MANGALBHAI Vs. RADHYSHYAM S O PARISCHANDRA AGARWAL

JUDGEMENT

(1.) Special leave granted.

(2.) The tenants/ appellants aggrieved against the Judgment of the learned single Judge filed a Letters Patent Appeal before the Division Bench of the High Court. The Division Bench by order dated 23-10-1989 dismissed the appeal taking the view that in truth and substance the order was passed by the learned single Judge under Art. 227 of the Constitution against which Letters Patent Appeal was not maintainable. The tenants have come in appeal by grant of special leave in S.L.P. No. 3484 of 1991 against the Judgment of the learned single Judge of the High Court dated 11-12-1987 and S.L.P. No. 2980 of 1990 against the Judgment of the Division Bench of the High Court dated 23-10-1989.

(3.) It was contended on behalf of the tenants/appellants that the Writ Petition No. 1356 of 1986 was filed by the respondent/landlord under Articles 226 and 227 of the Constitution. In the relief prayed in the writ petition it was clearly mentioned that the orders dated 13-9-1985 passed by the Rent Controller, Gondia, and the order dated 31-3-1986 passed by the Resident Deputy Collector, Bhandara be quashed and set aside by a suitable writ, order or direction. It was submitted that in the heading of the petition it was clearly stated that it was a petition under Articles 226 and 227 of the Constitution. It was further argued that even though Art. 227 was mentioned in the writ petition but in substance it was a petition under Art. 226 and the entire tenor of the order of the learned single Judge clearly showed that it was dealing with a petition under Art. 226. It was thus contended that the learned Division Bench was not correct in taking the view that no appeal was maintainable against the order of the learned single Judge and in holding that the learned single Judge had passed the order under Art. 227 of the Constitution. It was also submitted that the Division Bench of the High Court wrongly placed reliance on a Full Bench decision of the High Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha, 1989 Mah LJ 695.