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2015 Supreme(Pat) 1062
IN THE HIGH COURT OF JUDICATURE AT PATNA
I. A. ANSARI and CHAKRADHARI SHARAN SINGH, JJ.
Heera Chand Swarnkar - Appellant
VERSUS
Sri Radhe Shyam Jee Maharaj Virajman - Respondents
Letters Patent Appeal No.1067 of 2014 IN C. REV. 115 of 2013
Decided On : 16-09-2015
For the Appellant : Mr. Nirmal Kumar Shrivastava
An order made under Article 227 of the Constitution of India is not appealable, and no intra-Court appeal lies against such an order.
Headnote:
APPEAL - JURISDICTION - ARTICLE 227 OF THE CONSTITUTION OF INDIA - Section 114 of the Code of Civil Procedure - Letters Patent of Patna High Court - Article 226 vis-à-vis Article 227 - Nature of review jurisdiction - Intra-Court appeal against an order passed or made under Article 227 of the Constitution of India
Fact of the Case:
The appellant's evidence was closed by an order, and the petition to recall the order was declined. The appellant filed a petition under Article 227 of the Constitution of India, which was dismissed. A review application was also dismissed, leading to the present appeal.
Finding of the Court:
The court analyzed the nature of review jurisdiction, the distinction between Article 226 and Article 227 of the Constitution of India, and the historical background of Article 227. It found that no intra-Court appeal lies against an order made under Article 227 of the Constitution of India.
Issues: The court addressed the appealability of an order made under Article 227 of the Constitution of India, the nature of review jurisdiction, and the historical background of Article 227.
Ratio Decidendi: The court held that an order made under Article 227 of the Constitution of India is not appealable, and no intra-Court appeal lies against such an order. It also clarified the nature of review jurisdiction and the historical background of Article 227.
Final Decision: The appeal was dismissed, and no costs were awarded.
I. A. ANSARI, J.
Even though an appeal does not lie against an order made under Article 227 of the Constitution of India, whether an appeal will lie against an order made in a review petition, declining to review an order, which was passed in a petition made under Article 227 of the Constitution of India? This is the moot question, which this appeal has raised. Another important question, which this appeal has raised is, what is the nature of a review proceeding? Yet another question, which this appeal has raised is: Why no intra-Court appeal lies under Clause 10 of the Letters Patent of Patna High Court against an order made under Article 227 of the Constitution of India?
MATERIAL FACTS ;
2. The materials facts and circumstances, leading to the present appeal, may, in brief, be set out as under:
(i) By order, dated 03.12.2009, passed, in Title Suit No. 142 of 1997, by learned Sub Judge 4, Begusarai, the evidence of the plaintiff-appellant was closed. The appellant, on 07.12.2009, filed a petition to recall of the order, dated 03.12.2009, aforementioned and allowing him to adduce evidence. The prayer for recall was declined by learned Sub Judge 4, Begusarai, by making an order, in this regard, on 14.12.2009.
(ii) Aggrieved by the order, dated 14.12.209, aforementioned, the plaintiff-appellant filed an application under Article 227 of the Constitution of India, giving rise to CWJC No. 8763 of 2012, for necessary relief. By order, dated 14.12.2012, a learned single Judge of this Court dismissed the writ petition made under Article 227 of the Constitution of India.
(iii) The appellant-plaintiff, thereafter, filed a review application, under Section 114 of the Civil Procedure Code, giving rise to Civil Review No. 115 of 2013, seeking review of the order, dated 14.12.2012, passed in CWJC No. 8763 of 2012.
(iv) By order, dated 26.02.2014, the learned single Judge of this Court noted that the appellant-plaintiff had been deliberately delaying the disposal of the suit by adopting different tactics, the last of such tactics being filing of the application for recall of the order, whereby his evidence had been closed, and no reason was shown, which could warrant interference with the order, dated 14.12.2014, aforementioned. With the reasonings so assigned, a learned single Judge dismissed the review application.
3. Against the order, dated 26.02.2014, passed in Civil Review No. 115 of 2013, dismissing the review application this Letters Patent Appeal has been preferred purportedly under Clause 10 of the Letters Patent Appeal of the High Court of Judicature at Patna.
SUBMISSION MADE ON BEHALF OF THE APPELLANT :
4. We have heard Mr. Nirmal Kumar Shrivastava, learned Counsel, appearing on behalf of the appellant-plaintiff.
5. It is the contention of Mr. Nirmal Kumar Shrivastava, learned Counsel, appearing on behalf of the appellant-plaintiff, that though an order, passed in exercise of power under Article 227 of the Constitution of India, is not an appealable order, an order, passed in a review petition, declining to review an order, which was passed in exercise of power under Article 227 of the Constitution of India, is an appealable order.
DISCUSSIONS
6. While considering the submission noted above, it needs to be noted that under Section 114 of the Code of Civil Procedure, a person may apply for review of A decree or order.
7. Section 114 of the Code of Civil Procedure is reproduced hereinbelow:
“114. Review.— Subject as aforesaid, any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court, which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”
8. Ordinarily, therefore, review will lie against an order, which may
