BADRINATH GUPTA Vs. ESTATES OFFICER

JUDGEMENT

(1.) THE circumstances under which the present revision petition has been filed in this court may be first noticed :

(2.) THE petitioner against whom an order of eviction was passed by the respondent, Estates Officer, under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act of 1971 (Central Act) (hereinafter called 'the Act') filed an appeal under Section 9 of the Act before the learned District Judge, Jammu, who transferred the same for disposal to the learned Addl. District Judge Jammu. During the pendency of the appeal before the learned Addl. District Judge, the petitioner filed an application under Section 113 of the Civil Procedure Code with a prayer that certain constitutional points which are involved in the appeal may be referred to the High Court for decision. It was prayed in the application, that the same be decided first before hearing the main appeal. The learned Addl. District Judge rejected this prayer on 19th June, 1976 by observing that the constitutional points mentioned by the petitioner in his application have already been incorporated by him in his memo of appeal and therefore it was not desirable to hear the appeal in parts. The learned Judge observed that he would hear the appeal as a whole and not in parts. Although, it was not expressly mentioned in the order of 19th June, 1976 but the order implied that the learned Judge had deferred the determination whether any reference was required to be made to the High Court under Section 113 of the Code of Civil Procedure to the time when the appeal would be heard on merits.

(3.) SHRI R. P. Bakshi, learned counsel, appearing for the respondent has taken two preliminary objections to the maintainability of the present revision petition. The first objection is that no revision under Section 115, Code of Civil Procedure can be filed against an order passed by the appellate authority under the Act. According to the learned counsel for the respondent, the appellate authority (District Judge/Addl. Dist. Judge) is only a persona designata and not a court subordinate to the High Court, and therefore, no revision would lie under Section 115 Code of Civil Procedure. Reliance has been placed in support of this submission on AIR 1960 Pat 164 and AIR 1966 Madh Pra 7. These two authorities undoubtedly support the case of the respondent that the District Judge while acting under certain 'Acts' acts only as a persona designata and not as a court subordinate to the High Court.