DYAMAPPA DURGAPPA KADEMANI Vs. MADHUKAR SHYAMASUNDAR MUNDARGI

JUDGEMENT

(1.) HEARD the learned counsel for the applicant.

(2.) THIS revision has been filed from the Order of the educational appellate tribunal dated 30-3-1993 for exercise of jurisdiction under Section 115, Civil Procedure Code. The revisionalist has to establish the necessary ingredients of Section 115, Civil Procedure Code that the Order impugned has been passed by the civil court subordinate to High Court and that no appeal did lie from that Order to the High Court and thirdly that the Order impugned suffers from jurisdictional error coming either under the categories of (a), (b) and (c) of Section 115 and if the Order is allowed to stand and did not set aside, injustice would be caused and irreparable injury would be caused, in Order to invoke the jurisdiction of this court under Section 115, Civil Procedure Code. So the first ingredient that has to be decided is whether the Order impugned has been passed by a civil court. I have already considered this matter in the case of Hungund Taluka Banjara Vidhyauardhaka Sangha v Rachappa Chancumallaappa Chittawadagi and another, after duly considering all the questions whether the educational appellate tribunal can be said to be a court. Looking to the whole scheme under the Constitution as Contained in Chapter v of part 6 on one hand and part 14-a, in particular articles 323-a and 323-b which maintains a distinction between the two sets of institutions-courts and tribunals as well as the language of sections 8 and 10, including the proviso to sub-section (2) and Section 11 of Karnataka private educational institutions (discipline and control) act, 1975, this court has opined that in case where the appeal did lie to the tribunal under Section 8 of ACT of 1975 and Section 11 thereof also debars exercise of jurisdiction by the civil court in such matter, so the tribunal cannot be considered to be civil court. This court has further taken into consideration Section 3 of the Code of Civil Procedure which provides that for the purpose of Civil Procedure Code which includes Section 115, the district court i. e. , the principal civil court of the district is subordinate to High Court and every court of civil jurisdiction or every civil court subordinate to district court as well as small causes court is to be taken to be a court subordinate to High Court and when it specifically declares so under Section 3 that the tribunal cannot be taken to be the court for the purpose of Section 115. To all these provisions particularly to Section 8, proviso to Section 10 (2), specially expression 'function as educational appellate tribunal' and Section 11 and scheme of the constitution as referred to above, the attention of the Hon'ble judges of the full bench in the case of M/s. Excellent Educational Society and others v Smt. J. Shahida Begum and others, has not been invited, which clearly maintain a distinction between the courts and the tribunals, as such, the aforesaid full bench's decision suffers from what is called per incuriam and the decision which amounts to be what is known as per incuriam decision, it has been held by the Supreme Court in the case of A. R. Antuley v Ramdas Nayak (vide paras 44, 49, 64 and 138 of the report), does not operate as a binding precedent, and it becomes denude of its precedentory value, and the court may ignore it. Considering the above provisions, this court has held that the tribunal cannot be considered to be a court for the purpose of the code and Section 115, Civil Procedure Code and as the tribunal is not a court, the revision under Section 115 is not maintainable. In view of the above decision of this court in the case of the hungund taluka banjara vidhyavardhaka sangha, supra, this revision petition is also dismissed herewith as not maintainable. Nothing has been decided on the merits of the case. It is kept open to the parties to avail any remedy if available and as is advised by their learned counsel.