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2008 Supreme(Ori) 170
2008 (I) OLR — 783
THE CHIEF JUSTICE AND B.N. MAHAPATRA, J.
Pravasini Behera... Appellant
Versus
Sankar Das and seven others... Respondents
W.A. No.73 of 2007
Decided on 4th April, 2008.
For Appellant:M/s. Neelakantha Panda, S. Mishra, R. B. Mishra, M. R. Behera and A. Mishra
For Respondents:M/s. Rama Chandra Sarangi, A. K. Dash, P. M. Pratihari, D. Panda, L. Pradhan, S. Das, C. Tripathy, P. K. Singh, M. K. Pattanaik, N. Ray and P. K. Nayak
Headnote:1. CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Partition suit - Writ - Whether a writ petition is maintainable in a proceeding arising out of a partition suit filed in a Civil Court of competent jurisdiction ? - Ex parte decree passed - Ex parte decree has been passed in view of writ petitioner sheer carelessness and negligence - Normally a writ Court should not come to the aid of one who is indolent and careless in perusing litigation - An order dismissing an application under Order 9 Rule 13 C.P.C. ex parte can be appealed against under Order 43, Rule 1 Clause (o) - In the present case the said remedy is sought to be bypassed by creating the subterfuge of an interim application for approaching the writ Court - Held, filing of application under Articles 226/227 of the Constitution is impermissible.
But in exercise of supervisory jurisdiction under Article 227, the High Court can not only quash the proceeding or order but it may also make such direction as the facts of the case may call for, and may be by way of guiding the inferior tribunal or Court as to the manner in which it would proceed further to give further directions in the matter. In appropriate cases even the High Court, while exercising supervisory jurisdic¬tion under Article 227, may substitute the decision of the infe¬rior tribunal by its own which, the High Court thinks, the infe¬rior tribunal should have made.
Even if the said petition is treated to be a petition filed under Articles 226 and 227 of the Constitution, as is sought to be contended in this case, in that situation also the Supreme Court held, where the party chooses to file his application under both the Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the Court ought to treat the applica¬tion as having been made under Article 226 even if in deciding the matter in its final order the Court gives ancillary direc¬tions which may pertain to Article 227. (Paras - 18 to 22)
2. LETTERS PATENT APPEAL - Partition suit - Suit decreed ex parte - Restoration petition rejected - Writ - Single Judge restored it subject to the condition for payment of costs - Appeal - Maintainability - Held, present Letters Patent Appeal maintainable. (Para - 18)
3. SUIT - Partition - Suit decreed ex parte - Restoration of suit - Rejected - Writ - Maintainability - A writ Court should not come to the aid of one who is indolent and careless in pursuing the litigation - Filing of application under Articles 226/227 of the Constitution is impermissible. (Para - 23)
4. CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Fundamental difference in the way of exercise of jurisdiction between the two articles enumerated. (Para - 12)
5. CIVIL PROCEDURE CODE, 1908 - Order 9, Rule 13, Order 43, Rule 1 - Constitution of India - Arts. 226 and 227 - Partition suit - Suit decreed ex parte - Restoration of - Rejected - Writ - An order dismissing an application under Order 9, Rule 13, C.P.C. ex parte can be appealed against under Order 43, Rule 1, Clause (d) - Filing of application under Articles 226/227 of the Consti¬tution is impermissible. (Para - 22)
6. PRECEDENT - Finding of Division Bench in two cited cases rendered ‘per incuriam’ - Those two judgments cannot constitute a binding precedent having been rendered ‘per incuriam’ - A Division Bench should not differ with another Division Bench, without referring it to a larger Bench, does not hold good in a case where the previous Division Bench judgment has been rendered ‘per incuriam’. (Paras - 15 to 18)
JUDGMENT
A.K. GANGULY, C.J. — This writ appeal arises out of an order dated 24.9.2007 passed by a learned Single Judge of the writ Court in W.P. (C) No.15159 of 2006.
2. The material facts of the case are that on 7.11.1998 a partition suit being Title Suit No. 609 of 1998 was filed by one Pravasani Behera, the present appellant, against the writ peti¬tioner Sankar Das and other opposite parties. The writ petitioner and other opposite parties after being served with notice ap¬peared before the learned Civil Judge (Senior Division), Bhuba¬neswar on or about 24.11.1998. As thereafter no steps were taken by the writ petitioner along with other opposite parties, the defendants in the suit were set ex parte on 20.08.1999. Then, the suit was decreed ex parte on 17.08.2001. After about one year and three months a Misc. Case being Misc. Case No. 588 of 2002 (first Misc. Case) was filed by the writ petitioner/defendant No.1 in the suit, under Order 9, Rule 13 of the Civil Procedure Code to set aside the ex parte decree which was dismissed for default on 14.7.2003. Again almost after one year and six months another Misc. Case being Misc. Case No. 71 of 2005 (second Misc. Case) was filed by the writ petitioner/defendant No.1 to restore the first Misc. Case. On 06.12.2005 the second Misc. Case No.71 of 2005 was also dismissed for default. Thereupon, notices were received by the parties in connection with appointment of Commis¬sioner. On 26.06.2006 a C.M.A. No. 293 of 2006 along with I.A. No. 304 of 2006 was filed by the writ petitioner/defendant No.1 for setting aside the dismissal order dated 6.12.2005 and also to restore the first Misc. Case No. 588 of 2002. Both the matters were taken up for hearing by the learned Civil Judge (Senior Division) and were dismissed by a reasoned order dated 25.10.2006. Challenging that order, the writ petition, being W.P.(C) No. 15159 of 2006, was filed on 3.11.2006.
3. The learned Judge of the writ Court by an order dated 24.9.2007 was pleased to set aside the order dated 25.10.2006 passed by the learned Civil Judge (Senior Division) and directed that I.A. No. 71 of 2005 shall be restored subject to the condi¬tion for payment of costs.
4. One basic question which comes for consideration in this case is, whether such a writ petition is maintainable in a proceeding arising out of a Partition suit filed in a Civil Court of competent jurisdiction.
5. An argument is sought to be made by the writ petitioner that what was filed before the writ Court was a petition filed under Article 227 of the Constitution of India. But this is not borne out from the records. In the cause title of the petition filed before the writ Court, original writ jurisdiction of the High Court was invoked.
6. From a perusal of the petition, it is clear that which was filed before the Court was a writ petition. Immediately after the cause title, the petitioner has given a declaration that the said petition which was filed was a writ petition. In paragraph 5 of the said petition also the petitioner stated that he has filed a writ petition. In the prayer portion also the same has been described as a writ petition. Therefore, it is an admitted posi¬tion that the petition which was filed before the Court was a writ petition. In the cause title it has been stated that it is an application under Articles 226 and 227 of the Constitution.
7. The attempt to treat the petition as one filed under Article 227 was made by the learned counsel for the opposite party for the purpose of contending that from an order passed on a petition under Article 227, no appeal can be entertained by this High Court and the only remedy of an aggrieved party is to go to the Hon’ble Supreme Court.
8. It has been argued that a petition under Article 227 can be called a writ petition and it was submitted that a Divi¬sion Bench of this High Court has held so in the case of Rasamani Devi v. Naba Kishore Acharya and another, reported in 2005 (II) OLR 779 and also in the case o
