29 Jun 2121

A Letter Patent Appeal challenging the order passed by the learned Single Judge in a Writ Petition filed under Article 226 of the Constitution of India is not maintainable - Bombay High Court

Case : Ramdayal Gulabchand Khandelwal & Others v. Mamta Mohanlal Khandelwal & Others Letter Patent Appeal No. 63/2010 In Writ Petition No-.3710/2005 (D) With C.A.Z. No. 6/2019

Court : Bombay High Court

Bench : Justice A. S. Chandurkar and Justice Pushpa V Ganediwala

Decided on : 29 Jun 2121

Relevant Statutes

Articles 226 and 227 of the Constitution of India

Brief Facts and Procedural History

1. The predecessors of the appellants had filed Regular Civil Suit No.134 of 1967 against the predecessor of the respondents who was described as a licensee for his eviction along with a further prayer for the restoration of possession of the suit property which consisted of a tiled room along with the kitchen. During the pendency of the said suit, the parties entered into a compromise by which it was undertaken by the defendant that in Diwali-1987 he would vacate the suit premises. On failure to vacate the same, the plaintiffs were entitled to execute the said decree and recover possession.

2. The compromise decree was accordingly passed in terms of the compromise. Since the defendant did not vacate the suit premises as per the compromise deed the plaintiffs filed execution proceedings being Regular Darkhast No.10 of 1988. In the said execution proceedings the judgment debtor raised an objection to the maintainability of the execution proceedings, reasons for which are not required to be gone into. In short, it was the case of the judgment debtor that the decree passed on compromise was not executable and hence the execution proceedings were liable to be dismissed.

3. On 03.10.1988 the learned Judge of the Executing Court upheld that objection and dismissed the execution proceedings by holding the same to be not maintainable in view of the fact that the decree was not executable. The decree holders challenged that order before the Appellate Court but that appeal was dismissed as not maintainable.

4. The decree holders then filed Writ Petition No.3710 of 2005 under Articles 226 and 227 of the Constitution of India challenging the order passed by the Executing Court.

5. The learned Single Judge by his judgment dated 19.12.2008 upheld the order passed by the Executing Court and consequently dismissed the said writ petition. The aforesaid judgment of the learned Single Judge had been challenged before the Honourable Bombay High Court letters patent appeal. The appeal was admitted on 28.01.2010. It was thereafter that the respondents filed C.A.Z. No.6 of 2019 seeking dismissal of the letters patent appeal on the ground that it was not maintainable.

Issues of the case

Whether a letters patent appeal challenging the order passed by the learned Single Judge in a writ petition filed under Articles 226 and 227 of the Constitution of India in which an order passed by the Civil Court was impugned, is maintainable?

The Observation of the Court:

After considering the arguments of both the parties the Honourable Bombay High Court observed that:

1. The Honourable Bombay High Court observed that in Surya Dev Rai Versus Ram Chander Rai [2004 (1) Mh.L.J. 633 (SC)], it was held by a Bench of two Hon’ble Judges of the Honourable Supreme Court that an order passed by the Civil Court was amenable to writ jurisdiction under Article 226 of the Constitution of India.

2. On a reference made as regards the correctness of that view in Radhey Shyam & Another Versus Chhabi Nath & Others [2015 (3) Mh.L.J. 296 (SC)] a larger Bench of the Honourable Supreme Court answered the same by holding that judicial orders of the Civil Court were not amenable to writ jurisdiction under Article 226 of the Constitution of India and that the jurisdiction under Article 227 of the Constitution of India which was distinct from the jurisdiction under Article 226 of the Constitution of India could alone be exercised. The view as taken in Surya Dev Rai Versus Ram Chander Rai [2004 (1) Mh.L.J. 633 (SC)], was overruled. Thereafter in Jogendrasinhji Vijaysinghji V. State of Gujarat and Ors. [(2015) 9 SCC 1]the question of maintainability of letters patent appeal was again considered and after referring to the judgment of the larger Bench in Radhey Shyam and Anr. V. Chhabi Nath and Ors. [2015 (3) Mh.L.J. 296 (SC)].

3. The Honourable Bombay High Court observed that it was thus held in paragraph 45.2 that an order passed by the Civil Court was only amenable to be scrutinized by the High Court in the exercise of jurisdiction under Article 227 of the Constitution of India which was different from Article 226 of the Constitution of India and as held in Radhey Shyam and Anr. V. Chhabi Nath and Ors. [2015 (3) Mh.L.J. 296 (SC)] that no writ could be issued against the order passed by the Civil Court ad therefore no letters patent appeal would be maintainable.

4. The Honourable Bombay High Court observed that It is thus clear that in view of aforesaid pronouncements in Radhey Shyam & Another Versus Chhabi Nath & Others [2015 (3) Mh.L.J. 296 (SC)], Jogendrasinhji Vijaysinghji V. State of Gujarat and Ors. [(2015) 9 SCC 1] and Ram Kishan Fauji Versus State of Haryana & others [(2017) 5 SCC 533] an order passed by the Civil Court could be scrutinized by the High Court in the exercise of jurisdiction only under Article 227 of the Constitution of India and as no writ of certiorari could be issued for quashing the order passed by the Civil Court, a letters patent appeal challenging such adjudication by the learned Single Judge would not be maintainable.

5. We may note that in paragraph 63 of the judgment of the Constitution Bench in Naresh Shridhar Mirajkar Versus State of Maharashtra [AIR 1967 SC 1], it was held that “certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction”. Another Full Bench judgment of the Honourable Bombay High Court in Motilal Khamdeo Rokde & Others Versus Balkrushna Baliram Lokhande (since deceased) through L.Rs. Chandan s/o Balkrishna Lokhande & Others [2020(1) Mh.L.J. 110], the letters patent appeal was not maintainable as the jurisdiction exercised by the learned Single Judge was only under Article 227 of the Constitution of India.

6. The Honourable Bombay High Court stated that in the passing note that the proposition of law that once a petition has been admitted it could never be dismissed on the ground of alternate remedy has been held to be not an absolute proposition of law in the State of Uttar Pradesh & Another Versus Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti & Others [(2008) 12 SCC 675]. The objection to the maintainability of the letters patent appeal a jurisdictional aspect that goes to the root of the matter and the Honourable Bombay High Court, therefore, do not find any reason for not considering the objection raised to the maintainability of the letters patent appeal at the stage despite the fact that the letters patent appeal was admitted in the year 2010.

7. The Honourable Bombay High Court as noted above the larger Bench of the Honourable Supreme Court in Jogendrasinhji Vijaysinghji Versus State of Gujarat & Others [(2015) 9 SCC 1] has held in clear terms that an order passed by the Civil Court is amenable to scrutiny by the High Court only in the exercise of jurisdiction under Article 227 of the Constitution of India. In other words, no letters patent appeal would be maintainable against a judgment in a writ petition raising challenge to the order passed by the Civil Court as the jurisdiction exercised by the Single Judge in such proceedings is only under Article 227 of the Constitution of India. As a result of the law laid down in Jogendrasinhji Vijaysinghji Versus State of Gujarat & Others [(2015) 9 SCC 1] it will have to be held that the letters patent appeal itself is not tenable. For this reason, that what was done by the Honourable Supreme Court in the said decision was stating the correct position of law as regards the nature of jurisdiction exercisable in writ jurisdiction while entertaining challenge to an order passed by the civil Court.

8. In the said regard, Honourable Bombay High Court referred to the following observations of the decision in Lily Thomas & Others Versus Union of India & Others [(2000) 6 SCC 224] and decision in Assistant Commissioner, Income Tax, Rajkot Versus Saurashtra Kutch Stock Exchange Ltd. [2008(12) Scale 582] were also relevant.

9. Honourable Bombay High Court stated that it thus becomes clear that in the light of the decision in Jogendrasinhji Vijaysinghji Versus State of Gujarat & Others [(2015) 9 SCC 1] the letters patent appeal is not maintainable. The mere fact that it was admitted cannot be a reason to preclude the Court from examining the jurisdictional aspect of its tenability especially when the objection raised is that in law the letters patent appeal itself was not maintainable.

The Decision Held by the Court

The Honourable Bombay High Court held that:

1. The preliminary objection raised to the maintainability of the letters patent appeal is upheld.

2. The civil application allowed.

3. The letters patent appeal was dismissed as not maintainable.

4. Needless to state that the appellants are free to seek redressal of their grievances that were raised in the letters patent appeal by initiating appropriate proceedings.

5. All questions on merits, kept expressly open.

6. The parties bear their own costs.

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