ORDER
1. The writ petition preferred by Narayan Lal petitioner was dismissed by the learned single Judge after hearing petitioner’s counsel by a speaking judgment and order dated 7-9-1990.
2. Being aggrieved and dissatisfied the petitioner preferred a D. B. Civil Special Appeal against the said judgment and order dated 7-9-1990. The Division Bench after hearing the counsel for the parties, came to the conclusion that the amendment to the provisions of the Rajasthan Municipalities (Disposal of Urban Land) Rules. 1974 had not been considered by the learned single Judge and the matter had been disposed of by merely considering the unamended rule though amendment to the said rule was having a bearing on the issue and, thus, the judgment of the learned single Judge deserves to be set aside. The Division Bench set aside the judgment and order dated 7-9-1990, admitted the writ petition and remanded the case to the learned single Judge for deciding it afresh.
3. When the matter came up for consideration of the learned single Judge, it was observed by the learned Judge that “I am of the opinion that it is a prerogative or privilege of a Judge before whom the matter is placed and only he has to decide whether to admit the matter or not?” and framed the following question for adjudication by full Bench :
“Can the Division Bench, while remanding the matter to the learned single Judge, direct the single Judge to treat the petition as admitted?”
4. Learned counsel for the petitioner has urged that in view of Section 117 of of the Code of Civil Procedure (referred to hereinafter as ‘the Code’), the provisions of the Code are applicable to the Letters Patent Appeals, in the present context a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 (hereinafter called as ‘the Ordinance’). Section 117 of the Code reads as under :–
117. Application of Code to High Courts.–Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts.
5. Learned counsel for the petitioner has emphasised that neither in Part X of the Code or in the Rajasthan High Court Rules, 1952 (referred to hereinafter as ‘the Rules of 1952’) framed by the Rajasthan High Court, there is any provision which restricts the application of the Code to the appeals filed under Section 18 of the Ordinance. Once the Code is made applicable to the appeals filed under Section 18 of the Ordinance, the powers of an applicable Court as contained in Section 107 of the Code come into play. Sub-section (2) of Section 107 of the Code reads as under :–
“(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.”
6. This section provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties, as are conferred by this Code, on Courts of original jurisdiction. Thus, the learned counsel for the petitioner contends that whatever are the powers of the original Court, are the powers of the original Court, are the powers of the appellate Court. Learned counsel for the petitioner has also referred to the provisions of Order 41, Rule 33 of the Code which read as under :–
“33. Power of Court of Appeal.– The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees, in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decree, although an appeal may not have been filed against such decrees :
Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”
7. Learned counsel for the petitioner
emphasises that in terms of this rule the appellate Court has powers to make any order which ought to have been passed. The emphasis of the learned counsel for the petitioner is that the Division Bench, while hearing the special appeal, was acting as an appellate Court. The powers of the appellate Court have been saved by Section 107 and Order 41, Rule 33 of the Code. The appellate Court can exercise all or any of the powers which could be exercised by the Courts of original jurisdiction.
8. In the instant case, when the learned single Judge was ceased of the matter he could either admit or reject the writ petition. He had rejected the writ petition. But the appellate Court while considering the appeal came to the conclusion that the order of the learned single Judge deserves to be set aside. Once the order of dismissal of the writ petition was set aside it was open to the appellate Court to exercise the powers in conformity with Section 107 and Order 41, Rule 33 of the Code and if an order of admission has been passed by the appellate Court then it cannot be said that it is without jurisdiction.
9. Learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court rendered in Mahendra Singh v. Sohan Raj, AIR 1973 Raj 219 wherein this Court has held as under (at Page 220) :–
“…………………… We know
it well that no special procedure has been provided in the Rajasthan High Court Ordinance in regard to special appeals. The question that arises therefore is whether the procedure prescribed under the Code of Civil Procedure will be applicable to the special appeals …………………
. We are, therefore, disposed to hold that the provisions of Section 117, C.P.C. including Order 22, C.P.C. are applicable to Letters Patent Appeals also.”
10. Learned counsel for the petitioner has further relied upon a case decided by another Division Bench of this Court in the case of Jagdish Prasad v. State of Rajasthan, 1992 (1) WLC Raj 1, wherein the application of the Code has been recognised by both the Judges though on some other law point there was a difference of opinion.
11. Learned counsel for the petitioner has further submitted that the question, therefore, should be answered in the
affirmative and it should be held that the Division Bench could remand the matter to the learned single Judge while admitting the same.
12. Learned counsel for the respondents has contested the arguments of the learned counsel for the petitioner. Learned counsel has placed reliance on Rule 55 of the Rules of 1952 which reads as under :–
“55. Except as provided b’y these Rules or other Law, the following cases shall ordinarily be admitted, heard and disposed of by a Judge sitting alone, namely;
…..
…..
…..”
13. According to the learned counsel for the respondents, the Rules of 1952 clearly state and define the powers of the learned single Judge in dealing with the writ petitions. An exclusive domain has been given to the learned single Judge in relation to the admission of the case. It was not open to the Division Bench while remanding the case to order its admission.
14. We have given our thoughtful consideration to the arguments raised by the learned counsel for the parties.
15. Rule 55 of the Rules of 1952 provides that ordinarily the case should be heard by the learned single Judge and he has to pass orders as provided. The power conferred upon the learned single Judge by this rule is qualified by the term ‘ordinarily’. The term ordinarily has come up for interpretation before the Courts and the Courts have taken the view that ordinarily does not mean always.
16. In Bhanwar Lal v. State of Rajasthan (and connected cases) ILR (1978) 28 Raj 677 it was observed as under :–
“Rule 65 of the Rajasthan High Court Rules, 1952, provides that no application to the same effect or with the same object as a previous application upon which a Bench has passed an order shall ‘ordinarily’ be heard by any other Bench. In other words, subsequent application on the same subject is to be heard by the same Bench. In the exercise of the powers under Sub-section (2) of Section 10 of the Rajasthan High Court Ordinance, 1949 read with Section 54 and Section 57 of the States Reorganisation Act, 1956, the learned Judge was nominated to sit at the Jaipur Bench
from July 3, 1978 by the Hon’ble Chief Justice. In these circumstances, it was not possible that these applications could have been heard by the learned Judge who passed the order dated June 9, 1978. The word ‘ordinarily’ came up for consideration before the Full Bench of the Andhra Pradesh High Court and Madhya Pradesh High Court and it has been held that the word ‘ordinarily’ cannot mean ‘always’. For the reasons mentioned by the aforesaid High Court the Judge was persuaded to hear arguments and dispose of these applications.”
17. The view taken by this Court in relation to the term ‘ordinarily’ as used in Rule 65 of the Rules of 1952 can be applied in relation to Rule 55 of the Rules of 1952 also. If the word ‘ordinarily’ in Rule 55 of the Rules of 1952 does not mean always then its implication is clear that the effect of Rule 55 of the Rules of 1952 is not absolute in its term. It does not affect the power of an appellate Court as provided under Section 107 and Order 41, Rule 33 of the Code because there is nothing in the Rules of 1952 which prohibits the application of the Code to the proceedings instituted under Section 18 of the Ordinance which is in the nature of special appeal as in the case in hand. This view stands fortified by the judgment of the Hon’ble Supreme Court in Union of India v. Vipinchandra Hiralal Shah (1996) 6 SCC 721), wherein the Hon’ble Apex Court had held that the word “ordinarily” means that unless there arc good reasons for not doing so, the procedure prescribed should be followed, meaning thereby that in extraordinary circumstances deviation from the ordinary procedure is permissible.
18. Two Division Benches of this Court in the matters of Mahcndra Singh (supra) and Jagdish Prasad (supra) have held that the Cpde is applicable to the proceedings instituted under Section 18 of the Ordinance.
19. A Full Bench of the Punjab and Haryana High Court in the matter of Bikram Dass v. Financial Commissioner, Revenue, Punjab, Chandigarh, AIR 1975 Punjab 17, has held as under (at Page 7) :
“It is, thus, clear that Civil P. C. Is generally applicable to the High Court except when it is specifically excluded or unless the High Court itself has made rules superseding any particular provisions of the Code.”
20. In New India Assurance Co. Ltd. v. K. Pathumma, AIR 1987 Kerala 47 Division
Bench of the Kerala High Court observed as under :–
“An appeal to the High Court Under Section 110-D of the Motor Vehicles Act, against the award of the Claims Tribunal has to be dealt with by the High Court in the same manner in which it would deal with an ordinary appeal which is governed by the provisions of Order 41, Civil P. C. This is so because, neither the Act nor the rules framed thereunder indicate the procedure to be followed by the High Court I in entertaining or disposing of appeals Under Section 110-D. The absence of such statutory provisions would Imply that the ordinary incidents of the procedure of that Court would be attracted. Thus, an appeal Under Section 100-D of the Motor Vehicles Act must be entertained and disposed of by the High Court in the same manner as an ordinary appeal would be entertained and disposed of, and an ordinary appeal in a High Court would be governed by the provisions of the Code, as provided in Section 117 of the Code.”
21. In view of the aforesaid we are of the considered opinion that the provisions of the Code are applicable as nearly as may be to the appeals filed under Section 18 of the Ordinance and the appellate forum hearing such appeals can exercise all such powers which are conferred on an appellate forum by the Code.
22. As discussed above, Section 107(2) of the Code has clearly provided that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction. Under Order 41, Rule 33 of the Code, the Code has given powers to the appellate Court to make any order which ought to have been passed. Thus, there was a clear and unambiguous power with the appellate Court to pass an order of admission. The appellate Court could exercise all such powers which are conferred on an authority exercising original Jurisdiction. The learned single Judge undoubtedly can pass an order of admission because it was his domain as original authority. Since the learned single Judge could pass an order of admission as original authority, therefore, the appellate Court could also pass such order of admission because it has been conferred with such powers as discussed earlier.
23. In the result, the question referred to this Bench is answered in the affirmative
and it is held that the Division Bench could say that the writ petition be treated as admitted while remanding the matter to the learned single Judge. The matter is remanded back to the learned single Judge for final adjudication.