eng
competition

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review officer practice text3

created Mar 13th 2017, 04:31 by svm


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Article 227 of the Constitution is appealable under Section 4 of the Karnataka High Court Act, 1961 (hereinafter referred to as the Act) and whether the Full Bench Judgment of this Court in Ritz Hotels (Mysore) Limited v. State of Karnataka and Ors., 1966 (7)KLJ 600 answering the aforesaid question in the affirmative lays down the correct law. When this appeal came up for hearing before two of us on 17.1.2005 the Bench was of the view that the judgment of this Court in Ritz Hotels case (supra) required reconsideration and the matter was referred to a Bench of five Judges. This is how the case has been placed before us.
 
2. Since the question involved in the case is purely legal it is not necessary to narrate the facts in detail. The appellant herein is the plaintiff before the Trial Court. He has filed a suit for permanent injunction wherein he sought an ad-interim order of injunction which was granted. In appeal filed before the Civil Judge (Senior division) the said order of ad-interim injunction had been reversed and that order has been challenged by the appeallant herein before the learned single Judge in the writ petition which is still pending. The learned single Judge had initially granted an order of status quo which was subsequently vacated. It is this order of the learned single Judge which is the subject matter of challenge in the present appeal filed under Section 4 of the Act.
 
3. We have heard the learned Counsel for the parties and having gone through the judgments cited on both sides we proceed to deal with the question. Since the answer to the question depends upon the interpretation of Section 4 of the Act, it is necessary to refer to the same. It reads as under:
 
"4. Appeals from decisions of a single Judge of the High Court: An appeal from a judgment, decree, order 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, shall lie to and be heard by a Bench consisting of two other Judges of the High Court", A careful reading of the aforesaid provision makes it clear that aright of appeal has been provided under Section 4 of the Act against a judgment or order of a learned single Judge only if it is passed in the exercise of original jurisdiction of the High Court and not otherwise. The word 'jurisdiction' means the power to hear and determine a case and the phrase "original jurisdiction" means the power to entertain cases in the first instance. Thus, a court of original jurisdiction is one in which an action has its origin and it also means that the litigation may be brought originally in that Court. In order to know when this Court exercises original jurisdiction, it will have to be found out in each case whether the issues raised in the petition arose for adjudication for the first time before the High Court or had they been already raised and adjudicated upon by any court or tribunal subordinate to it. Let us now examine the nature of jurisdiction exercised by a High Court under Articles 226 and 227 of the Constitution. It is by now well settled that there is a clear distinction in the exercise of power by the High Court under Articles 226 and 227. The power of judicial superintendence over the subordinate courts and tribunals is conferred on the High Court under Article 227 of the Constitution. This power is available apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. This power is intended to be exercised in appropriate cases in order to keep the subordinate courts and tribunals within the bounds of their authority and jurisdiction and it is not meant for correcting mere errors. The courts and tribunals while exercising statutory power conferred on them and even when they remain within their bounds may commit errors which are apparent on the face of the record or commit other illegalities and it is to correct such errors or illegalities that the High Court exercises its jurisdiction under Article 226 of the Constitution by issuing a writ of certiorari or any other writ referred to therein except the writ of habeas corpus. While correcting the errors committed by the courts and tribunals the High Court does not sit as a court of appeal. Similarly while exercising the power under Article 227 of the Constitution to ensure that the subordinate courts or tribunals function within the limits of their jurisdiction, the High Court does not act as a court of appeal nor does it reweigh the evidence on the record to come to a conclusion different from the one arrived at by the subordinate court or tribunal. After examining the power of supervision of the High Court exercised through writs of certiorari the Apex Court in P. Kasilingam v. P.S.G College of Technology, 1981 (1) SCC 405 observed as under:
 
"One is the area of jurisdiction and the qualifications and conditions of its exercise, the other is the observance of law in the course of its exercise. Such writs are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission, error or excess has resulted in manifest injustice. It was rightly observed in Basappa's case (AIR 1954 SC 440) that a writ of certiorari will not issue as a cloak of an appeal in disguise".
 
The nature of power exercised by a High Court under Articles 226 and 227 of the Constitution was succinctly brought out by the Supreme Court in Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr., AIR 1986 SC 1272 wherein the learned Judges considered the scope of Clause (15) of the Letters patent of the Bombay High Court to answer the question whether an appeal lay to a Division Bench of two Judges from the judgment of a single Judge of that High Court in a petition filed under Article 227 of the Constitution. Their Lordships observed as under:
 
"99 ................. These two Articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227 every High Court has the power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo- warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law (see State of Gujarat v. Vakhatsinghji Vajesinghji Veghela, AIR 1968 SC 1481, 1487, 1488 and Ahmedabad Mfg. & Calico Ptd., Co. Ltd. Ramtahel Ramnand, (AIR 1972 SC 1598). The orders, directions and writs under Article 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in addition to that conferred upon the High Courts by Article 226".
 
Again in paragraph 100 of the Judgment it was observed as under:
 
"Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate Court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or tribunal has acted within its authority and according to law.

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