Narendra
S. Chavan & Ors. V. Vaishali Vs. Bhadekar [2009] INSC 1257 (21 July 2009)
Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.
3371 OF 2003 Narendra S. Chavan & Ors. .... Appellants Versus Vaishali V. Bhadekar
.... Respondent ORDER This appeal by special leave is directed against the
judgment and order dated 17.8.2002 of the Division Bench of the High Court of
Bombay whereby the Letters Patent Appeal filed by the respondent-tenant was
allowed.
The respondent-tenant
after losing before the rent control appellate authority had filed a writ
petition, which writ petition also came to be dismissed by order dated
13.3.2002 for non-prosecution and the civil application filed for restoration
of the same was also dismissed by order dated 14.6.2002. Thereafter possession
was given to the appellants. Instead of challenging the order dated 14.6.2002
before a proper court, the respondent-tenant filed a Letters Patent Appeal
before the Division Bench. The said Letters Patent Appeal was allowed and while
allowing the same, the Division Bench even set aside the orders passed by the
rent control appellate authority on merits.
The
learned counsel appearing on behalf of the appellants-landlord 2 herein
contends that everything was without jurisdiction. We entirely agree. In fact,
after the dismissal of the restoration application by the learned Single Judge,
no Letters Patent Appeal could have been filed against that order because that
was not a judgment. This is apart from the fact that even assuming that a
Letters Patent Appeal was maintainable, there was no justification for the
Division Bench to go straight into the merits of the matter and all that the
Division Bench could have done was to send back the matter to the Single Judge
for being decided on merits. That was not done. Instead, the Division Bench
went into the merits of the matter. It is stated that this course was adopted
because the parties agreed that the writ petition should be restored to file
and should be heard and disposed of on merits. We do not understand as to how
the Division Bench had the jurisdiction under Clause XV of the Letters Patent
because even if the matter was decided by the Single Judge then the Division
Bench would not have had the jurisdiction to decide the matter on merits.
Consent
does not confer jurisdiction. In that view of the matter, we allow this appeal
and set aside the impugned judgment and order of the Division Bench but without
any order as to the costs.
.....................J. (MARKANDEY KATJU)
.....................J.
New Delhi;
July 21, 2009
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