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Karnataka High Court
GURUSHANTH PATTEDAR - Appellant
Versus
MAHABOOB SHAHI KULBURGA MILLS, GULBARGA - Respondent
Decided On : 05-30-05
Writ Appeal : 5504 of 2004
[N. K. Sodhi, CJ. B. Padmaraj, P. Vishwanatha Shetty, K. L. Manjunath And H. G. Ramesh, JJ]: An appeal has been provided against an order of a single Judge only when it is passed in the exercise of his original jurisdiction i.e., when he deals with a petition under clause (1) of Article 226 of the Constitution. The right of appeal, as already observed, is a statutory right and where the statute has provided for an appeal only against an order of a single Judge passed in the exercise of his original jurisdiction it has to be held that no appeal would lie against an order passed by him in the exercise of supervisory jurisdiction under Article 227 of the Constitution. Neither the Rules nor the Forms prescribed by the High Court could override or control the provisions of Section 4 of the Act which alone provides for an intra-court appeal only against the order passed in exercise of original jurisdiction.
Intra -Court appeal
WRIT PROCEEDINGS RULES, 1977 - Rules 2 & 26 -Intra-court appeal -An appeal lies against an order passed by a single- Judge under original jurisdiction (Article 226) -As provided under Section 4 of the Karnataka High Court Act and not against an order passed in exercise of supervisory jurisdiction (Article 227).
[N. K. Sodhi, CJ. B. Padmaraj, P. Vishwanatha Shetty, K. L. Manjunath And H. G. Ramesh, JJ]: Moreover, Rules 2 and 26 of the Writ Proceedings Rules do not provide for an appeal against an order of a learned single Judge passed in the exercise of supervisory jurisdiction. No appeal lies under Section 4 of the Act against an order passed by a learned single Judge in a petition filed under Article 227 of the Constitution.
Constitution of India -Appeal -Articles 226 & 227 -Appeal -Section 4 of Karnataka High Court Act only providing appeal against order of single Judge passed under original jurisdiction (Article 226) -Hence, no appeal lies under the section against an order passed under supervisory jurisdiction (Articles 227). [N. K. Sodhi, CJ. B. Padmaraj, P. Vishwanatha Shetty, K. L. Manjunath And H. G. Ramesh, JJ]: An appeal has been provided against an order of a single Judge only when it is passed in the exercise of his original jurisdiction i.e., when he deals with a petition under clause (1) of Article 226 of the Constitution. The right of appeal, as already observed, is a statutory right and where the statute has provided for an appeal only against an order of a single Judge passed in the exercise of his original jurisdiction it has to be held that no appeal would lie against an order passed by him in the exercise of supervisory jurisdiction under Article 227 of the Constitution. Neither the Rules nor the Forms prescribed by the High Court could override or control the provisions of Section 4 of the Act which alone provides for an intra-court appeal only against the order passed in exercise of original jurisdiction.
Cases Referred:1996(7) Kar. L.J. 600; 1981 (1) SCC 405; AIR 1986 SC 1272; AIR 1957 SC 907; 4 MIA 179 187; 2003 AIR SCW 930;
Followed: AIR 1995 Kar 426.
Constitution of India -Exercise of jurisdiction under -Articles 226 & 227 -Exercise of jurisdiction under -Difference between -One is original and the other is supervisory jurisdiction. [N. K. Sodhi, CJ. B. Padmaraj, P. Vishwanatha Shetty, K. L. Manjunath And H. G. Ramesh, JJ]: Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original, but only supervisory. The power under Article 227 is intended to be used for the purpose of keeping subordinate Courts and Tribunals within the bounds of their authority and not for correcting mere errors. Though the distinction between the two jurisdictions under Articles 226 and 227 of the Constitution is very clear in the sense that one is in exercise of original jurisdiction of the High Court while the other is not original, but only supervisory, it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution. Be that as it may, the fact remains that the writ of certiorari under Article 226 of the Constitution is a exercise of its original jurisdiction by the High Court whereas under Article 227 of the Constitution, the High Court will be exercising its supervisory jurisdiction and not a original jurisdiction. In terms of Section-4 of the Karnataka High Court Act, an appeal is provided by way of intra-Court appeal against the order of the learned single Judge in the exercise of its original jurisdiction and not in the exercise of its supervisory jurisdiction.
Cases Referred: 1996(7) Kar. L.J. 600; 1981 (1) SCC 405; AIR 1986 SC 1272; AIR 1957 SC 907; 4 MIA 179 187; 2003 AIR SCW 930.
Followed: AIR 1995 Kar 426.
Appeal
Constitution of India - Articles 226 & 227 -Appeal -Section 4 of Karnataka High Court Act only providing appeal against order of single Judge passed under original jurisdiction (Article 226) -Hence, no appeal lies under the section against an order passed under supervisory jurisdiction (Articles 227).
[N. K. Sodhi, CJ. B. Padmaraj, P. Vishwanatha Shetty, K. L. Manjunath And H. G. Ramesh, JJ]: An appeal has been provided against an order of a single Judge only when it is passed in the exercise of his original jurisdiction i.e., when he deals with a petition under clause (1) of Article 226 of the Constitution. The right of appeal, as already observed, is a statutory right and where the statute has provided for an appeal only against an order of a single Judge passed in the exercise of his original jurisdiction it has to be held that no appeal would lie against an order passed by him in the exercise of supervisory jurisdiction under Article 227 of the Constitution. Neither the Rules nor the Forms prescribed by the High Court could override or control the provisions of Section 4 of the Act which alone provides for an intra-court appeal only against the order passed in exercise of original jurisdiction.
Cases Referred:1996(7) Kar. L.J. 600; 1981 (1) SCC 405; AIR 1986 SC 1272; AIR 1957 SC 907; 4 MIA 179 187; 2003 AIR SCW 930.
Followed: AIR 1995 Kar 426.
Exercise of jurisdiction under
Constitution of India - Articles 226 & 227 -Exercise of jurisdiction under -Difference between -One is original and the other is supervisory jurisdiction.
[N. K. Sodhi, CJ. B. Padmaraj, P. Vishwanatha Shetty, K. L. Manjunath And H. G. Ramesh, JJ]: Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original, but only supervisory. The power under Article 227 is intended to be used for the purpose of keeping subordinate Courts and Tribunals within the bounds of their authority and not for correcting mere errors. Though the distinction between the two jurisdictions under Articles 226 and 227 of the Constitution is very clear in the sense that one is in exercise of original jurisdiction of the High Court while the other is not original, but only supervisory, it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution. Be that as it may, the fact remains that the writ of certiorari under Article 226 of the Constitution is a exercise of its original jurisdiction by the High Court whereas under Article 227 of the Constitution, the High Court will be exercising its supervisory jurisdiction and not a original jurisdiction. In terms of Section-4 of the Karnataka High Court Act, an appeal is provided by way of intra-Court appeal against the order of the learned single Judge in the exercise of its original jurisdiction and not in the exercise of its supervisory jurisdiction.
Cases Referred:1996(7) Kar. L.J. 600; 1981 (1) SCC 405; AIR 1986 SC 1272; AIR 1957 SC 907; 4 MIA 179 187; 2003 AIR SCW 930;
Followed: AIR 1995 Kar 426
Intra-court appeal
PRACTICE AND PROCEDURE - PRACTICE AND PROCEDURE - Intra-court appeal -An appeal lies against an order passed by a single judge under original jurisdiction (Article 226) -As provided under Section 4 of the Karnataka High Court Act and not against an order passed in exercise of supervisory jurisdiction (Article 227).
Appeal
WRIT JURISDICTION - Appeal -Orders passed under -Two types (i) those passed under Article 226 (original jurisdiction), (ii) those passed under supervisory jurisdiction (Article 227) -Appeal against former provided under section 4 of Karnataka High Court Act -For latter not provided by -Hence, an appeal against -An Order passed under Article 227 is not maintainable under Section 4.
[N. K. Sodhi, CJ. B. Padmaraj, P. Vishwanatha Shetty, K. L. Manjunath And H. G. Ramesh, JJ]: An appeal has been provided against an order of a single Judge only when it is passed in the exercise of his original jurisdiction i.e., when he deals with a petition under clause (1) of Article 226 of the Constitution. The right of appeal, as already observed, is a statutory right and where the statute has provided for an appeal only against an order of a single Judge passed in the exercise of his original jurisdiction it has to be held that no appeal would lie against an order passed by him in the exercise of supervisory jurisdiction under Article 227 of the Constitution. Neither the Rules nor the Forms prescribed by the High Court could override or control the provisions of Section 4 of the Act which alone provides for an intra-court appeal only against the order passed in exercise of original jurisdiction.
Cases Referred: 1996(7) Kar. L.J. 600; 1981 (1) SCC 405; AIR 1986 SC 1272; AIR 1957 SC 907; 4 MIA 179 187; 2003 AIR SCW 930;
Followed: AIR 1995 Kar 426.
Key Points: - An appeal is provided under Section 4 of the Karnataka High Court Act, 1961, only against a judgment or order of a learned Single Judge passed in the exercise of original jurisdiction, not otherwise (!) (!) (!) (!) . - Proceedings under Article 226 of the Constitution are in exercise of the original jurisdiction of the High Court, while proceedings under Article 227 are in the exercise of its supervisory powers (!) (!) (!) (!) . - The power under Article 227 is intended to keep subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors (!) (!) . - A right of appeal is a statutory right and is governed by the terms of the statute creating it; it is not an inherent right (!) (!) . - Neither the Rules nor the Forms prescribed by the High Court can override or control the provisions of Section 4 of the Karnataka High Court Act, 1961 (!) (!) . - Rules 2 and 26 of the Writ Proceedings Rules, 1977, do not provide for an appeal against an order of a learned Single Judge passed in the exercise of supervisory jurisdiction (!) (!) . - The Full Bench judgment in M/s. Ritz Hotels (Mysore) Limited v State of Karnataka and others, which held that an appeal against an order passed under Article 227 is maintainable, is overruled (!) (!) (!) . - The law laid down by the Division Bench in Management of Kalpana Theatre, Bangalore v B. S. Ravishankar and Another was considered correct, and the Full Bench in Ritz Hotels case was not right in overruling it (!) . - In the present case, the writ petition invoked jurisdiction under Article 227 of the Constitution, making the interim order passed by the learned Single Judge not appealable (!) .
( 2 ) SINCE the question involved in the case is purely legal it is not necessary to narrate the facts in detail. The appellant herein is the plaintiff before the Trial Court. He has filed a suit for permanent injunction wherein he sought an ad interim order of injunction which was granted. In appeal filed before the Civil Judge (Senior Division) the said order of ad interim injunction had baen reversed and that order has been challenged by the appellant herein before the learned Single Judge in the writ petition which is still pending. The learned Single Judge had initially granted an order of status quo which was subsequently vacated. It is this order of the learned Single Judge which is the subject-matter of challenge in the present appeal filed lander Section 4 of the Act.
( 3 ) WE have heard the learned Counsels for the parties and having gone through the judgments cited on both sides we proceed to deal with the question. Since the answer to the question depends upon the interpretation of Section 4 of the Act, it is necessary to refer to the same. It reads as under!"4. Appeals from decisions of a Single Judge of the High court.-An appeal from a judgment, decree, order or sentence passed by a Single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court". (emphasis supplied) a careful reading of the aforesaid provision makes it clear that a right of appeal has been provided under Section 4 of the Act against a judgment or order of a learned Single Judge only if it is passed in the exercise of original jurisdiction of the High Court and not otherwise. The word 'jurisdiction' means the power to hear and determine a case and the phrase "original jurisdiction" means the power to entertain cases in the first instance. Thus, a Court of original jurisdiction is one in which an action has its origin and it also means that the litigation may be brought originally in that Court. In order to know when this Court exercises original jurisdiction, it will have to be found out in each case whether the issues raised in the petition arose for adjudication for the first time before the High Court or had they been already raised and adjudicated upon by any Court or Tribunal subordinate to it. Let us now examine the nature of jurisdiction exercised by a High Court under Articles 226 and 227 of the Constitution. It is by now well-settled that there is a clear distinction in the exercise of power by the High Court under Articles 226 and 227. The power of judicial superintendence over the subordinate courts and Tribunals is conferred on the High Court under Article 227 of the Constitution. This power is available apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. This power is intended to be exercised in appropriate cases in order to keep the subordinate Courts and Tribunals within the bounds of their authority and jurisdiction and it is not meant for correcting mere errors. The Courts and Tribunals while exercising statutory power conferred on them and even wh
Sardar Veerangouda Patil Mahila Vidya Peeth VS Basantkumar S/o. Thimmanagouda Patil - 2018 0 Supreme(Kar) 410: MAHABOOB SHAHI KULBARGA MILLS (Full Bench presided over by Five Judges) reported in (AIR 2005 KAR 377) - Cited alongside other cases in a manner indicating agreement or support for the same position; the phrase "also has taken the same view" in Subaida VS Deputy Tahsildar (RR. ) Taluk Office - 2018 0 Supreme(Ker) 902 explicitly shows it was followed or adopted.
Sardar Veerangouda Patil Mahila Vidya Peeth VS Basantkumar S/o. Thimmanagouda Patil - 2018 0 Supreme(Kar) 882: MAHABOOB SHAHI KULBARGA MILLS (Full Bench presided over by Five Judges) reported in (AIR 2005 KAR 377) - Cited alongside other cases (G.PATTEDAR VS. GARDEN SILK MILLS LIMITED AND ANOTHER [(2009) SCC 584] and MOHAMMAD YUNUS VS. MOHD.) in a context suggesting alignment or reliance on the same legal position.
Subaida VS Deputy Tahsildar (RR. ) Taluk Office - 2018 0 Supreme(Ker) 902: Mahaboob Shahi Kulburga Mills, [AIR 2005 Kar. 377(FB)] - Describes the case as having "taken the same view" after considering other precedents, indicating it followed or endorsed prior authority (e.g., Gurushanth Pattedar v. Vijaya Mohini Mills).
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