2009 Supreme(Kar) 181

High Court of Karnataka
THE HONOURABLE CHIEF JUSTICE MR. P.D. DINAKARAN, THE HONOURABLE MR. JUSTICE S.R. BANNURMATH, THE HONOURABLE MR. JUSTICE V. GOPALAGOWDA, THE HONOURABLE MR. JUSTICE V.G. SABHAHIT, THE HONOURABLE MR. JUSTICE K.L. MANJUNATH, THE HONOURABLE MR. JUSTICE A.S. BOPANNA & THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA
Tammanna & Others
Versus
Renuka & Others
W.A. No. 1585 of 2007 (GM-CPC) C/W.A.Nos. 1957 of 2006 (GM-CPC), 1383 of 2007 (GM-CPC), 1530 of 2007 (GM-FC), 1753 of 2007 (GM-CPC), 1926 of 2007 (GM-CPC), 2143 of 2007 (GM-CPC), 1078 of 2007 (GM-CPC), 1422 of 2007 (GMCPC), 1526 of 2007 (GM-CPC), 1445 of 2007 (GM-CPC), 884 of 2008 (GM-FC)
Decided on : 13-03-2009

Headnote:CONSTITUTION OF INDIA - Articles 227: [P.D. Dinakaran CJ & S.R. Bannurmath, V. Gopala Gowda, V.G. Sabhahit, K.L. Manjunath, A.S. Bopanna & A.N.Venugopala Gowda, JJ] Exercise of the power conferred under - Held, Order passed by Single Judge against the orders made deciding an issue passed by any subordinate Court, in the course of a suit or other proceeding not finally disposed of, governed by Section 8 of the Karnataka High Court Act, 1961 and attracted by Section 115 and Section 100 A of the Code of Civil Procedure -Maintainability of Writ Appeal under Section 4 of the Karnataka High Court Act, 1961 -Held, No appeal would lie under Section 4 of the Karnataka High Court Act against the order of the Single Judge of the Karnataka High Court Act against the order of the Single Judge passed in exercise of the power conferred under Article 227 of the Constitution of India in the matter arising against an order made deciding an issue, passed by the Court subordinate to the High Court, in the course of a suit or other proceeding not finally disposed of which is attracted by Section 115 CPC and is governed under Section 8 of the Karnataka High Court Act, and in all other matters which are not attracted by Section 115 CPC and not governed under Section 8 of the Act, an appeal would lie under Section 10(iv-a) against the order passed under Section 9(xii) of the Karnataka High Court Act read with Article 226 and 227 of the Constitution of India and Rules 2(1), 26 and 39 of the Writ Proceedings Rules as well as Article 11(sa) to Schedule II of the Karnataka Court Fee and Suits Valuation Act, 1958.

       CONSTITUTION OF INDIA - Article 227: [P.D. Dinakaran CJ and S.R. Bannurmath. Gopala Gowda, V.G. Sabhahit, K.L. Manjunath, A.S. Bopanna & A.N. Venugopalagowda, JJ] Supervisory jurisdiction of the High Court under Article 227 and Revisional jurisdiction under Section 115 of C.P.C., - Held, The revisional jurisdiction of the High Court under Section 115 CPC is separate and distinct from that of the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India. Supervisory jurisdiction of the High Court under Article 227 is invoked to get over the restrictions brought into Section 115 CPC. The power of the High Court under Article 227 of the Constitution of India is exercised to get over the restrictions imposed in Section 115 CPC, stands settled by decision of Apex Court in Surya Dev Rai v Ram Chander Rai & ors. AIR 2003 SC 3044; 2003 (6) SCC 675 following the decision of Constitution Bench in L. Chandrakumar v Union of India & ors. Chandrakumar v Union of India & ors. AIR 1997 SC 1125 holding that the power of the High Court under Articles 226 and 227 of the Constitution of India is always in addition to the revisional jurisdiction conferred on it under Section 115 CPC does not take away, nor could have taken away the constitutional jurisdiction of the High Court conferred under Articles 226 and 227 of the Constitution of India. The power under Articles 226 and 227 of the Constitution of India is therefore, untrammelled by the amendment to Section 115 CPC; but the same is available to be exercised subject to the rule of self-discipline and practice, which are well settled. The ratio laid down in Surya De Rai’s case is only with reference to the power and jurisdiction of the High Court to entertain a petition either under Articles 226 or 227 of the Constitution of India to get over the restrictions imposed in Section 115 CPC, in view of the CPC (Amendment) Act 46 of 1999; but not with reference to the maintainability of appeal against such order passed under Article 227 of the Constitution of India. What is barred under Section 8 of the Karnataka High Court Act, viz., in the case of civil revision which could be heard by a Single Judge alone and whose orders shall be final, which are traceable to Section 115 CPC as amended by CPC (Amendment) Act 46 of 1999, cannot be revived or made available by resorting to Article 227 of the Constitution of India, nor such order passed by Single Judge under Article 227 be appealed under Section 4 of the Karnataka High court Act. In other words, what was nor originally available under Section 115 CPC cannot be made available by invoking Article 227 of the Constitution; nor Section 8 of the Karnataka High Court Act be nullified merely on account of insertion of Section 9(xii) and 10(iv-a) of the Karnataka High Court Act, which were intended for the matter not governed under Section 8 of the Karnataka High Court Act.

       CONSTITUTION OF INDIA - Article 227: [P.D. Dinakaran CJ & S.R. Bannurmath, V. Gopala Gowda, V.G. Sabhahit, K.L. Manjunath, A.S. Bopanna & A.N. Venugopala Gowda, JJ] Supervisory Jurisdiction of High Court under - Karnataka High Court Act, 1961-Section 8 - Powers of Single Judge to dispose of revision cases himself or refer the same to a Bench - Section 4 -Appeals from decisions of the Single Judge of the High Court - Section 9 - Other powers of a Single Judge - Section 10- Other Powers of Bench of Two Judges-Sections 9 (xii) and 10 (iv-a)-Insertion by Amendment Act 12 of 1973 - [per Majority] Held, The power of the Single Judge under Section 8 of the Karnataka High Court Act is traceable and subject to the revisional jurisdiction of the High Court under Section 115 CPC. Therefore, since Section 8 of the Karnataka High Court Act remained unamended, the insertion of Section 9(xii) and 10(iv-a) of the Karnataka High Court Act as amended by Amendment Act 12 of 1973 to the Karnataka High Court Act by itself would not render Section 8 redundant in the statute book. On a plain reading of Sections 4,8,9 (xii) and 10 (iv-a) of the Karnataka High Court Act, it is clear that the Legislature, specifically intend that the civil and criminal revision cases shall be heard and disposed of by a Judge sitting alone those decision or order shall be final; and therefore the orders passed under Section 8 of the Act are excluded from the purview of Section 4 of the Act, even though they were under Article 227 of the Constitution of India to get over Section 115 CPC. The very same reasoning holds good to counter the argument based on Rules 2(1), 26 and 39 of the Writ Proceedings Rules read with Article 11 (sa) to Schedule II to the Karnataka Court Fees and Suits Valuation Act, 1958. [per V.Gopala Gowda,J] As the revisional power of the High Court under Section 115 CPC is taken away by amending the same and in the light of the powers conferred under Sections 9(xii)(a) and (b) and Section 19(iva) of the opinion that right of appeal is available to a litigant against the orders passed by the single judge under Articles 226 and 227 of the Constitution in the writ petitions filed against the judgments, awards and orders/interlocutory orders of Industrial Tribunal/Labour Court, quasi Judicial Tribunals/Authorities, Family Courts and Civil Courts in their respective proceedings and the said power is expressly conferred and the same is restricted to the orders, judgments etc., passed under original jurisdiction only. The restraints of Article 227 of Constitution of India as amended under 42nd Constitutional amendment has been deleted by the 44th Constitutional amendment and the original power of this Court under Article 227 was restored. Therefore, the conclusion arrived at in Gurushanth Pattedar’s case by this Court that order passed under Article 227 in the writ petition is not appealable, is against the spirit of 44th Amendment of the Constitution. The amendment to Section 115 CPC is not governed by the Constitutional powers of this Court under Articles 226 and 227 and exercise of such powers are regulated by the provisions of the Karnataka High Court Act of 1961 and writ petition proceeding Rules. -It is to be borne in mind that litigants invoking writ jurisdiction constitute one class and they should be given same of similar treatment by this Court while exercising its judicial review powers under Articles 226 and 227 of the Constitution of India. If one set of writ petitioners are given the right of appeal and another set is denied, it amounts to discrimination and violative of Article 14 of the Constitution. Such different procedure to the litigants is totally impermissible in law. If, appeals are to be entertained only against the orders, judgments etc. passed in exercise of original jurisdiction only as interpreted in the five Judge judgment in the case of Gurushanth Pattedarv Mahaboob Shahi Kulbarga Mills & anr, ILR 2005 Kar 2503, it amounts to taking away the powers conferred upon two judges of this Court under Sections 4 read with 10(iva) of the Act and denying the statutory right of Appeal conferred upon the public litigant, which is impermissible in law. Therefore, the points referred to this Bench for consideration have to be answered in favour of the writ appellants/petitioners.

       KARNATAKA HIGH COURT ACT, 1961 - Sections 4, 8, 9 &10 (as amended by Act 12 of 1973) & Civil P.C. (5 of 1908) Section 115 (As amended by 1999 Amendment Act) : [P.D.Dinakaran,C.J., S.R. Bannurmath, V.Gopala Gowda, V.G.Sabhahit, K.L. Manjunath, A.S.Bopanna & A.N.Venugopala Gowda,JJ] Intra Court appeal - Held, Not maintainable against order passed by Single Judge in exercise of supervisory power under Article 227 of Constitution in respect of interlocutory orders passed in original suit proceedings by Civil Courts. [2005 AIR Kant HCR 1633, Affirmed]. Majority view: Per P.D.Dinakaran, C. J. (for and on behalf of S.R. Bannurmath, V.G.Sabhahit, K.L.Manjunath, A.S.Bopanna, A.N.Venugopala Gowda,JJ.) - An intra Court appeal is not maintainable under Section 4 of the Karnataka High Court Act against the order passed by the single Judge in exercise of Article 227 in the matter arising against an order made deciding an issue, passed by the Court sub-ordinate to the High Court, in the course of a suit or other proceedings not finally disposed of which is attracted by Section 115 C.P.C. and is governed under Section 8 of the Karnataka High Court Act. In all other matters which are not attracted by Section 115 C.P.C. and not governed under Section 8 of the Act, an appeal would lie under Section 10(iv-a) against the order passed under Section 9(xii) of the Karnataka High Court Act read with Articles 226 and 227 of the Constitution of India and Rules 2(1), 26 and 39 of the Writ Proceedings rules as well as Article 11(sa) to Schedule II of the Karnataka Court Fees and Suits Valuation Act, 1958. By the CPC (Amendment) Act, 46 of 1999, Clause (b) to Section 115(1) CPC was deleted. The effect of the amendment by deleting the said clause (b) is that, eve the failure of justice or the irreparable injury causes to the party against whom an order was made, shall not be a ground for exercising the revisional jurisdiction under Section 115 CPC. It is, therefore, clear that the intention of the legislature is to bar the intervention in the revision against the interlocutory orders. The proposal was intended to cut the number of revisions on petitions, to bar serious injustice resulting from interlocutory orders and to avoid the unnecessary delay in dispensation of justice on account of interference of the High Court exercising revisional jurisdiction against an order deciding an issue, passed any Court subordinate to the High Court, in the course of a suit or other proceedings, not finally disposed of attracting Section 115 CPC even it would occasion a failure of justice of cause irreparable injury to the party against whom it was made. The power of the single Judge under Section 8 or the Karnataka High Court Act is traceable and subject to the revisional jurisdiction of the High Court under Section 115 CPC. Therefore, since Section 8 of the Karnataka High Court Act remained unamended, the insertion of Section 9(xii) and 10(iv-a) of the Karnataka High Court Act as amended by Amendment Act 12 of 1973 to the Karnataka High Court Act by itself would not render Section 8 redundant in the statue book. On a plain reading of Sections 4,8,9(xii) and 19(iv-a) of the Karnataka High Court Act, it is clear that the Legislature, specifically intend that the civil and criminal revision cases shall be heard and disposed of by a Judge sitting alone whose decision or order shall be final; and, therefore, the orders passed under Section 8 of the Act are excluded from the purview of Section 4 of the Act, even though they were under Article 227 of the Constitution of India to get over Section 115CPC. The very same reasoning holds good to counter the argument based on Rules 2(1), 26 and 39 of the Writ Proceedings Rules read with Article 11(sa) to Schedule II to the Karnataka Court Fees and Suits Valuation Act, 1958. What was barred under Section 8 of the Karnataka High Court Act, viz., in the case of civil revision which could be heard by a single Judge alone and whose orders shall be final, which are traceable to Section 115 CPC as amended by CPC (Amendment) Act 46 of 1999, cannot be revived or made available by resorting to Article 227 of the Constitution of India, nor such order passed by Single Judge under Article 227 be appealed under Section 4 of the Karnataka High Court Act. In other words, what was not originally available under Sec, 115 CPC cannot be made available by invoking Article 227 of the Constitution; nor Section 8 of the Karnataka High Court Act be nullified merely on account of insertion of Section 9(xii) and 10(iv-a of the Karnataka High Court Act, which were intended for the matters not governed under Section 8 of the Karnataka High Court Act. It is a settled law that every provision of the Act should be given effect to and harmoniously constructed along with other provisions of the Act. Precisely, what are not attracted by Section 115 CPC and not governed by Section 8 of the Karnataka High Court Act alone could be bought under Section 9(xii) and 10(iv-a) of the Karnataka High Court Act and Rules 2(1), 26 and 39 of the Writ Proceedings Rules read with Article 11(Sa) to Schedule II to the Karnataka Court Fees and Suits Valuation Act, 1958. Deletion of clause (b) in Section 110A C.P.C. by Amendment Act 22 of 2002, removing the bar of filing an appeal against the orders or decisions made by the Single Judge against the orders or decisions made by the Single Judge exercising the power conferred under Article 226,227 and 228 of the Constitution of India, would not by itself be a reason to construe contrary to Section 115 CPC, as amended by C.P.C. (Amendment) Act 46 of 1999. Minority view : [Per Gopala Gowda, J] - While Section 4 of the Act restricts appeals only from the judgment, decree, order of sentence passed in exercise of original jurisdiction, Section 19(iv-a) of the Act does not impose any such restriction. It confers powers on two Judges to exercise powers in the appeals arising from the judgment, order or decree passed by a single Judge in exercise of the powers of High Court under Clause (1)of Article 226, Article 227 and Article 228 of the Constitution of India. When such power is conferred upon two Judges, it cannot be said that they have no jurisdiction to hear the appeals arising from the orders, judgments and sentences passed by a single Judge except from those arising from the exercise of original jurisdiction. If such an interpretation is given to Section 4 of the Act, the power conferred under Section 19(iv-a)of High Court becomes redundant. It is well-settled legal position of law that harmonious construction of the above provisions of the Act should be given to the provisions of a statutes so that all the provisions of the statutory enactment shall be given effect to and no provision of the Act become nugatory with a view to achieve the object and intention of the statutory provisions of Act. It is also to be borne in mind that the litigants invoking writ jurisdiction constitute one class and they should be given same or similar treatment by High Court while exercising its judicial review powers under Articles 226 and 227 of the Constitution of India. If one set of writ petitioners are given the right of appeal and another set is denied, it amounts to discrimination and violative of Article 14 of the Constitution. Such different procedure to the litigants is totally impermissible in law. Further, the remedy under Article 226 and 227 of the Constitution of India is a Public Law remedy for different purpose and the remedy provided under CPC is a Private Law remedy and for a different purpose. Therefore, the remedy provided under Section4 of the High Court Act. 1961 read with rules relating to Article 226 and 227 of the Constitution of India and also as per the High Court Rules of 1959 and the Writ Petition Proceedings Rules of 1977 are special provisions and Constitutional Public Law Remedy and the remedy provided under the CPC is general and Private Law Remedy. The special provisions of the Act and Rules would prevail over the general provisions of the Act. [2005 AIR Kant HCR 1633 not good law in view of AIR 2003 SC 3044]. As the revisional power of the High Court under Section 115 CPC is taken away by amending the same and in the light of the powers conferred under Sections 9(xii)(a) and (b) and Section 10(vi-a) of the Karnataka High Courts Act, right of appeal is available to a litigant against the orders passed by the single Judge under Articles 226 and 227 of the constitution in the writ petitions filed against the judgments, awards and orders/interlocutory orders of Industrial Tribunal/Labour Court, quasi Judicial Tribunals/Authorities. Family Courts and Civil Courts in their respective proceedings and the said power is expressly conferred and the same is not restricted to the orders, judgments etc., passed under original jurisdiction only.