S. Kalawati Vs. Durga Prasad & ANR
 INSC 125 (2 May 1975)
CITATION: 1975 AIR 1272
Constitution of India, 1950--Art.
226--Petition dismissed in limine but a certificate granted under Art.
133(1)(a)--Validity of certificate.
The appellant filed a writ petition before
the High Court under Art. 226 of the Constitution impugning the order of the
Deputy Director of Consolidation. The High Court dismissed he petition in limine
but granted a certificate under Art. 133(1)(a) on the basis of valuation.
On appeal to this Court, the respondent
raised a preliminary objection that the certificate granted was not valid
because the judgment of the High Court was one affirming the judgment of the
Deputy Director, Consolidation.
Setting aside the order of the High Court,
HELD :The certificate granted by the High
Court is competent. An order of a High Court under Art. 226 or 227 is an order
in a civil proceeding of a High Court and so falls under Art. 133. But it
cannot be said that such cases a party is exercising any right of appeal
conferred on him by any statute nor is the High Court exercising any power of
appeal. Whatever might be the position even in respect of petitions under Arts.
226 or 227 of the Constitution where the Court goes into the merits of the
question, it cannot be doubted that where it dismisses such a petition in
limine it simply refuse,,; to exercise its powers under Art. 226 or 227 and
such an order cannot be said to be an order passed on appeal or as affirming
the decision of the Court.
immediately below. Therefore, the order of
the High Court in the present case is not a judgment of affirmance. [427F,
427AB] Abdul Majid v. Jawahar Lal,  I.L.R. 36, All. 350, Karsondas
Dharamsey v. Gangabhai.  I.L.R. 32 Bom. 108, Sunder Koer v. Chandishwar
Prasad Singh I.L.R. 30 Cal. 679 Promotho Nath Roy v. W. A. Lee,  33
C.L.J. 128, Ramaswmi Udayar v. Sevu Aru Ramanathan Chettiar A.I.R. 1942 Mad'.
357. Purnendu Nath Tagore v. Kanailal Ghoshal  2 Col. 202, Ganesh Prasad
v. Mr. Makhna A.I.R. 1948 All. 375 and Gululabchand v. Kudilal A.I.R. 1952 M.B.
149, referred to.
(2) The order of the Deputy Director of
Consolidation is not clear and since the High Court dismissed the appellants
petition in limine the reasons which led the High Court to dismiss are not
known. Hence it is necessary that the High Court should deal with the petition
before it and dispose of it by a proper order. [427 GH]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1641 of 1969.
From the Judgment and decree dated 13-9-1967
of the High Court of Allahabad in Civil Writ Petition No. 2334 of 1963, R. H.
Dhebur, D. V. Desai and P. C. Kapur for the appellant.
G. N. Dixit, Uma Mehta, S. Bagga and Raj
Kumar Mehta, for the Respondent.
425 The Judgment of the Court was delivered
by ALAGIRISWAMI, J.-The appellants is the widow of one Gover- dhandass. The 1st
respondent is her husband's brother.
Goverdhandass and the 1st respondent are the
sons of one Bhojraj. The appellant claimed 11 plots in Khata No. 97 as land in
which she was entitled to be a joint tenant along with the 1st respondent. She
claimed certain other plots on the ground that they were acquired by Bhojraj
and therefore it was joint Hindu family property and she was entitled to
inherit those shares also as a co-tenant along with 1st respondent. She
succeeded in respect of the 11 plots in Khata No. 97 but failed in respect of
the either plots.
The matter first came up before the Consolidation
Officer and thereafter on appeal before the Settlement Officer and finally
before the Deputy Director, Consolidation in revision. Against the order of the
Deputy Director, Consolidation she filed a petition before the High Court of
Allahabad under Article 226. The High, Court dismissed it in liminine but
granted a certificate under Article 133 (1) (a) of the Constitution.
A preliminary objection was raised on behalf
of the 1st respondent that the certificate granted was not valid because the
judgment of the High Court was one affirming the judgment of the Deputy
Director, Consolidation. One of the questions on which the decision of this
question depends is whether the Deputy Director, Consolidation as well as the
other two officers exercising power under the U.P.
Consolidation of Holdings Act, 1953 are
Courts. However, in the view we take of the decision of the High Court that it
is not a judgment of affirmance this question does not arise. The High Court
dismissed the writ petition in limine. It did not go into the merits of the
case or decide it even within the limited scope of its powers under Article 226
or 227 of the Constitution even if not as a Court of Appeal exercising its
powers under section 96 or 100 of the Code of Civil Procedure. It simply
refused to exercise its powers under those Articles of the Constitution. Unless
the Court had applied its mind to the case and after consideration affirmed it
the order cannot be said to be one of affirmance.
It may be useful to consider earlier decisions
in this connection. In Abdul Majid v. Jawahar Lal (1904 ILR 36 All.
350) the question of the starting point of
limitation for the execution of a decree had to be decided and that question
depended upon the effect of an order of the Privy Council dismissing an appeal
for want of prosecution. In that connection the Privy Council observed :
"The order dismissing the appeal
for-want of prosecution did not deal judicially with the matter of the suit and
could in no sense be regarded as an order adopting or confirming the decision
appealed from. It merely recognised authoritatively that the appellant had not
complied with the conditions under which the appeal was open to him and that
therefore 'he was in the same position as if he had not appealed at all."
426 A, In Karsondas Dharanuey v. Gangabai (1907 ILR 32 Bom.
108) an order of the High Court refusing, to
admit an appeal after the period of limitation had expired was held to be not a
"decree passed on appeal by the High Court" under s.
595 of the Civil Procedure Code and it was
held that there was therefore no jurisdiction to grant leave to appeal
therefrom to the Privy Council under cl. (a) of that section. The meaning of
the words "Passed on appeal" were specifically considered and it was
"The meaning of the expression
"passed on appeal" has been settled by a line of authorities, which
it is right that we should follow: see Sunder Koer v. Chandishwar Prosad Singh
(ILR 30 Cal. 679) and the cases there cited. And applying that interpretation
to the circumstances of the case, it cannot (in my opinion) be said that there
is here a decree passed on appeal by a High Court." This Bombay decision
was noticed in Promotho Nath Roy v. W.
A. Lee (1919 (33) CLJ 128). But that decision
differed from the Bombay decision because in that case the appeal had been
admitted and dismissed whereas in the Bombay case- the appeal was not admitted
at all. In Ramaswami Udayar v. Sevu Aru Ramanathan Chettiar (AIR 1942 Mad. 357)
it was held by a Division Bench of the Madras High Court that where an
application to excuse delay, by deducting The time taken in other proceedings
in computing the time for the application for rehearing of an appeal, was
dismissed and consequently no order was passed on the application for rehearing
the appeal, these were not orders on appeal within the meaning of s. 109 (a) of
the Code of Civil Procedure and hence no leave could be granted. These
decisions were followed in Purnendu Nath Tagore v. Kanailal Ghoshal (1948 (2)
In Ganesh Prasad v. Mt. Makhna (AIR 1948 All.
375) however an order dismissing appeal for default on account of non-
prosecution was held to be a decision which affirmed the decision of the Court
In Gulabchand v. Kudilal (AIR 1952 M.B. 149)
it was held that the order of the Court dismissing the Special Appeal on the
ground that no appeal lay under s. 25 of the Act was not an order which
affirmed the decision of the Court below and it was observed that expression
"affirms the decision of the Court immediately below" implies that
the Court had dealt judicially with the decision of the Court below and upheld
it and Where the Court holds that it has no jurisdiction to entertain an appeal
from the decision of the Court below and rejects the appeal, it cannot be held
that the decision of the Court below is affirmed by the rejection of the
The principle behind the majority of the
decision is thus to the effect that where an appeal is dismissed on the
preliminary ground that it was not competent or for non- prosecution or for any
other reason the appeal is not entertained, the decision cannot be said to be a
"decision on appeal" nor of affirmance. It is only where the appeal
is beard and the judgment delivered thereafter the 427 judgment can be said to
be a judgment of affirmance. Where a party applies to the Court to exercise its
powers under Article 226 or 227 of the Constitution it cannot be said that the
party is exercising any right of appeal conferred on him by any statute nor is
the High Court exercising any power of appeal. Whatever might be the position
even in respect of petitions under Article 226 or 227 of the Constitution where
the Court goes into the merits of the question, it cannot be doubted that where
it dismisses such a petition in limine It simply refuses 'to exercise its
powers under Article 226 or 227 Such an order cannot be said to be an order
passed on appeal or as affirming the decision of the Court immediately below.
In 'this connection it may be noticed that
under s.109 of the Code of Civil Procedure appeals lie to the Supreme Court
from any judgment, decree or final order of a High Court where it is passed on
appeal. A proceeding under Article 226 or 227 of the Constitution is not an
appeal. it is true that the- right conferred by Article 133 of the
Constitution, cannot in any way be curtailed by the provisions of the Code of
Civil Procedure and Article 133 does not speak of judgment, decree or final
order passed on appeal by the High Court. All the earlier decisions of the
various Courts referred to above are based on the interpretation of ss. 109
and-110 of the Code of Civil Procedure. An order of a High Court in a petition
tinder Article 226 or 227 would be an order in a civil proceeding of a High
Court and so fall under Article 133. Where a High Court refuses to entertain
such a proceeding the same considerations that were applied in the earlier
cases where an appeal was not judicially considered should Tic held applicable
also on principle.
We are therefore of opinion that an order in
a petition under Article 226 or 227 dismissed in limine is not a final order in
a proceeding for the purpose of Article 133 (1) (a) of the Constitution and is
not therefore a judgment of affirmance under Article 133(1) (a), and therefore
the certificate granted by the High Court is competent.
As regards the appeal itself we must say that
we have not been able to understand the order of the Deputy Director of
Constitution which was sought to be quashed by means of the writ petition. We
were invited by the respondent to look into the orders of the Consolidation
Officer and the Settlement Officer in order to understand the order of the
Deputy Director of Consolidation. As the order sought to be quashed was that of
the Deputy Director Consolidation we do not feel called upon to do so. We are
therefore in the dark as to the reasons which might have led the High Court to
dismiss the appellant's petition in limine. We consider it necessary and proper
therefore to set aside the order of the High Court and direct that the petition
be dealt with by it and disposed of by a proper order. The High Court will bear
the matter afresh and dispose it of by a reasoned order.
There will be no order as to costs.