# KRISHNAJI DAITATRYAYA BAPAT v. KRISHNAJI DAITATRYAYA BAPAT

- **Citation:** [1970] 1 S.C.R. 322
- **Court:** Supreme Court of India
- **Decided:** 1969-04-16
- **Bench:** J.C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishnaji-daitatryaya-bapat-v-krishnaji-daitatryaya-bapat-4765
- **Pages:** 7

## Headnote

B
Conmtution of India, Arts. 226 and 221-Writ Pttitio,.._,,urisdiction
of High Court, after exercising revisionary
juri.rdictirm--Codt of Civil
Proc•dur<, s. 115-Scope of.
Against the orrler of an appellate court, the ""J>OOdent filed a revision undef s. 115 of \he C-Odc of Civil Procedure. The Single Judge r:Ji
the Hiib C'">Urt diJmissed the revision.
"Thereupon the respondent moved
a petition under Arts. 226 and 227 ol the Constitution challengiug the
same order of the appellate court.
The High Court held that in spite of
the dismissal of the revision petition, it could interfere under Arts. 226 and
227 of the Constitution on a proper case bein~ made out; and after going into the merits of the case, it granted rehcf to ·the respondent.
In
appeal to this Court, the appellr.nt contended that the High C'..oun could
not interfere under arts. 226 and 227.
Allowing the appeal. this Court,
HELD : Even on the a~'umption that the order of the appellate court
had not merged in the order of the Single Judge who had disposed of the
revhion petition a writ petition ou&iJ.t not to have been entertained by the
High Court when the ~dent had already chosen the remedy under
s. 115 of the Code of Civil Procedure. If there are two mode< of invok-·
ing the jurisdictiOn of the High Court and one cJ{ those m<>des has been
chosen and exhausted it wculd not be a proper and sound exercise of
ddcrelion to rant relief in the other set of proceedings in respect of the
ume order o the ~ubordinate court. The refusal to grant relief in such
circumstances would be in consonance with the anxiety of the court to
prevent abuse c:lf process
:is
a1so to respect and accord finaJity to its
own decisions. [327 HJ
When the aid of the High Court is invoked on the revisional side it is
done because it is a superior court and it can interfere for the purpose of
rectifying the error of the court bel<>W.
Section 115 of the Code of Civil
Procedure circumscribes the limits of that jurisdiction but the jurisdiction
which is being exercised is a part dl the general appe11ate jurisdiction of
the High Court as a superior court.
It is only one of the modes of exer*
cising power conferred by the Statute; basically and fundamentally it is
the appellate jurisdiction of the Hi)lh C'oort which is being invoked and
exercised il'I a wider and larger scn9C.
The principle of merger of orders
of inferior coons in those superior courts would not be affected or would
not become inapplicable by making a distinction
between a petition for
revision and an appeal. [327 BJ
Madan Lal Rungta v. Secy. to the Government of OriJJa.
[1962!
l Supp. S.C.R. 906, Natr•ndra Nath D•y v. Sur<sh Chandra D<v. 59 I.A.
'83, 287; Raja of Ramnad v. Kamid Rowth•n & Ors. 53 I.A. 74. P. P. P.
vhidomhara Nadar v. C.P.A. Rama Nadar & Ors. A.LR. 1937 Mad. 385.
Secretary of State for India in Council v. British India Steam Navigation
Co. 13 C.L.J. 90, Attomey-Gent'Ta/ v. Sil/em.
(1864) IO H.L.C. 704,
Chap- v. Moidin, ( 1898) I.L.R. Mad. 68, 80, U. !. S. Chopra v. Star.
c
D
E
F
G
H
SHANIA'R v. llISHNAJI (Grover, 1.)
323
A
of Bombay, A.J.ll. 1955 S.C. 633
an\I
Chandi Prasad Chokhani v.
State of Bihar, [1962) 2 S.C.ll. 276, referred to.
K. B. Sipa/Umalllni v. Fidahussein Va/libhoy, 58
B.L.R. 344, dis,
approved.
CIVIL APPELLATE JUllISDICTION : Civil Appeal No. 870 of
1966.
Appeal by special leave from the judgment and order dated
June 14, 1965 of the Bombay High Court in Special Civil Application No. 3?l>of 1965.
S. S. Shukla, for the appellant.
C
M. C. Bhandare, K. Ra;endra Chaudhuri and K. R. Chaudhuri,
D
E
F
G
H
for the responc;lent.
Tile Judgment w the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the division benClt of the Bombay High Court.
The
only question for deCision is whether the High Court could interfere under Arts. 226 & 227 of the Constitution with the order
of the appellate court in proceedings under the Bombay Rents,
Hotel and Lodging House Rates Control Act, 194

## Text

322
KRISHNAJI DAITATRYAYA BAPAT
v.
KRISHNAJI DAITATRYAYA BAPAT
April 16, 1969
A
[J.C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
B
Conmtution of India, Arts. 226 and 221-Writ Pttitio,.._,,urisdiction
of High Court, after exercising revisionary
juri.rdictirm--Codt of Civil
Proc•dur<, s. 115-Scope of.
Against the orrler of an appellate court, the ""J>OOdent filed a revision undef s. 115 of \he C-Odc of Civil Procedure. The Single Judge r:Ji
the Hiib C'">Urt diJmissed the revision.
"Thereupon the respondent moved
a petition under Arts. 226 and 227 ol the Constitution challengiug the
same order of the appellate court.
The High Court held that in spite of
the dismissal of the revision petition, it could interfere under Arts. 226 and
227 of the Constitution on a proper case bein~ made out; and after going into the merits of the case, it granted rehcf to ·the respondent.
In
appeal to this Court, the appellr.nt contended that the High C'..oun could
not interfere under arts. 226 and 227.
Allowing the appeal. this Court,
HELD : Even on the a~'umption that the order of the appellate court
had not merged in the order of the Single Judge who had disposed of the
revhion petition a writ petition ou&iJ.t not to have been entertained by the
High Court when the ~dent had already chosen the remedy under
s. 115 of the Code of Civil Procedure. If there are two mode< of invok-·
ing the jurisdictiOn of the High Court and one cJ{ those m<>des has been
chosen and exhausted it wculd not be a proper and sound exercise of
ddcrelion to rant relief in the other set of proceedings in respect of the
ume order o the ~ubordinate court. The refusal to grant relief in such
circumstances would be in consonance with the anxiety of the court to
prevent abuse c:lf process
:is
a1so to respect and accord finaJity to its
own decisions. [327 HJ
When the aid of the High Court is invoked on the revisional side it is
done because it is a superior court and it can interfere for the purpose of
rectifying the error of the court bel<>W.
Section 115 of the Code of Civil
Procedure circumscribes the limits of that jurisdiction but the jurisdiction
which is being exercised is a part dl the general appe11ate jurisdiction of
the High Court as a superior court.
It is only one of the modes of exer*
cising power conferred by the Statute; basically and fundamentally it is
the appellate jurisdiction of the Hi)lh C'oort which is being invoked and
exercised il'I a wider and larger scn9C.
The principle of merger of orders
of inferior coons in those superior courts would not be affected or would
not become inapplicable by making a distinction
between a petition for
revision and an appeal. [327 BJ
Madan Lal Rungta v. Secy. to the Government of OriJJa.
[1962!
l Supp. S.C.R. 906, Natr•ndra Nath D•y v. Sur<sh Chandra D<v. 59 I.A.
'83, 287; Raja of Ramnad v. Kamid Rowth•n & Ors. 53 I.A. 74. P. P. P.
vhidomhara Nadar v. C.P.A. Rama Nadar & Ors. A.LR. 1937 Mad. 385.
Secretary of State for India in Council v. British India Steam Navigation
Co. 13 C.L.J. 90, Attomey-Gent'Ta/ v. Sil/em.
(1864) IO H.L.C. 704,
Chap- v. Moidin, ( 1898) I.L.R. Mad. 68, 80, U. !. S. Chopra v. Star.
c
D
E
F
G
H
SHANIA'R v. llISHNAJI (Grover, 1.)
323
A
of Bombay, A.J.ll. 1955 S.C. 633
an\I
Chandi Prasad Chokhani v.
State of Bihar, [1962) 2 S.C.ll. 276, referred to.
K. B. Sipa/Umalllni v. Fidahussein Va/libhoy, 58
B.L.R. 344, dis,
approved.
CIVIL APPELLATE JUllISDICTION : Civil Appeal No. 870 of
1966.
Appeal by special leave from the judgment and order dated
June 14, 1965 of the Bombay High Court in Special Civil Application No. 3?l>of 1965.
S. S. Shukla, for the appellant.
C
M. C. Bhandare, K. Ra;endra Chaudhuri and K. R. Chaudhuri,
D
E
F
G
H
for the responc;lent.
Tile Judgment w the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the division benClt of the Bombay High Court.
The
only question for deCision is whether the High Court could interfere under Arts. 226 & 227 of the Constitution with the order
of the appellate court in proceedings under the Bombay Rents,
Hotel and Lodging House Rates Control Act, 194 7, hereinafter
called the "Act", when a petition for revision under s. ll 5, Chil
Procedure Code, against t.he same order had been previously dismissed by a singie Judge of that court.
The appellant is the owner of a house in Poona.
The res·
pondent, who was a teacher, was the tenant of a block of four
rooms on the first floor of the house.
In 19 5 8 he was transferred to another town Wai where he was allotted suitable residential accommodation.
His son, however, stayed on in POQna
as he was studying there.
Th~ appellant filed a suit in the court
of Judge, Small Causes, under the provisions of the Act for
possession of the suit premises, inter a/ia, on the ground that the
respondent had acquired suitable accommodation elsewhere. The
position takein up by the respondent was that his son was required
to stay on in Poona and for that reason it could not said that the
had acquired suitable residence at Wai. Moreover he had gone
away from Poona only temporarily aind on his return the premises would be required for his own use.
The trial court held
that only a part of the premises which were required by the son
should be vacated. It granted a decree for possession of two out
of four rooms and directed proportionate reduction of the rent.
Both sides filed appeals In the court of the District Judge. The
Extra Assistant Judge who disposed them of was of the view that
the court was not empowered to bifurcate the premises. It was
either suitable for the whole family or it was not suitable. But
SUPRl!ME COURT P.EPORTS
[ 1970] l S.C.R.
he atlinncd the decree on the ground that the order of the trial
court was an equitable one. 'the respondent preferred a petition
for revision under s. 115 of the Code o( Civil Procedure before
the High Court. A learned Single Judge who beard the petition
disr issed it as be was not satisfied that the appellate court had
acted in exercise of its jurisdiction illegally or with material irre·
gularity. The respondent moved a petition under Arts. 226 and
227 of the Constitution challenging the same order of the appel·
late court. Following a decision of a full bench in K. B. Sipahimala11i v. Fidahussein Val/ibhoy (1)
the division bench which
beard the writ petition held that in spite of the dismissal of the
petition by the learned Single Judge there could be· interference
under Arts. 226 and 227 of .the Constitution on .a proper case
being made out. After going into the merits the bench expressed
the ;iew that the respondent had :not acquir.:d an alternative suitable residence.
The courts below were therefore, wrong in
coming ro the contrary conclusion. As s. 13 (1 )(I) of the Act had
been misconstrued and the error wa> apparent on the record the
orders of the courts below were set lliide.
Now as is well known s. 115 of the Civil Procedure Code
empowers the High Court to call for the record of any case
which has been decided by any court subordinate to it and in
which no appeal lies to it.
It can interfer if the
subordinate
court appears to have exerci~ the jurisdiction not vested in it
by law or to have failed to exercise the jurisdiction so vested or
to have acted in the exercise ol its jurisdiction legally or with
meterial illegality. The limits of the jurisdiction of the High Court
under this ~ection arc well !lefined by a long course of judicial
decisions. ,If the rev1Sional jurisdiction is invoked and both p'll'·
ties are heard and an order is made the question is whether the
orde1> of the subordinate . court has become. merged in the order
of the High Court. ·If it has got merged and the order is only
of the High Court, the order Of the subordinate court cannot be
chall~ed or attacked by another set of proceedings in the High
Court, naniely, by means of a petition . under Art. 226 or 227
of 1he <.;onstitution.
ft is only if by dismisslll of the revision
petition J4e. orcler of the .subordinate court has not become merged
IP that. of t)le Hjgh Court that it may. be open 'to party to invoke
ihe cxtraord.inary . writ jurisdiction of that court.
There again
the qu!4ition 'Yill arise whether it would be right and proper ·for
the lJigh. Court Jo interfere with an order of .a subordinate court
ih a'writ petition when 11 petition for revision under s. 115, C.P.C.,
against the <am~ order has been dismissed. Such 11 consideration
wij.I alsP enter into. the exercise of discretion in a petition under
Aft. 2•6 or 227 -----
(1) 58 B.L.R. '.144.
A
B
c
D
G
H
A
B
c
D
E
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G
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SHANKAR v. KRISHNAJI (Grover, ].)
325
The Bombay High Court in K. B. Sipahimalani's(') case. J?ade
a distinction between an appellate jurisdiction and a rev1S1on'.11
jurisdiction. A right of appeal is a vested right and an appeal ~
a continuation or a rehearing of the suit. A revision, however, is
nC'' a continuation or a rehearing of the suit; nor is it obligatory
upon the revisional court to interfere with the ord~r even though
the order may be improper or illegal. If the revisional court interferes the order of the lower court does not merge in the order
passed by a revisJonal court but the order of the revisional court
simply sets aside or modifies the order of the lower court.
It
was this argument which mainly prevailed before the Bombay
bench. It would appear that this Court has taken a view which
runs counter to that of the Bombay High Conrt. Although the
case of Madan Lal Rungl'll v. Secy. to the Governm.ent of Orissa(')
was not one which had been decided under s. 115 of the Civil
Procedure Code but the ratio of that decision is apposite.
The
State Government of Orissa had r~jected the application of the
appellant there who had applied for grant o_f a mineral lease.
He made an application for review to the Central Government
under Rule 57 of the Mineral Concession Rules which was rejected. He moved the High Court under Art. 226 of the Constitution which was also dismissed.
The appellant
came up by
special leave to t' is Court.
His main contention was that the
Central Government had merely dismissed the review petition and
the effective order reje.;ting his application for the mining lease
was that of the State Government. The High Court, thus, had
jurisdictioo to grant a writ under Art. 226. This contention was
negatived and it was held that the High Court was rig.lit in taking
the view that it had no jurisdiction to issue a writ as the final
order was that of the Central Government which was not wilhin
its territorial jurisdiction. The ratio of this decision is that it was
the order of the Central Government dismissing the review petition which was the final order into which the order of the State
Government had merged,
It would appear that their lordships of the Privy Co:mcil
regarded the revisional jurisdiction to be a part and parcel of the
appeliate jurisdiction of the High Court. This is what was said in
Nagendra Nath Dey v. Suresh Chandra Dey(").
"There is no definition c,f appeal iJ11 the Code of
Civil Procedure, but their Lordship have no doubt that
any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate
Cou;t, is an appeal within the ordinary acceptation of
the term .... "
(!) 58 B.L.R. 344.
(2) [1962] 3 Suro. S.C.R. 906.
(3) 59 I.A. 283, 287.
LIJSup.CI/69-7
326
SUPREME COURT REPORTS
[1970] l S.C.R.
Similarly in Raja of Ramnad v. Kamid Rowthen & Ors.(') a civil
revision petition was considered to be an
appropriate form of
appeal from the judgment in a suit of small causes nature. A
full bench of the Madras High Court in
P. P. P.
Chidambara
Nadar v. C. P. A. Rama Nadar & Ors.(') had to decide whether
with reference to Art. 182(2) of the Limitation Act, 1908 the
term "appeal" was used in a restrictive sense so as
to exclude
revi~ion petitions and the expression "appellate court" was to be
confined to a court exercising appellate, as opposed to, rcvisional
powers.
After an exhaustive examination of the case law including the decisions of the Privy Council mentioned above the
full bench expressed the view that Art. 182(2) applied to civil
revisions as well and not only to appeals in the narrow sense of
that term as used in the Civil Procedure Code.
In Secretary of
State for India in Council v. British India Steam Navigation Com·
pany ( 3 ) and ordet passed by the High Court in exercise of its
revisiona! jurisdiction under s. 115, Code of Civil
Procedure,
was held to be an order made or passed in appeal within the
meaning of s. 39 of the Letters Patent, Mookerji, J., who delivered the judgment of the division bench referred to the observations of Lord Westbury in Attorney General v. Sil/em(')
and
of Subramania Ayyar, J. in Chappan v. Moidin(') on the true
nature of the right of appeal. Such a right was one of entering
a 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, i:
is stated that the essential criterion of appellate jurisdiction is
that . it revises and corrects the proceedings in a cause alreadv
instituted and does not create that cause. The appellate jurisdiction may be exercised ir. a variety of forms and, indeed, in any
~orm in which the legislature may choose to prescribe. Accordmg to Art. 1762 the most usual modes of exercising appel:ate
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 remova~ <!fa suit ~o.m an inferior tribunal. 'An appeal
rs a proces.~ of civil law ongm and removes a cause, entirely
subjecting the fact as well as the Jaw, 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
(I) SJ I.A. 74.
(3) 13 C.LJ. 90.
(5) 11898) 1.1 .. R. MJd. 68. J<O.
12) A.l.R. 1937 Mnd. 385.
(4) (1864) 10 H.L.C. 704.
A
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A
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SHANKAR V. KRISHNAJI (Grover, !.)
327
usually adopted in cases of equity and admiralty jurisdiction; the
latter, in suits at common law tried by a jury.
Now when the aid of the High Court is invoked on th: revi·
sional side it is done_ because it is a superior court and it can
interfere for the purpose of rectifying the error of the court below.
Section 115 of the Code of Civil Procedure circumscribes the
limits of that jurisdiction but the jurisdictio:i which is beirig exer·
cised is a -part of the general appellate jurisdiction _of the ?igh
Court as a superior court. It is only one of the modes of exercising
power conferred by the Statute; basically and fundo.nentally it is
the appellate jurisdiction of the High Court which is being in·
voked and exercised in a wider and larger sense.
We do not,
therefore, consider that the principle of merger of orcf~rs of
inferior Courts in those of superior Courts would be affected or
would become inapplicable by making a distinction between a petition for revision and an appeal.
It may be useful to refer to certain other decisions which by
analogy can be of some assistance in deciding the point before us.
In U. J. S. Chopra v. State of Bombay(') the principal of merger
was considered with reference to s. 439 of the Crinlinal Procedure Code which confers revisional jurisdiction on the High Court ..
In the majority judgment it was held, inter alia, that a judgment
pronounced by the High Cou:t in the exercise of its appellate or
revisional jurisdiction after issue of a notice and a full hearing.
in the presence of both the parties would replace the judgment
of the lower court thus ¢Onstituting the judgment of the High
Court-the only final judgment to be executed in accordance with·
law by the court below. In Chandi Prasad Clwkhani v. The State
of Bihar,(') it was said that save in exceptional and special circumstances this Court would not exercise its power under Art. 136
in such a way as to bypass the High Court and ignore the latter's
decision which had become final and binding by entertaining an
appeal directly from orders of a Tribunal. Such exercise of
power would be particularly inadvisable in a case where the result might lead to a conflict of decisions of two courts of competent jurisdiction. In our opinion the course which was followed
by the High Cqurt, in the present case, is certainly one which
leads to a conflict of decisions of the same court
Even on the assumption that the order of the appellate court
had not merged in the order of the single Judge who had disposed of the revision petition we are of the view that· a writ petition ought not to have been entertained by the High Court when
the respondent had already chosen the remedy under s. 115 of
(1) AJ.R. !9SS S.C. 633.
(2) [1962] 2 S.C.R. 276.
328
SUPREME COURT REPORTS
[1970) I S.C.R.
the Code of Civil Procedure. If there are two modes of invoking
A
the jurisdiction of the High Court and one of those mooes has
been chosen and exhausted it would not be a proper and sound
exercise of discretion to grant relief in the other set of proceedings
in respect of the same order of the subordinate court. The refusal to j!ran: relief in such circumstance• would be in consonance
with the anxiety of the court to prevent nbuse of process as also to
B
respect and accord finality to its own decisions.
In the result the appeal is allowed and the judgment of the
division bench of the High Court is hereby set aside. Tue appellant shall be entitled to costs in this Court.
Y.P.
Appeal al/owed.