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2012 Supreme(Guj) 106
2012 (3) GCD 2020 (Guj) (DB)
Hon’ble Mr. Justice A.L. Dave &
Hon’ble Mr. Justice J.B. Pardiwala
Navin Kanabhai Kangad
Versus
Ravindra Khusalchand Mehta & Anr.
Letters Patent Appeal No. 490 of 20111—Decided on 24/02/2012
Appearance :
Mr. Mehul S. Shah, for the Appellant No. 1.
Mr. Suresh M. Shah, for the Appellant No. 1.
Mr. A.Y. Kogje, for the Respondent No. 1.
Ms. Megha R. Chitalia, for the Respondent No. 1.
Mr. S.P. Majmudar, for the Respondent No. 2.
Mr. P.P. Majmudar, for the Respondent No. 2.
Point in Issue :
Where petition against order of Civil Judge is rejected — Scope of Maintainability of appeal under LPA.
Headnote:Head Note :
(a) Letters Patent Appeal — Section 15 — Constitution of India, 1950 — Articles 226/227 — Civil Procedure Code, 1908 (Central Act 5 of 1908) — Section 115 — High Court. Rules 1952 — Rule 134(1) — Order passed by Civil Judge — Revision expressly barred — Petition under Article 227 rejected — Appeal under Letters Patent — Maintainability disputed — Appeal for reference to larger Bench in view of recent judgment of Hon’ble High Court — Not sustainable because question is no longer res integra.
Held :
In Court opinion, the issue in question is no longer res integra. The six judgments of the Supreme Court relied upon by the Division Bench in Gustadji Dhanjisha Buhariwala and another vs. Nevil Bamansha Buhariwala and others, 2011 (2) GLH 147 case make two things abundantly clear that, (i) where a remedy for filing a revision before the High Court under Section 115 of the Code of Civil Procedure has been expressly barred by a State enactment, only in such a case a petition under Article 227 of the Constitution of India would lie and not a writ petition under Article 226 of the Constitution of India, and if such be the case then against any order passed by a learned Single Judge in exercise of his supervisory jurisdiction under Article 227 of the Constitution of India, no Letters Patent Appeal would be maintainable [Para 21]
In our humble opinion, there is no merit in the contention of learned Counsel Mr. Shah that we should refer the issue to a larger bench as we are of the view that law has been abundantly made clear by the Division Bench in Gustadji’s case (Supra) after considering the six Supreme Court decisions. When these six Supreme Court decisions were being discussed, during the course of hearing, we inquired with learned Counsel Mr. Shah as to whether he has any other judgment of the Supreme Court taking a contrary view than the view taken in Sadhana Lodh vs. National Insurance Co. Ltd. and another, AIR 2003 SC 1561 case and Radhey Shyam and another vs. Chhabi Nath and others, (2009) 5 SCC 616 case. [Para 22]
There cannot be any dispute with regard to this proposition of law. If Mr. Shah would have been able to show us one judgment of Supreme Court or High Court taking a contrary view then the one which has been taken in Gustadji’s case (Supra), we would have been duty bound to refer the issue to a larger bench but that is not the case over here. On the contrary, at the cost of repetition we may say that Gustadji’s case (Supra) has been decided on the basis of two Supreme Court decisions (i) Sadhana Lodh (Supra); and (ii) Radhe Shyam (Supra). [Para 34]
Head Note :
(b) Judicial Precedents — Principle of binding nature — Reference to Larger Bench — Law stated.
Held :
The principle of binding judicial precedent is well settled. Not only decision of higher Courts are binding on the Courts lower in hierarchy, even in the same Court it binds Bench of lower number of Judges even to equal number of Judges of co-ordinate jurisdiction. Thus judgment of a Division Bench is binding on subsequently consituted Division Bench of co-ordinate jurisdiction (equal number of Judges). It cannot decide contrary but has an option with judicial sanction to refer it to a larger Bench.
[Para 46]
Law Laid Down :
Where petition under Article 227 of Constitution of India is rejected then no appeal under Clause 15 of Letters Patent is maintainable.
J.B. Pardiwala, J.—As a pure question of law falls for our determination in both the captioned Appeals, they were heard together and are being disposed of by this common judgment and order.
2. The question of law that falls for our determination is as to having regard to the nature of the proceedings and the nature of the order passed by learned Single Judge whether Letters Patent Appeal would be maintainable against the said judgment and order passed by a learned Single Judge, in view of the recent pronouncement of a Division Bench of this High Court in the case of Gustadji Dhanjisha Buhariwala and another vs. Nevil Bamansha Buhariwala and others, reported in 2011(2) GLH 147, wherein the Division Bench has taken a view that when a remedy for filing a revision under Section 115 of the Code of Civil Procedure is expressly barred, a petition under Article 227 of the Constitution of India would lie and not a writ under Article 226 of the Constitution of India. If a petition under Article 227 of the Constitution of India is rejected, then no appeal under clause 15 of the Letters Patent is maintainable.
Facts of Letters Patent Appeal No. 490 of 2011
3. This Appeal arises from a judgment and order passed by a learned Single Judge dated 3rd February 2011 in Special Civil Application No. 981 of 2011, whereby the learned Single Judge confirmed the order passed by the 2nd Additional Senior Civil Judge at Rajkot below Exh. 20 in Regular Civil Suit No. 339 of 2010, rejecting application preferred by the appellant for being impleaded as a party defendant in the said suit. Aggrieved by this order passed by the learned Single Judge, Letters Patent Appeal has been preferred challenging the same.
Facts of Letters Patent Appeal No. 490 of 2011
4. This Appeal is directed against the judgment and order passed by a learned Single Judge dated 29th April 2011 in Special Civil Application No. 4664 of 2011, whereby the learned Single Judge, while rejecting the petition, confirmed the order dated 28th February 2011 passed by the 2nd Additional Senior Civil Judge below Exh. 5 in Civil Misc. Application No. 47 of 2009, granting stay of execution of decree in a Summary Suit No. 2 of 2005 by imposing condition to deposit Rs. 25 lac @ 9% within 30 days from the date of the order.
5. What is discernible from the facts of both the Appeals and more particularly from the impugned orders under challenge is that both the orders have been passed by a civil judge in a suit proceeding.
Both the orders which were subject matter of challenge before the learned Single Judge could have been challenged before the High Court by way of Civil Revision Applications under Section 115 of the Code of Civil Procedure but, with the amendment in Section 115 of the Code, Revision Applications under Section 115 of the Code are not maintainable and, therefore, writ petitions have been preferred under Articles 226 and 227 of the Constitution of India, praying for a writ of certiorari to quash the orders passed by the civil courts in suit proceedings. It is manifest from the nature of the orders passed by learned Single Judges that the learned Single Judges in their exercise of supervisory jurisdiction under Article 227 of the Constitution of India refused to interfere with the impugned orders passed by the civil court. This issue has been now set at rest very exhaustively by the Division Bench of this Court, to which, one of us (J.B. Pardiwala, J.) is a party and the Division Bench has held as under :—
“The sum and substance of our discussion and findings recorded in the Judgment can be now summarized as under :
(1) When the Parliament has thought fit to restrict powers under Sec. 115 of the Code with a definite object, then, under such circumstances an order which is not revisable under Sec. 115 of the Code cannot be challenged by way of filing writ petition under Article-226 of the Constitution invoking the extra-ordinary jurisdiction of the High courts and that too an interlocutory
