ISHWAR SAROOP Vs. SURAJ PARKASH

JUDGEMENT

(1.) A preliminary objection has been taken on behalf of the respondents against the maintainability of this appeal, namely, that an appeal against a judgment of a Single Judge of this court sitting on the original side, does not lie to a Division Bench of this court.

(2.) IT is contended that no appeal lies under Section 96 of the Code of Civil Procedure as a Single Judge of this court sitting on the original side is not a subordinate court, and that an appeal lies, if at all, under Clause 12 of the Letters Patent. As regards clause 12 of the Letters Patent, it is contended, that it is ultra -vires of the Constitution of Jammu and Kashmir. Section 96 (1) of the Code of Civil Procedure reads thus: - "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court." If the virtue of Cl. 12 of the Letters Patent a Division Bench of this Court, is authorised to hear appeals from the decisions of a Single Judge of this court, then an appeal would lie under Section 96 of the Code of Civil Procedure. Cl. 12 of the Letters Patent provides for an appeal from the judgment of a Single Judge to a Division Bench. Therefore the real question for consideration is whether Cl. 12 of the Letters Patent is a valid law or in other words, whether it is ultra -vires of the Constitution of the State. According to the learned counsel for the respondent clause 12 of the Letters Patent is ultra -vires of Section 103 of the Constitution of Jammu and Kashmir, which corresponds to Article 226 of the Constitution of India. That Section reads as follows: "The High Court shall have power to issue to any person or authority, including in appropriate cases any Government within the State, directions orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, puo warranto and certiorari, or any of them, for any purpose other than those mentioned in clause (2 -A) of Article 32 of the Constitution of India."

(3.) ACCORDING to the learned counsel when a Division Bench passes judgment in an appeal against the judgment of a Single Bench, it was issuing a writ of Certiorari against the Single Bench, and that such a writ of Certiorari under Section 103 of the Constitution can be issued only to a subordinate court or authority and not to a Single Bench of this Court. The learned counsel seeks support for this contention from the judgment of the Supreme Court in Major S. S. Khanna Versus Brig. F. J. Dillon, AIR 1964 S.C. 497. That was a case of a revision petition filed in the High Court under Section 115 C.P.C. against the finding of a subordinate Judge on a preliminary issue and the Supreme Court considered the scope of the powers of the High Court under Section 115 C.P.C. with reference to the order of the Subordinate Judge recording his finding on a preliminary issue. Strong reliance is sought to be placed on the following observations of Hidayatullah J in Para 29 of the reported judgment: "The power which this Section confers is clearly of the nature of a proceeding on a writ of Certiorari." and on the following observations in Para 31 :