Dhondiba Malharrao Naik vs Shriram Ramchandra Aindalwar
2003 Latest Caselaw 225 Bom

JUDGMENT

B.H. Marlapalle, J.

1. In Regular Civil Suit No. 108 of 2001 instituted before the Court of Civil Judge, Senior Division, Biloli, the present appellant was the defendant and the suit was filed for declaration of ownership of Block No. 53 and perpetual injunction. A separate application for temporary injunction protecting the possession of plaintiff over Block No. 53 was filed. The said application at Exhibit 6 came to be rejected by order dated 9-1-2002. The plaintiff, therefore, approached the District Court in Misc. Civil Appeal No. 4 of 2002 which was allowed by the learned Additional District Judge at Biloli by his judgment and order dated 21-11-2002.

2. Being aggrieved by the said order, the defendant approached this Court in Writ Petition No. 5141 of 2002 which was filed under Article 227 of the Constitution of India and more so, the petitioner was perhaps satisfied that the remedy of revision under section 115 of the Code of Civil Procedure was not available to him. This Court (Single Bench) rejected the petition summarily as not tenable. The operative part of the order dated 3-12-2002 rejecting Writ Petition No. 5141 of 2002 reads thus:

"In view of the judgment of this Court in the matter of Bharat Kumar Agrawal v. Anita Trust and another, no writ petition is tenable against interlocutory order."

Hence, this letters patent appeal filed by the original defendant.

3. In view of the importance of the issues involved, we had also issued notice to the Bar Association of this Bench. S/Shri P.K. Joshi and V.T. Choudhary, learned Advocates, have addressed us on behalf of the Bar Association.

4. In the case of Bharat Kumar Agrawal (supra) this Court has solely considered the prayer made by the revision applicants for directions to convert the pending civil revision applications filed under section 115 of the Code of Civil Procedure into writ petitions under Article 227 of the Constitution of India and the same was turned down. It has not been held by this Court in Bharat Kumar Agrawal's case that a petition under Article 227 of the Constitution of India assailing an interlocutory order cannot be entertained. This could be gathered from the following observations made in paras 16 and 25 of the judgment:

"It is true that I am not deciding a writ petition under Article 227 of the Constitution of India or its scope. I am also not deciding the question as to whether in a given situation the powers under Article 227 can be exercised to correct an illegal order made by subordinate Court. That question can be squarely considered in a lis brought before this Court under Article 227. I am only concerned with the question as to whether a conversion from a revision application to a writ petition is possible or permissible. ........

I have already made it clear and I repeat that all observations made by me in relation to the interpretation of section 115 and Article 227 are made pertaining to the prayer for conversion of revisions en masse into petitions and the authority of this Court to direct such conversion with reference to the provisions of Article 227. These observations should not, therefore, be construed as making any inroads on the jurisdiction of this Court under Article 227, the aspect of which can be independently considered."

5. In the case of Prabhudas Narayan Gedam and others v. Municipal Council, Bhadrawati, , a petition was filed assailing the order dated 8-8-2002 passed by the learned Additional District Judge, Chandrapur, declining to grant interim injunction to the petitioners restraining the Municipal Council from acting on the notice for eviction served upon them under section 179(5) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1966. The petitioner approached the Civil Court alongwith an application for injunction and the same was turned down by the trial Court. The petitioner carried an appeal to the District Court but in vain. The issue of maintainability of the petition invoking the powers under Article 227 of the Constitution of India was raised at the threshold before the Single Bench. It was contended that in view of the amendments brought into force with effect from 1-7-2002 in the scheme of section 115 of the Code of Civil Procedure, the petition could not be entertained so as to defeat the intention of the legislature in amending the said section. This Court, by referring to the legal position, also held that any amendment to the Code of Civil Procedure would leave the powers of High Court under Article 227 unaffected, notwithstanding the legal position that the powers under Article 227 have to be exercised only in appropriate cases, it was held that the writ petition was maintainable. The powers conferred on the High Court under section 115 of the Code of Civil Procedure are of judicial character and now have been curtailed by the amendment brought into force with effect from 1-7-2002. This curtailment would not have any effect upon the powers conferred on the High Court under Article 227, even if they appear to overlap with the powers under section 115 of the Code of Civil Procedure because such powers cannot be fettered even by the constitutional amendment. We agree with the said views and they support the case of the present appellant.

6. Shri A.G. Godhamgaonkar, learned Advocate appearing for the appellant, submitted that while rejecting Writ Petition No. 5141 of 2002 as not tenable, the learned Single Judge erroneously placed reliance on the decision in Bharat Kumar Agrawal's case (supra) and the observations that a petition does not lie against an interlocutory order. This view is contrary to the well-established legal position. He further submitted that the subsequent decision in the case of Prabhudas Narayan Gedam (supra) clearly supported his contentions that Writ Petition No. 5141 of 2002 ought to have been entertained and decided on its own merits rather than rejecting it as not maintainable.

7. The powers of this Court to entertain a petition under Article 226 or Article 227 of the Constitution of India, inspite of statutory bar created by a special statute or by way of an amendment in the Constitution have been dealt with by a 7-Judge Bench of the Apex Court in the case of L. Chandra Kumar v. Union of India and others, 1997(3) Bom.C.R. 449 : A.I.R. 1997 S.C. 1126. It was held in the said case that the power vested in the High Courts to exercise judicial superintendence over the decision of all Courts and Tribunals within their respective jurisdiction is also part of the basic structure of the Constitution and the power of judicial review over the legislative action vested in the High Courts under Article 226 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. The amendment made to the scheme of section 115 of the Code of Civil Procedure and brought into force with effect from 1-7-2002 does not in any way affect the powers of this Court to entertain a writ petition under Article 226 and/or Article 227 of the Constitution. Such petitions, nonetheless, are required to be dealt with on the touchstone of well-established legal position by a catena of decisions governing the limitations on the supervisory powers. Nonetheless, it cannot be accepted that a petition does not lie against an interlocutory order passed by a subordinate Court/Tribunal.

8. We, therefore, allow the letters patent appeal and restore Writ Petition No. 5141 of 2000 to the file. The appellant is at liberty to move a motion for the petition being heard on its own merits. No order as to costs. C.A. does not survive.