Town House Building Co-operative Society Ltd. Vs. Special Deputy Commissioner - Court Judgment

SooperKanoon Citationsooperkanoon.com/375259
SubjectCivil
CourtKarnataka High Court
Decided OnFeb-11-1988
Case NumberW.P. Nos. 5540 of 1975 and 5766 of 1976
JudgePrem Chand Jain, C.J., ;Rama Jois and ;Shivashankar Bhat, JJ.
Reported inAIR1988Kant312; ILR1988KAR579; 1988(2)KarLJ510
ActsConstitution of India - Articles 214, 225 and 226; Karnataka High Court Act, 1962 - Sections 4; Writ Proceedings Rules (Karnataka), 1977 - Rule 39; Code of Civil Procedure (CPC), 1908 - Sections 107 - Order 41, Rules 23 to 26-A
AppellantTown House Building Co-operative Society Ltd.
RespondentSpecial Deputy Commissioner
Appellant AdvocateM.N. Hegde, Adv.
Respondent AdvocateGovt. Adv., for State and Authorities, ;B.A. Reddappa Sadashivappa, ;R.B. Vasudeva Reddy, ;H.K. Vasudeva Reddy, Advs. and ;R.N. Narasimha Murthy, Sr. Adv.
Excerpt:
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- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 125: [k.l. manjunath, j] claim for maintenance held, widowed daughter-in-law and her minor daughter cannot claim maintenance from her in laws under this section, in view of specific provisions under section 19 of the hindu adoption & maintenance act, 1956. hindu adoptions and maintenance act,1956[c.a.no.78/1956] -- section 19: [k.l. manjunath, j] claim for maintenance held, widowed daughter-in-law and her minor daughter cannot claim maintenance from her in laws under section 125 of cr.p.c., in view of specific provisions under section 19 of the hindu adoption & maintenance act, 1956. - ' a grant of appellate jurisdiction implies inclusion of the power necessary to exercise it effectively, to make all orders that will.....
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premchand jain, c.j.1. the question of law that needs determination by us is in the following terms:'whether a division bench hearing writ appeal against an order of single judge has power to remand the case to the single judge concerned or not?'. -2. w. p. 5540 of 1975 was rejected by a learned single judge of this court on 8th jan 1976. writ appeal 35 of 1976 was preferred against that order which came up for hearing before a division bench-of this court. without going into the merits of the case, on the points that arose for consideration, the appellate bench passed the following order'for the reasons stated above, we set aside the order under appeal and remand w.p.5540/75 for fresh disposal in accordance with law after giving opportunity to the appellant to impaled the state.....
Judgment:

Premchand Jain, C.J.

1. The question of law that needs determination by us is in the following terms:

'Whether a Division Bench hearing Writ Appeal against an order of single Judge has power to remand the case to the single Judge concerned or not?'. -

2. W. P. 5540 of 1975 was rejected by a learned single Judge of this Court on 8th Jan 1976. Writ Appeal 35 of 1976 was preferred against that order which came up for hearing before a Division Bench-of this Court. Without going into the merits of the case, on the points that arose for consideration, the appellate Bench passed the following order

'For the reasons stated above, we set aside the order under appeal and remand W.P.5540/75 for fresh disposal in accordance with law after giving opportunity to the appellant to impaled the State Government and the owner of the land. Writ Appeal allowed. No costs,

Sd/- K. Bhimiah, Judge.

Sd/-S.M.Sait,Judge.

3. Earlier in this Court a question had arisen regarding the power-of the Division Bench to remand the case to the single Judge in Ninganna. v. Narayana Gowda : AIR1983Kant116 . Explaining the appellate jurisdiction of High Court under S. 4 of the Karnataka High Court Act, I961 and the concept of power exercisable by the learned single Judge and the Division Bench in appeal while exercising the jurisdiction under Art. 226 of the Constitution, it has been observed thus :

'When an appeal is preferred under S. 4of that Act against an order of a single Judge to a Division Bench, the jurisdiction. which the latter exercises is also the very same jurisdiction under Art. 226 of the Constitution. On this aspect, a Full Bench of this Court in State of Karnataka v. H. Krishnappa ILR (1975) Kant 1015 at p. 1049 stated as follows :

'....When a Division Bench entertains an appeal from a decision of a single Judge in exercise of powers under Art. 226, the Division Bench, in deciding such appeal exercises the same power under that Article, whether it (the Division Bench) affirms, river sensor modifies the decision of the single Judge ......

'When the Division Bench, which hears and decides appeals from the decisions of single Judge, are also a part of the High Court and exercises the same powers under Art. 226, while deciding such appeals ...........

The Writ Appeal jurisdiction, therefore, cannot be compared and is not akin to an appellate jurisdiction as ordinarily understood, which presupposes the existence of a superior Court and an inferior Court. See Shankar Ramachandra Abhyankar v. Krishna DataStream : [1970]1SCR322 and no such relationship exists between a single Judge and a Division Bench as both exercise the jurisdiction vested in the High Court.

There is no difference between a Writ Petition referred to a Division Bench or a Writ Petition which comes up before a Division Bench through a writ appeal, in the matter of exercise of the jurisdiction and powers of this. Court under Art. 226 of the Constitution. Therefore, in our view in cases where a Division Bench hearing a writ appeal against an order of single Judge rejecting a Writ Petition at preliminary hearing without notice to the respondents or in a case of this type where the Writ Petition was heard and decided, without imp leading necessary parties as a result of which defect. the order in the Writ Petition is liable to be set aside, the writ matter have come up before the Division Bench, the most appropriate course for the Division Bench is to decide the Writ Petition itself.'

Finding that in view of the aforesaid judgment, the Bench had no jurisdiction to remand the case for the decision by the learned single Judge, the matter was referred to a Division Bench to re-hear the Writ Appeal 35 of 1976. On reference by the learned single Judge the appeal was put up for hearing before the Bench. Before full-dressed arguments could be advanced by the learned counsel for the parties, an unreported judgment of this Court in J. R. Venkategowda and Javier Gowda v. Missan D. C. C. Bank W. A. Nos. 133 and 134 of 1987, D/- 26-6-1987 was brought to the notice of the Bench wherein with regard to t he power of remand t he Bench has observed thus -

'During the discussion yet another aspect was presented. it was mentioned that in view of the circumstances that the jurisdiction of the Appellate Bench under S. 4 of the Karnataka High Court Act is not strictly an Appellate jurisdiction in the sense generally understood, as there is, and could be. no relationship as between a superior Court and an inferior Court and that Appellate jurisdiction being necessarily a mere second look at the matter by the same Court, the Appellate Bench cannot remand a matter to the single Judge but should itself finally dispose of the Writ Petitions. This proposition might perhaps, have to be considered in the light of the observations made by the Supreme Court in Uranium Keshao Meshrain v. Smt. hikabai, : [1986]1SCR731 '.

(Underlining is ours)

In view of the aforesaid observation in the unreported judgers. the Bench thought it proper to refer the question stated above for decision by a Full Bench. I hat is how we are seized of the matter.

4. At the outset it may be observed that challenge to S. 4 of the Karnataka High Court Act, 1961, has been negative-by a Full Bench of this Court in State :of Karnataka v. H. Krishnappa ILR (1975) Kant 1015 and the Provision for the writ petitions to be heard and decided by a single Judge has been upheld. The question that the conferment of the appellate jurisdiction on the High Court over the decision of a single Judge of the High Court 'would amount to alteration of organization of the High Court or reorganization of the High Court and the question that the State Legislature had no competence to make such a law touching the organization of the High Court have also been decided and the contentions advanced in support thereof have been negative. The passages out of the judgment of the Full Bench which considered and brought out the scope of the appellate jurisdiction read as under :

'Division Benches of a High Court hearing appeals from decisions of single Judges of that High Court is nothing new to high Courts. Such a system has been prevailing for over a hundred years in the High Courts in the erstwhile British India and their successor High Courts.'

As pointed out by the Supreme Court in Ladle Prasad v. Kamal Distillery, : [1964]1SCR270 , where an appeal lies to a Division Bench of the High Court against a Judgment6f 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. The single Judge being regarded as a Court below the Division Bench which hears the appeal from decision is a necessary incident of the concept of the appellate jurisdiction which consists of powers to examine the correctness of the decision appealed against and to reverse, modify or affirm it, just as a Full Bench of the High Court has power to examine the correctness of a ruling of a Division Bench or a single Judge of the same High Court and to overrule such ruling.'

'Judges of the High Court while exercising different jurisdictions have different powers. The appellate jurisdiction of the High Court over the original jurisdiction exercised by single Judges of the High Court and the power of the Full Bench to overrule the rulings of Division Benches or single Judges of the same High Court do not imply the existence of any watertight compartments among the Judges of the High Court or any hierarchical tiers or strata of Judges in the High Court. A Judge exercising the original jurisdiction in one case may sit in a Division Bench exercising appellate jurisdiction in another case and may sit in a Full Bench in yet another case Thus, the appellate jurisdiction conferred by S. 4 of the High Court Act 1961 does not bring about any alteration in the constitution or organization of the High Court.'

'As stated earlier, when Art. 226 of the Constitution confers powers on the High Court, such powers become capable of being exercised in accordance with any general right of appeal from the decisions of the High Court and there is nothing in Art. 226 which requires that the powers there under must be exercised once and for all. In theory, an appeal is a continuation of hearing of the suit of other original proceeding and ordinarily the appellate Court has all the powers which the Court of first instance can exercise. When a Division Bench entertains an appeal from a decision of a single Judge in exercise of powers under Art. 226, the Division Bench, in deciding such appeal, exercises the same power under that Article, whether it (the Division Bench) affirms, reverses or modifies the decision of the single Judge. The nature and content of the power conferred by Art. 226 cannot be said to have been interfered with by a mere provision for an appeal, without anything more, to a Division Bench from a decision of a single Judge in exercise of powers under that Article. The provision for an appeal, as in the present cases, merely regulates the exercise of that power by the High Court.' But, the Full Bench Judgment referred to above has not gone into the amplitude of the appellate power nor has the same been decided as it did not arise for consideration. Thus, the question has to be gone into keeping in view the observations of the Bench in Ninganna's case : AIR1983Kant116 and the doubt cast by the latter Division Bench and commending reconsideration of the said view in the light of the judgment of the Supreme Court in Umaji Keshao Meshram v. Smt. Radhikabai, : [1986]1SCR731 .

5. As the question posed before us is of considerable importance, we thought it proper to request Shri R. N. Narasimha Murthy. Senior Advocate to assist us. Shri H. K. Vasudeva Reddy, learned counsel, who intervened with our permission, has also given assistance by making submissions with regard to the relevant points necessary for deciding the question posed for decision.

6. Before finding out art answer to the question, it may be observed at the outset that a learned single Judge of the High Court cannot be regarded as a Court subordinate to the High Court, that an appeal has been provided under a statute validly enacted by the Legislature, that the appellate jurisdiction conferred by S. 4 of the Karnataka High Court Act, 1961, does not bring out any alteration in the constitution or organization of the High Court, and that provision for an appeal merely regulates the exercise of that power by the High Court. As we find, S. 4 of the Karnataka High Court Act does not define the scope of the appellate power. Again, there are no relevant rules in this respect. Normally, when a power of appeal is conferred, it implies conferment of all incidental and ancillary powers necessary to effectuate the grant of specific power. Further, such an express power, if not specifically hedged by any limitation, inheres within it, all qualities and attributes implied in the nature of such a power. Mr. Narasimha Murthy, learned Senior Advocate, had drawn our attention to R. 39 of the Writ Proceedings Rules which reads

'39. Application of the High Court of Karnataka Rules, etc., the provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958, and the provisions of the Code of Civil I Procedure, 1908, shall apply, as far as may be, to proceedings under Art. 226 (and/or Art. 227) and writ appeals in respect of matters for which no specific provisions is made in these rules.'

On the strength of the aforesaid rule, it was sought to be argued by the learned counsel that the provisions of S. 107 and the provisions of O. 41, Rr. 23 to 26A which confer power of remand on the appellate court would apply to writ appeals. It was also submitted by the learned counsel that the Supreme Court in Umaji's case : [1986]1SCR731 has held that .Letters Patent Appeals lie to a two Judge Bench of the High Court against a decision rendered by a single Judge exercising even the constitutional jurisdiction vested in the High Court under Art. 226 and that once an appeal lay, the power of remand was incidental to the powers exercisable by the Division Bench as an appellate Court.

7. While putting forth opposite point, Mr., Vasudeva Reddy, learned counsel, had submitted that as the Constitution provides for the establishment of the High Court as a single entity and confers jurisdiction on the Court as such and not on Judges individually, an appeal provided under S. At of the Not cannot at all be regarded as an appeal as genet-ally understood, for, the very concept of appeal presupposes the existence of an inferior and a superior Court and a provision for an appeal from the former to the latter.. 1'he learned counsel therefore submitted that a writ appeal cannot at all be equated to an appeal which lies to the Superior Court which could exercise all the powers conferred on an appellate Court under O. 41 Rr. 23 to 26A of the Code.

8. Before finding out as to which view point is more plausible, it may be appropriate to examine the normal attributes of an appellate power. In Halsbury's Laws of England, 'IV Edition, Para 677, P. 37, it is stated

'An appeal is an application to a superior Court or Tribunal to reverse, vary or set aside the judgment, order, determination,, decision or award of an inferior Court or Tribunal in the hierarchic of Courts or Tribunals on the ground that it was wrongly made or that as a matter of justice or law it requires to be corrected.'

To the same effect is the statement found in American Jurisprudence, 11 Edition, Vol. 4, Page 532, Para 1, which reads thus

'Appellate jurisdiction is the authority of a superior Tribunal to review, reverse, correct, or affirm the decisions of an inferior Court, or of a Tribunal having the attributes of a Court, in cases where such decisions are brought before the superior Tribunal pursuant to law.'

As to the scope of the power, in the same book it is stated at paras 4 and 5 :

'Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. Thus, the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory or constitutional provisions in which it has its source.'

'A grant of appellate jurisdiction implies inclusion of the power necessary to exercise it effectively, to make all orders that will preserve the subject of the action, and to give effect to the final determination of the appeal. Also implied is the power to protect the jurisdiction and to make the decisions of the Court there under effective. In aid of its appellate jurisdiction, the Court has authority to control all auxiliary and incidental matters necessary to the efficient and proper exercise thereof, for which purpose it may, when necessary, prohibit. or restrain the performance of any act that might interfere with the proper exercise of its rightful jurisdiction in cases pending before. it.'

9. The thrust of the argument of Mr. Reddy opposing a power in the Division Bench hearing a writ appeal to remand the case is that the Division Bench being part of the same High Court as the single Judge who decides the Writ Petition, does not have the same powers as ordinarily an appellate Court would have over the subordinate Court against whose decision the appeal is being heard. What is sought to be projected is that the power of remand is a power to command a subordinate Court or a Tribunal to rehear a cause and such a power cannot be implied in the appellate power of the Division Bench of the High Court. Our attention was drawn to the observations of the Supreme, Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, : [1970]1SCR322 which reads as under :

'Such a right as one of retiring superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of story on Constitution (of United States) Vol. 2, Art. 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to Art. 1762 the most usual modes of exercising appellate jurisdiction. at least those which are most known in the United States are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of Civil law origin and removes a cause, entirely subjecting the fact as well as the law to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.'

On giving my thoughtful consideration to the entire matter, I find that the view point put forth by Mr. Vasudeva Reddy is not tenable. As the Supreme Court has observed in Shankar Rama chandra Abhayankar's case : [1970]1SCR322 , 'the appellate jurisdiction may be exercised in a variety of forums and, indeed, in any forum in which the legislature may choose to prosecute'. In the instant case, the power of appeal has been conferred on the Division Bench under the Karnataka High Court Act Therefore, the quality and the nature of power has to be inferred from the ,'statutory provision conferring such power. It is correct that neither the Act defines the scope of appellate power nor are there any rules; but when an appellate power is conferred, the Court which exercises the said power at a given point of time will exercise the power so vested in it and such exercise may result in modifying, reversing, correcting,. reviewing etc., of a decision rendered by the original Bench. Moreover, when an express power of appeal is conferred, then normally such a power inheres within it all qualities and attributes Implied in. the nature of such a power.

10. 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 0. 41, Rr. 23 to 26A is not attracted. But a 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 by 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 Ladle Prasad v. Kamal Distillery, : [1964]1SCR270 the Supreme Court has observed: -

'Where an appeal lies to a Division Bench of the High Court against a rudiment of a single judge of the High Court, exercising original or appellate jurisdiction, the decision of the single judge as decision of the Court immediately below the Bench which hears the appeal, but the single judge of the High Court cannot be regarded as a Court subordinate to the High Court'.

(Underlining by us)

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 an intra-Court appeal. The Bench while dealing with the appeal

may be faced with various problems, e.g. 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 inter herewith 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 liming 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 like to deprive a party of its right of appeal by deciding the petition on merits.

12. Further, under S. 483 of the Indian Companies Act, 1956, which reads ass under :-

-Appeals from any order made, or decision given, in the matter of the winding up of a company by the Court shall lie to the same court to which, in the same manner in which, and subject to the same conditions under which, appeals He from any order or decision of the Court in cases within its ordinary 'jurisdiction.'

An appeal lies to the Division Bench of the High Court. This provides an appeal to the same Court in the same manner, as provided by law regarding appeals from any order made in the exercise of its original jurisdiction of the same Court. The appeal will be under S. 4 of the Act with the aforesaid provision. The company Court has to hold trial to resolve several questions arising before it. If there is a 'mistrial', can it be said that the appellate Bench itself should hold the retrial on it. The answer has to be in the negative as it would be imposing an unwarranted restriction on the power of the appellate Bench.

13. 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 grant of specified power. In Income-tax Officer, Cannonade v. M. K. MohammedKunhi, AIR 1969 SC430 question arose whether an Appellate Authority has a power to stay the operation of the order appealed 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 Dharma as v. State Transport Appellate Tribunal : AIR1963Ker73 (apparently with approval) and observed at p. 434 :

'The Full Bench decision in Dharma as v. State Transport Appellate Tribunal, 1962 Ker LJ 1133 :(A I R 1963 Ker 73) related to the question whet her a remand could be ordered in exercise of appellate jurisdiction under S. 64 of the Motor Vehicles Act in the absence of any express power to that effect existing existing in the statute. It was held that the owner to remand was incidental to and implicit n the appellate jurisdiction created by S.64.'

Almost an identical question arose before he Division Bench of Calcutta High Court in ahead Preside Sara v. S.,K. Srivastava IR l963 Cal 152 Paras 16 from the order of use, C. J. may be quoted here usefully'

'With regard to the question whether the appellate Court's power is limited only to the consideration of the question whether a Rule' is should issue or-not and to remit the case o the lower Court in the event of its coming o the conclusion. that a case for a Rule Nisi allegations contained in the petition, of the Court may think it fit to remit the case to the lower Court in the event of its coming to the applet Court is not warned there may be cases in which the appellate court may consider it desirable and proper to dispose of the proceedings under Art.226 of the Constitution the case back for example if an application under Art. 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 trill court after hearing 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 trail court if it is satisfied that there is substance in the contention of the appellant? The answer, in may view. Must been the negative no investigation into any question of fact is nieces ail Court with directions for giving an. 64.'oppruity to the respondents and for filings of affidavits but I do not think any hard again fest rule can be laid down that in each than every case of an appeal from an order summarily rejecting an application under Art.226,the appellate Court is bound to remit the as for disposal by the trial Court.'

This was incurred by Depurate Mookerjee, J. at paras 39 and 40 of he judgment, which are as follows:

'The Court's power to order a remand in a writ appeal has been considered in several cases. In the case of : AIR1954Cal60 the Court was Called up on to decide whether an rear of summary dismissal of a Writ Petition bad been properly made. It was a decision rendered by G. N. Das, J. with whom I had the privilege of being associated. It was held that where the contentions raised involve an enquiry into questions of fact and of law the proper cours6 would 'be to call upon the respondents to show collie why the order complained of should not be set aside. 1Accordingly, the case was remanded with a direction to issue notice requiring the respondents to appear and show cause. The; parties were directed to be given opportunity to file affidavits before the trial Court. A similar course was adopted in : AIR1958Cal559 whqre.4th was held by, Chakravarti, C.J.that if the application under Art. 226 did no deserve to be thrown out at sight I and there was matter to enquire into, and investigate' the appellate court would interfere by setting aside the summary order of dismissal A rule, was accordingly directed to issue requiring' the respondents in that case to certify to the Court the record of the proceedings in 'Which the border complained of had been made and to show cause why the said order should not be quashed or such order or further order made as might seem to the trial Court fit and proper. The Rule thus issued was made and been made out, it is to be observed that such limitation or restriction on the power of he appellate Court is not warranted. There; may be cases in which the appellate Court consider it desirable and proper to dispose of the proceeding under Art. 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 Art. 226 is made for havening the legality of an act on the grouped that the provisions' of a statute pursuant to which the action is taken are, ultra verse and' that is the sole ground on which the application is based and the trial Court after earring, the petitioner on' the question dismisses the application in liming 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 to case to the trial court if it is satisfied Mat 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' visor in such a case. The only question for determination before the appellate Court in such a cases a question of, law and there is therefore no reason why the appellate court, cannot dispose of the proceeding under returnable before the learned Judge then Art. 226 finally instead of sending the case taking applications under Art. 226 Constitution. Indeed the. Supreme Court took the same course m : AIR1957SC354 . That was a case of industrial dispute between the management of a certain mill' and its workers. The High Court had dismissed the petition in liming without giving an opportunity to'! contest the allegation of male fides on the part of the Government. The order of summary dismissal was set aside and the matter remanded to the High Court with the direction to determine it after giving notice! to the respondents.'

'In my view the powers of the appellate Court in dealing with a writ appeal are in no way circumscribed by the writ rules. These rules are purely procedural they do not have the effect of limiting or enlarging the Courts: power to dealing with and disposing of appeals. That power is defined elsewhere; it is to be found in the Code which by S. 107 gives the appellate Court the power inter ' to determine a case finally or to remand', it for further consideration. It is always for the appellate Court to decide what form the interference wilt take 'in a given case. In my opinion, there is nothing to prevent the .,appellate Court from determining finally an appeal from an order of summary rejection of a Writ Petition if no further investigation is' called for. I do not think, however, the present appeal fulfils that test particularly in view of of the customs contention that the documents Exhibited by the appellant himself signets that even the importation of the 15 tones of Dunnage Wood had not been lawfully made. That raised questions of fact which I think can be best be investigated upon the case being recruited to the trial Court.'

As we look at the whole issue the existence of power is one thing, while its exercise is another.. Great care and caution go ides. the exercise of all judicial powers. So is the case with the exercise of an appellate power. Justice of the situation is always a guiding factor and ,Open when an order of a single Judge is based on a wrong preens the appellate Bench may not interfere, if the order appealed against, has fructified the just result, as observed by a Division Bench of this court in State of I Karnataka v. G. Lakshman, ILR (1987) Kant 2223.

'We are sitting in appeal against the decision of the learned single Judge of this Court. Unless the said decision is established ,to be clear wrong'. we cannot interfere with the said decision just because it is shown to be 'not right . In Sint. Padma Up pal v. State of Punjab, : [1977]1SCR329 it's observed that a Court of appellant' referees not when the judgment under attack is not right, but only when it is shown to be wrong.'

14. Therefore by conceding power in the appellate Berwick of this Court to remand a case for further determination by the single Judge the. entity of this Court as an integrated institution will not suffer. Such a recourses incidental to the internal management of the judicial functions of this Court. However, the power of the remand, which inheres in the appellate power, has to be no doubt, exercised sparingly and under rare circumstances.

Coming to the case of this Court in Ninganna v. Narayana Gowda, : AIR1983Kant116 cited for the proposition that there is no power of remand, I find that case does not decide the proposition which has been canvassed before us. In the context of the propriety of the' remand order to be made, it was held that it was not' appropriate' to intake an order of remand having regard to the facts of the case. The relevant passage at page 120 reads thus:

Therefore, in our view in cases where a Division Bench hearing a writ appeal against an order of a single Judge rejecting a Writ Petition at preliminary hearing without notice to the respondents or in a case of this type where the Writ Petition was heard and decided' without imp leading necessary parties as all result of which defect the order in the Writ: Petition is liable to be set aside, the writ matter having come up before the Division, 5ench, the most appropriate cakes for the Division Bench is to decide the Vat Petition:, itself. Therefore, we are unable to agro that we have no jurisdiction to hear the Writ Petition but must remit it to the learned simile Judge. In this view of the matter, we have heard the Writ Petition on merits and are making this final order in it.'

As a result of the aforesaid discussion the answers to the questions referred to us may be stated as follows:

(1)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;

(2) That a remand order maybe passed in cases where a Writ Petition has been dismissed for non-prosecution or in liming 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 inters to be,: neither dogmatic nor exhaustive, yet I 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 of on merits by the Division Bench Itself.

Ramajois, J.

15. 1 have had the privilege and advantage of reading the opinion of Hon'ble the Chief. Justice. Though I agree 'with the answers furnished therein to the question referred for the opinion of the Full Bench, my approach to the points arising for c6nsideration is substantially different, for' in my opinion by, the question referred for the opinion of the Full Bench which by itself is of considerable importance, raises several other basic questions relating to the structure,' constitution, organization and general jurisdiction of the High Court as established under the Constitution. Therefore, I have considered it necessary to place' my view son record.

16. The question referred for the opinion, of the Full Bench is : Whether a Division Bench hearing writ appeal against an order of single Judge has the power to remand the case to the single. Judge concerned or not? Sri R. N. Narasimha Murthy, Senior Counsel, whom we had requested to assist us. and Sri H. K. Vasudeva Reddy, learned Counsel who intervened with our permission, have made their submissions with regard to the points arising for consideration.

17. Before referring to the submissions added by the learned Counsel for and against 'the proposition, it is appropriate to sit out it6e salient features about the constitution. organization and jurisdiction of the High Courts under the Constitution of India. Art. 214 provides that there. shall be a High Court for each State. Art. 216 provides that each High Court shall consist of a Chief Justice and such number of Judges as the President may, from time to time appoint. Art. 225 provides that subject to the provisions of the. Constitution the jurisdiction of the pre-existing High Courts as also the powers of the Judges thereof including the power to make rules regulating the procedure for the exercise of the jurisdiction and powers of the High Court by a single Judge or by a Bench Of two or more Judges, shall continue. Art 226 confers power on each of the High Court to issue prerogative writs or orders of like nature. for enforcement of fundamental rights as also, for other purposes. Art. 227 confers power of superintendence on each of the High Court over the subordinate Courts and Tribunals located within the territorial jurisdiction of the respective High Court. Thus an examination of the scheme of the Constitution) shows the High Court contemplated iron each State is the highest Court for concerned. The ' only Court which is superior to the High Court under the scheme of the Constitution is the Supreme Court of India. An appeal lies to the Supreme Court against I the decision of the High Court son certificate, by the High, Court under Arts. 132, 133 and 134(c) of the Constitution and as of right under Art. 134(l)(a) and (b) and with the special leave of the Supreme Count under! Art. 116 of the Constitution.

18 , The High Court constituted under the Constitution is one entity though the jurisdiction and powers conferred on it could be exercised by a Bench consisting of a single Judge or two or more Judges as prescribe under the provisions of an Act or a. . . I Legislature or in its absence under the Ruleville framed by the High Courts in exercise of its rule making powers saved by Art. 225 of the, Constitution Whether the power of the High Court is exercised by a single Judge Bench or. a Bench of two or more Judges the orders passed by any of the Benches would be two ,order of the High Court.

19. The position of the High Court in each State, therefore is similar to the High Court of England exercising its jurisdiction through single Judges, or Division Benches I explained by Vaisay' J. in Hastings (No. 3) In re, (1959) 1 Ch D 377' while rejecting a second petition for Habeas Corpus presented before I the Chancery Division of the High Court, after it had been rejected by Queen's Bench Division of the same High Court. The observations read :

'The applicant was very anxious to apply to the Chancery Division, but I think that his application is based upon a complete misconception The mistake the applicant or his advisers made was to assume that the Chancery Division is a separate entity, a separate Court, and that either by single Judges or by a Divisional Court it can deal with the matter afresh. The applicant used an expression which he must suppose to be flattering to us who are sitting here,' He said in his affidavit that he had decided to come for a 'complete hearing before a hitherto unconnected and impartial Bench, and this I seek in the Chancery Court' The number of misconceptions which are bound up in that sentence is almost beyond reckoning, To begin with, while I hope it -is an impartial Bench, it is certainly not an independent, Bench. Indeed, as Lord Parker has ruled with. I think, perfect accuracy, as soon as the Divisional Court of the Queens Bench Division has come to its conclusion there is an end of the matter, and as I observed yesterday, it always has to be remembered that our orders are not orders of gay. particular Decision or any particular Divisional Court-, out breeds are orders of the High Court. How we; Judge of the High Court, could be heard to override, overrule or otherwise interfere with a judgment which was the result of the hearing by the Divisional Court, or how we could be heard to say that the conclusion of that Court, and its order - an order of our own Court, the only Court which exists, the High Court of Justice - was wrong, and that something else should be done, is beyond my comprehension.

When the Queen's Bench Divisional Court, acting strictly under the rules, came to its conclusion theist finally disposed of the application of this applicant for the issue of a writ of habeas corpus, I cannot' see how this Court, or how we as Judges, could possibly be heard to stultify a decision of the Court of which we are ourselves constituent parts : we are all of us Judges of the High'court I cannot see how we could be heard to contradict an order which has been made for us . in our name and by the only Court which

h-as jurisdiction in this man

(Underlining by me)

But for the legacy, in the form -of Letters Patent Appeals, against an order made by a single Judge of a High Court in the original jurisdiction of the High Court to two Judges of the same High Court, inherited by some the High Courts --established under the 19Charters issued by the British Crown; which continues to be the law providing for their Constitution and 'organization; in view of the circumstance that no uniform law regulating the constitution, organization and general jurisdiction and powers of Alf the High Courts under the Constitution has been enacted by the. Parliament under Entry 78 of List of the,, VII Schedule to the Constitution, the position of single Judge or Division Bench of the High Court under the Constitution would also have been the same, as stated by :Valise, J. and .there would have been no question of the I.e. Judges of the High Court entertaining ,and hearing an appeal against- the judgment of the High Court it rendered by one of its Judges.

20. In the absence of an uniform law enacted by the Parliament; following the pattern of the Letters Patent Appeals in the chartered High Courts; the State Legislatures Of Kerala and Karnataka made provision for up appeal against the decision of the High Court rendered by a single Judge, to a two Judge Bench of the High Court itself. These States were established with effect from 1-1-1956 under, the States Reorganization Act and the two High Courts were established under S. 49(2) thereof. After the formation of the Karnataka State, the Legislature of the State enacted the Karnataka High Court Act, 1961, S. 4 of that Act reads : -

'4. Appeals from decisions of a single Judge of the High Court:- An Appeal from a judgment, decree drier or sentence passed by a single Judge in the exercise of the original .jurisdiction of the High Court under this Act or under any law for the time being in force hall leotard be nearby Bench consisting of two to her Judges of the High Court.'

Even after the above provision, there was no appeal against the decision rendered by, the High Court under Art. 226 of the Constitution, for, according to, S. 9 of that Act the Writ Petitions were required to be heard and decided by a Bench consisting of two Judges. By the amending Act of 1973, Sections 9 and 10 of the Act were amended. According to amended S. 9, all petitions under Art. 226' except a petition seeking the. issue of a writ of Habeas Corpus, are required to be heard aft decided by a single Judge and according to S. 10, writ appeals presented under S. 4 of the Act are to be heard by a Bench of two Judges. It is in view of the above provision, appeals are being entertained by the High Court against the decision of the High Court itself rendered by a single Judge.

21. In Writ Appeal No. 35/1976, a Division Bench of this Court made an order setting aside 'the, order made by Venkataramaiah, J. (as he then was) in Writ Petition No. 5540/1975 dismissing, the Writ Petition and remitted the matter to the learned single' Judge with a direction to permit the writ petition to impaled the State Government and owners of the land concerned, as respondents to the petition. A learned Judge before whom the) Writ Petition was posted for hearing, raised the question as to whether a Division Bench could remit the matter to a single Judge' in view of the Division Bench judgment of this Court in Ninganna v. Narayana Gowda, : AIR1983Kant116 .

22. It is appropriate at this stage to state that the question as to whether a provision, providing an appeal from decision of the High Court rendered by one Judge, to the High Court exercising its jurisdiction through two Judges is permissible atoll under the scheme, of -the Constitution? and even if it is permissible whether the State Legislature could; which has jurisdiction only to enact law on. the topic of administration of justice under Entry 11.A of the Concurrent List, (Entry 3 of the State List prior to the 42nd amendment of the Constitution). not only' confer appellate jurisdiction on the High Court with respect to any of the matters in List II and List III of the VII Schedule. by virtue of Entries 65 and 46 of the respective list; in respect of which the State Legislature has the power to legislate but also confer a general appellate jurisdiction over the High Court itself in the form of writ appeals, has been the subject matter for decision of the Full Bench of the Kerala, Karnataka and' Madhya Pradesh High Courts. A Full Bench of the Kerala High Court in Kochikka v. Kunjpennu, : AIR1961Ker226 and of this Court in State of Karnataka v. Krishna, ILR (1975) Kant 1015 have taken the view that the power to make a law conferring appellate jurisdiction over the High Court on the High Court, was merely a matter of practice and procedure and therefore a provision for an. appeal against the decision of the High Court rendered by a single Judge to a two Judges Bench could be provided for by making a law on the topic of Administration o justice.

23. The Full Bench of the Madhya Pradesh high Court, in Balakrishnadas v. Pottery Co. Ltd., : AIR1985MP42 in the context of a challenge to the validity of law enacted by the State Legislature, abolishing the Letters Patent jurisdiction inherited by the Madhya Pradesh High Court; held that a matter like conferment of general appellate jurisdiction on the High Court against the decision reordered by the High Court itself was neither demister of practice or procedure falling within the scope of entry ',Administration of justice', nor a matter relating to conferment of special jurisdiction on the High Courts in respect of matters in Lists II and III of the VI Schedule to the Constitution on. which topics the State Legislature was competent to make the Law. The Full Bench held that the legislative power to confer general appellate jurisdiction over the decision of the High Court rendered by a single Judge to a two Judge Bench of the High Court was essentially a matter relating to constitution and organization of the, High -Courts and therefore squarely falls within Entry 78 of Union' List and consequently falls within the exclusive legislative powers of the Parliament. On this view of the matter, the Full Bench held that the law abolishing letters patent jurisdiction which vested in the High Court as part of its constitution was beyond the conference of the Madhya Pradesh Legislature An appeal against the said judgment is stated to be pending before the Supreme Court See : head note in Umaji v. Radhika Bai : [1986]1SCR731 . If the view of the Full Bench of the' Madhya Pradesh High Court is correct, a provision creating an appeal against the decision of the High Court rendered by a single Judge to two Judges of the same Court would not be a matter of practice an4 procedure but would be a matter f inherent general jurisdiction as part of the constitution and organization of the High Court and therefore only the Parliament would have the competence to make such a law.,

Another question which arises would be whether even' the Parliament in exercise of its ordinary legislative power under Arts. 245 ed 246 can create an appellate jurisdiction over the High Courts? In this context it appears to me there exists a clear distinction between the power of the Legislature to make a law providing that a single Judge or specified number of- Judges of the High Court should exercise the jurisdiction vested in a High Court under the Constitution and the power to make a law that an appeal shall lie from the decision of the High Court in exercise. of the jurisdiction vested in it by the, Constitution under Arts. 226, 227 and 228. While the former is a matter of practice and procedure and therefore certain leviathan the competence of the appropriate legislature, can the latter which amounts to creation of a Court of Appeal and an appellate jurisdiction above -the High Court, become except by the exercise of constituent power of Parliament? On this aspect, the views expressed by Kirty, J. of the Allahabad High Court in the case of Hakim Singh v. Shiv Sagar, AIR 1973, All 597 at p. 647 (FB) are apposite. They read :

'All the same it may be pointed out that in so far as the Constitution itself contains specific provisos in regard to High Courts and the jurisdiction and powers of such courts, neither Parliament nor any State Legislature can make laws in exercise of their respective legislative powers, the field of exercise of which is provided for is three Lists of the Seventh - Schedule. Take for instance Arts. 226, 227 and 228 which confer by their own force and expressly a variety Of jurisdiction and powers on High Courts. No law can be made by any State Legislature or even by Parliament in exercise of the-powers given to these bodies under Arts. 245 and 246 to make law, so as to amend, after or repeal the aforesaid Articles. No doubt Parliament can make such a law by virtue of the special provisions contained in Art. 368.' If this view is correct; in my opinion it is; as reading an appellate jurisdiction' over the jurisdiction vested in the High Courts under Arts, 226, 227 and 228 amounts to amendment of the Constitution, it can be, bf ought into existence only by an appropriate amendment to the Constitution and establishing two tiers in the High Courts.

24.. With this background, I proceed to consider the submissions made by the learned Counsel, Sri R. N. Narasimha Murthy, learned senior Counsel, submitted that once an appeal lies to a Division Bench of two Judges against, a decission of a learned single Judge, it follows that all the powers of the appellate Court under the Civil P.C. could be exercised by the Division Bench. He referred to R. 39. of the Writ Proceedings Rules which reads:

'39. Application of. the High Court of Karnataka Rules etc. The provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka.Coutt Fees and Suits Valuation Act, 1958, and the provisions of the Civil P. C. 1908, shall apply, as far as may be, to proceedings under Art. 226 (and/or Art, 227) and writ appeals in respect of matters for which no specific provision is made in these rules.'

He submitted that in view of the above rule, the provisions of O. 41, Rr. 23 to 26A which confer power of remand on the appellate Court, apply to writ appeals and therefore the question has to be answered in the affirmative. He als6 submitted that in the case of Magi : [1986]1SCR731 the Supreme Court has held that Letters Patent Appeal lies to a two Judge Bench of the High Court against a decision rendered by a single Judge exercising even' the constitutional jurisdiction vested in the High Court under Art. 226 and that once an appeal lay, the power of remand was incidental to the powers exercisable by the Division Bench as an appellate Court.

25. S6 H. K. Vasudeva Reddy, learned Counsel, submitted that as the Constitution provides for the establishment of a High Court as a single entity and confers jurisdiction on the. Court as such and not on Judges individually, an appeal provided under S. 4 of the Act, cannot at all be regarded as an appeal as generally understood for the very concept of appeal presupposes the existence of an inferior and a superior Court and a provision for an appeal from the former to the latter, as observed by the Supreme Court in the case of Shanker v. Krishna, : [1970]1SCR322 . He therefore submitted that a writ appeal cannot at all be equated to an appeal which lies to a superior Court, which copied exercise all the powers conferred on an appellate Court under O. 4 1, Rr. 23 to 26A of the Code.

26. Order 41, Rr. 23 to 26A of the Civil P.C. and (are)

'23. Remand of Case by Appellate Court Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the. decrees reversed in appeal the Appellate Court may, if it thinks if by order remand the case and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred with directions to, readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand.,'

23A. Remand in Other Cases: Where the Court from whose decree an appeal is preferred has *disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is loitered necessary the appellate Court shall have the same powers as it has under R. 23.

24. Where Evidence on Record Sufficient Appellate Court May Determine Case Finally:- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resetting the issues, if necessary finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some 1 ground other than that 'on which the Appellate Court proceeds.

25 Where Appellate Court may frame issues and refer them for trial to court whose decree appealed from - Where ' e the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court relay, if necessary,, frame issues, and refer the same for triad ' I to the Court from whose decree the appeal is preferred, and in such case shall direct such court to take the additional evidence required and such Court shall proceed, to try such issues, and shall return the evidence to the Appellate Court together with its findings I thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time.

26. (1) Findings and Evidence to be put on Record. Objections to Finding -, Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court present a memorandum bf objections to any finding.

(2) Determination of Appeal After the! expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.

26-A. Order of Remand to Mention Date of Next Hearing - Where the Appellate Court remarries a Case under R. 23 or R. 23A, or frames issues and refers them for trial. under! R. 25, it shall f ix. a date f or the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court to further proceedings in the suit.'

These provisions. are intended to confer power, of remand on an appellate Court to which an appeal lies under the Code from the decision of a subordinate Court. Rule 39 of the Writ Proceedings Rules expressly provides that the provisions of the Code are applicable tool writ appeals as far as may be The nature of an remand order which could be made and the 4irections which could be issued under the Rr. 23 to 26A of 0. 41 are such which could be made or issued by a superior Court to an inferior Court. Therefore, it appears to me that as the order made in Writ Petition by a single Judge against which a writ appeal lies to a two Judge Bench of this Court is also an order made by this Court, the appeal cannot in all respects, be ' equated to an appeal as, understood in the Code and consequently f the provisions of R., 41, Rr. 23 to 26A cannot apply, to writ alphas. Regarding the nature of such an appeal, the Supreme Court has observed thus in Umaji's case : [1986]1SCR731 :-

'101. Consequently, where a petition filed under Art. 226 of the Constitution is according to the rules of a particular High Court heard by a single Judge, an intra-Court appeal will lie from that judgment if such a right of appeal is provided in the charter of that High Court, whether such Charter be Letters Patent or a Statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-Court appeal and, therefore, the decision of a single Judge of that High Court given in a petition under Art. 226 would be appeal able to a Division Bench of that High Court.'

From the above observations, it is clear that it, is an intra-Court appeal and not an intercourse appeal. There is no separate Court to which a matter in appeal could be remitted. Taking note of the fact that Art. 226 of the Constitution conferred jurisdiction and power to issue writs on the High Court and there was . no provision in the Constitution conferring writ appellate jurisdiction, the Full Bench of this Court in Krishnappa's Case (ILR (1975) Kant 1015, even after upholding the validity of S. 4 providing an appeal stated thus:

'106. Once it is held flat there is nothing in Art. 226 which requires that the powers there under must be exercised once and for all and that the Division Bench which hears and decides an appear from a decision of a I single Judge of the High Court, exercises the same power which the single Judge has under Art. 226, we are unable to see how the provision for such appeal can be regarded as adding to the provisions of Art. 226 of the Constitution.' It is in view of these observations, a Division Bench of this Court ' in Ningarma's case : AIR1983Kant116 on the very point arising for, I consideration in this case, said thus: 'The Writ Appeal jurisdiction, therefore cannot be compared and is not akin to an appellate jurisdiction as ordinarily understood, which presupposes the existence of a superior Courtland an inferior Court (see Shanka,r Ramachandra Abhayankar v. Krishnaji Dattatreya, : [1970]1SCR322 and no such relationship exists between a single Judge and a Division Bench as both exercise the jurisdiction vested in the High Court. There is no' difference between a Writ Petition re furred to a Division Bench or a Writ Petition which comes up before a Division Bench through a writ appeal, in the matter of exercise of the jurisdiction and powers of this Court under Art, 226, of the Constitution. Therefore, in our view in cases where a Division Bench hearing a writ appeal against an drier of single Judge rejecting a Writ Petition at preliminary hearing without notice to the respondents or in a case of this type where the Writ Petition was heard and decided ,without imp leading necessary parties as result of which defect the order in the Writ Petition is liable to be set aside, the writ matters have co ' me up before the Division Bench, the most appropriate course for the Division Bench is to decide the Writ Petition itself.'

A Division Bench of this Court in J.B. Venkate Gowda v. Hassan Development Bank, W.A.Nos. 133 and 134 of 1986, D/- 26-6-1987, expressed the view that the above decision requires reconsideration in the light of the judgment of the Supreme Court in UmajFs case : [1986]1SCR731 ,That was an appeal which arose out of an, order of a single Judge dismissing a Writ Petition' for default and not on merits.

27. On ret on sidearm (ion of 1he matter in the fight of the judgment of the Supreme Court in Umajfs Case : [1986]1SCR731 . 1 am of the view that if a Writ Petition has been dismissed for non-prosecution or in liming on grounds such as delay, maintainability etc., and not on merits by a learned single Judge and such an order is taken in appeal and the Division Bench sets aside such an order. The Writ Petition gets restored. As a consequence, in view of Sec. 9 of the Act and the Rules, the Writ Petition has to be posted for preliminary hearing or final hearing, as the case may be, before a learned single Judge. It is in this manner and to this extent, it appears to me it ,,can be said that the Division Bench has the 'inherent or incidental power to bring about a remand of the Writ Petition by a learned single Judge.

28. For these reasons, I agree with the answers given by my Lord the Chief Justice.

Shivashankar Bhat, J.

29. 1 hid the privilege and advantage of reading the opinion of my Lords

ice Chief Justice and Rama Jois, J. I fully concur with the reasoning of and the 'conclusion arrived at by my Lord the Chief Justice.

30. Whether a Bench hearing an appeal under S. 4 of the Karnataka. High Court Act, 1961 could remand the matter to be tried under the original jurisdiction depends upon the scope of power conferred by the-statute. The provision for appeal has already been upheld by Full Bench of this Court earlier (vide State of Karnataka v. Krishna pa, ILR (1975) Kant 1015. Once an appellate forum is recognized by the statute and the exercise of the power by the said forum is not in any way retracted or circumscribed by the statute which created the said forum. I am of the view that the scope of the said power will have to be understood with reference to the nature of the power vested by the statute.

31. Section 4 referred to above provides for an appellate forum. In the absence of any restriction, it should be understood that the appellate power under the said provision has all the qualities of any other appellate power. The fact that it is an intra-Court appeal may be a relevant factor in considering the appropriateness of making a particular order in the course of exercising the said appellate power.

32. Ail appellate power necessarily includes a power to remand the cause to be decided by the original authority or-Court. Such a power is inherent in the appellate e power. Since the appellate power is conferred on a Bench of the same High Court here, while exercising the said appellate power necessarily the appellate Bench will have to be guided by principles of propriety while remitting a cause to the original side Bench. It is in this background I consider that the power to remit a cause to the original Bench by the Division Bench will have to be sparingly used when the situation absolutely warrants such a remand, as opined by my Lord the. Chief Justice.

33. Order accordingly.