KRANTI VINAYAK Vs. RAKESH K VINAYAK

JUDGEMENT

(1.) This appeal is filed against an order passed by the learned Single Judge on March 5, 1997 in Special Criminal Application No. 1371 of 1996. By that order, the learned Single Judge summarily rejected the petition filed by the appellant petitioner.

(2.) We have heard Mr. Kranti Vinayak, Party-in-person at considerable length. We are of the opinion that since the order passed by the learned Single Judge was "in exercise of criminal jurisdiction", an appeal under Clause 15 of the Letters Patent (Bombay) was applicable to this case, Letters Patent Appeal is not competent. We, therefore, asked Mr. Vinayak, (party-in-person) to satisfy us as to how an LPA filed by him is maintainable.

(3.) He submitted that the petition filed by him was neither in exercise of Civil Jurisdiction nor in exercise of Criminal Jurisdiction but in extra-ordinary jurisdiction of this Court under Art. 226 of the Constitution of India, and hence, Letters Patent Appeal would lie. He also submitted that no adequate and full opportunity was afforded by the learned Single Judge, and thus, there is an error apparent on the face of record, which requires to be corrected. When an order is passed under Art. 226, it is subject to L.P.A. He contended that initially when notice was issued by another Single Judge before whom the matter was placed, because of change in sitting, it was not open to another learned Single Judge, which is a Coordinate Court to discharge notice and dismiss the petition. According to Mr. Vinayak, such power does not lie in a coordinate court as virtually it would amount to exercise of appellate power. He submitted that even if it is assumed that this Court has no jurisdiction, appeal cannot be dismissed and only order which can be passed by the this Court is to return the appeal for presentation to proper Court. For this submission, he placed reliance on the provision of Rule 10 of Order 7 of the Code of Civil Procedure, 1908, which state that when the Court finds that it has no jurisdiction, the plaint cannot be dismissed but the plaintiff must be ordered to present it before appropriate Court. He also drew our attention to Clauses 26 and 41 of Letters Patent.