Surendra Kumar and ors. Vs. Pappu Alias Jitendra and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - 1 and 2, who is not well, therefore, he could not appear before the court.n.k. mody, j.1. being aggrieved by the order dated 14-1-2005 passed by additional district judge, shujalpur in mjc no. 26/ 2004, whereby the application filed by the appellant under order 9, rule 4, c.p.c. for setting aside the order dated 5-11-2004 and for restoration of civil suit no. 12-a/01 has been dismissed, the present appeal has been filed.2. short facts of the case are that appellant filed a suit for declaration and permanent injunction against the respondent in the court of additional district judge, shujalpur. this suit was registered as 152-a/01 and was fixed for 12-3-2003 on the application filed by the appellants under order 6, rule 16, c.p.c. on this date at the time when case was called, neither appellants were present nor counsel was present. hence learned court below dismissed the suit in default. immediately, thereafter an application under order 9, rule 4, c.p.c. was filed by the appellants wherein it was prayed that order be set-aside on the ground that appellant no. 3, who is also an advocate appeared in the court at about 12 o'clock. at that time court was busy in sessions trial. it was also alleged that vishnu narayan joshi is counsel for appellants no. 1 and 2, who is not well, therefore, he could not appear before the court. the application was registered as mjc no. 26/04. application was opposed by the respondents on various grounds and it was prayed that application filed by the appellants be dismissed. after recording of the evidence learned court below dismissed the application. aggrieved by the impugned order dated 14-1-2005, present appeal has been filed.3. learned counsel for the appellants submit that impugned order passed by the court below is illegal and deserves to be set-aside. it is submitted that application was filed on that very date.4. learned counsel for respondents submit that the suit was dismissed under order 9, rule 8, c.p.c., while the application was filed under order 9, rule 4, c.p.c., which is not maintainable. it is submitted that suit was filed in presence of some of the respondents, therefore, it will be deemed that the suit was dismissed under order 9, rule 8, c.p.c. application ought to have been filed under order 9, rule 9, c.p.c. it is further submitted that no doubt application for restoration was filed, but it was not supported by an affidavit. to fill up the lacuna on the next date affidavit was filed which cannot be accepted. it is submitted that since litigation was pending for more than last 16 years, therefore, negligence on the part of the appellants is not tolerable. the application could have been filed under order 9, rule 9, c.p.c. because the suit was dismissed in presence of some of the respondents. hence it shall be deemed that the suit was dismissed by the learned trial court in exercise of powers conferred under order 9, rule 8, c.p.c. however, only because of wrong provisions were mentioned, therefore, application cannot be dismissed. for this reliance is placed on m. p. revenue nirnaya, 1969 (1) govardhan das v. sitabai, wherein hon'ble supreme court has held that, 'jurisdiction of the court cannot be challenged on the ground that application was under wrong section, while power to give relief existing under the same section by the same authority.5. so far as filing of affidavit at later stage is concerned, learned counsel submits that restoration application was filed at the end of the day, therefore, the affidavit has been filed on the next day. it is submitted that since oral evidence was adduced by the parties, therefore, filing of affidavit was of no consequence. on 12-3-2003, when the suit was dismissed the case was fixed for consideration of application filed under order 6, rule 16, c.p.c., therefore, on that day there was no justification on the part of the court below to dismiss the suit. at the most the application under order 6, rule 16, c.p.c. could have been disposed of on that date,6. in the matter of g.p. srivastava v. r.k. raizada and ors. reported in : [2000]2scr97 hon'ble apex court has observed that the 'courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. if 'sufficient cause' is made out for non-appearance on the date fixed for heating when ex-parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. in a case where the party to the litigation approaches the court immediately, the discretion is normally exercised in his favour'.7. in the present case suit was dismissed on 12-3-2003 and application was filed on that very date. it is not the case of the respondents that dismissal was on account of mala-fides. in view of this appeal is allowed. impugned order dated 14-1-2005 passed by additional district judge, shujalpur in mjc no. 26/04 is set-aside subject to payment of costs of rs. 1000. consequently, the order dated 12-3-2003 passed in cs 12-a/01 is also set aside. parties are directed to remain present before the court below on 29-10-2005. learned court below shall dispose of the suit at the earliest.with the aforesaid observations, appeal stands disposed of.