention of learned counsel for the appellant. No doubt, the power of review is given to every court by the Code of Civil Procedure under Section 114, read with Order 47 of the said Code, but this power is exercised by the court when it has jurisdiction whether original or appellate (including the second appellate jurisdiction) to deal with the matter. The provisions of Section 114 and Order 47 do not confer any new jurisdiction on a court to take cognisance of a matter. These provisions simply confer a power on a court to review its order or judgment which it has passed in the exercise of its jurisdiction conferred on it by the provisions of some law from which the court derives its authority to take cognizance.

The term 'review jurisdiction' is not known to the Code of Civil Procedure. This term seems to have been coined by learned counsel for the appellant to suit his purpose. We are of opinion that when a court exercises its power of review under Section 114 and Order 47 of the Code of Civil Procedure it acts in the exercise of the same jurisdiction in which it has passed its previous order or judgment under review. In this view of the matter it is difficult for us to accept the contention of Mr. Hasti Mal that the learned single Judge while deciding the review application did not act in the exercise of his appellate jurisdiction in respect of an appellate decree or order of the subordinate court. In other words, we can say that the order which has been impugned before us was definitely passed by the learned single Judge in the exercise of his second appellate jurisdiction. Our view finds support from the following observations of Hon'ble Chief Justice in Muhamad Hasan Khan v. Bhikhari Lal, AIR 1950 All 534 where similar argument was raised before that Court:--

'Learned counsel has urged that the appeal from order filed in this Court was not against an order passed by the lower appellate Court in the exercise of its appellate jurisdiction within the meaning of this clause. According to learned counsel the lower appellate Court was exercising what he called a 'jurisdiction in review'. It is true that the order appealed against was not passed on 'appeal', but there can be no doubt that it was passed by the lower appellate court in the exercise of its appellate jurisdiction. The case came up before that court, and it became seized of it, as a court of appeal, and the application for review was filed before it by invoking its jurisdiction as a court of appeal to set aside its previous order and to re-hear the appeal. We are satisfied that the learned single Judge having refused leave for appeal the appellant had no right to file it and the appeal is, therefore, not maintainable.' Mr. Hasti Mal in support of his contention however placed reliance on a Supreme Court authority in the Union of India v. Mohindra Simply Co. AIR 1962 SC 256 and also on the judgment of thy Calcutta High Court in Mathura Sundari Dasi v. Haran Chandra Saha. ILR 43 Cal 857 = (AIR 1916 Cal 361) but in our opinion these cases hardly throw any light on the question that has been posed before us for our determination as they have no direct or indirect hearing on the point canvassed before us

8. Mr. Hasti Mal then placed before us another judgment to Kallo v. Nathu Sah, AIR 1934 Oudh 445 but in our opinion that case also does not help the learned counsel as that case was decided by the learned Judges on an entirely different provision of law. In that case the judgment was based on the provisions of Section 12(1) of the Oudh Court Act which provided that on appeal from an order of a single Judge shall lie to a bench consisting of two Judges of the Chief Court against any original decree or from any order against which an appeal is permitted by any law for the time being in force, and since an order passed on review granting the review application was appealable under Order 43, Rule 1 (w) of the Code of Civil Procedure the learned Judges were of opinion that the appeal was competent before the Division Bench under Clause (1) of Section 12 of that Act.

But that ruling is not applicable to the circumstances of this case as Clause (1) of Section 18 of the Ordinance is not analogous to the provisions of Section 12(1) of the Oudh Courts Act. Under clause (1) of Section 18 of the High Court Ordinance there is no such provision that any order passed by a single Judge against which an appeal is provided by any law is appelable to a D. B. Under this clause only that order is made appealable to a D. B. which is not passed by the single Judge while deciding a second appeal. Therefore, if any order is passed in connection with a matter that has come before a single Judge in relation to a second appeal then Clause (2) of Section 18 of the Ordinance is attracted and not the clause 1 of that Section.

9. It was also vehemently urged by Mr. Hasti Mal that the order under appeal was passed by the learned single Judge while he was reviewing his previous judgment given in the second appeal and therefore it is difficult to say that the order was passed in respect of a decree or order made by a subordinate court in the exercise of its appellate jurisdiction. This argument is nothing more than the repetition of the previous argument though in a different form. We see no force in this contention either. As observed above we are definitely of opinion that the order impugned before us cannot be said to have been passed by a learned single Judge exercising a jurisdiction that had no relation with the jurisdiction in respect of a matter that arose out of a decree or order made by a subordinate court in the exercise of its appellate jurisdiction.

The learned single Judge was seized of the matter in the exercise of his jurisdiction relating to a second appeal and therefore the order passed by him while reviewing his revious judgment or order shall be deemed to have been passed in the exercise of his appellate jurisdiction in relation to a matter which came before him in connection with a second appeal. In these circumstances it is difficult for us to hold that the order appealed against was not passed by the learned single Judge in respect of a decree or order made by the subordinate court in the exercise of its appellate jurisdiction In our opinion clause (2) of Section 18 of the Ordinance is attracted to the circumstances of this case and therefore no appeal from that order passed by a single Judge was competent before a Division Bench of this court without obtaining a requisite certificate of fitness from the learned single Judge under the provisions of Section 18 (2) of the Ordinance.

10. For the reasons mentioned above we are inclined to uphold the preliminary objection raised by the learned counsel for respondents.

11. The appeal is, therefore, dismissed as not maintainable.


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