R.P. Sethi, J.
1. Aggrieved by the orders Annexure P/1, passed by the Sub Divisional Officer (Civil), the Presiding Authority, Sirsa, dated 12.10.1978 and the order of Collector, Sirsa dated 26.10.1981(Annexure P/2), the respondent Nos. 1 and 2 filed C.W.P. No. 5117 of 1981 praying therein for quashing the aforesaid two orders (Annexures P/1 and P/2). It was further prayed that pending decision of the writ petition, the dispossession of the writ petitioners and respondent No. 5 therein be stayed. The writ petition was admitted and shown in the regular case list for hearing before the learned Single Judge. It appears that upon application made by the writ petitioners the aforesaid writ petition was added on 1.2.1989 at serial No. 97 on the regular cause list. Upon submissions made by the counsel for the writ petitioners, the case was taken up by the learned Single Judge for hearing in the absence of the counsel for the appellants herein apparently on account of the representation made by the other side that the case was a covered case, as is apparent from Annexure R/3 -the Single Bench cause list for 1.2.1985. The learned-Single Judge noted few facts as alleged by the writ petitioners and disposed of the writ petition by holding:-
'On the death of Shri Dayal fresh assessment of surplus area was to be made. It is stated that it has not been done. These heirs had vested rights. The land has not been utilised and in view of the law laid down by the Apex Court in Financial Commissioner, Haryana State and Ors. v. Smt. Kala Devi and Anr., AIR 1980 SC 309, the process of utilization contemplated by Section 10-A of the Punjab Security of Land Tenures Act, is complete in respect of any surplus area only when possession thereof has been taken by the allottee or the allottees. and the other formalities have been completed. A complete tide does not pass to the allottee on a mere order of allotment. Similar view was taken by this court in Darbara Singh and Ors. v. Haryana State and Ors., C.W.P. No. 1416 of 1983, decided on January 3, 1989.
In view of the above observations, the order passed by the authorities under the Haryana Ceiling on Land Holdings Act, 1972, are quashed. If the legal heirs are in possession of excess area, the authorities will proceed in accordance with law.'
2. It is submitted that in the normal course, the matter shown at serial No. 97 was not likely to be taken on 2.2.1989 which prevented the counsel for the appellant to appear in the case on the date fixed. It may be worthwhile to mention that regular cases at serial Nos. 2, 2A, 3, 5 to 36 and 88 had been shown as remnants in the list for 2.2.1989.
3. A perusal of the judgment of the learned Single Judge had persuaded us to accept the contention of the appellant inasmuch as the point in controversy raised by the writ petitioners and denied by the official respondents were never taken into account or adjudicated vide the judgment impugned. Under the belief that the writ petition was not likely to be taken up for hearing, the appellants herein had not even filed their replies in the writ petition. The judgment of the learned Single Judge cannot therefore be termed to be a 'judgment' adjudicating the rights of the parties. The disposal of the writ petition vide the judgment impugned is, therefore, held to be not on merits but on the assumption of the case being covered by a judgment of the Supreme Court referred to in the impugned judgment. It has been conceded before us that the case of the parties was not covered by the judgment of the Supreme Court in F. C Haryana v. Kala Devi, AIR 1980 S.C. 309.
4. Both the learned counsel appearing for the parties have conceded before us that this Bench hearing the appeal against the judgment impugned has the power to remand the case to the Single Judge. Otherwise also, we are of the opinion that under special circumstances, a Division Bench hearing Letters Patent Appeal has the power and jurisdiction to remand the case to the Single Judge for getting the matter adjudicated on merits.
5. Rule 32 of the Writ Jurisdiction (Punjab and Haryana) Rules, 1976 provides, that in all matters for which no provision is made by these rules, the provisions of the Code of Civil Procedure, 1908, shall apply mutatis mutandis in so far as they are not inconsistent with these rules. Order 41, Rules 23 to 26A of the C.P.C. admittedly confer a power of remand on the appellate court to which the appeal lies under the Code.
6. A Full Bench of the Karnataka High Court in Town House Building Cooperative Society v. Special Deputy Commissioner, AIR 1988 Karnataka 312 considered the question as to whether a Division Bench hearing the writ appeals against the order of the Single Judge had the power to remand the case to the Single Judge concerned or not. Rule 39 of the Writ Proceedings Rules (Karnataka) 1977 had madea similar provision as has been made in Rule 32 of the Punjab and Haryana Rules regarding the applicability of the C.P.C. to the writ-appeals. After referring to the judgment of the Supreme Court in Ladli Prasad v. Kamal Distillery, AIR 1963 S.C.1279 and an earlier Full Bench of the Karnataka High Court in State of Karnataka v. H. Krishnappa, ILR 1975 Kant. 1015 the Full Bench held:
'There can be no gainsaying that a learned Single Judge while exercising the power of deciding a Writ Petition (by virtue of allocation of work) does not sit as a Subordinate Court or Judge subordinate to those who constitute a Division Bench as the question of subordination does not arise at all. Resultantly, the applicability of the provisions of Order 41, Rule 23 to 26A is not attracted. But power or a jurisdiction entrusted to a particular Judge as part of the function of the High Court may involve the exercise of a power or jurisdiction which is subject to a superior power like an appellate power. Exercise of power of a single Judge of the High Court depends upon the allocation of work by the Chief Justice. Each one exercises the power (or) jurisdiction of the High Court. The decision of the learned single judge, by virtue of a specific statutory provision, is subject to review in appeal by the Division Bench.'
In Ladli Prasad v. Kamal Distillery, AIR 1963 the Supreme Court 1279 has observed:-
'Where an appeal lies to a Division Bench of the High Court against a judgment of a single judge of the High Court exercising original or appellate jurisdiction, the decision of the single judge should be regarded as a decision of the Court immediately below the Division Bench which hears the appeal, but the single judge of the High Court cannot be regarded as a Court subordinate to the High Court.'
When a judgment of a learned single judge is appealed against, the single judge does not become subordinate to the appellate Bench though as observed by the Supreme Court above, the decision of the single judge should be regarded as a decision of the Court immediately below the Division Bench which hears the appeal. Nature of the appellate power exercised by the Division Bench is not curtailed in any way merely for the reason that the writ appeal is intra- Court appeal. The Bench while dealing with the appeal may be faced with various problems, i.e. the learned single judge may allow a Writ Petition and issue a writ on a pure question of law without going into the other questions. The Division Bench in appeal may disagree with the interpretation of law which would result in the reversal of the order of the single judge. Resultantly, the other questions would survive for consideration. In such a situation the Bench may choose to decide the other questions itself. But there will be nothing wrong for the Bench to remand the case for consideration by the learned single judge of the other questions to be decided on merits. The appeal is against the decision of a learned single judge. The Bench should have the benefit of the opinion of the learned single judge on all points. If the Bench does not have the opinion and findings of the learned single judge will it not be handicapped to some extent while deciding the other questions by itself? Ordinarily, the Bench in appeal does not interfere with the findings arrived at by a learned single judge on facts. In such a case it would be more appropriate to obtain the benefit of the opinion of the learned single judge.
11. Now take some other case where the Writ Petition has been dismissed for non-prosecution or in limine on the ground of delay or that the Writ Petition is not maintainable etc. Can in such case an argument justifiably be raised that in the event of the Appeal Bench taking a contrary view the Writ Petition cannot be remanded and has to be decided by the Bench. Obviously, the. answer has to be in the negative. In such cases the Court of appeal may not like to convert itself into original Court having jurisdiction to hear a Writ Petition and thereby decide the Writ Petition on merits. Moreover, the appeal Court may not tike to deprive a party of its right of appeal by deciding the petition on merits.
It was further held:-
'The power of appeal,as earlier observed, cannot be hedged by any limitation, as conferring such power implies in it all incidental and ancillary powers necessary to effectuate the grannt of specified power. In Income-tax Officer Cannanore v. M.K. Mohammed Kunhi, AIR 1969 SC 430 question arose whether an appellate authority has power to stay the operation of the order appealled against, in the absence of a specific provision and Supreme Court said that such a power was implicit in the conferment of the appellate power. In this connection the Supreme Court referred to many instances of the scope of an appellate power and referred to a Full Bench decision of Kerala High Court reported in Dharmadas v. State Transport Apettate Tribunal, AIR 1963 Ker 73 (apparently with approval) and observed at p.434.
The Full Bench decision in Dharamadas v. State Transport Appellate Tribunal, 1962 Ker.LJ.1133: AIR 1963 Ker 73, related to the question whether a remand could be ordered in exercise of appellate jurisdiction Under Section 64 of the Motor Vehicles Act in the absence of any express power to the effect existing in the Statute. It was held that the power to remand was incidental to and implicit in the appellate jurisdiction created by Section 64.'
A Division Bench of the Calcutta High Court in Mahadeo Prosad Saraf v. S.K. Srivastava, AIR 1963 Cal. 152 had also held:-'
'with regard to the question whether the appellate Court's power is limited only to the consideration of a question whether a Rule Nisi should issue or not and to remit the case to the lower Court in the event of its coming to the conclusion that a case for a Rule Nisi had been made out, it is to be observed that such limitation or restriction on the power of the appellate Court is not warranted. There may be cases in which the appellate Court may consider it desirable and proper to dispose of the proceedings under Article 226 of the Constitution finally at the appellate stage without sending the case back for disposal by the trial court. To take an example if an application under Article 226 is made for challenging the legality of an act on the ground that the provisions of a statute pursuant to which the action is taken are ultra vires and that is the sole ground on which the application is based and the trial Court after hearing the petitioner on the question dismissed the application in limine and refuses to issue a Rule Nisi and the petitioner prefers an appeal against the order of dismissal, can it be said that the appellate Court is bound to remand the case to the trial court if it is satisfied that there is substance in the contention of the appellant? The answer, in my view must be in the negative. No investigation into any question of fact is necessary in such a case and no filing of affidavit setting out any fact may be called for in such a case. The only question for determination before the appellate Court in such a case is a question of law and there is, therefore, no reason why the appellate Court cannot dispose of the proceedings under Article 226 finally instead Of sending the case back for disposal by the trial Court and driving the parties to incurring of further unnecessary costs. It is true that when questions of facts are to be gone into and it is necessary to give an opportunity to the respondents to meet the allegations contained in the petition, the Court may think it fit to remit the case to the trial Court with directions for giving an opportunity to the Respondents and for filing of affidavits but I do not think that any hard and fast rule can be laid down that in each and every case of an appeal from an order summarily rejecting an application under Article 226, the appellate Court is bound to remit the case for disposal by the trial Court.'
7. After referring to various judgments, the question referred to the Full Bench was answered as follows:
i) That there is an inherent power in the Division Bench hearing writ appeal against an order of a learned Single Judge, to remand the case to be decided afresh by a learned Single Judge.
ii) That a remand order may be passed in cases where a Writ Petition has been dismissed for non-prosecution or in limine or on the ground of delay or maintainability or on some question of law without going into merits, etc.
However, it is best in these matters to be neither dogmatic nor exhaustive, yet the aforesaid categories are the ones in which the Appellate Bench may exercise its power of remand; and
iii) That where a writ petition has been disposed of on merits by an order made by a learned Single Judge, a Division Bench on Appeal would have no jurisdiction to remand such a case to a learned Single Judge for fresh decision on merits and the appeal has to be disposed on merits by the Division Bench itself.
We agree with the conclusions arrived at by the Full Bench of the Karnataka High Court and are further of the opinion that the appellate power conferred upon the Division Bench includes the power to remand to the Single Judge. Such a power is deemed to be inherent in the appellate power as rightly pointed out by the Karnataka High Court since the appellate power is conferred on a Bench of the same High Court therefore while exercising such power the Appellate Bench will have to be guided by principles of propriety while remitting a cause to the original side bench. Frequent exercise of power of remand is uncalled for but if the facts and circumstances of the case so warrant there is no bar on the exercise of such a power. If the appellate Bench has the power to set aside or modify the judgment of the learned Single Judge, it is presumed to be having the power to remand if the circumstances of the case so require.
8. The peculiar facts of the instant case have persuaded us to remand the case in the interest of justice. The matter was taken up for hearing without the reply of the respondents, heard and adjudicated in their absence on the assumption of the case being a covered case by the judgment of the Supreme Court which was not correct. The writ petition filed by respondents 1 and 2 cannot properly be adjudicated in the absence of the pleadings of the appellants herein. No party can be deprived of the right of preferring an appeal under the Letters Patent against the judgment on merits. The decision of the learned Single Judge cannot be held to be a decision of the dispute on merits.
9. Under the circumstances, the appeal is allowed by setting aside the judgment imnugned in this appeal. The writ petition is remanded back to the learned Single Judge for adjudicating all the pleas raised by the parties in accordance with the provisions of law. The appellants herein are permitted to file their implies in the writ petition within a period of two months but subject to payment of Rs. 3,000/- as costs to be paid to respondent Nos. 1 and 2. The replication to the aforesaid reply, if so desired, be filed within a further period of one month. While deciding the writ petition, the learned Single Judge may also take into consideration the evidence produced by the parties during the pendency of the appeal. The costs of this appeal to follow the result of the writ petition.