Madhoban Dass Vs. Mannoo Mal and anr. - Court Judgment

Excerpt:
civil - power of superintendence - chapter viii, rule 5 of high court rules and orders (allahabad), 1950 and article 227 of constitution of india - words 'power of superintendence' used in article 227 - same words used in rules framed by court - to be given same meaning as in the court's rule - no right of appeal against order of single judge exercising power of superintendence - adjournment order not final order under chapter viii rule 5. - - 5. in appeal it is contended that having found that the order of the court was without jurisdiction and it had exceeded its jurisdiction, this court should have exercised its discretion under article 227 of the constitution, and the failure to exercise such a discretion is illegal and he is entitled to come up in appeal.mehrotra, j.1. this is a special appeal against the order of a learned single judge of this court rejecting the petition filed by the present appellant before him under article 227 of the constitution.2. a suit was filed against the present appellant for recovery of arrears of rent. an adjournment was sought by the defendant-appellant and he was grant-ed adjournment on payment of rupees fifteen as adjournment cost and on condition that he deposits the entire arrears in cash within a certain time. the appellant then applied for the modification of that order and the learned judge directed that the adjournment will be granted on his furnishing security to the extent of the amount of arrears.3. a petition was filed under article 227 of the constitution in this court on the ground that the order of the judge directing the defendant to furnish security for the amount of arrears was illegal. he has relied on order 9, rule 13 and order 17, civil p. c., and his contention was that there are express words in order 9, rule 13 giving power to the court to demand security in case an application was made for setting aside an ex parte order. but there is no such express provision in order 17, and therefore the court below had no jurisdiction to order the defendant, as a condition for granting adjournment, to furnish security.4. the learned single judge, after consideration of the point raised, observed that even though strictly speaking the order of the court below may be illegal, but he may have approached the case by the consideration that the matter had been 'deliberately delayed'. in any case, under the circumstances of the present case, he refused to exercise his power of superintendence under article 227 of the constitution and rejected the petition.5. in appeal it is contended that having found that the order of the court was without jurisdiction and it had exceeded its jurisdiction, this court should have exercised its discretion under article 227 of the constitution, and the failure to exercise such a discretion is illegal and he is entitled to come up in appeal.6. chapter viii rule 5 of the rules, of court gives right to a litigant to come up in appeal against the order of a single judge. it provides that an appeal shall lie to the court from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the court, and not being an order made in the exercise of revisional jurisdiction and not being an order passed or made in the exercise of its power of superintendence, or in the exercise of criminal jurisdiction) of one judge, to a bench.7. this rule expressly excludes orders passed by the single judge in the exercise of his power of superintendence.8. it was strenuously contended by mr. chatur-vedi that the power of superintendence referred to in this rule on]y relates to the powers other than the powers of superintendence exercised by this court under article 227 of the constitution. his argument is that the power exercised under article 227 is a supplementary power to that of article 226 and the power in that sense exercised by this court under article 226 is also a power of superintendence.if the words 'power of superintendence' in this rule is given a wider meaning, then the right to come up in appeal against the orders passed under article 226 will also be excluded. we are not concerned in this case with the order passed by the single judge in the exercise of his powers under article 226. even if the power of superintendence exercised by this court under article 227 is supplementary to the powers exercised under article 226, nonetheless the power of superintendence has been expressly conferred under article 227.when these rules were framed after coming into force of the constitution it cannot be said that the framers of the rules were not conscious of the fact that under article 227 the words used are 'thepowers of superintendence'. when these very words are used in the rules framed by the court they must be given the same meaning as in the court's rule.9. in our opinion the litigant has no right of appeal from the decision of the single judge passed in the exercise of its power of superintendence under article 227 of the constitution.10. there is another objection to the maintainability of the present appeal. the judgment in rule 5 chap. viii of the rules means a final order. the suit is still pending and it cannot be said that the effect of the order passed by this court is to finally determine the controversy between the parties.11. apart from this, even on merits we are not inclined to accept the contention raised by the appellant that the decision of the learned single judge is erroneous.12. there is, therefore, no force in this appealand it is accordingly rejected.