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LPA/885/2011 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 885 of 2011
In
SPECIAL
CIVIL APPLICATION No. 11391 of 2010
For
Approval and Signature:
HONOURABLE
THE ACTING CHIEF JUSTICE MR. A.L. DAVE
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ATULBHAI
JAGDISHCHANDRA DAVE - Appellant(s)
Versus
DEEPALIBEN
ATULBHAI DAVE & 1 - Respondent(s)
=========================================================
Appearance
:
MR
GM JOSHI for
Appellant(s) : 1,
None for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
THE ACTG.CHIEF JUSTICE MR.A.L. DAVE
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
:20/09/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.B.PARDIWALA)
In
this appeal the appellant – original petitioner seeks to challenge
judgment and order passed by the learned Single Judge dated 22.4.2011
in SCA No. 11391 of 2010, whereby the learned Single Judge rejected
the petition confirming order passed by Second Additional Senior
Civil Judge and Judicial Magistrate First Class, Bhavnagar, dated
3.8.2010 below Exh.60 in HMP No. 80 of 2005.
2. It
is evident that the challenge before the learned Single Judge was to
the order passed by a Civil Court in a Hindu Marriage Petition.
Learned Single Judge, in exercise of his jurisdiction under Article
227 of the Constitution, refused to grant any relief and rejected the
petition. This being the position, present appeal would not be
maintainable under Clause 15 of the Letters Patent.
3. We
may state that this issue as regards maintainability of appeal in the
orders of the present nature is no longer res-integra. In the case
of Gustadji
D. Buhariwala Vs. Nevil B. Buhariwala, reported in 2011 (2) GLH 147,
the Division Bench of this High Court in paragraphs 56 and 57 have
summarised its findings as under:-
“56. 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 order passed by Civil Courts in
a regular suit proceeding.
(2) When
remedy for filing the Revision under Sec. 115 of the Civil Procedure
Code has been expressly barred then in such case the petition under
Article 227 of the Constitution would lie and not a writ petition
under Article 226 of the Constitution of India. If a petition under
Article-227 of the Constitution would lie and if the same has been
dismissed, then, no appeal under Clause-15 of the Letters Patent
would be maintainable. A petition under Article-227 is not a writ
petition. No Writ can be issued under Article-227.
(3) Where
the statute bans exercise of revisional powers it would require very
exceptional circumstances to warrant interference under Article-227
of the Constitution of India since power of superintendence was not
made to circumvent statutory law. Jurisdiction under Article-227
cannot be exercised as a cloak of appeal in disguise.
(4) There
cannot be any distinction with regard to a proceeding under
Article-226/227 and Sec. 115 of the C.P.C. when it relates to a
proceeding arising out of an order of the Civil courts passed in suit
proceeding.
(5) Where
law provides the provision of Appeal and the same is decided by the
judicial authority or where there is a scope for judicial scrutiny by
the subordinate at the top, the petition challenging such order would
be covered under Article-227 of the Constitution.
(6) Where
a petition is filed, both under Articles-226 and 227 of the
Constitution, it will have to be considered whether the point raised
in the petition arose for adjudication for the first time before the
High court. If the challenge in the petition is with respect to the
point already adjudicated upon by the subordinate court, then, it
will have to be held that the supervisory jurisdiction of the High
court was invoked and not the original.
(7) The
cause title, averments and the prayers in the petition can be taken
into account while deciding whether the petition is one under
Article-226 and 227 of the Constitution. This has to be determined
on the facts of each case having regard to –
i) nature
and the jurisdiction invoked;
ii) the
averments contained in the petition;
iii) the
reliefs sought; and
iv) most
importantly, the true nature of the principal order passed by the
learned Single Judge. The true nature of the order passed by the
learned Single Judge has to be determined on the basis of true
character of the relief granted. By merely labeling the petition
under Article-226 and by praying for Writ of Certiorari it cannot be
said that the facts justify the party to invoke the extraordinary
jurisdiction of the High court under Article-226 of the Constitution
of India.
(8) As
held by the Supreme Court in the case of Radhe Shyam V/s. Chhabi Nath
reported in (2009) 5 SCC -616, orders and proceeding of the Judicial
Courts subordinate to the High Court are not amenable to the writ
jurisdiction of the High Court under Article-226 of the Constitution,
more particularly, when the orders are passed in Suit proceeding in a
contest between two private parties.
(9) Writ
Petition is a remedy in public law which may be filed by any person
but the main respondent should be either Government, Governmental
agency or a State or instrumentalities of the State within the
meaning of Article-12. Private individuals cannot be equated with
State or instrumentality of the State. All the respondents in a writ
petition cannot be private parties. High Court can issue Writ to any
person, but the person against whom writ will be issued must have
some statutory or public duty to perform.
(10) In
a petition for relief under Article-226 of the Constitution, the
Court/Tribunal whose order is impugned in the petition must be made a
party to the petition so that the writ sought from the Court can go
against the Court/Tribunals, but if the petition is for relief under
Article-227 of the Constitution, it is well settled that the
Courts/Tribunals whose order impugned in a petition, need not be a
party in the writ petition. By entertaining the petition under
Article-227 of the Constitution, the High Court exercise its power
of superintendence, which is analogous to the revisional
jurisdiction.
57. Having
considered the entire issue threadbare and also having considered the
position of law, we hold that the appeal is not maintainable under
Clause 15 of the Letters Patent and on the ground of maintainability
the appeal fails and deserves to be dismissed. The appeal is
accordingly dismissed with no order as to costs.”
4. In
this view of the matter, we hold that the present appeal is not
maintainable and the same is hereby dismissed with no order as to
costs.
(A.L.
Dave, Actg. C.J.)
(J.B.
Pardiwala, J.)
*/Mohandas
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