Back
IN THE HIGH COURT OF BOMBAY
S.K. Desai. J.
Ratnakar Gajanan Godambe..... Petitioner.
Versus
Ratnaprabha Co-operative Housing Society Limited and others..... Respondents.
Review Petition No. 1517 of 1990 in Writ Petition No. 748 of 1990, Decided on 23-4-1990.
Advocates appeared:
M.A. Rane with A.S. Rajadhyaksha and A.S. Khandeparkar, for the review petitioner.
S.K. Swadi, for the 1st respondent- Society.
L.A. Kripalani with Miss Purnima H. Malkani, for respondents Nos. 2 to 6.
Although Section 141 of the Code may exclude petitions under Articles 226 and 227 of the Constitution, the principles contained in the relevant provisions of the Code will have to be made applicable to writ petitions both under Articles, 26 and 227. Principles under Order XLVII of the Code, including those embodied in the Explanation to Rule 1 thereof, are salutary principles for pulling a finality to a proceeding before the Court. It is not for Court to consider the wisdom or otherwise of the provision. The historical genesis and the Explanation to Order XLVII Rule 1 as also the report of the Law Commission must testify to the Wisdom if it is a wise provision required to be applied to civil proceedings, it cannot be unwise in its application to constitutional proceedings Once it is conceded that it is a good provision, the principles contained therein must apply, however, wrong the earlier order would be, and if that be so, the review petition could not be entertained and was liable to be dismissed.
Section 91-Licensor and licensee Fact not clear whether or not, the appellant non-member) was inducted into the premises by a person who was a member of the Society or a power-of-attorney bolder acting on behalf of that member or the member has after the induction of the appellant-non-member Into the premises accepted him and dealt with him as a tenant-Case remanded to the High Court for fresh consideration of the matter-A.I.R 1991 SC 1563: 1990 CTJ 364 (SC) foil-(Cooperative Society Leave and licence-Eviction of non-member from premises of Society-Case remanded to High Court for fresh consideration).
Articles 226 and 227-Civil Procedure Code, 1908. Section 141 and O. 47 Rule 1 Expln.-Applicability of provisions of CPC-Section 141 excludes petitions under Articles 226 and 227- Yet principles in relevant provisions are applicable to writ petitions-Principles of Explanation to Rule 1 of Order 47 are salutory principles.
Thus, although Section 141 of the Code may exclude petitions under Arts. 226 and 227 of the Constitution, the principles contained in the relevant provisions of the Code will have to be made applicable to writ petitions both under Articles 226 and 227. As the learned Single Judge of the Allahabad High Court observes, principles under Order XLVII of the Code, including those embodied in the Explanation to rule (I) thereof, are salutary principles for putting a finality to a proceeding before the Court.
1. Directed summary dismissal of Writ Petition No. 748 of 1990. Counsel appearing for respective parties had taken me through the decision of the Supreme Court in (Hindustan Petroleum Corporation Ltd. and another v. Shyam Co-operative Housing Society and others)1, A.I.R. 1989 S.C. 295 as well as the earlier judgment of the Supreme Court in (O.N. Bhatnagar v. Smt. Rukibai Narsindas and others)2, A.I.R. 1982 S.C. 1097. After going through the relevant passages from the said judgment and applying them, I came to the conclusion that the petitioner's case was untenable, and summarily dismissed the said writ petition. At the time of dismissing the writ petition I had indicated in paragraph 3 of the judgment that if similar questions were under consideration by the Supreme Court and if a fresh decision is available which supports the case of the petitioner, then the petitioner was given liberty to apply for review of the said judgment.
2. On 8th March, 1990 the Hon'ble the Supreme Court in Civil Appeal No. 1369 of 1990 (arising out of S.L.P. (C) No. 7878 of 1989 (Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd.)3, 1990(1) Bom.C.R. 796 : considered a similar question and, after extensive review of its own earlier decisions including in O.N. Bhatnagar's case and Hindustan petroleum Corporation's case (supra), gave a decision which, to a large extent, supports the contentions of the petitioner, which contentions had not found favour with me. Although learned Counsel for respondents Nos. 2 to 6 states that the observations are distinguishable, it is my certain conviction that had this judgment been available in February, 1990. I would have admitted the writ petition and probably, subject to guidance from the respondents' Counsel had allowed it.
3. The present Review Petition has been taken out pursuant to liberty granted by me in my order dismissing the writ petition. However, Counsel for the respondents have opposed the review petition on the basis of the Explanation to O. XLVII, Rule 1 of the Code of Civil Procedure 1908. The Explanation reads as under:---
"Explanation- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case shall not be a ground for the review of such judgment."
If Order XLVII governs writ petitions, then the case of the Review petitioner falls squarely within what is contemplated by the Explanation and the Review Petition is required to be rejected, even though there may be substantial merit therein.
4. That in writ matters Courts possess inherent jurisdiction to review their orders was discussed by the Supreme Court in (Shivedo Singh and others v. State of Punjab and others)4, A.I.R. 1963 S.C. 1909. The Court was dealing with Article 226 of the Constitution of India but the observations would also apply equally to a writ petition under Article 227 of the Constitution. Both are facets of the Constitutional jurisdiction of the High Court and there is nothing to distinguish one Article from another as far as applicability of the Code of Civil Procedure, 1908, is concerned. It should be borne in mind that in some other proceedings the provisions of Order 1, Rule 8 of the Code have been applied substantially to representative pleas under the constitutional jurisdiction.
5. The Explanation to Order XLVII, Rule 1 of the Code of Civil Procedure, 1908, was introduced in 1976 to resolve a conflict which has arisen between High Courts. Most of the High Courts had taken the decision as indicated in the Explanation, but one or two High Courts held a different view. To obviate the conflict the Explanation was added.
6. The short question to be considered in the Review Petition is whether the Explanation is to be applied to a review application in an order under the writ jurisdiction. On this question my a
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
