Krishnaji Dattatryaya Bapat Vs.
Krishnaji Dattatryaya Bapat  INSC 115 (16 April 1969)
16/04/1969 GROVER, A.N.
CITATION: 1970 AIR 1 1970 SCR (1) 322 1969
SCC (2) 74
CITATOR INFO :
RF 1974 SC1380 (24) E 1980 SC 962 (76) RF
1981 SC 960 (14,15) RF 1983 SC1090 (5) D 1986 SC1780 (11)
Constitution of India, Arts. 226 and 227-Writ
PetitionsJurisdiction of High Court, after exercising revisionary
jurisdiction-Code of Civil Procedure, s. 115-Scope of.
Against the order of an appellate court, the
respondent filed a revision under s. 115 of the Code of Civil Procedure. The
Single Judge of the High Court dismissed the revision. Thereupon the respondent
moved a petition under Arts. 226 and 227 of the Constitution challenging the
same order of the appellate court. The High Court held that in spite of the
dismissal of the revision petition, it could interfere under Arts. 226 and 227
of the Constitution on a proper case being made out; and after going into the
merits of the case, it granted relief to the respondent. In appeal to this
Court, the appellant contended that the High Court could ,not interfere under
arts. 226 and 227.
Allowing the appeal, this Court,
HELD : Even on the assumption that the order
of the appellate court .had not merged in the order of the Single Judge who had
disposed of the revision petition a writ petition ought not to have been
entertained by the High Court when the respondent had already chosen the remedy
under s. 115 of the Code of Civil Procedure. If there are two modes of invoking
the jurisdiction of the High Court and one of those modes has been -chosen and
exhausted it would not be a proper and sound exercise of discretion to grant
relief in the other set of proceedings in respect of the same order of the
subordinate court. The refusal to grant relief in such circumstances would be
in consonance with the anxiety of the court to prevent abuse of process as also
to respect and accord finality to its -own 'decisions. [327 H] When the aid of
the High Court is invoked on the revisional 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 jurisdiction which is being exercised is a
part of the general appellate jurisdiction of the High Court as a superior
court. It is only one of the modes of exercising power conferred by the
Statute; basically and fundamentally it is the appellate jurisdiction of the
High Court which is being invoked and exercised in a wider and larger sense.
The principle of merger of orders of inferior
courts in those superior courts would not be affected or would not become
inapplicable by making a distinction between a petition for revision and an
appeal. [327 B] Madan Lal Rungta v. Secy. to the Government of Orissa,  3
Supp. S.C.R. 906, Nagendra Nath Dey v. Suresh Chandra Dey. 59 I.A. 283, 287;
Raja of Ramnad v. Kamid Rowthen & Ors. 53 I.A. 74, P. P. P. Chidambara
C.P.A. Rama Nadar & Ors. A.I.R. 1937 Mad.
385, Secretary of State for India in Council v. British India Steam Navigation
Co. 13 C.L.J. 90, Attorney-General v. Sillem, (1864) 10 H.L.C. 704, Chappan v.
Moidin, (1898) I.L.R. Mad. 68, 80, U.
J. S. Chopra v. State 323 of Bombay, A.I.R.
1955 S.C. 633 and Chandi Prasad Chokhani v. state of Bihar,  2 S.C.R.
276, referred to.
K. B. Sipahimalani v. Fidahussein Yallibhoy,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 870 of 1966.
Appeal by special leave from the judgment and
order dated June 14, 1965 of the Bombay High Court in Special Civil Application
No. 371 of 1965.
S. S. Shukla, for the appellant.
M. C. Bhandare, K. Rajendra Chaudhuri and K.
R. Chaudhuri, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the division
bench of the Bombay High Court. The only question for decision is whether the
High Court could interfere under Arts. 226 & 227 of the Constitution with
the order of the appellate court in proceedings under the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947, hereinafter called the
"Act", when a petition for revision under S. 115, Civil procedure
Code, against the same order had been previously dismissed by a single Judge of
The appellant is the owner of a house in
Poona. The respondent, who was a teacher, was the tenant of a block of four
rooms on the first floor of the house. In 1958 he was transferred to another
town Wai where he was allotted suitable residential accommodation. His son,
however, stayed on in Poona as he was studying there. The appellant filed a
suit in the court of Judge, Small Causes, under the provisions of the Act for
possession of the suit premises, inter alia, on the ground that the respondent
had acquired suitable -accommodation elsewhere. The position taken 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 and on his return the premises would
be required for his own use. The trial court held that only a part of the
premises which were required by the son should be vacated. It granted a decree
for possession of two out 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 324 he affirmed 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. 1 15 of the Code of Civil Procedure
before the High Court. A learned Single Judge who heard the petition dismissed
it as he was not satisfied that the appellate court had acted in exercise of
its jurisdiction illegally or with material irregularity. The respondent moved
a petition under Arts. 226 and 227 of the Constitution challenging the same
order of the appellate court. Following a decision of a full bench in K. B.
Sipahi malani v. Fidahussein Vallibhoy(1) the division bench which heard 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 cast being made out. After going into the merits the
bench expressed the view that the respondent had not acquired an alternative
suit able residence. The courts below were therefore,. wrong, in coming to the
contrary conclusion. As s. 13 (I) (1) of the Act had been misconstrued and the
error was apparent on the record the orders of the courts below were set aside.
Now as is) well known s. II 5 of the Civil
Procedure Code empowers the High Court to call for the record of any cast which
has been decided by any court subordinate to it and in which no appeal lies to
it. It can interfere if the subordinate court appears to have exercised the
jurisdiction not vested in it by law or to have failed to exercise the
jurisdiction so vested on to have acted in the exercise of its jurisdiction
legally or with material illegality. The limits of the jurisdiction of the High
Court under this section are well defined by a long course of judicial
decisions. If the revisional jurisdiction is invoked and both parties are heard
and an order is made the question is whether the orders 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 challenged or attacked by another set of proceedings in the High
Court, namely, by means of a petition under Art. 226 or 227 of the
Constitution. It is only if by dismissal of the revision petition the order of
the subordinate court has not become merged in that of the High Court that it
may be open to party to invoke the extraordinary writ jurisdiction of that
court. There again the question will arise whether it would be right and proper
for the High Court to interfere with an order of a subordinate court in a writ
petition when a petition for revision under S. 115, C.P.C., against the same
order has been dismissed. Such a consideration will also enter into the
exercise of discretion in a petition under Aft. 226 or 227, (1) 58 B.L.R. 344,
325 The Bombay High Court in K. B. Sipahimalani's (1) case made a distinction
between an appellate jurisdiction and a revisional jurisdiction. A right of
appeal is a vested right and an appeal is a continuation or a rehearing of the
suit. A revision, however, is not a continuation or a rehearing of the suit;
nor is it obligatory upon the revisional court to interfere with the order even
though the order may be improper or illegal. If the revisional court interferes
the order of the lower court does not merge in the order passed by a revisional
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 Court. Although the case of Madan Lal Rungta
v. Secy. to the Government of Orissa(2) 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 a rejected the application of the
appellant there who had applied for grant of a mineral lease. He made in
application for review to the Central Government under Rule 57 of the Mineral
Concession Rules which was rejected. He moved the High Court under Art. 226 of
the Constitution which was also dismissed. The appellant came up by special
leave to this Court. His main contention was that the Central Government had
merely dismissed the review petition and the effective order rejecting his
application for the mining lease was that of the State Government. The High
Court, thus, had jurisdiction to grant a writ under Art.
226. This contention was negatived and it was
held that the High Court was right 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 within its territorial jurisdiction. The ratio of this
decision is that it was the order of the Central Government dismissing the
review petition which was the final order into which the order of the State
Government had merged.
It would appear that their lordships of the
Privy Council regarded the revisional jurisdiction to be a part and parcel of
the appellate jurisdiction of the High Court. This is what was said in Nath Dey
v. Suresh Chandra Dey(3).
"There is no definition of appeal in the
Code of Civil Procedure, but their Lordship have no doubt that any application
by a party to an Appellate Court, asking it to set aside or revise a decision
of a subordinate Court, is an appeal within the ordinary acceptation of the term.
. . . " (1) 58 B.L.R. 344. (2)  3 Supp.
(3) 591.A.283, 287.
L13Sup.CI/69-7 326 Similarly in Raja of
Ramnad v. Kamid Rowthen & Ors. (1) 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. (2) had to decide whether with reference to Art. 182(2) of the Limitation
Act, 1908 the term "appeal" was used in a restrictive sense so as to
exclude revision petitions and the expression "appellate court" was
to be confined to a court exercising appellate, as opposed to, revisional
powers. After an exhaustive examination of the case law including 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 that term as used in the Civil Procedure Code. In Secretary of
State for India in Council v. British India Steam Navigation Company(3) and
order passed by the High Court in exercise of its revisional 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
delivered the judgment of the division bench referred to the observations of
Lord Westbury in Attorney General v. Sillem(4) and of Subramania Ayyar, J. in
Chappan v. Moidin(5) on the true 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, it is stated that the essential criterion of
appellate jurisdiction is that it revises and corrects the proceedings in a
cause already instituted and does not create that cause. The appellate
jurisdiction may be exercised in a variety of forms and, indeed, in any form in
which the legislature may choose to prescribe. According to Art. 1762 the most
usual modes of exercising appellate 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 removal of a suit from an inferior tribunal. An appeal is a
process of civil law origin and removes a cause, entirely subjecting the fact
as well as the law, 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 (1)53 I.A. 74. (2) A.I.R. 1937 Mad. 385. (3) 13 C.L.J. 90.
(4)  10 H.L.C. 704.
327 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 the revisional 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 jurisdiction which is being exercised is a part of the general
appellate jurisdiction of the High Court as a superior court. It is only one of
the modes of exercising power conferred by the Statute; basically and
fundamentally it is the appellate jurisdiction of the High Court which is being
invoked and exercised in a wider and larger sense. We do not, therefore,
consider that the principle of merger of orders of inferior Courts in those of
superior Courts would be affected or would become inapplicable by making a
distinction between a petition 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(1) the principal of merger was
considered with reference to s. 439 of the Criminal Procedure 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 Court 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 constituting the judgment of the High Court-the only
final judgment to be executed in accordance with law by the court below. In
Chandi Prasad Chokhani v. The State of Bihar, (2) it was said that save in
exceptional and special circumstances this Court would not exercise its power
under Art. 136 in such a way As to bypass the High Court and ignore the
latter'& 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 result might lead to a conflict of
decisions of two courts of competent _jurisdiction. In our opinion the course
which was followed by the High Court, 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 disposed
of the revision petition we are of the view that a writ petition ought not to
have been entertained by the High Court when the respondent bad already chosen
the remedy under s. 115 of (1) A.I.R. 1955 S.C. 633.
(2)  2 S.C.R. 276.
328 the Code of Civil Procedure. If there are
two modes of invoking the jurisdiction of the High Court and one of those modes
has been chosen and exhausted it would not be a proper and sound exercise of
discretion to grant relief in the other set of proceedings in respect of the
same order of the subordinate court. The refusal to gray relief in such
circumstances would be in consonance with the anxiety of the court to prevent
abuse of process as also to respect and accord finality to its own decisions.
In the result the appeal is allowed and the
judgment of the division bench of the High Court is hereby set aside. The
appellant shall be entitled to costs in this Court.