# S. KALAWATI v. DURGA PRASAD & ANR

- **Citation:** [1975] Supp. 1 S.C.R. 424
- **Court:** Supreme Court of India
- **Decided:** 1975-05-02
- **Case number:** Civil Appeal No. 1641 of 1969
- **Bench:** A. Alagiriswami, P. N. Bhagwati, P. K. Goswaj>U
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-kalawati-v-durga-prasad-anr-6531
- **Pages:** 4

## Headnote

Constitution nf India, 1950-Art. 226-Petition dismissed in Jimine
but
a certificate granted under Art. 133(1) (a}-Validi'ty of certificate.
C
The appellant filed a writ petition before the High Court under Art. 226
of the Constitution impugning the order of the Deputy Director of Consolidation. The High Court dismissed he petition in lbnine but granted a certificate
under Art.
133(1)(a) on the basis of valuation.
;
On appeal to this Court, the respondent raised a preliminary objection
that the certificate granted was not valid because the judgmeilt of the Hi'gb
D
Court was one affirming the judgment of the Deputy Director, Consolidation.
Setting aside the order of the High Court,
HEID :The certificate granted by the High Court is competent. An order
of a High Court under Art. 226 or 227 is an order in a civil proceeding of
a High Court and so falls under Art. 133. But it cannot be said that such
l~
cases a party is exercising any right of appeal conferred on him by any
statute nor is the High Court
exercising any power of appeal. Whatever
might be the position even in respect of petitions under Arts. 226 or 227 of
the Constitution where the Court goes into the merits of the question, it cannot
be doubted that where it dismisses such a petition in limine it simply refuses
to exercise its powers under Art. 226 or 227 and such an order cannot bi:!
said to be an order passed on appeal or as affirming the decision of the Court
F
immediately below. Therefore. the order of the Hi$h Court in the present
case is not a judgment of affirmance. [427F, 427AB]
Abdul Majid v.
lawahar Lal,
(1904]
I.L.R.
36,
All. 350,
Karsondas
Dharamscy v. Gangab.'1ai. [1907] I.L.R. 32 Born. 108, Sunder Kaer v. Chandishwar Prasad Singh l.L.R. 30 Cal. 679 Promotho Nath Roy v. W. A. Lee, [1919]
33 C.L.J. 128, Ramaswami Udayar v. Sevu Aru Ramanathan Chettiar A.I.R.
1942 Madi. 357.
Purnendu
Nath
Tagore v. Kanai/al
Ghoshal
(1948]
2
Col. 202, Ganesh Prasad v. Mr. Makhna A.l.R. 1948 All. 375 and Oulabchand
G
v.~ Kudilal A.l.R. 1952 M.B. 149, referred to.
H
(2) The order of the Deputy Director of Consolidation is not. clear and
since the High Court dismissed the appellants petition in limine the reasons
which Jed the High Court to dismiss are not known. Hence it is necessary
that the High Court should deal with the petition before it and dispose of it
by a proper order. [427 GH]

## Text

r
424
A
ll
S. KALAWATI
v.
DURGA PRASAD & ANR.
May 2, 1975
[A. ALAGIRISWAMI, P. N. BHAGWATI AND P. K. GOSWAJ>U, JJ.J
Constitution nf India, 1950-Art. 226-Petition dismissed in Jimine
but
a certificate granted under Art. 133(1) (a}-Validi'ty of certificate.
C
The appellant filed a writ petition before the High Court under Art. 226
of the Constitution impugning the order of the Deputy Director of Consolidation. The High Court dismissed he petition in lbnine but granted a certificate
under Art.
133(1)(a) on the basis of valuation.
;
On appeal to this Court, the respondent raised a preliminary objection
that the certificate granted was not valid because the judgmeilt of the Hi'gb
D
Court was one affirming the judgment of the Deputy Director, Consolidation.
Setting aside the order of the High Court,
HEID :The certificate granted by the High Court is competent. An order
of a High Court under Art. 226 or 227 is an order in a civil proceeding of
a High Court and so falls under Art. 133. But it cannot be said that such
l~
cases a party is exercising any right of appeal conferred on him by any
statute nor is the High Court
exercising any power of appeal. Whatever
might be the position even in respect of petitions under Arts. 226 or 227 of
the Constitution where the Court goes into the merits of the question, it cannot
be doubted that where it dismisses such a petition in limine it simply refuses
to exercise its powers under Art. 226 or 227 and such an order cannot bi:!
said to be an order passed on appeal or as affirming the decision of the Court
F
immediately below. Therefore. the order of the Hi$h Court in the present
case is not a judgment of affirmance. [427F, 427AB]
Abdul Majid v.
lawahar Lal,
(1904]
I.L.R.
36,
All. 350,
Karsondas
Dharamscy v. Gangab.'1ai. [1907] I.L.R. 32 Born. 108, Sunder Kaer v. Chandishwar Prasad Singh l.L.R. 30 Cal. 679 Promotho Nath Roy v. W. A. Lee, [1919]
33 C.L.J. 128, Ramaswami Udayar v. Sevu Aru Ramanathan Chettiar A.I.R.
1942 Madi. 357.
Purnendu
Nath
Tagore v. Kanai/al
Ghoshal
(1948]
2
Col. 202, Ganesh Prasad v. Mr. Makhna A.l.R. 1948 All. 375 and Oulabchand
G
v.~ Kudilal A.l.R. 1952 M.B. 149, referred to.
H
(2) The order of the Deputy Director of Consolidation is not. clear and
since the High Court dismissed the appellants petition in limine the reasons
which Jed the High Court to dismiss are not known. Hence it is necessary
that the High Court should deal with the petition before it and dispose of it
by a proper order. [427 GH]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1641 of 1969.
From the Judgment and decree dated 13-9-1967 of the High Court
of Allah'.tbad in Civil Writ Petition No. 2334 of 1963.
R. H. Dhebur, D. v. Desai and P. C. Kapur for the appellant.
G. N. Dixit, Uma Mehta, S. Bagga and Raj Kumar Mehta, for the
Respondent.
>
>
s. KALAWATI v. DURGA PRASAD (Aillgiriswami, J.)
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-The appellants
is the widow of one Goverdha,ndass. The 1st respondent is her husband's brother.
Goverdhan425
A
dass and the 1st respondent are the sons of one Bhojraj. The appellant claimed 11 plots in Khata No. 97 as land _in which she was
entitled to be a joint tenant along with the 1st respondent. She aJso
claimed certain other plots on the ground that they were acquired by
B
Bhojraj and therefore it was joint Hindu family property and she was
entitled to inherit those shares also as a co-tenant along with 1st
respondent. She .succeeded in respect of the 11 plots in Khata No.
97 but failed in respect of the other .Plots.
The matter first came up before the Consolidation Officer and
thereafter on appeal before the Settlement Officer and finally before
the Deputy Director, Consolidation in revision.
Against the order
of the Deputy Director, Consolidation she
filed a petition
before
the High Court of Allahabad under Article 226. The High Court
dismissed
it
in limine but granted a
certificate
under
Article
133(1) (a) of the Constitution.
A preliminary objection was raised on behalf of the 1st reswndent that the certificate granted was not valid because the judgment
of the High Court was one affirming the judgment of the Deputy
Director, Consolidation. One of the questions on which the decision
of this question. depends is whether the Deputy Director, Consolidation as well as the other two officers exercising power under the
U .P. Consolidation of Holdings Act, 1953 are Courts. However, in
the view we take of the decision of the High Court that it is not a
judgment of affirmance this question does not arise..
The High
Court dismissed the writ petition in limine.
It did not go into the
merits of the ca,se or decide it even within the limited scope of its
powers under Article 226 or 227 of the Constitution even if not as
a Court of Appeal exercising its powers under section 96 or 100
of the Code of Civil Procedure.
It simply refused to exercise its
powers under those Articles of the Constitution.
Unless the. Court
had applied its mind to the case and after consideration affirmed
it the order cannot be said to be one of affirmance.
c
D
E
F
It· may be useful to consider earlier decisions in this connection.
In Abdul Majid v. Jawahir Lal (1904 ILR 36 All. 350) the question
G
of the st,arting point of limitation for the execution of a decree had
to be decided and that question depended upon the effect of an
order of the Privy Council dismissing an appeal for want of prose·.
cution. In that connection the Privy Council observed :
"The order dismissing the appeal for want of prosecution did not deal iudici.a,lly with the matter of the suit and
could in no sense be regarded as an order adopting or confirming the decision "appealed from.
It merely re.Co!ffiised
authoritatively that the appellant '.had not complied with the
c01;iditions under which the appeal was open to him and that
therefore he was in the same position as if he had not
appealed at all."
fl
'
426
SUPREME COURT REPORTS
(1975] SUPP· S.C.R.
A In Karsondas Dharamsey v. Gangabai (1907 !LR 32 Born. 108) an
order of the High Court refusing to admit an appeal after the period
of limitation had expired was held to be not a "decree passed on
appeal by the High Court" under s. 595 of the Civil Procedure Code
a,nd it was held that there was therefore no jurisdiction to grant leave
to appeal therefrom to the Privy Council under cl. (a) of that section.
B Tbc meaning of the words "Passed on appeal" were specifically considered ·and it was observed :
c
"The meaning of the expression "passed on appeal'"
has been settled by a line of authorities, which it is right
that we should follow: see Sunder Koer v. Chandishwar Prasad Singh (ILR 30 Cal. 679) and the cases there cited. And
applying that interpretation to the circumstances
of
the
~e, it cannot (in my opinion) be said that there is here
a decree passed on appeal by a High Court."
This Bombay decision was noticed in Promotho Nath Roy V; ·w. A.
Lee (1919 (33) CLJ
128). But that decision differed froni the
Bomb,ay decision because in that case the appeal had been admitted
D and dismissed whereas in the Bombay case the appeal was not admitted
at all.
In Ramaswami Udayar v. Sevu A ru Ramaflllthan
Chettlar (AIR 1942 Mad. 357)
it was held by a Division Bench
of the Madras High Court that where an .<J,Pplication to excnse delay,
by deducting 'the time taken in other proceedings in computing the
time for the application for rehearing of an appeal, was dismissed
E and consequently no order was passed on the application for rehea,ring the appeal, these were not orders on appeal withiti the
meaning of s. 109 (a) of the Code of Civil Procedure and hence
no leave could be granted.
These decisions were followed in Purnendu Nath Tagore v. Kanai/al Ghoshal (1948 (2) Cal. 202).
In Ganesh Prasad v. Mt. Makhna (AIR 1948 All. 375) however
F
a,n order dismissing appeal for default on account of non-prosecution
was held. -to be a decision wnich affirmed the decision of the Court
below.
'·
In Gulabchand v. Kudilal (AIR 1952 M.B. 149) it was held that
the order of the Court dismissing the Special Appeal on the ground
th~t no appeal lay under s. 25 of the Act was not an order which
G affirmed the decision of the Court below and it WU$ observed that
expression "affirms the decision of the Court immediately below"
implies that the Court had dealt judicially with the decision of the
Conrt below and upheld it and where the Court holds that it has
no jurisdiction to entertain an appeal from the decision of the Court
below and rejects the appeal, it cannot be held that the decision of
the Court below is affirmed by the rejection of the incompetent appeal.
H
The principle behind the maiority of the decision is thus to the
effect~ that where an appeal is dismissed on the preliminary ground
that it was not competent or for non-prosecution or for any other
reason the appeal is not enterta,ined, the decision cannot be said
to be a "decision on appeal" nor of affirmancc. It is only
where
tl1e appeal is heard and the judgment delivered thereafter the
,
-
i
. '""
s. KALAWATI v. DURGA PRASAD (Alagiriswami, J.)
427
judgment can
be said to be a judgment of a,ffirmance. Where a
A
party applies to the Court to exercise its powers under Article 226
or 227 of the Constitution it cannot be said that the party is exercising any right of appeal conferred on him by any statute nor is the
High Court exercising any power of appeal. Whatever might be the
position even in respect of petitions under Article 226 or 227 of
the Constitution where the Court goes into the merits of the question,
B
it cannot be doubted tha,t where it dismisses such a petition in limine
it simply refuses to exercise its powers under Article
226 or 227
Such an order cannot be said to be an order passed on appeal or
as affirming the decision of the Court immediately below.
In this connection it may be noticed that under s .109 of the
Code of Civil Procedure appeals lie to the Supreme Court from
any judgment, decree or final order of a High Court where it is passed
on appeal. A proceeding under Article 226 or 227 of the Constitution
is not an appeal. lt is true that the right conferred by Article 133 of
the Constitution, cannot in any way be curtailed by the provisions of
the Code of Civil Procedure and Article 133 does not speak of a Jmlgment, decree or finaJ order passed on appeal by the High Court. All
the earlier decisions of the various Courts referred to above are based
on the interpretation of ss. I 09 and 110 of the Code of Civil Procedure. An order of a High Court in a petition under Article 226 or 227
would be an order in a civil proceeding of a High Court and so fall
under Article 133. Where a High Court refuses to entertain such a
proceeding the sa,me considerations that were applied in the earlier
cases where an appeal was not judicially considered should be held
applicable also on principle.
c
D
E
We are therefore of opinion that an order in a petition under Article' 226 or 227 dismissed in limine is not a final order in a civil pro--
ceeding for the purpose of Article 133 (!) (a) of the Constitution
and is not therefore a judgment of affirmance under Article 13-3(1)
F
_,
(a), and therefore the certificate granted by the High Court is competent.
As regards the appeal itself we must say that we have not been
able to understand the order of the Deputy Director of Consolidation
which was sought to be quashed by means of the writ petition. We
were invited by the respondent to look into the orders of the CoiisG
olidation Officer and the Settlement Officer in order to understand
the order of the Deputy Director of Consolidation.
As the order
sought to be
qnashed
was
that of
the
Deputy Director of
Consolidation we do not feel called upon to do so. We are therefore
in the dark a,s to the reasons which might have led the High Court
to
dismiss
the
appellant's
petition -in
limine.
We
consider it necessary and proper therefore to set aside the order of the High
H
Court and direct that the petition be dealt with by it and disposed of
by a proper order. The High Court will hear the inatter afresh and
dispose it of by a reasoned order.
There will be no order as to costs.
P. B. R.
Case remanded.
,