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SUPREME COURT OF INDIA
SHANKAR RAMCHANDRA ABHYANKAR
Versus
KRISHNAJI DATTATREYA BAPAT
Decided on, April 16, 1969
Constitution of India, 1950 – Articles 226, 227, 136 – Decree for possession – Accommodation – Civil Procedure Code, 1908 – Section 115 – Bombay Rents, Hotel Rates Control Act, 1947 – This is an appeal by special leave from a judgment of the Division Bench of the Bombay High Court. – Only question for decision is whether the High Court could interfere, under Arts. 226 and 227 of the Constitution with the order of the appellate Court in proceedings under the Bombay Rents, Hotel Rates Control Act, 1947, when a petition for revision under S. 115, Civil Procedure Code, against the same order had been previously dismissed by a Single Judge of that Court. – Held, 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. – Court 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 was said that save in exceptional and special circumstances this Court would not exercise its power under Article 136 in such a way as to by-pass the High Court and ignore the latters 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. – 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 court is of the view that 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 had 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. – 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. – Appeal Allowed
Certainly. Based on the provided legal document, here are the key points:
The case involves an appeal concerning the jurisdiction of the High Court to interfere with orders passed under proceedings related to the Bombay Rents, Hotel Rates Control Act, 1947, when a petition for revision under Civil Procedure Code Section 115 had already been dismissed by a Single Judge (!) .
The core issue is whether the High Court can exercise its jurisdiction under Articles 226 and 227 of the Constitution to interfere with an order of the appellate Court when a revision petition against that order has been previously dismissed (!) .
The appellate and revisional jurisdictions of the High Court are distinct but interconnected. An appeal is a continuation or rehearing of a suit, whereas a revision is not, and it does not inherently lead to the merger of the lower court's order into the higher court's order (!) .
When a revisional petition is dismissed, the order of the subordinate court is generally considered to have merged into the order of the High Court, making it generally impermissible to challenge that order again through a writ petition under Articles 226 or 227 (!) .
The exercise of jurisdiction under Articles 226 and 227 should be cautious, especially when the same order has already been subject to a revision petition, to prevent abuse of process and to respect the finality of judicial decisions (!) .
The High Court emphasized that invoking its jurisdiction on the revisional side is a part of its broader appellate jurisdiction, and the principle of merger of orders applies to maintain consistency and finality (!) .
The Court also noted that if an order has not merged, or if the revisional remedy has been exhausted or dismissed, then the High Court should exercise restraint and avoid entertaining parallel proceedings that challenge the same order (!) .
Ultimately, the Court allowed the appeal, set aside the judgment of the High Court, and clarified that the remedy under Section 115 of the Civil Procedure Code is the appropriate and primary mode of challenging such orders, and subsequent proceedings under Articles 226 and 227 are not justified when the revisional remedy has been exhausted or dismissed (!) .
Please let me know if you need further analysis or specific guidance related to this case.
Judgment-
GROVER
( 1 ) 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 and 227 of the Constitution with the order of the appellate Court in proceedings under the Bombay Rents, Hotel 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 that Court.
( 2 ) 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 be said that he 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 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. 115 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 the exercise of its jurisdiction illegally or with material irregularity. The respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate Court. Following a decision of a full Bench in K. B. Sipahimalani v. Fidahussein Vallibhoy, (1958) 58 LR 344 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 Articles 226 and 227 of the Constitution on a proper case being made out. After going into the merits the bench expressed the view that the respondent had not acquired an alternative suitable residence. The Courts below were, therefore, wrong in coming to the contrary conclusion. As S. 13 (1) (1) of the Act had been misconstrued and the error was apparent on the record the orders of the Courts below were set aside.
( 3 ) NOW as is well known S. 115 of the Civil Procedure Code empowers the High Court to call for the record of any case which has been decided by any Court subordinate to it and in which the 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 or to have acted in the exercise of its jurisdiction illegally or with material irregularity. 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 order 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 an
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