Tammanna and Ors Vs Renuka and Ors 13032009 KAR3090151COM283868

MANU/KA/0165/2009
Equivalent Citation: AIR2009Kant119, ILR 2009 KARNATAKA 1207
IN THE HIGH COURT OF KARNATAKA

W.A. No. 1585/2007 C/W.A. Nos. 1957/2006, 1383, 1530, 1753, 1926, 2143, 1078,
1422, 1526 and 1445/2007 and 884/2008
Decided On: 13.03.2009
Appellants: Tammanna and Ors.
Vs.
Respondent: Renuka and Ors.
Hon'ble Judges/Coram:
P.D. Dinakaran, C.J., S.R. Bannurmath, V. Gopala Gowda, V.G. Sabhahit, K.L.
Manjunath, A.S. Bopanna and A.N. Venugopal Gowda, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.P. Shankar, Sr. Adv. for Mamta G. Kulkarni, Adv. in
WA No. 1585/2007, V. Lakshminarayana, Sr. Adv. for Nagaiah, Adv. in W.A. No.
1957/2006, S.P. Shankar, Sr. Adv. for C.N. Kamath, Adv. in W.A. No. 1383/2007, G.A.
Viswanatha Reddy, Adv. in W.A. No. 1530/07, Jayakumar S. Patil Associates in W.A. No.
1753/2007, S.Z. Khureshi, Associates in W.A. No. 1926/2007, S.P. Shankar, Sr. Adv. for
G. Balakrishna Shastry, Adv. in W.A. 2143/2007, S.P. Shankar, Sr. Adv. for R.G. Hegde,
Adv. in W.A. No. 1078/2007, Lexplexus, Adv. in W.A. No. 1422/2007, B.A. Vani, Adv. in
W.A. No. 1526/2007, V. Lakshminarayana, Sr. Adv. for L. Govindraj, Adv. in W.A. No.
1445/2007 and K. Chandranath Ariga, Adv. in WA No. 884/2008
For Respondents/Defendant: K.G. Sateesha, Adv. for R1, Narendra Gowda, Adv. for R-2
and K. Irshad Ahmed, Adv. for R1 in W.A. No. 1926/2007 and Mahesh Wodeyar, Adv.
for R-1 to 8 in WA No. 1422/2007
JUDGMENT
P.D. Dinakaran, C.J.
I. The Core Issue
1. Whether an appeal from the judgment, decree or order passed by the Single Judge in
exercise of the power conferred under Article 227 of the Constitution of India, which
arises against any order made deciding an issue, passed by any Court subordinate to
the High Court, in the course of a suit or other proceeding not finally disposed of, and
is governed by Section 8 of the Karnataka High Court Act, 1961 and attracted by Section
115 and Section 100A of the Code of Civil Procedure, shall lie to and be heard by a
Bench consisting of two other Judges of the High Court under Section 4 of the said Act
in view of Sections 9(xii) and 10(iv-a) of the said Act read with Rules 2(1), 26 and 39
of the Writ Proceedings Rules, 1977 of the Karnataka High Court, and Article 11(sa) to
Schedule II to the Karnataka Court Fees and Suits Valuation Act, 1958?
II-Why the Larger Bench:
2 . 1 The genesis of the question under reference to this Larger Bench is traced as
hereunder:
09-08-2022 (Page 1 of 49) www.manupatra.com OP Jindal Global University

2.2 The Karnataka High Court Act, 1961, originally called as the "Mysore High Court
Act, 1961" was enacted by the State of Karnataka to make provision for regulating the
business and the exercise of powers of High Court in the State of Karnataka in relation
to the administration of justice and to provide for its jurisdiction.
2 .3 It is appropriate to refer the statement of objects and reasons for enacting the
Karnataka High Court Act for better appreciation of the legislative intention behind the
said enactment.
Statement of Objects and Reasons
Act 5 of 1962.- Consequent upon the abolition of the High Court of the former
State of Mysore by Section 50 of the States Reorganization Act, 1956, and the
establishment of a new High Court for the new State, Sections 52, 54 and 57 of
that Act govern the jurisdiction, practice and procedure and the powers of
judges, of the new High Court. Under Section 52, the High Court has, in respect
of the different areas of the State, such original, appellate or other jurisdiction,
which under the laws in force before 1st November, 1956, the High Courts of
Bombay, Hyderabad, Madras and Mysore had in the areas concerned. By virtue
of Section 54, the provisions of the Mysore High Court Act, 1884 are applicable
in respect of the practice and procedure in relation to the High Court of the new
State, and by virtue of Section 57, the provisions of the said Act are
applicable in respect of the powers of the Chief justice, Single Judges
and Division Courts and matters ancillary to the exercise of those
powers. Under Section 69 of the State Reorganisation Act, the provisions
referred to above will have effect subject to any provision that may be made
with respect to the High Court by any Legislature or other authority having
power to make such provision.
The Government of India have suggested the enactment of a law by the State
Legislature so that the State High Court can exercise the same powers and
jurisdiction in respect of the whole of the new State. Accordingly the Bill has
been prepared in consultation with the High Court. The recommendations of the
Law Commission have also been considered.
Provision has been made in the Bill specifying the cases to be heard by
a Single Judge and by a Bench of two Judges. In respect of decisions
of Single Judge in the exercise of original jurisdiction, an appeal to a
Bench of two Judges has been provided for. At present all Criminal Appeals
are being heard by a Bench of two Judges, and this has resulted in considerable
delay in the disposal of such appeals. Provision has therefore been made in
Clause 5, for criminal appeals from judgments in which no sentence of death,
imprisonment for life or imprisonment for a period exceeding seven years, is
passed against any accused being heard by a Single Judge. By virtue of Clause 6
all Second Appeals will be heard by a Single Judge. It is considered necessary to
make specific provision relating to disposal of urgent work of the High Court
during vacation. Clause 12 makes provision for this.
(emphasis supplied)
2.4.1 Even though several amendments have been made to the Karnataka High Court
Act, suffice it to refer the Amendment Act 12 of 1973, which is relevant to the issue
under consideration.

2.4.2 In the year 1971, the question of amending the Act to provide for the applications
under Articles 226, 227 and 228 of the Constitution of India for issue of writs (other
than writ in the nature of habeas corpus), may be heard by a Single Judge, instead of,
as then, by a Bench of two Judges and on an appeal against the decision of such Single
Judge to the Bench, had been examined. The Bill was accordingly introduced in the
Legislative Assembly to the effect that the applications under Articles 226, 227 and 228
of the Constitution of India may be heard by a Single Judge, with a right of appeal to
the Division Bench, and the amendment was passed by the Assembly.
2.4.3 Before the Bill came up in the Legislative Council, there was correspondence
between the High Court and the Government in the matter. The High Court expressed
the view that it was not desirable to provide that these matters be heard by a Single
Judge. Hence, in the Council, the amendment was moved to restore the original
provision, viz., that these matters be heard by a Bench consisting of two other Judges.
2.4.4 The Bill was later on passed, as recommended by the Council.
2.5. We had the benefit of perusing the xerox copies of the original records as to what
transpired between the Government and the High Court in this regard. When the views
of the High Court were that the High Court was not in favour of the proposed
amendment viz., providing the hearing of the applications under Articles 226, 227 and
228 of the Constitution of India by a Single Judge with an appeal to a Bench of two
Judges and the request of the High Court to drop the above amendment was considered
by the then Hon'ble Chief Minister as well as the Minister for Law and Parliamentary
Affairs and other Hon'ble Ministers, in the light of the recommendation of the Law
Commission report; and as they agreed to approve the same, the matter was then
placed before the Cabinet headed by the then Chief Minister. After getting the approval
of the Cabinet, the same was placed before the Council and the Bill became an Act to
the effect that the applications under Articles 226, 227 and 228 of the Constitution of
India shall be heard by a Single Judge and providing an appeal before the Bench
consisting of two other Judges.
2.6 The statement of objects and reasons for the above amendment reads hereunder:
Amending Act 12 of 1973.- At present all applications under Clause (1) of
article 226 and articles 227 and 228 of the Constitution of India are dealt with
by a Bench of two Judges. In the High Courts of Kerala, Madras, Nagpur,
Allahabad, Delhi, Calcutta, Andhra Pradesh and Bombay, such applications are
dealt with by a Single Judge and a right of appeal is given to the aggrieved party
and such appeals are dealt with by a Bench of two Judges. The Law Minister's
Conference held in 1957 and 1960 was also of the view that such applications
should be dealt with by a Single Judge with a right of appeal to a Bench of two
Judges. The Law Commission in its Fourteenth Report Vol.11 while considering
the question has stated with particular reference to Madras that such a
procedure has yielded satisfactory results. As the principles governing the
disposal of Writ Petitions and connected matters have been now
sufficiently clarified by the decisions of different High Courts and the
Supreme Court, it is considered desirable to empower a Single Judge
to deal with applications under Clause (1) of article 226 (except
where the prayer is for the issue of writ in the nature of habeas
corpus) and applications under articles 227 and 228 of the
Constitution of India with a right of appeal to a Bench of two Judges.
It is also considered that this procedure may result in more

expeditious disposal of such applications, and also provide a right of
appeal to the aggrieved party whose right to approach the Supreme
Court is very much restricted in view of the Constitution (Thirtieth)
Amendment.
Hence the Bill.
(emphasis supplied)
2.7 Thus Clause (xii) was inserted to Section 9, which deals with other powers of the
Single Judge and Clause (iv-a) was inserted to Section 10 of the Act, which deals with
other powers of a Bench of two judges and the same are extracted hereunder for ready
reference.
9. Other powers of a Single Judge.- The powers of the High Court in
relation to the following matters shall be exercised by a Single Judge, provided
that the Judge before whom the matter is posted for hearing may adjourn it for
being heard and determined by a Bench of two Judges:
xxx xxx xxx
(xii) exercise of powers under,:
(a) Clause (1) of Article 226 of the Constitution of India except
where such power relates to the issue of a writ in the nature of
habeas corpus; and
(b) Articles 227 and 228 of the Constitution of India.
(emphasis supplied)
10. Other powers of bench of the two judges.-
The powers of the High Court in relation to the following matters shall be
exercised by a Bench of two judges:
xxx xxx xxx
(iv-a) an appeal from any original judgment, order, or decree passed
by a Single Judge in exercise of the powers under Clause (1) of Article
226, Article 227 and Article 228 of the Constitution of India.
(emphasis supplied)
2 . 8 However, the other relevant Sections to the issue namely, Section 4, which
provides for an appeal from the decisions of a Single Judge of the High Court, and
Section 8, which deals with revisional jurisdiction and prescribes the powers of a Single
Judge to dispose of revision cases himself or refer the same to a Bench, remained
unamended and the same read as hereunder:
4. Appeals from decisions of a Single Judge of the High Court-
An appeal from a judgment, decree, order or sentence passed
by a Single Judge in the exercise of the original jurisdiction of
the High Court under this Act or under any law for time being in force,
shall lie to and be heard by a Bench consisting of two other

Judges of the High Court.
(emphasis supplied)
8. Powers of Single Judge to dispose of revision cases himself or refer
the same to a Bench.-
(1) Any Judge of the High Court sitting alone, shall have power to
hear and dispose of civil and criminal revision cases in exercise of the
revisional jurisdiction vested in the High Court under any law
for the time being in force, except cases relating to quashing of orders
of commitment:
Provided that in exercise of such revisional jurisdiction in
respect of proceedings of any criminal Court such Single Judge
shall not impose a sentence of death or imprisonment for life or
sentence of imprisonment exceeding seven years.
(2) The decision or order of a Single Judge in cases under
Sub-Section (1) shall be final:
Provided that such Judge may, if he thinks fit, instead of
disposing of any case as aforesaid refer such case to a Bench of
two Judges for hearing and disposal.
(emphasis supplied)
2.9 Having traced the origin of the powers conferred on the Single Judge and Division
Bench under Section 9(xii) and 10(iv-a) of the Karnataka High Court Act respectively,
by an Amendment Act of 12 of 1973, untrammeled with that of the Single Judge and
Division Bench conferred under Sections 8 and 4 of the Act respectively, now let us
refer to the backdrop of the history of amendments brought to Sections 100A and 115
of the Code of Civil Procedure (hereinafter referred to as 'CPC for short), which had
driven us to the issue under reference.
3 . 1 Among other amendments proposed in the CPC, the Parliament, by CPC
(Amendment) Act 104 of 1976, proposed to bring an amendment inserting Section 100A
and amending Section 115 CPC.
3.2.1 By CPC (Amendment) Act 104 of 1976, Section 100A was inserted. While Section
100 CPC provides for a second appeal before the High Court against every decree
passed in an appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law, Section 100A CPC, was
inserted for the purpose of minimizing delay in finality of adjudication. Section 100A
bars further appeal against the decision of Single Judge and overrides the Letters Patent
and any other law providing for such an appeal. Section 100A CPC reads as hereunder:
Section 100A. No further appeal in certain cases.- Notwithstanding
anything contained in any Letters patent, for any High Court or in any other
instrument having the force of law or in any other law for the time being in
force, where any appeal from an appellate decree or order is heard and
decided by a Single Judge of a High Court, no further appeal shall lie
from the judgment, decision or order of such Single Judge in such
appeal or from any decree passed in such appeal.

(emphasis supplied)
3.2.2 Thereafter, the CPC (Amendment) Act 1999 (Act 46 of 1999) has substituted a
new Section for the old Section 100A, which reads thus:
Section 100A. No further appeal in certain cases.- Notwithstanding anything
contained in any Letters Patent for any High Court or in any other instrument
having the force of law or in any other law for the time being in force,:
(a) where any appeal from an original or appellate decree or order is
heard and decided,
(b) where any writ, direction or order is issued or made on an
application under Article 226 or Article 227 of the Constitution,
by a Single Judge of a High Court no further appeal shall lie from the
judgment, decision or order of such Single Judge.
3.2.3 The amendment, thus seeks to bar:
(a) further appeal from an original decree or order (apart from appellate decree
or order already barred) heard and decided by a Single Judge of a High Court;
and barred) heard and decided by a Single Judge of a High Court: and
(b) appeal from any writ, direction or order issued or made on an application
under Article 226 or 227 of the Constitution by a Single Judge of a High Court.
3.2.4 Even though Section 100A, as per CPC (Amendment) Act 46 of 1999, prohibited
an appeal against the order of the Single Judge passed in writ petition under Articles
226 and 227 of the Constitution of India by Clause (b) in Section 100A CPC, the said
Clause (b) of Section 100A CPC had been omitted by the CPC Amendment Act 22 of
2002 to the Karnataka High Court Act and accordingly Section 100A was modified as
hereunder:
Section 100A. No further appeal in certain cases.- Notwithstanding anything
contained in any Letters Patent for any High Court or in any other instrument
having the force of law or in any other law for the time being in force, where
any appeal from an original or appellate decree or order is heard and decided,
by a Single Judge of a High Court, no further appeal shall lie from the
judgment, and decree of such Single Judge.
3.3.1 Section 115 CPC, as amended by Act 104 of 1976, reads hereunder:
Section 115. Revision.- (1) The High Court may call for the record of any case
which has been decided by any Court subordinate to such High Court and in
which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity,
the High Court make such order in the case as it thinks fit:

Provided that the High Court shall not, under this Section, vary or
reverse any order made, or any order deciding an issue, in the course
of a suit or other proceeding, except where-
(a) the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or
other proceedings, or
(b) The order, if allowed to stand, would occasion a failure of
justice or cause irreparable injury to the party against whom it
was made.
(2) The High Court shall not, under this Section, vary or reverse
any decree or order against which an appeal lies either to the
High Court or to any Court subordinate thereto.
Explanation.- In this Section the expression "any case which
has been decided" includes any order made, or any order
deciding an issue, in the course of a suit or other proceeding.
(emphasis supplied)
3.3.2 By the CPC (Amendment) Act 104 of 1976, the pre-amended Section 115 was
renumbered as Section 115 and a proviso was added to the said Sub-section and
Section 115(2) was also inserted.
3.3.3 The jurisdiction exercised by the High Court under Section 115 CPC is called
'revisional jurisdiction'. As per Section 115, amended by CPC (Amendment) Act 104 of
1976, the powers of the High Court could only be invoked:
(a) in cases where no appeal lies;
(b) in cases which are decided by any Court subordinate to the High Court; and
(c) in cases where such subordinate Court appeared to have;
(i) exercised a jurisdiction not vested in it by law; or
(ii) failed to exercise a jurisdiction so vested; or (in) acted in the
exercise of its jurisdiction illegally or with material irregularity.
Except in these three cases, the High Court had no power to interfere in the revisional
jurisdiction. The revisional jurisdiction of the High Court is so restricted under Section
115 CPC, and the same is provided only when there is excess, failure or wrongful
exercise of jurisdiction, apparent on the face of the record, but not otherwise.
3.3.4 Exercise of revisional jurisdiction under Section 115 CPC, could, therefore, be
invoked only when some illegality or material irregularity is committed by a subordinate
Court in the matter of exercise of its jurisdiction for rectification of such errors.
3.3.5 Section 115 CPC thus essentially is a source of power of High Court to supervise
the subordinate Courts. It does not, in any way, confer a right on a litigant aggrieved by
any order of the subordinate Court to approach the High Court for any substantial relief.
A remedy under Section 115 CPC is not linked with the substantive right. The proviso to
Section 115 CPC, in fact, operates to limit or restrict the general power of revision

created by the said Section. Similarly, the Explanation does not enlarge or extend the
meaning of expression "any case which has been decided" to every interlocutory order
irrespective of whether it decides or adjudicates upon a right or an obligation or not.
3.3.6 By CPC (Amendment) Act 46 of 1999, which came into effect from 1-7-2002,
Clause (b) of the proviso to Section 115 CPC was omitted. In addition to that, a new
Sub-section (3) was inserted. The effect of the amendment brought in by CPC
(Amendment) Act 46 of 1999, is that the revision would lie only against such
interlocutory orders deciding an issue in the suit or other proceedings finally disposed
of.
3.3.7 Section 115 CPC, as amended by CPC (Amendment) Act 46 of 1999, which came
into effect from 1-7-2002 reads as under:
115. Revision
(1) The High Court may call for the record of any case which has been decided
by any Court subordinate to such High Court and in which no appeal lies
thereto, and if such subordinate Court appears-
(c) to have acted in the exercise of its jurisdiction illegally or with
the High Court may make such order in the case as it thinks fit:-
Provided that the High Court shall not, under this
Section, vary or reverse any order made, or any order
deciding an issue, in the course of a suit or other
proceeding, except where the order, if it had been made
in favour of the party applying for revision, would have
finally disposed of the suit or other proceedings.
(emphasis supplied)
(2) The High Court shall not, under this Section, vary or reverse any
decree or order against which an appeal lies either to the High Court or
to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding
before the Court except where such suit or other proceeding is stayed
by the High Court.
Explanation: In this Section, the expression, "any case which has been
decided" includes any order made, or any order deciding an issue, in
the course of a suit or other proceeding.
3.3.8 For more clarity, proviso to Section 115(1) CPC before CPC (Amendment) Act 46
of 1999, reads as hereunder:
Provided that the High Court shall not under this Section, vary or reverse any
order made, or any order deciding an issue, in the course of a suit or other

proceeding, except where:
(a) the order, if it had been made in favour of the party applying for
revision, would have finally disposed of the suit or other proceedings;
or
(b) the order, if allowed to stand, would occasion a failure of justice or
cause irreparable injury to the party against whom it was made.
3.3.9 The aforesaid proviso has been substituted by the CPC (Amendment) Act 46 of
1999, as hereunder:
Provided that the High Court shall not, under this Section, vary or reverse any
proceeding, except where the order, if it had been favour of the party applying
for revision, would have finally disposed of the suit or other proceedings;
3.3.10 Accordingly, the amendment brought in by CPC (Amendment) Act 46 of 1999,
has further restricted the jurisdiction under Section 115 CPC. The effects of amendment
brought in to Section 115 CPC, are two fold, viz.
(I) firstly, it prescribes a condition in which the jurisdiction of the High Court
arises, i.e. when there is a case decided by subordinate. Court against which no
appeal lies to the High Court; and
(II) secondly, it sets out the circumstances in which the jurisdiction may be
exercised, i.e. the revisionary power of the High Court is exercisable under
Section 115 CPC only in respect of "any case which has been decided" by the
Court subordinate to High Court.
3.3.11 The former concerns with the power of the High Court to call for the records of
Courts subordinate to it by the High Court and relates to existence of conditions
precedent, on the basis of which such exercise of jurisdiction under Section 115 CPC
depends, and in the absence of existence of such conditions, there is no authority or
jurisdiction to call for the records of subordinate Courts for examination in the matter of
exercise of jurisdiction under Section 115 CPC.
3.3.12 The latter relates to the stage subsequent to exercise of power by the High Court
spelling out the circumstances in which, the High Court, in exercise of its jurisdiction
under Section 115 CPC, can vary or modify the order in question. Accordingly, the
maintainability of the revision under Section 115 CPC depends upon two conditions, viz
(i) that it must relate to a case decided by the subordinate Court to the High
Court; and
(ii) in connection with the case decided, no appeal lies thereto.
Once these two conditions are fulfilled, it cannot be said that the application for revision
is not maintainable. If the above conditions are not fulfilled, no revision can be
maintainable under Section 115 CPC before the High Court.
3.4.1 In order to get over the restriction brought in to Section 115 CPC, supervisory
powers of the High Court under Article 227 of the Constitution of India re invoked.
3.4.2 It is a settled proposition that the revisional jurisdiction of the High Court under

Section 115 CPC is separate and distinct from that of the powers conferred on the High
Court under Article 227 of the Constitution of India and the one cannot be identified
with the other. The supervisory jurisdiction conferred under Article 227 of the
Constitution of India is different from the revisional jurisdiction of the High Court under
Section 115 CPC. The power of the High Court under Section 115 CPC is complementary
to the power of superintendence conferred under Article 227 of the Constitution. As
such, the restriction imposed on the powers of the High Court under Section 115 CPC,
in view of the CPC (Amendment) Act 46 of 1999, would in no way curtail the
supervisory powers of the High Court under Article 227 of the Constitution of India.
3.5 The supervisory power of the High Court under Article 227, with reference to the
restrictions imposed to the revisionary jurisdiction of the High Court under Section 115
CPC got settled in the decision of the Apex Court in the case of Surya Dev Rai v. Ram
Chander Raj and Ors. MANU/SC/0559/2003 : AIR2003SC3044 , holding that the power
of the High Court under Articles 226 and 227 of the Constitution of India is always in
addition to the revisional jurisdiction of the High Court under Section 115 CPC. In other
words, the curtailment of revisional jurisdiction of the High Court under Section 115
CPC does not take away the constitutional jurisdiction of the High Court under Articles
226 and 227 of the Constitution of India. The power of the High Court under Articles
226 and 227 of Constitution thus remains untrammeled by the amendment made to
Section 115 CPC; and the same is, therefore, available, subject to the Rules of self-
discipline and practice. Thus, despite the restrictions imposed under Section 115 CPC,
the interlocutory orders, made in the course of a suit or other proceeding which are not
finally disposed of, came to be challenged, invoking the supervisory jurisdiction of the
High Court under Article 227 of the Constitution of India.
3.6 While so, the orders of the Single Judge made under Article 227 of the Constitution
are appealed before the Division Bench under Section 4 of the Karnataka High Court Act
read with Sections 9(xii) and 10(iv-a) of the Act. Whether such an appeal filed against
the order passed by the Single Judge under Article 227 of the Constitution of India is
maintainable, came up for consideration before this Court in the case of The
Management of Kalpana Theatre v. B.S. Ravishankar AIR 1995 Kar 426 hereinafter
referred to as the 'kalpana Theatre' case.
3.7 A Division Bench of this Court, in Kalpana Theatre Case (Supra), while considering
the maintainability of an appeal under Section 4 of the Karnataka High Court Act against
the order of the Single Judge made in his supervisory power under Article 227 of the
Constitution of India, after referring to the decisions of the Apex Court in:
i) Waryam Singh v. Amarnath MANU/SC/0121/1954 : [1954]1SCR565
ii) State of Andhra Pradesh v. S. Sreeram Rao MANU/SC/0222/1963 :
(1964)IILLJ150SC
iii) P.H. Kalyani v. Air France, Calcutta MANU/SC/0137/1963 : (1963)ILL J679SC
iv) P. Kasillingam v. PSG College of Technology MANU/SC/0438/1981 :
(1981)ILLJ358SC
v) Umaji Keshao Meshram v. Smt. Radhika Bai and Anr. MANU/SC/0132/1986 :
[1986]1SCR731
vi) Shushilabai Laxminarayan Mudaliar v. Nihalchand Waghajibhai Shaha
MANU/SC/0042/1992 : AIR1992SC185

held thus:
8. If Section 4 of the Act is examined in the light of the aforesaid decisions of
the Supreme Court, it becomes apparent that Section 4 does not provide an
appeal against the judgment or order passed by a Single Judge of this Court in
a petition under Article 227 and that an appeal will lie only if a judgment or
order is passed in a petition under Article 226. Where a petition is filed both
under Articles 226 and 227, it will have to be considered whether the points
raised in the petition arose for adjudication for the first time before the High
Court. If the challenge in the petition is with respect to the points already
adjudicated upon the subordinate Court or Tribunal, then it will have to be held
that supervisory jurisdiction of High Court was invoked and not the original.
The relief prayed for and granted by the Court is also a factor that would
indicate whether the petition was filed under Article 226 and 227. In cases
where it can be said that the petition would fall both under Article 226 and
Article 227 then it would be proper to consider the petition as the one filed
under Article 226 of the Constitution and in those cases, an appeal would lie to
a Bench of two Judges under Section 4 of the Act.
3.8 But, the view taken by the Division Bench of this Court in Kalpana Theatre Case
(Supra) was reversed by the Full Bench consisting of three Judges of this Court in Ritz
Hotels (Mysore) Limited v. State of Karnataka MANU/KA/0509/1996 : ILR1996KAR3445
, hereinafter referred to as the Ritz Hotels Case, on the ground that Sections 9(xii) and
10(iv-A) of Karnataka High Court Act and Rules 2(1), 26 and 39 of the Writ Proceedings
Rules of the Karnataka High Court read with Article 11(sa) to Schedule II to the
Karnataka Court Fees and Suit Valuations Act, 1958, were not considered by the
Division Bench in Kalpana Theatre Case (Supra).
3.9. In this regard, it is apt to extract Rules 2(1), 26 and 39 of the Writ Proceedings
Rules, 1977 of the Karnataka High Court as hereunder:
2.(1) Every petition under Article 226 and/or Article 227 of the Constitution
shall be designated as 'Writ Petition' and shall be in Form No. 1 appended to
these Rules.
2 6 . Every appeal filed from an order passed by a Single Judge on a writ
petition shall be designated as 'writ appeals'.
39. Application of the High Court of Karnataka Rules, etc.- The provisions of
High Court of Karnataka Rules, 1959, the Rules made by the High Court of
Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958, and
the provisions of CPC, 1908, shall apply as far as may be, to proceedings under
Articles 226 and 227 and writ appeals in respect of matters for which no
specific provision is made in these rules.
3.10 Article 11(sa) to Schedule II to the Karnataka Court Fees and Suit Valuation Act,
1958, read as hereunder:

3.11 The Full Bench of this Court in Ritz Hotels Case (Supra), relied on Sections 4,
9(xii) 10 (iv-a) of the Karnataka High Court Act and Rules 2(1), 26 and 39 of the Writ
Proceedings Rules as well as the statement of objects and reasons for Amendment Act
12 of 1973 to the Karnataka High Court Act, referred to above, and held as hereunder:
4. In order to appreciate the point of law referred to us, it is necessary to have
a resume of various provisions of the Act and the rules. Section 4 of the Act
provides that an appeal from a judgment, decree order or sentence passed by a
Single Judge in the exercise of the original jurisdiction of the High Court under
this Act or under any law for the time being in force, shall lie to and be heard
by a Bench consisting of two other Judges of the High Court. Section 9 of the
Act deals with the powers of a Single Judge with respect to the matters
specified therein, and Clause (xii) inserted by Act 12 of 1973 provides:
(xii) exercise of powers under.- (a) Clause (1) of Article 226 of the
Constitution of India except where such power relates to the issue of a
writ in the nature of habeas corpus; and (b) Article 227 and 228 of the
Constitution of India.
The amended Clause (iv-a) of Section 10 of the Act provides:
(iv-a)- an appeal from any original judgment, order, or decree passed by a
Single Judge in exercise of the powers under Clause (1) of Article 226, Article
227 and Article 228 of the Constitution of India.
Rule 2(1) of the Rules provides that every petition under Article 226 and/or
Article 227 of the Constitution shall be designated as 'writ petition' and be in
Form No. 1 appended to the rules. Every such petition is required to set forth
succinctly in chronological order and in consecutively numbered paragraphs all
the relevant facts which are said to have been occasion to the petitioner, the
grounds in support of the petition and relief claimed. Form No. 1 clearly
indicates that petitions filed under Articles 226, 227 and 228 of the Constitution
are taken cognizance by the Court in its original jurisdiction. Form No. V
provides the format of memorandum of writ appeal. Rule 26 of the rules
provides that every appeal filed from an order passed by Single Judge on a writ
petition shall be designed as 'writ appeal', and under Rule 27 of a provision has
been made for preferring the appeal in the form of a memorandum as per Form
No. V.
5 . In Kalpana Theatre's Case (Supra), various provisions of the Act, and the
Rules as noted herein above, were not referred to or taken note of by a Division
Bench. The Court was persuaded to hold regarding non-maintainability of
appeals against judgments or orders passed by the Single Judge under Article
227 of the Constitution of India on the basis of various judgments of the
Supreme Court and different High Courts. It is again worth while to note that in
all those matters no provision analogous to the provisions as incorporated in

the Act and the Rules was made. On the basis of the judgments cited before it,
the Division Bench held that as orders passed in petitions filed under Article
227 of the Constitution were not in exercise of the original jurisdiction of the
Court, no appeal against such an order was maintainable. As we have noted
already, writ petitions filed under Articles 226 and 227 of the Constitution, in
the State of Karnataka are specifically held to the proceedings of the Court
under Rules 2 of the rules in its original jurisdiction. The Amendment Act 12 of
1973 was enacted for a definite purpose of widening the scope of appellate
powers of this Court in terms of the report of the Law Commission, and in the
Statement of Objects and Reasons, it was stated:
At present all applications under Clause (1) of article 226 and articles
227 and 228 of the Constitution of India are dealt with by a Bench of
two Judges. In the High Courts of Kerala, Madras, Nagpur, Allahabad,
Delhi, Calcutta, Andhra Pradesh and Bombay, such applications are
dealt with by a Single Judge and a right of appeal is given to the
aggrieved party and such appeals are dealt with by a Bench of two
Judges. The Law Ministers' Conference held in 1957 and 1960 was also
of the view that such applications should be dealt with by a Single
Judge with a right of appeal to a Bench of two Judges. The Law
Commission in its Fourteenth Report Vol. II while considering the
question has stated with particular reference to Madras that such a
procedure has yielded satisfactory results. As the principles governing
the disposal of Writ Petitions and connected matters have been now
sufficiently clarified by the decisions of different High Courts and the
Supreme Court, it is considered desirable to empower a Single Judge to
deal with applications under Clause (1) of Article 226 (except where
the prayer is for the issue of a writ in the nature of habeas corpus) and
applications under Articles 227 and 228 of the Constitution of India
with a right of appeal to a Bench, of two Judges. It is also considered
that this procedure may result in more expeditious disposal of such
applications, and also provide a right of appeal to the aggrieved party
whose right to approach the Supreme Court is very much restricted in
view of the Constitution (Thirtieth) Amendment.
It appears that while deciding the Kalpana Theatre's case, supra, the Division Bench did
not take note of an earlier judgment of this Court in State of Karnataka and Ors. v. H.
Krishnappa ILR 1975 Kar 1015 wherein it was held:
The effect of amendment of High Court Act, 1961, by the Amendment Act, 1973
is that on and after 16th July, 1973 petitions under Article 226 of the
Constitution (except those which relate to issue of writ in the nature of habeas
corpus) petitions under Article 227 of the Constitution and cases transferred to
the High Court under Article 228 of the Constitution, shall be heard and
disposed of in the first instance, Single Judge from whose decisions appeals lie
to Division Benches.
It is admitted, acknowledged and settled position in law that the right of appeal is the
creature of the statute. Right of appeal is neither natural nor inherent right attached to
litigation. A full Bench of Allahabad High Court in Pratap Narain Agarwal v. Ragho
Prasad and Ors. MANU/UP/0002/1970 : AIR1970All15 , held that 'the right of appeal
being a creature of the statute its nature and character will have to be determined and
controlled by the relevant provisions'. The provisions regarding appeal are required to

be construed liberally and not narrowly. The legislative intention has to be spelt out and
gathered from the relevant provisions relating to the right of appeal. Wisdom of
legislature cannot be substituted by the opinion of the Court except in cases where the
legislature action is found to be having inherent lack of jurisdiction or contravening the
constitutional provisions.
Even in Kalpana Theatre's case, supra, the Division Bench referred to the judgment of
the Supreme Court in Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr.
(supra), and observed:
...In Umaji's case, supra, it is also held that the relief granted by the learned
Single Judge clearly indicated that he was exercising jurisdiction under Article
226 and not under Article 227 of the Constitution. The aforesaid observations in
Umaji's case, supra, in Ratnagiri District Central Co-operative Bank Limited v.
Dinkar Kashinath Waive and Ors. and in Sushilabai Laxminarayan Mudliyar and
Ors. v. Nihalchand Waghajibhai Shaha and Ors. case MANU/SC/0042/1992 :
AIR1992SC185 case, clearly indicate which factors would help in deciding
whether the petition is under Article 226 or under Article 227 of the Constitution.
If Section 4 of the Act is examined in the light of the aforesaid
decisions of the Supreme Court it becomes apparent that Section 4
does not provide an appeal against the judgment or order passed by a
Single Judge of this Court in a petition under Article 227 and that an
appeal will lie only if a judgment or order is passed in petition under
Article 226. Where a petition is filed both under Articles 226 and 227,
it will have to be considered whether the points raised in the petition
arose for adjudication for the first time before the High Court. If the
challenge in the petition is with respect to the points already
adjudicated upon by the Subordinate Court or Tribunal then it will
have to be held that supervisory jurisdiction of the High Court was
invoked and not the original. The relief prayed for and granted by the Court
is also a factor that would indicate whether the petition was filed under Article
226 or under Article 227. In cases where it can be said that the petition would
fall both under Article 226 and Article 227, then it would be proper to consider
the petition as the one filed under Article 226 of the Constitution and in those
cases an appeal would lie to Bench of two Judges under Section 4 of the Act.
In the instant case also, the writ petition was filed both under Articles
226 and 227 of the Constitution. A perusal of the pleadings and the
judgment of the learned Single Judge clearly indicated that in fact and
substance the petition was under Article 226 of the Constitution. After
referring to the various provisions of law and judgments as noted
herein above, we are of the opinion that the Division Bench in Kalpana
Theatre's Case, (Supra), was not justified in holding that no appeal
against an order passed by the Single Judge in a proceeding arising
out of a petition filed under Article 227 of the Constitution was
maintainable. The scope of Section 4 of the Act in the context of other
provisions of law and particularly the amendment made by amendment
Act 12 of 1973 is admittedly wider than Letters Patent or the Acts of
the other States which were referred to or relied upon by the Division
Bench in Kalpana Theatre's Case, (Supra). In our opinion, the law laid
down in Kalpana Theatre's Case, (Supra), being contrary to the settled
position of law is liable to be over ruled. We hold that an appeal against an

order passed by a Single Judge in a proceeding arising out of a petition filed
under Articles 226, 227 and 228 of the Constitution of India is maintainable. The
reference is answered accordingly.
(emphasis supplied)
3.12 But, it is relevant to note that neither the decision in Kalpana Theatre case nor
Ritz Hotels case deals with the powers of the High Court under Section 115 CPC read
with Section 8 of the Karnataka High Court Act.
3.13.1 The correctness of the decision of Full Bench consisting of three judges in Ritz
Hotels Case, reversing the decision of the Division Bench of this Court in Kalpana
Theatre case, again was referred to the Full Bench consisting of five Judges, to which
one of us (Manjunath, J) was a party, in Gurushanth Pattedar v. Mahaboob Shahi
Kulbarga Mills and Anr. MANU/KA/0176/2005 : AIR2005Kant377 , in short, Pattedar
case, where the appellant as a plaintiff before the Trial Court in a suit laid for
permanent injunction, an ad interim order of temporary injunction was granted.
However, the said order of ad interim injunction has been reversed in the appeal filed
before the Civil Judge (Senior Division). But, the Single Judge, exercising his power
under Articles 226 and 227 of the Constitution, initially granted interim order of status
quo and subsequently vacated the same; and again which an appeal was preferred
under Section 4 of the Karnataka High Court Act.
3.13.2 The Full Bench consisting of five Judges, after referring to Umaji Case (Supra),
drew a distinction between the power under Articles 226 and 227 of the Constitution of
India, and held that while the proceedings under Articles 226 are in exercise of original
jurisdiction of the High Court, the proceedings under Article 227 of the Constitution of
India are in exercise of supervisory power; and since Section 4 of the Karnataka High
Court Act, when read in the context of original or supervisory jurisdiction, an intra-court
appeal is provided only against the order of Single Judge passed in exercise of original
jurisdiction under Article 226 of the Constitution of India, but not against the order
passed in the exercise of the supervisory jurisdiction under Article 227 of the
3.13.3 Before proceeding further, it is apt to refer to the ratio laid down by the Apex
Court in Umaji case as hereunder:
A proceeding under Article 226 is a original proceeding and when it
concerns civil rights , it is an original civil proceeding. Consequently
where -a petition filed under Article 226 of the Constitution is
according to the Rules of a particular High Court heard by a Single
Judge, an intra-court appeal will lie from that judgment if such a right
of appeal is provided in the charter of that High Court, whether such
Charter be Letters Patent or a statute....
A proceeding under Article 227 is not an original proceeding. An intra-
court appeal does not lie against the judgment of a Single Judge of the
Bombay High Court given in a petition under Article 227 by a reason of
such appeal being expressly barred by Clause 15 of the Letters Patent
of that High Court.
Where the facts justify a party in filing an application either under
Articles 226 and 227 of the Constitution, and the party chooses to file
his application under both these articles, in fairness and justice to

such party and in order not to deprive him of the valuable right of
appeal the Court out to treat the application as being made under
Article 226 and if in deciding the matter, in the final order of the Court
gives ancillary directions which may pertain to Article 226, this right of
appeal under Clause 15 of the Letters Patent, where the substantial part of the
order sought to be appealed against is under Article 226.
(emphasis supplied)
3.13.4 In Pattedar Case (Supra), it is thus held that when the right of appeal is a
statutory right, but not an inherent right, the same cannot be availed otherwise.
Accordingly, disagreeing with the decision of the Full Bench in Ritz Hotels case referred
to supra, the Full Bench of five Judges came to the conclusion:
(i) that going by the language used in Section 4 of the Karnataka High Court
Act, an appeal has been provided against an order of the learned Single Judge
only when it is passed in exercise of his original jurisdiction, which is dealt
with under Article 226 of the Constitution of India;
(ii) that the powers under Article 227 of the Constitution of India being
supervisory, no intra-Court appeal is maintainable against such order, because
the right of appeal under Section 4 of the Karnataka High Court Act being a
statutory right and the same can be exercised only as provided under the
statute, but not otherwise;
(iii) that Rules 2(1) and 26 of the Writ Proceedings Rules do not provide for an
appeal against the order of the Single Judge passed in the exercise of
supervisory jurisdiction; and
(iv) that the law laid down in Kalpana Theatre case is the correct law and that
the decision of Full Bench in the case of Ritz Hotels is not correct in overruling
the law laid down by the Division Bench in Kalpana Theatre case.
3.13.5 In Pattedar case, Padmaraj J, in his concurring but separate judgment, added
the reason citing the decision in Sadhana Lodh v. National Insurance Company Limited
2003 AIR SCW 930, that where a remedy for filing a revision before the High Court
under Section 115 of CPC has been expressly barred, no petition under Article 226 of
the Constitution would lie except under Article 227; and that being the position of law,
there cannot be any appeal against the order of the Single Judge passed in exercise of
his supervisory jurisdiction, because the right of appeal being a statutory right under
Section 4 of the Karnataka High Court Act, the same can be exercised only as provided
under the statute i.e. against the order passed in original jurisdiction, but not against
the order passed in exercise of supervisory jurisdiction under Article 227 of the
3.14.1 The maintainability of an appeal under Section 4 of the Karnataka High Court
Act against the order of the Single Judge passed in exercise of power under Article 227
of the Constitution again came up for consideration in Sri Vishnu Ganapathi Naik v. The
Management of NWKRTC MANU/KA/0150/2006 : ILR2006KAR1863 , for short, Sri
Vishnu Ganapathi Naik case, wherein a workman aggrieved by an award of the
Industrial Tribunal, Hubli made in KID No. 403 of 2003, dated 13-7-2004 filed a writ
petition in No. 48999 of 2004 before this Court under Articles 226 and 227 of
Constitution of India; and the Single Judge by his order dated 27-7-2005 rejected the
writ petition and confirmed the award passed by the Industrial Tribunal. The correctness

or otherwise of the order of the Single Judge dated 27-7-2005 was appealed by the
workman under Section 4 of the Karnataka High Court Act.
3.14.2 In Sri Vishnu Ganapathi Naik Case, a Division Bench of this Court, to which one
of us (Bopanna, J) is a party of course, following the reasons that weighed with the Full
Bench consisting of five Judges in Pattedar Case, held that:
(i) where the petitions are filed both under Articles 226 and 227 of the
Constitution of India, the Court has to examine the allegations made in the
petition and the relief claimed therein as to whether the petitioner wants the
Court to exercise its original jurisdiction under Article 226 or to exercise its
supervisory power under Article 227 of the Constitution;
(ii) if the challenge is limited only to the correctness or otherwise of the award,
then the petitioner is obviously invoking the powers of this Court under Article
227 of the Constitution, because the cause has not been initiated for the first
time in this Court; and
(iii) if in addition to the correctness of the award, the petitioner were to
challenge the vires of any of the provision of the Industrial Disputes Act or any
other provision or the very jurisdiction of the Labour Court to pass an award on
the ground that it suffered from error of law apparent on the face of the record,
he is invoking the power of the High Court under Article 226 as well, and in
such cases, the decision will be deemed to have been rendered in exercise of its
original jurisdiction under Article 226 of the Constitution; and came to the
conclusion that no appeal would lie against the said order passed in the
exercise of supervisory powers, as the right of appeal is a statutory right
provided against an order passed by the Single Judge of this Court in his
original jurisdiction, and therefore no appeal would lie against the order of the
Single Judge passed in his supervisory powers under Article 227 of the
Constitution.
3.15.1 But, the maintainability of an appeal under Section 4 of the Karnataka High
Court Act against the orders passed by a Single Judge under Article 227 of the
Constitution was again reopened in Writ Appeal No. 1777 of 2001 before a Division
Bench of this Court, to which one of us (Gopala Gowda, J) is a party, in the case of
State of Karnataka and Ors. v. Ramaswamy and Ors. (hereinafter referred to as
'ramaswamy case' for short) which was disposed of on 1-7-2006.
3.15.2 The Ramaswamy case arose against the order dated 12-2-2007 of the Single
Judge passed in Writ Petition Nos. 38272-38278 of 1998, disposed of on 12-2-2007,
wherein the Single Judge under Article 227 of the Constitution quashed the orders of
the Deputy Commissioner and the Karnataka Appellate Tribunal, in the matter of grant
of 5 acres of land to the respondent therein.
3.15.3 The Division Bench in Ramaswamy case, while setting aside the order of the
Single Judge and remanding the matter to the Deputy Commissioner with a direction to
hold proper enquiry after giving all reasonable opportunity to the parties concerned,
held that the appeal would lie under Section 4 of the Karnataka High Court Act against
the order of Single Judge passed in exercise of the power under Article 227 and
distinguished the judgment of the Full Bench consisting of five judges in Pattedar case,
on the ground that the decision of the Apex Court in Surya Dev Rai v. Ram Chander Rai
and Ors. MANU/SC/0559/2003 : AIR2003SC3044 , for short, Surya Dev Rai case,
following the decision of the Constitution Bench in the case of L. Chandrakumar v.

Union of India and Ors. MANU/SC/0261/1997 : [1997]228ITR725(SC) , for short,
Chandrakumar case, was not followed.
3.15.4 The Division Bench in Ramaswamy case, placed reliance on the decision of the
Apex Court in Chandrakumar case, wherein it is held that the judicial review under
Article 226 of the Constitution conferred on the High Court and the power of supervision
conferred under Article 227 are similar. The power under Article 227 is wider than the
one conferred under Article 226 of the Constitution, because the power of
superintendence is not subject to those technicalities of procedure or traditional fetters
which are to be found in certiorari jurisdiction. The above ratio laid down in
Chandrakumar case was followed in the case of Suryadev Rai (Supra) and it is thus held
that the jurisdiction conferred on the Supreme Court under Article 32 of the Constitution
and the powers conferred on the High Courts under Articles 226 and 227 is part of the
basic structure of Constitution, forming its integral and essential feature, which cannot
be tampered with, and therefore, they are inherent. That being the reason, the Division
Bench by order dated 1-7-2006 in Ramaswamy case, instead of following the view taken
by the Full Bench consisting of five judges in Pattedar case, held that an appeal would
lie under Section 4 of the Karnataka High Court Act against an order of Single Judge
made under Article 227 of the Constitution.
3.15.5 The decision of the Division Bench in Ramaswamy case thus reopened the issue
whether an appeal would lie under Section 4 of the Karnataka High Court Act against
the order of the Single Judge made under Article 227 of the Constitution.
3.16 In view of the decision dated 1-7-2006 made in Ramaswamy case, several writ
appeals came to be filed against the order of the Single Judge made under Article 227
of the Constitution and the maintainability of those appeals again came up for
consideration before another Division Bench, both are parties to this decision
(Bannurmath and Venugopalagowda, JJ) and the Division Bench by order dated 7-11-
2007 made in Writ Appeal No. 1078 of 2007 and connected matters, etc. viz. Smt.
Saraswathi v. Vasanth Ramachandra Dullioli- (hereinafter referred to as 'Saraswathi
batch of cases' for short)], after referring to the point in question in earlier decisions
referred to above, viz. (i) Kalpana Theatre Case, (ii) Ritz Hotels Case, (iii) Sri Vishnu
Ganapathy Naik Case (iv) Ramaswamy Case (v) Surya Dev Rai Case and (vi)
Chandrakumar Case, raised a serious doubt as to whether the Division Bench, while
passing the order dated 1st July 2006, in Ramaswamy case, in spite of the binding
nature of precedent laid down in Pattedar case, could take an exception to the law laid
down in Pattedar case, in view of the ratio laid down by the Apex Court in:
(i) Central Board of Dawoodi Bohra Community v. State of Maharashtra
MANU/SC/1069/2004 : AIR2005SC752
(ii) State of Bihar v. Kallika Kuer MANU/SC/0346/2003 : [2003]3SCR919
(iii) Pradip Chandra Parija v. Pramod Chandra Patnaik AIR 2002 SC 296
(iv) Bharat Petroleum Corporation Limited v. Mumbai Shramik Sangha
MANU/SC/0308/2001 : (2001)IILLJ248SC ;
and referred the matter to the Chief Justice with a request to constitute a Larger Bench,
based on the binding nature of the Full Bench of five Judges in Pattedar case as to the
maintainability of the intra-court appeal under Section 4, in view of Sections 9(xii) and
10(iv-a) of the Kamataka High Court Act; and framed the following questions which
have been referred to us to answer:

1. Whether the finding recorded by the Division Bench in Writ Appeal No. 1777
of 2001 by judgment dated 1-7-2006 holding that the intra-Court appeal as
maintainable, which is contrary to the decision of another Division Bench in
Vishnu Ganapathi Naik's Case ILR 2006 Kar. 1863 requires the reconsideration
in the light of the pronouncement of the Full Bench in Gurushanth Pattedar's
case?
2. In view of the amendment made to Sections 9 and 10 of the Karnataka High
Court Act, i.e. in terms of Karnataka Act No. 12 of 1973, inserting clauses 9(xii)
(b) and 10(iv-a) whether an intra-court appeal under Section 4 of 'the Act' is
maintainable, on the order passed by a Single Judge in exercise of the power
under Article 227 or under Articles 226 and 227 of the Constitution of India?
3 . Whether the law laid down in Gurushanth Pattedar's case requires
reconsideration in view of pronouncement of the Hon'ble Supreme Court in
Surya Dev Rai's case?
3.17 Following suit, another Division Bench, by order dated 18-12-2007 in a batch of
Writ Appeals (Writ Appeals No. 1957 of 2006 and connected matters - Karigowda v.
Muddaiah and Ors., for short, Karigowda case, referred identical questions to a Larger
Bench, as hereunder:
1. Whether an appeal from an order or judgment passed by a Single Judge in
exercise of the powers under Article 227 of the Constitution lies to a Bench
consisting of two other Judges of the High Court, in view of the provisions
contained in Sections 4 and 10(iv-a) of the Karnataka High Court Act, 1961 and
Article 11(sa) in Schedule II to the Karnataka Court Fees and Suits Valuation
Act, 1958?
2 . Whether the decision of the Full Bench in Gurushanth Pattedar's Case ILR
2005 Kar. 2503 requires reconsideration?
3.18 Hence the Full Bench of seven Judges (Larger Bench).
III. The Question under Reference Reframed Comprehensively:
4 . 1 The questions that are referred to be answered by the Larger. Bench are
consolidated as detailed below:
4 .2 As per the order dated 7-11-2007 in Writ Appeal 1078 of 2007 and connected
matters (Saraswathi) batch of cases), the following questions were referred to the
Larger Bench:
case?

4.3 As per the order dated 18-12-2007 in Writ Appeal 1957 of 2006 and connected
matters, Karigowda case, the following questions were referred to the Larger Bench:
Act, 1958?
5.1 The Division Bench, by order dated 7th November, 2007, in Saraswathi batch of
cases, placing reliance on the decisions of the Apex Court relating to judicial discipline,
decorum, no less than a legal propriety, in:
i) Dr. Vijay Laxmi Sadho v. Jagadish MANU/SC/1463/2001 : [2001]1SCR95
ii) Bharath Petroleum Corporation Limited v. Mumbai Sharmik Sangha (Supra)
iii) Pradip Chandra Parija v. Pramod Chandra Patnaik (Supra)
iv) State of Bihar v. Kallika Kuer (Supra)
v) Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra
and Anr. (Supra)
incidentally raised serious doubts as to whether the Division Bench in Ramaswamy case,
in spite of the binding nature of the precedent made by the Bench consisting of five
Judges in Pattedar case, could taken an exception to the law laid down in Pattedar case?
5.2 It is a settled law that a decision delivered by a Bench of larger strength is binding
on any subordinate Bench or lesser or Co-ordinate strength and if a Bench with a
smaller Coram or a Co-ordinate Bench finds that the law declared by a Larger Bench or
a Co-ordinate Bench requires reconsideration on account of not noticing any statutory
provision or amendment of the statute or the law laid down by the Supreme Court under
Article 141 of the Constitution of India, considered and/or explained, judicial discipline
demands that the matter be referred to a Larger Bench for decision in the matter,
instead of sitting in judgment or expressing any kind of dissent. It is, under those
circumstances, the Division Bench in Saraswathi batch of cases referred question (1) as
hereunder:
of 2001 (Ramaswamy's case - inserted by us) by judgment dated 1-7-2006
holding that the intra-Court appeal as maintainable, which is contrary to the
decision of another Division Bench in Vishnu Ganapathi Naik's Case ILR 2006
Kar. 1863 requires the reconsideration in the light of the pronouncement of the
Full Bench in Gurushanth Pattedar's case?

5.3.1 In this connection, it is relevant to satisfy as to whether the decision of the
Division Bench in Ramaswamy case and the decision of the Full Bench consisting of five
Judges in Pattedar Case, where the decision of the Full Bench consisting of three Judges
in Ritz Hotels case was reversed, all arise under similar facts and circumstances?
5.3.2 The order under appeal under Section 4 of the Karnataka High Court Act, while
came up before the Full Bench consisting of five Judges in Pattedar case, arose against
an order deciding an issue in the course of a suit or other proceeding not finally
disposed of and thereby attracted under Section 115 CPC, whereas the order under
appeal in Ramaswamy case arose out of an award passed by the Deputy Commissioner
and the order passed by the Karnataka Appellate Tribunal in the matter of grant of five
acres of land, while the order under appeal in the case of Kalpana Theatre arose out of
an award passed by the Labour Court, and the order under appeal in Sri Vishnu
Ganapathi Naik case also arose out of an award passed by the Industrial Tribunal, Hubli
in KID No. 403 of 2003.
5.3.3 We have seen that the backdrop of the decisions in:
(i) Kalpana Theatre Case,
(ii) Ritz Hotels Case,
(iii) Pattedar Case,
(iv) Sri Vishnu Ganapathi Naik Case,
(v) Ramaswamy Case,
(vi) Saraswathi batch of cases, and
(vii) Karigowda Case,
are not similar and identical, but apparently differ. While Sri Vishnu Ganapathi Naik
case and Ramaswamy case arose against the awards, orders or proceedings passed by
quasi-judicial authorities, such as, Labour Court, Land Tribunal, Karnataka Appellate
Tribunal and Industrial Tribunal, the Pattedar case arose from an order deciding an
issue in the course of a suit or other proceeding passed by a Court subordinate to the
High Court, not finally disposed of and attracted by Section 115 CPC.
5.3.4 In order to apply the ratio laid down in Pattedar case on the question of
maintainability of an appeal under Section 4 of the Karnataka High Court Act against the
order of the Single Judge made under Article 227 of the Constitution of India, it is
necessary to satisfy whether the orders of the Single Judge arise out of the orders
deciding an issue in the course of a suit or proceeding, passed by a Court subordinate
to the High Court, not finally disposed of, attracting Section 115 CPC?
5.3.5 The ratio laid down in Pattedar case is a binding precedent only in the case of the
orders passed under Article 227 of the Constitution which arise out of an order deciding
an issue in the course of a suit or proceeding passed by any Court subordinate to the
High Court, not finally disposed of and is attracted by Section 115 CPC, but not
otherwise. To be more clear, the appeals preferred against the orders of the Single
Judge made under Articles 226 and/or 227 of the Constitution of India which arises
from awards, orders or other proceedings of the quasi-judicial authorities such as
Labour Court, Land Tribunal, Industrial Tribunal, Karnataka Appellate Tribunal or Tax
Tribunal, etc., are not governed by the ratio laid down in Pattedar case, as a binding

precedent.
5.3.6 Neither the facts in Kalpana Theatre case, nor Ramaswamy case nor Sri Vishnu
Ganapathinaik case arise out of an order deciding an issue in the course of a suit or
other proceeding, before any Court subordinate to the High Court, not finally disposed
of, which is attracted by Section 115 of CPC, unlike in Pattedar case.
5.3.7 Since the appeals preferred under Section 4 of the Karnataka High Court Act in
Kalpana Theatre case, Ramaswamy case and Sri Vishnu Ganapathi Naik case, all arose
against the orders, awards or other proceedings finally disposed of and passed by the
quasi-judicial authorities, such as, Labour Court, Karnataka Appellate Tribunal and
Industrial Tribunal respectively, but not against an order deciding an issue in the course
of a suit or other proceeding, before any Court subordinate to the High Court, not finally
disposed of, as in Pattedar case, we are of the considered opinion that, for want of
necessity, there would not be any gainful purpose in answering the question (1)
referred to the Larger Bench by order dated 7-11-2007 in W.A. No. 1078 of 2007 and
connected matters (Saraswathi batch of cases), viz.,
case?
5.3.8 The remaining questions 2 and 3 referred to in Saraswathi batch of cases by
order dated 7th November 2007 and questions No. 1 and 2 referred to by order dated
18th December 2007 in Karigowda case, by two different Division Benches, with the risk
of repetition, read as hereunder:
Questions referred as per the order dated 18-12-2007:
Act, 1958?
5.3.9 These questions revolve on the question of maintainability of an appeal under
Section 4 of the High Court Act against an order passed by the Single Judge under

Article 227 of the Constitution of India, arising out of an order, deciding an issue in the
course of a suit or other proceeding, passed by any Court subordinate to the High
Court, not finally disposed of, attracting Section 115 CPC, we feel it appropriate to
reframe the question comprehensively as hereunder:
Whether an appeal from an order or judgment decree or order passed by the
Single Judge in exercise of the power conferred under Article 227 of the
Constitution of India, which arises against any order made deciding an issue,
passed by any Court subordinate to the High Court, in the course of a suit or
other proceeding not finally disposed of, and is governed by Section 8 of the
Karnataka High Court Act, 1961 and attracted by Section 115 and Section 100A
of the Code of Civil Procedure, shall lie to and be heard by a Bench consisting
of two other Judges of the High Court under Section 4 of the said Act in view of
Sections 9(xii) and 10(iv-a) of the said Act read with Rules 2(1), 26 and 39 of
the Writ Proceedings Rules, 1977 of the Karnataka High Court, and Article
11(sa) to Schedule II to the Karnataka Court Fees and Suits Valuation Act,
1958?
IV. Arguments: For and Against:
6 . Heard Mr. Udaya Holla, learned Advocate General, M/s S.P. Shankar, V.
Lakshminarayana, C.B. Srinivasan, S.K.V. Chalapathy and E.R. Indra Kumar, learned
Senior Counsel, M/s GR. Mohan, B.A. Baliga, Susheela and B.A. Vani, in favour of
maintainability and Mr. Aravind Kumar, the learned Assistant Solicitor-General in contra.
7. Argued in favour of maintainability:
(i) relying on the decision of the Apex Court in Surva Dev Rai case and
Chandrakumar case, referred to supra, it is contended that the right conferred
under Articles 226 and 227 of the Constitution of India is inherent and a basic
structure of the Constitution; and such right cannot be tampered with by any
amendment or statute. The parameters for exercise of jurisdiction under Articles
226 and 227 of the Constitution of India cannot be tied down in straight jacket
formula or rigid rules. Even though, the order under appeal is passed under
Article 227 of the Constitution of India, exercising the power of
superintendence, the same is construed to be an order passed in exercise of
original jurisdiction and appealable under Section 4 of the Karnataka High Court
Act.
(ii) Section 4 of the Karnataka High Court Act only impliedly bars appeal
against the order passed by the Single Judge in exercise of his appellate
jurisdiction, but nothing else.
(iii) inviting our attention to the correspondence that transpired between the
High Court and the Government with reference to the statement of objects and
reasons for the Amendment Act 12 of 1973 to the Karnataka High Court Act and
the insertion of Sections 9(xii) and 10(iv-a) of the Karnataka High Court Act,
referred to above, it is contended that the right to file an appeal under Section
4 of the Karnataka High Court Act is the statutory right and the same cannot be
denied by characterizing the order under appeal as one passed in exercise of
supervisory jurisdiction:
(iv) In order to strengthen the above argument, our attention was also drawn to
Rules 2(1), 26 and 39 of the Writ Proceedings Rules of Karnataka High Court

framed under Articles 226 and 227 of the Constitution of India as well to Article
11(sa) to Schedule II to the Karnataka Court Fees and Suit Valuation Act, 1958.
Rule 2(1) provides for filing writ petition under Article 226 and/or Article 227 of
the Constitution of India; Rule 26 provides for filing appeal against the orders
passed by the Single Judge in the writ petition; and Rule 39 provides for the
application of the provisions of the High Court of Karnataka Rules, 1959, the
Rules made by the High Court of Karnataka under the Karnataka Court Fees and
Suits Valuation Act, 1958, and the provisions of the Code of Civil Procedure,
1908, to proceedings under Article 226 and/or Article 227 and writ appeals in
respect of matters for which no specific provisions is made in the Rules. Article
11(sa) to Schedule II to he Karnataka Court Fees and Suits Valuation Act, 1958
prescribes one hundred rupees Court fee for an appeal petition to the High
Court from an original judgment, decree or order of a Single Judge of the High
Court made in exercise of the powers under Clause (1) of Article 226, Article
227 and Article 228 of the Constitution of India. It is, therefore, contended that
in order to give effect to the provision referred to above, appeal would lie under
Section 4 of the Karnataka High Court Act; as otherwise all the provisions
referred to above including Sections 4, 9(xii) and 10(iv-a) would be rendered
otiose;
(v) That apart, the legislative intention for insertion of Section 100A CPC by
Amendment Act 104 of 1976 and the amendment brought to Section 100A CPC
by the Amendment Act 46 of 1999 and the further amendment brought to
Section 100A CPC by Amendment Act 22 of 2002, deleting Clause (b) therein
referred to above, are also brought to our attention to substantiate their
contention that by removal of Clause (b) which bars an appeal against orders
issued or made under Articles 226 and 227 of Constitution of India, it is to be
inferred that an appeal against the orders made under Articles 226 and 227 of
the Constitution of India would lie under Section 4 of the Karnataka High Court
Act; and
(vi) finally, placing reliance on the latest decision of the Apex Court in M.M.T.C.
Limited v. Commissioner of Commercial Tax MANU/SC/4663/2008 :
[2008]307ITR276(SC) , it is contended that by exercising the supervisory
jurisdiction under Article 227, the High Court may not only quash or set aside
the impugned proceedings, judgments or order, but it may also make such
directions, as the facts and circumstances of the case may warrant or may guide
the inferior Court or Tribunal as to the manner in which it would proceed
further. Therefore, when the order of the Single Judge is appealed against, for
deciding the maintainability against such an order, what would be relevant is
the principal or main relief granted by the judgment passed by the Single Judge
and not the ancillary directions nor the exercise of power either under original
or supervisory jurisdiction. In other words, where the Single Judge has
exercised jurisdiction under Article 226 or Article 227 or both would depend on
various aspects and many facets. Hence, it is contended that once a statutory
right is provided to file an appeal under Section 4 of the Karnataka High Court
Act, it is immaterial whether the order is passed under Articles 226 or 227 of
the Constitution of India, i.e. under original or supervisory jurisdiction. Any
denial of such right to prefer an appeal conferred under Section 4 of the
Karnataka High Court Act would not only defeat the legislative intention for
providing such a statutory right under said Section, but also render Section
9(xii) and 10(iv-a) of the Act, Rules 2(1), 26 and 39 of the Writ Proceedings
Rules read with Article 11(sa) to Schedule II of the Karnataka Court Fees and

Suits Valuation Act, 1958, redundant.
8 . Per contra, we had the benefit of the argument of Mr. Aravind Kumar, the learned
Assistant Solicitor General, against the maintainability of appeal in issue as hereunder:
(i) Inviting our attention to the recommendation of the Law Commission
proposing amendment to Section 115 CPC by Amendment Act 104 of 1976, viz.,
(i) inserting proviso to Sub-section (1) of Section 115; as well as the objects
and reasons for the amendment under CPC (Amendment) Act 46 of 1999, viz.,
(i) for deletion of Clause (b) in proviso to Section 115 CPC; and
(ii) addition of Sub-section (3) to Section 115 CPC
it is contended that no appeal would lie under Section 4 of the Karnataka High Court Act
against the order of the Single Judge made under Article 227 of the Constitution of
India which arises against an order deciding an issue in the course of a suit or other
proceeding, not finally disposed of or otherwise, it would defeat the very legislative
intention for amending Section 115 CPC. Mr. Aravind Kumar also invited our attention to
the reasons that weighed with Justice Padmaraj in Pattedar case, which reads
hereunder:
...in terms of Section-4 of the Karnataka High Court Act, an appeal is provided
by way of intra-Court appeal against the order of the learned Single Judge in
the exercise of its original jurisdiction and not in the exercise of its supervisory
jurisdiction. In the case of Sadhana Ladh v. National Insurance Company
Limited (Supra) reported in the three Judge Bench of the Hon'ble Supreme
Court has clearly observed that where remedy for filing a Revision before the
High Court under Section 115 of CPC has been expressly barred by the State
enactment, only in such case a petition under Article 227 of the Constitution
would lie and not under Article 226 of the Constitution. In fact as a matter of
illustration, it has been observed therein that where a trial Court in a civil suit
refused to grant temporary injunction and an appeal against refusal to grant
injunction has been rejected, and a State enactment has barred the remedy of
filing revision under Section 115 of CPC, in such a situation a writ petition
under Article 227 would lie and not under Article 226 of the Constitution. Thus,
where the State legislature has barred a remedy of filing a revision petition
before the High Court under Section 115 of CPC, no petition under Article 226
of the Constitution would lie for the reason that a mere wrong decision without
anything more is not enough to attract jurisdiction of the High Court under
Article 226 of the Constitution. This being the position of law, there cannot be
any appeal against the order of the learned Single Judge passed in the exercise
of its supervisory jurisdiction. It may be stated that the right of appeal is a
statutory right and where the statute has provided the right of appeal only
against an order passed by the learned Single Judge of this Court in its original
jurisdiction, it is to be held that no appeal lies against the order of the learned
Single Judge passed in the exercise of supervisory jurisdiction under Article 227
of the Constitution. Neither the rules nor the forms prescribed by the High Court
will prevail over Section-4 of the Act which provides for an intra-Court appeal
only against the order of the learned Single Judge passed in the exercise of its
original jurisdiction and not in the exercise of its supervisory jurisdiction. That
being so, I find that the law laid down by the Full Bench of this Court in the
case of Ritz Hotels (Mysore) Limited v. State of Karnataka and Ors. reported in

MANU/KA/0509/1996 : ILR1996KAR3445 is not correct and proper."
(ii) Regarding the deletion of Clause (b) to Section 100A CPC, by CPC
(Amendment) Act 22 of 2002, Mr. Aravind Kumar contends that the deletion of
Clause (b) to Section 100A CPC referred to above, could not mean anything
contrary to either proviso to Section 115(1) or Section 115(3) CPC;
(iii) Right to file an appeal conferred under Section 10(iv-a) of the Karnataka
High Court Act against an order passed by a Single Judge under Section 9(xii)
of the Act as well as the corresponding provisions of Rules 2(1), 26 and 39 of
the Writ Proceedings Rules of the Karnataka High Court read with Article 11(sa)
to Schedule II of the Karnataka Court Fees and Suits Valuation Act, 1958 can be
invoked for filing an appeal against the orders which are not attracted by
Section 115 CPC; and
(iv) in any event, Section 4 of the Karnataka High Court Act provides for an
appeal only against the order passed by the Single Judge in exercise of his
original jurisdiction of the High Court, but not against the orders passed by the
Single Judge exercising his supervisory power under Article 227 of the
V. Consideration, Analysis and Findings:
9 . 1 The question under reference, as reframed comprehensively, confines to the
maintainability of an appeal under Section 4 of the Karnataka High Court Act against the
order of the Single Judge made under Article 227 of the Constitution of India in the
matter arising against an order deciding an issue, passed by any Court subordinate to
the High Court, in the course of a suit or other proceedings not finally disposed of
attracting Section 115 CPC, which is governed by Section 8 of the Karnataka High Court
Act.
9.2.1 With the risk of repetition, we extract Section 115 CPC.
9.2.2 Section 115 CPC after the CPC (Amendment) Act 104 of 1976;
Section 115. Revision.- (1) The High Court may call for the record of any case
which has been decided by any Court subordinate to such High Court and in
which no appeal lies thereto, and if such subordinate Court appears:
(c) to have acted in the exercise of its jurisdiction illegallay or with
the High Court may make such order in the case as it thinks fit:
proceeding, except where:
(a) the order, if it had been made in favour of the party applying for
revision, would have finally disposed of the suit or other proceedings.

(b) The order, if allowed to stand, would occasion a failure of justice or
(2) The High Court shall not, under this Section, vary or reverse any decree or
order against which an appeal lies either to the High Court or to any Court
subordinate thereto.
Explanation: In this Section, the expression, "any case which has been decided"
includes any order made, or any order deciding an issue, in the course of a suit
or other proceeding.
9.2.3 Section 115 CPC after the CPC (Amendment) Act 46 of 1999:
115. Revision.- (1) The High Court may call for the record of any case which
has been decided by any Court subordinate to such High Court and in which no
appeal lies thereto, and if such subordinate Court appears:
(c) to have acted in the exercise of its jurisdiction illegallay or with
the High Court may make such order in the case as it thinks fit:
proceeding, except where the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or other
proceedings.
(2) The High Court shall not, under this Section, vary or reverse any decree or
order against which an appeal lies either to the High Court or to any Court
subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the
Court except where such suit or other proceeding is stayed by the High Court.
Explanation: In this Section, the expression, "any case which has been decided"
includes any order made, or any order deciding an issue, in the course of a suit
or other proceeding.
9.3.1 Similarly, it is apt to refer the following relevant Sections of the Karnataka High
Court Act which prescribe the powers of the Single Judge and Division Courts and the
matters ancillary to the exercise of Division Courts as intended by the Legislature for
enacting the Karnataka High Court Act of 1961 originally called as Mysore High Court
Act, 1961 for regulating the business and exercise of powers of High Court in the State
of Karnataka in relation to the administration of justice and to provide for its
jurisdiction.
9.3.2 Section 4 of the Karnataka High Court Act reads thus:
Section 4. Appeals from decisions of a Single Judge of the High Court.-

An appeal from a judgment, decree, order or sentence passed by a
Single Judge in the exercise of the original jurisdiction of the High
Court under this Act or under any law for time being in force, shall lie to
and be heard by a Bench consisting of two other Judges of the High
Court.
(emphasis supplied)
9.3.3 Section 8 of the Karnataka High Court Act reads thus:
Section 8. Powers of Single Judge to dispose of revision cases himself
or refer the same to a Bench.-
(1) Any Judge of the High Court sitting alone, shall have power to
hear and dispose of civil and criminal revision cases in exercise of the
revisional jurisdiction vested in the High Court under any law
for the time being in force, except cases relating to quashing of orders
of commitment:
Provided that in exercise of such revisional jurisdiction in respect of
proceedings of any criminal Court such Single Judge shall not impose a
sentence of death or imprisonment for life or sentence of imprisonment
exceeding seven years.
(2) The decision or order of a Single Judge in cases under Sub-
section (1) shall be final:
Provided that such Judge may, if he thinks fit, instead of
disposing of any case as aforesaid refer such case to a Bench of
two Judges for hearing and disposal.
(emphasis supplied)
9.3.4 Section 9(xii) of the Act reads thus:
9. Other powers of a Single Judge.- The powers of the High Court in
relation to the following matters shall be exercised by a Single Judge, provided
that the Judge before whom the matter is posted for hearing may adjourn it for
being heard and determined by a Bench of two Judges:-
xxx xxx xxx
(xii) exercise of powers under,-
(a) Clause (1) of Article 226 of the Constitution of India except where
such power relates to the issue of a writ in the nature of habeas corpus;
and
(b) Articles 227 and 228 of the Constitution of India.
(emphasis supplied)
9.3.5 Section 10(iv-a) of the Act reads thus:
10. Other powers of bench of the two judges.:
The powers of the High Court in relation to the following matters shall be

exercised by a Bench of two judges:
xxx xxx xxx
(iv-a) an appeal from any original judgment, order, or decree passed by a
Single Judge in exercise of the powers under Clause (1) of Article 226, Article
227 and Article 228 of the Constitution of India.
9.3.6 We have seen that, Sections 9(xii) and 10(iva) were not there on the statute, viz.
Karnataka High Court Act, originally, but the same are inserted by Amendment Act 12 of
1973 with effect from 16-7-1973, which we shall discuss later.
9.4.1 The power of the Single Judge to dispose of revisional cases by himself, as
provided under Section 8 of the Karnataka High Court Act, refers to the civil revision
cases filed before the High Court in exercise of the revisional jurisdiction vested in the
High Court under Section 115 CPC, as it was then.
9.4.2 Section 8(1) of the Act clearly confers the revisional jurisdiction on any Judge of
the High Court sitting alone.
9.4.3 Section 8(2) expressly declares that the decision or order of a Single Judge in
cases under Section 8(1) shall be final, of course, without prejudice to his right to refer
such case to Bench of two Judges for hearing and disposal.
9.5 Section 8 of the Karnataka High Court Act only confers the revisional jurisdiction
traceable to Section 115 CPC but nothing else, because no other provision much less
Article 227, refers to the revisional jurisdiction of the High Court; and there is no
ambiguity whatsoever in this regard.
9 .6 Essentially, Section 115 of the CPC is a source of power on the High Court to
supervise the subordinate Courts, but not a power conferred on the litigant to approach
the Court for any relief. Not linked with any substantive right, Section 115 CPC operates
for a limited and restricted revisional jurisdiction.
9 . 7 We have, just above, seen the statutory changes brought into the revisional
jurisdiction of the High Court conferred under Section 115 CPC.
9.8 The deletion of Clause (b) in the proviso to Section 115 CPC and the addition to
Sub-section (3) to said Section are in tended to restrict the revisional jurisdiction of the
High Court conferred under Section 115 CPC, so that no revision would lie against
interlocutory orders deciding an issue in the course of a suit not finally disposed of, in
order to avoid unnecessary delay in dispensation of justice by interference by the High
Court exercising revisional jurisdiction against an order deciding an issue, passed by
any Court subordinate to the High Court, in the course of a suit or other proceedings
not finally disposed of, attracting Section 115 CPC. But, in view of the settled
proposition that the revisional jurisdiction of the High Court under Section 115 CPC is
separate and distinct from that of the Supervisory Jurisdiction of the High Court under
Article 227 of the Constitution of India, the supervisory jurisdiction of the High Court
under Article 227 is invoked to get over the restrictions brought into Section 115 CPC.
9 . 9 But still the legislative intention for amending Section 115 CPC by CPC
(Amendment) Act, 46 of 1999, viz.
(i) for deletion of Clause (b) in proviso to Section 115 CPC; and

(ii) addition of Sub-section (3) to Section 115 CPC,
cannot by lightly disregarded. Prior to CPC (Amendment) Act, 46 of 1999, as per
proviso to Section 115(1) CPC the High Court shall not, vary or reverse any order made,
or any order deciding an issue; in the course of a suit or other proceeding, except
where:
(a) the order, if it had been made in favour of the party applying for revision,
would have finally disposed of the suit or other proceedings, or
(b) The order, if allowed to stand, would occasion a failure of justice or cause
irreparable injury to the party against whom it was made.
By the CPC (Amendment) Act, 46 of 1999, Clause (b) to Section 115 CPC was deleted.
The effect of the amendment by deleting the said Clause (b) is that, even the failure of
justice or the irreparable injury caused to the party against whom an order was made,
shall not be a ground for exercising the revisional jurisdiction under Section 115 CPC. It
is, therefore, clear that the intention of the legislature is to bar the intervention in the
revision against the interlocutory orders. The proposal was intended to cut the number
of revisions on petitions, to bar serious injustice resulting from interlocutory orders and
to avoid the unnecessary delay in dispensation of justice on account of interference of
the High Court exercising revisional jurisdiction against an order deciding an issue,
passed by any Court subordinate to the High Court, in the course of a suit or other
proceedings, not finally disposed of attracting Section 115 CPC even it would occasion a
failure of justice or cause irreparable injury to the party, against whom it was made.
9.10 Obviously, it cannot be sidelined that the revisional jurisdiction of the High Court
under Section 115 CPC, prior to the Amendment Act 46 of 1999, was exercised in
complementary with Section 8 of the Karnataka High Court Act, which deals with the
powers of the Single Judge to dispose of a revision case by himself alone, as per
Section 8(1) of the Act and whose decision or order shall be final.
9.11 We have seen Section 9(xii) to 10(iv-a) of the Karnataka High Court Act are
inserted only by Amendment Act 12 of 1973 to the Karnataka High Court Act with effect
from 16-7-1973. As evident from the objects and reasons for the said Amendment Act
12 of 1973, all the applications under Articles 226, 227 and 228 of the Constitution of
India were dealt with by a Bench consisting of two Judges in the Karnataka High Court.
But taking into consideration the procedure adopted by the other High Courts like
Kerala, Madras, Nagpur, Allahabad, Delhi, Calcutta, Andhra Pradesh and Bombay, such
applications are dealt with by a Single Judge and a right of appeal is given to the
aggrieved party; and such appeals are dealt with by a Bench of two Judges. The Law
Ministers' Conference held in 1957 and 1960 was also of the view that such applications
should be dealt with by a Single Judge with a right of appeal to a Bench of two judges.
The Law Commission, in its Fourteenth Report Vol. II, while considering the question
stated with particular reference to Madras, that such a procedure had yielded
satisfactory results. As the principles governing the disposal of writ petitions and
connected matters had been now sufficiently clarified by the decisions of different High
Courts and the Supreme Court, it was considered desirable to empower a Single Judge
to deal with applications under Clause (1) of Article 226 of the Constitution (except
where the prayer is for the issue of a writ in the nature of habeas corpus) and
applications under Articles 227 and 228 of the Constitution of India with a right of
appeal to a Bench of two Judges. It was also considered that this procedure would
result in more expeditious disposal of such applications and also would provide a right

of appeal to the aggrieved party, whose right to approach the Supreme Court was very
much restricted in view of the Constitution (Thirtieth) Amendment.
9.12 As narrated earlier, even though the Bill was moved in the Legislative Assembly
and the amendment was adopted providing for the writ petitions to be heard by a Single
Judge with a right of appeal to Bench, before the Bill came up in the Legislative Council,
there was correspondence between the High Court and the Government in the matter
and the High Court expressed the view that it was not desirable to provide that these
matters be heard by a Single Judge. Hence, an amendment was moved in the Council to
restore the original position, viz. that these matters be heard by a Bench of two judges.
Later, it was considered by the Cabinet headed by the then Hon'ble Chief Minister and
decided in favour of the amendment, even though the High Court was not in favour of
the same, and accordingly a revised draft Bill was placed to the effect that applications
filed under Articles 226, 227 and 228 of the Constitution of India be heard by the Single
Judge with a right of appeal to a Bench and it was decided to levy a Court fee of rupees
one hundred for appeal against the original decree, judgment, order of the Single Judge
in the exercise of the power conferred under Articles 226, 227 and 228 of the
Constitution of India and further decided to bring necessary amendments to Karnataka
Court Fees and Suits Valuation Act, 1958. Thus, Section 9(xii) and 10(iv-a) of the Act
and Rules 2(1), 26 and 39 of the Writ Rules and Article 11(sa) to Schedule II to the
Karnataka Court Fees and Suits Valuation Act, 1958, all came into existence.
9.13 It is therefore, pertinent to note that even while inserting Sections 9(xii) and
10(iv-a) of the Karnataka High Court Act and framing of Rules 2(1), 26 and 39 of the
Writ Proceedings Rules, as well as Article 11(sa) to Schedule II to the Karnataka Court
Fees and Suits Valuation Act, 1958, there was no corresponding amendment to Section
8 of Karnataka High Court Act. Since Section 8 of the Act remained unamended and kept
intact, the jurisdiction of the High Court under Article 227 is invoked to get over Section
115 CPC, in the matter which is barred therein.
9.14 We have already seen that the powers of the Single Judge under Section 8 of the
Karnataka High Court Act is traceable and subject to the revisional jurisdiction of the
High court under Section 115 CPC. Therefore, since Section 8 of the Karnataka High
Court Act remained unamended, the insertion of Section 9(xii) and 10(iv-a) of the
Karnataka High Court Act as amended by Amendment Act 12 of 1973 to the Karnataka
High Court Act by itself would not render Section 8 redundant in the statute book.
9.15 On plain reading of Sections 4, 8, 9(xii) and 10(iv-a) of the Karnataka High Court
Act, it is clear that the Legislature, specifically intend the civil and criminal revision
cases shall be heard and disposed of by a Judge sitting alone whose decision or order
shall be final; and therefore the orders passed under Section 8 of the Act are excluded
from the purview of Section 4 of the Act, even though they were under Article 227 of
the Constitution of India to get over Section 115 CPC. The very same reasoning holds
good to counter the argument based on Rules 2(1), 26 and 39 of the Writ Proceedings
Rules read with Article 11(sa) to Schedule II of the Karnataka Court Fees and Suits
Valuation Act, 1958.
9.16 Truly, the power of the High Court under Article 227 of the Constitution of India
exercised to get over the restrictions imposed in Section 115 CPC, stands settled by
decision of Apex Court in Surya Dev Rai case (supra), following the decision of
Constitution Bench in Chandrakumar case (Supra), holding that the power of the High
Court under Articles 226 and 227 of the Constitution of India is always in addition to
the revisional jurisdiction conferred on it under Section 115 CPC curtailment of the

revisional jurisdiction of the High Court under Section 115 CPC does not take away; nor
could have taken away the constitutional jurisdiction of the High Court conferred under
Articles 226 and 227 of the Constitution of India. The power under Articles 226 and 227
of the Constitution of India is therefore, untrammeled by the amendment to Section 115
CPC; but the same is available to be exercised subject to the rule of self-discipline and
practice, which are as well settled.
9.17 The ratio laid down in Surya Dev Rai case (Supra) is only with reference to the
power and jurisdiction of the High Court to entertain a petition either under Articles 226
or 227 of the Constitution of India to get over the restrictions imposed in Section 115
CPC, in view of the CPC (Amendment) Act 46 of 1999; but not with reference to the
maintainability of appeal against such order passed under Article 227 of the Constitution
of India.
9.18 In our considered opinion, what was barred under Section 8 of the Karnataka High
Court Act, viz., in the case of civil revision which could be heard by a Single Judge
alone and whose orders shall be final, which are traceable to Section 115 CPC as
amended by CPC (Amendment) Act 46 of 1999, cannot be revived or made available by
resorting to Article 227 of the Constitution of India, nor such order passed by Single
Judge under Article 227 be appealed under Section 4 of the Karnataka High Court Act.
In other words, what was not originally available under Section 115 CPC cannot be
made available by invoking Article 227 of the Constitution; nor Section 8 of the
Karnataka High Court Act be nullified merely on account of insertion of Section 9(xii)
and 10(iv-a) of the Karnataka High Court Act, which were intended for the matters not
governed under Section 8 of the Karnataka High Court Act. It is a settled law that every
provision of the Act should be given effect to and harmoniously constructed along with
other provisions of the Act.
9.19 Precisely, what are not attracted by Section 115 CPC and not governed by Section
8 of the Karnataka High Court Act alone could be brought under Section 9(xii) and
10(iv-a) of the Karnataka High Court Act and Rules 2(1), 26 and 39 of the Writ
Proceedings Rules read with Article 11(Sa) to Schedule II to the Karnataka Court Fees
and Suits Valuation Act, 1958.
9.20 In the recent decision in the case of M.M.T.C. Limited (Supra), the Apex Court,
following the decisions relating to the power of High Court to entertain appeal against
the order of the Single Judge passed under Article 227 of the Constitution of India,
namely (1) Hari Vishnu Kamath v. Syed Ahmed Ishaque and Ors. MANU/SC/0095/1954
: [1955]1SCR1104 ; (2) Umaji Keshao Meshram v. Radhikabai (Supra); (3) Sushilabaj
Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha MANU/SC/0042/1992 :
AIR1992SC185 (4) Mangalbhai and Ors. v. Radhyshyam (Dr.) MANU/SC/0514/1992 :
[1992]3SCR537 ; (5) Lokmath Newspapers (P) Limited v. Shankarprasad
MANU/SC/0405/1999 : (1999)IILL J600SC and (6) Surya Dev Rai v. Ram Chander Rai
and Ors. MANU/SC/1040/2002 : 2003CriL J475 wherein the Apex Court followed the
decision of the Constitution Bench in L. Chandrakumar v. Union of India and Ors.
MANU/SC/0261/1997 : [1997]228ITR725(SC) , held:
i) that whether the learned Single Judge has exercised his jurisdiction under
Article 226 or under Article 227 or both would depend upon various aspects and
many facet as has been emphasized in the afore quoted decisions of the Apex
Court; and
ii) that it cannot be put in a straight jacket formula that any order of the

learned Judge that deals with an order arising from an inferior Tribunal or the
subordinate Court is an order under Article 227 of the Constitution of India and
not an order under Article 226 of the Constitution.
9.21 Drawing a distinction between two sets of orders passed by the Single Judge
exercising the power conferred under Article 227 of the Constitution of India, viz.
(i) that arises against the order deciding an issue, passed by any Court
subordinate to the High Court, in the course of a suit or other proceedings not
finally disposed of attracting Section 115 CPC; and
(ii) from the orders of the Single Judge passed in exercise of power under
Article 227 of the Constitution not attracted by Section 115 CPC, otherwise,
orders passed under Article 227 of the Constitution of India.
are almost obliterated.
9.22 In the light of the above distinction, those matters governed under Section 8 of
the Karnataka High Court Act and attracted under Section 115 CPC fall outside the
purview of Sections 9(xii) and 10(iv-a) and therefore no appeal will lie under Section 4
of the Act; nor they are covered under Rules 2(1), 26 and 39 of the Writ Proceedings
Rules; nor Article 11(sa) of the Karnataka Court Fees and Suits Valuation Act, 1958.
10.1 It was also argued that, on account of the deletion of Clause (b) to Section 100A
CPC by CPC (Amendment) Act 22 of 2002, whereby the bar to prefer an appeal against
the order made under Articles 226 and 227 of the Constitution of India was removed, an
appeal would lie against such orders under Section 4 of the Karnataka High Court Act.
In our considered opinion, deletion of Clause (b) in Section 100A CPC by Amendment
Act 22 of 2002, removing the bar of filing an appeal against the orders or decisions
made by the Single Judge exercising the power conferred under Articles 226, 227 and
228 of the Constitution of India, would not by itself be a reason to construe contrary to
Section 115 CPC. as amended by CPC (Amendment) Act 46 of 1999.
10.2 It is settled law that it may not be proper to exercise the power of judicial review,
either under Article 226 or Article 227 of the Constitution, to add or omit, to ignore or
draw an inference contrary to any provision of a statute, when there is no ambiguity or
conflict among the provisions of a statute. The rule of construction requires that every
provision of a statute shall be given effect to, without harming other; and all the
provisions of a statute shall be construed harmoniously to hold them constitutionally
valid and workable, by avoiding anomaly or inconsistency, opting for a purposive
construction and interpreting a statute in a reasonable manner. Because, a purposive
interpretation can be adopted by reading the statute as a whole and the correct
interpretation is one that harmonizes the word at the best with the object of the statute.
"A right construction of the Act", said Lord Porter, "can only be attained if its whole
scope and object together with an analysis of its wording and the circumstances in
which it is enacted are taken into consideration." (referred to Prem Chand Jain v. R.K.
Chabbra MANU/SC/0062/1984 : 1984CriL J668 . In order to understand the true purpose
and object, and reason and spirit of every provision of a statute, the Court is
constrained to combine both literal and purposive approaches. Therefore, we are bound
to lean strongly on the legislative intention behind the amendments brought in to
Section 115 CPC by CPC (Amendment) Act 104 of 1976 as well as Amendment Act 46 of
1999, as discussed above in detail, because the power of the Single Judge to dispose of
the civil revision cases by himself along whose order shall be final, as per Section 8 of
the Act is traceable to the revisional jurisdiction of the High Court conferred under

Section 115 CPC. When the Court is bound to construe the statute without defeating the
plain intention of the Legislature, a duty is cast on the Court to apply a purpose
construction in order to make every provision of the statute, (in the instant case Section
8 of the Karnataka High Court Act) effective and workable, because all and every
provision of the statute must always be read as a whole and harmoniously, and one
provision of the Act should be construed with reference to the other provisions in the
same Act so as to make a consistent enactment of the whole statute. It is a settled law
such a harmonious construction has the merit of avoiding any inconsistency or
repugnancy either within a Section or between a Section and other parts of the statute,
as it is the duty of the Court to avoid "a head on clash" between two Sections of the
same Act, (refer to CIT v. Hindustan Bulk Carriers MANU/SC/1215/2002 :
(2003)179CTR(SC)362 "whenever it is possible to do so, to construe provisions which
appear to conflict so that they harmonies" (refer to Krishna Kumar v. State of Rajasthan
MANU/SC/0338/1992 : [1991]3SCR500 . The provision of a statute cannot be used to
defeat the other provision unless it is impossible to effect reconciliation between them.
Therefore, the insertion of Section 9(xii) and 10(iv-a) of the Karnataka High Court Act
by CPC (Amendment) Act 12 of 1973 cannot by itself be used to defeat Section 8 of the
Karnataka High Court Act unless it is impossible to give effect to Section 8 of the Act,
particularly, in the context of the legislative intention behind the amendment brought
into Section 115 CPC. Any other construction, either ignoring the legislative intention
behind the amendment to Section 115 CPC referred to above, in reconciliation with
Section 8 of the Act would reduce both Section 115 CPC as amended, as well as Section
8 of the Karnataka High Court Act, as exist in statute book to a 'useless lumber' or 'dead
letter'.
1 0 .3 Applying the above settled principles, we are of the considered opinion that
neither the deletion of Clause (b) in Section 100A nor the addition of Sections 9(xii)
and 10(iv-a) of the Karnataka High Court Act and Rules 2(1), 26 and 39 of the Writ
Proceedings Rules could be a reason to draw an inference contrary to Section 8 of the
Act, which empowers the Single Judge to dispose of the revisional case traceable to
Section 115 CPC as amended by Act 46 of 1999.
11. The only irresistible conclusion that could be arrived at from the above analysis and
over all consideration of the various aspects of our discussion referred to above, is to
answer the core issue in negative.
VI. Conclusion:
Dissecting the core issue under reference, refrained comprehensively, from any angle,
the questions referred to by order dated 7th November 2007 in Saraswathi batch of
cases and by order dated 18th December, 2007 in Karigowda case to the larger Bench
are answered as below:
12.1 The first question referred to the Larger Bench by order dated 7th November,
2007 in Saraswathi batch of cases, viz.
Whether the finding recorded by the Division Bench in Writ Appeal No. 1777 of
2001 by judgment dated 1-7-2006 holding that the intra-court appeal as
Vishnu Ganapathi Naik's case ILR 2006 Kar 1863 requires the reconsideration in
the light of the pronouncement of the Full Bench in Gurushanth Pattedar's case?
is answered, for want of necessity, that the same would not serve any gainful purpose.

12.2 The second question referred to the Larger Bench by order dated 7th November,
2007 in Saraswathi batch of cases, viz.
In view of the amendment made to Section 9 and 10 of the Karnataka High
under Article 227 or under Article 226 and 227 of the Constitution of India?
is answered as follows:
That an intra-court appeal is not maintainable under Section 4 of the Karnataka High
Court Act against the order passed by the Single Judge in exercise of Article 227 in the
matter arising against an order made deciding an issue, passed by the Court
subordinate to the High Court, in the course of a suit or other proceedings not finally
disposed of, which is attracted by Section 115 CPC and is governed under Section 8 of
the Karnataka High Court Act; and in all others matters which are not attracted by
Section 115 CPC and not governed under Section 8 of the Act, an appeal would lie
under Section 10(iv-a) against the order passed under Section 9(xii) of the Karnataka
High Court Act read with Articles 226 and 227 of the Constitution of India and Rules
2(1), 26 and 39 of the Writ Proceedings Rules as well as Article 11(sa) to Schedule II of
the Karnataka Court Fees and Suits Valuation Act, 1958.
12.3 With regard to the third question referred to the Larger Bench by order dated 7th
November 2007 in Saraswathi batch of cases, viz.
Whether the law laid down in Gurushanth Pattedar's case requires
Surya Dev Rai's Case?
We are of the considered opinion that even as per the decision taken in Surya Dev Rai
case referred to above, the view taken in Pattedar case (SUPRA), does not required any
reconsideration and therefore the ratio laid therein is confirmed.
12.4 The first question referred to the Larger Bench by order dated 18th December,
2007 in Karigowda case, viz.
Whether an appeal from an order or judgment passed by a Single Judge in
Act, 1958?
is answered holding that an intra-court appeal would not lie under Section 4 of the
Karnataka High Court Act against the order passed by the Single Judge in exercise of
Article 227 in the matters arising an order made deciding an issue, passed by the Court
subordinate to the High Court, in the course of a suit or other proceedings not finally
disposed of, which is attracted by Section 115 CPC and is governed under Section 8 of
the Karnataka High Court Act; and in all other matters which are not attracted by
Section 115 CPC and not governed under Section 8 of the Act, an appeal would lie
under Section 10(iv-a) against the order passed under Section 9(xii) of the Karnataka
High Court Act read with Articles 226 and 227 of the Constitution of India and Rules
2(1), 26 and 39 of the Writ Proceedings Rules as well as Article 11(sa) to Schedule II of

the Karnataka Court Fees and Suits Valuation Act, 1958.
12.5 Finally, the second question referred to the Larger Bench by order dated 18th
December, 2007 in Karigowda case, viz.
Whether the decision of the Full Bench in Gurushanth Pattedar's case ILR 2005
Kar 2503 requires reconsideration?
is answered that the view taken in Pattedar case (Supra) does not require any
reconsideration and the same is hereby confirmed.
13. In fine, the core issue under reference, viz.
Whether an appeal from the Judgment, decree or order passed by the Single Judge in
exercise of the power conferred under Article 227 of the Constitution of India, which
arises against any order made deciding an issue, passed by any Court subordinate to
the High Court, in the course of a suit or other proceeding not finally disposed of, and
is governed by Section 8 of the Karnataka High Court Act, 1961 and attracted by Section
115 and Section 100A of the Code of Civil Procedure, shall lie to and be heard by a
Bench consisting of two other Judges of the High Court under Section 4 of the said Act
in view of Sections 9(xii) and 10(iv-a) of the said Act read with Rules 2(1), 26 and 39
of the Writ Proceedings Rules, 1977 of the Karnataka High Court, and Article 11(sa) to
Schedule II to the Karnataka Court Fees and Suits Valuation Act, 1958?
is answered in negative.
14. As a result no appeal would lie under Section 4 of the Karnataka High Court Act
against the order of the Single Judge passed in exercise of the power conferred under
Article 227 of the Constitution of India in the matter arising against an order made
deciding an issue, passed by the Court subordinate to the High Court, in the course of a
suit or other proceedings not finally disposed of, which is attracted by Section 115 CPC
and is governed under Section 8 of the Karnataka High Court Act; and in all others
matters which are not attracted by Section 115 CPC and not governed under Section 8
of the Act, an appeal would lie under Section 10(iv-a) against the order passed under
Section 9(xii) of the Karnataka High Court Act read with Article 226 and 227 of the
Constitution of India and Rules 2(1), 26 and 39 of the Writ Proceedings Rules as well as
Article 11(sa) to Schedule II to the Karnataka Court Fees and Suits Valuation Act, 1958?
15. The questions referred to the Larger Bench by order dated 7th November, 2007 in
Saraswathi batch of cases and by order dated 18th December, 2007 in Karigowda case
are answered accordingly. However, no order as to costs.
W.A. 1585/2007 AND CONNECTED CASES
DISSENTING JUDGMENT BY GOPALA GOWDA, J
1 . I have gone through the Judgment order prepared by Hon'ble Chief Justice. The
questions referred to this Bench by two Division Benches of this Court for consideration
are extracted but the same have been refrained into a single question by Hon'ble Chief
Justice and the same is answered holding that appeal is not maintainable against the
order passed under Article 227 of the Constitution of India by the learned Single Judge
in respect of interlocutory orders passed in the original suit proceedings by the Civil
Courts. Therefore, it is not necessary for me to extract the same once again in this
Judgment.

2 . With great respect to the Hon'ble Chief Justice, I am of the opinion that the points
referred to this Bench are required to be answered in favour of the Appellants/public
litigant holding that they have got statutory right of Writ Appeal against the order
passed in writ petition Under Articles 226 and 227, wherein the interlocutory orders
passed by the Civil Courts in the original suit proceedings are challenged before this
Court. Therefore, there is no need for me to reframe those points, which are referred to
this Bench. Hence, I am proceeding to write this dissenting Judgment and express my
opinion on the points referred to this Bench for consideration.
3 . The legal contentions urged by the learned Advocate General, Senior Counsel and
other counsel are already referred to in the Judgment of Hon'ble Chief Justice and
therefore, I am not going to refer the same once again in this judgment as it is wholly
unnecessary. I deal with only the rival legal contentions urged and the decisions relied
upon by them only to the extent they require for my conclusion on their submissions to
answer the points referred to this bench by two Division Benches.
4 . Consequent upon the amendment to Section 115 CPC by Act No. 22/02 the High
Court cannot entertain revision petitions against the interlocutory orders passed by the
Civil Courts in the original proceedings except the orders that would fall under the
proviso to the amended Section 115 of CPC. So far as the appeals are concerned,
Section 4 of the Karnataka High Court Act, 1961 (Act for short) provides for appeals
from a judgment, decree, order or sentence passed by a single Judge in exercise of the
original jurisdiction of the High Court. The said Act is enacted by the Karnataka State
Legislature in exercise of its legislative powers from Entry 65, Second list, VII Schedule
of Constitution of India with a view to regulate powers of this Court and also to confer
certain statutory rights upon the public litigants. The Act has received the assent of the
President of India.
5. In the absence of definition of "original jurisdiction" in the Act, the learned Advocate
General Mr. Uday Holla has placed reliance upon the Black's Law dictionary the law
Lexicon of Ramanath Iyer regarding its meaning, with a view to interpret the phrase
'Original Jurisdiction' found in Section 4 of the Act. As per Black's Law Dictionary,
"original jurisdiction" is:
Jurisdiction in the first instance. Jurisdiction to take cognizance of a cause as
its inception, try it, and pass Judgment upon the law and facts. Distinguished
from appellate Jurisdiction.
In Law Lexicon, Reprint Edition 1987, "original jurisdiction" is mentioned as under:
The phrase 'original jurisdiction' means jurisdiction to entertain cases in the
first instance, as distinguished from appellate jurisdiction
Bearing this in mind, let me consider the powers conferred upon Single Judge and two
judges of this Court in the Karnataka High Court Act. Section 9 of the Act deals with
powers of single Judge and inter-alia it provides:
(xii) exercise of power under:
a) Clause (1) of Article 226 of the Constitution of India except where
such power relates to the issue a writ in the nature of habeas corpus;
and
b) articles 227 and 228 of the Constitution of India

Section 10 of the Act deals with powers that can be exercised by bench of two Judges
and it provides inter alia :
(iva) an appeal from any original judgment, order or decree passed by a single
Judge in exercise of the powers under Clause (1) of Article 226, Article 227 and
Article 228 of the Constitution of India.
6. While Section 4 of the Act restrict appeals only from the judgment, decree, order or
sentence passed in exercise of original jurisdiction, Section 10(iv-a) of the Act does not
impose any such restriction. It confers powers on two judges to exercise powers in the
appeals arise from the judgment, order or decree passed by a Single Judge in exercise
of the powers of this Court under Clause (1) of Article 226, Article 227 and Article 228
of the Constitution of India. When such power is conferred upon two judges, it cannot
be said that they have no jurisdiction to hear the appeals arising from the orders,
judgments and sentences passed by a single Judge except from those arising from the
exercise of original jurisdiction. If such an interpretation is given to Section 4 of the
Act, the power conferred under Section 10(iva) of this Court becomes redundant. It is
well-settled legal position of law that harmonious construction of the above provisions
of the Act should be given to the provisions of a statute so that all the provisions of the
statutory enactment shall be given effect to and no provision of the Act become
nugatory with a view to achieve the object and intention of the statutory provisions of
the Act. Though in Section 4 of the Act the phrase "in exercise of original jurisdiction of
the High Court" is mentioned, there is no such phrase in Section 10(iv) (a) and Section
9(xii)(b) of the Act. If the said phrase is given strict interpretation and effect to, then
the power conferred on the Division Bench under Section 10(iva) of the Act cannot be
exercised and the said power remain only on statute. If there cannot be any appeal
against the orders passed by a Single Judge then exercise of power conferred under
Section 10(iva) of the Act. To hear appeals against the orders passed by Single Judge
under Articles 227 and 228 does not arise and the said provision become redundant.
7. It is also to to be borne in mind that the litigants invoking writ jurisdiction constitute
one class and they should be given same or similar treatment by this Court while
exercising its judicial review powers under Articles 226 and 227 of the Constitution of
India. If one set of writ petitioners are given the right of appeal and another set is
denied, it amounts to discrimination and violative of Article 14 of the Constitution. Such
different procedure to the litigants is totally impermissible in law. This principle of law
laid down by the Apex Court in the case of State of West Bengal v. Anwarali Sarkar
MANU/SC/0033/1952 : 1952CriL J510 . The relevant portion of paragraph 55 is as
under:
If a legislation is discriminatory and discriminates one person or class of
persons against others similarly situated and denies to the former the privileges
that are enjoyed by the latter, it cannot but be regarded as "hostile" in the
sense that is affects injuriously the interests of that person or class. Of course,
if one's interests are not at all affected by a particular piece of legislation, he
may have no right to complain. But if it is established that the person
complaining has been discriminated against as a result of legislation and denied
equal privileges with others occupying the same position, I do not think that it
is incumbent upon him, before he can claim relief on the basis of his
fundamental rights, to assert and prove that in making the law, the legislature
was actuated by a hostile or inimical intention against a particular person or
class.

If, appeals are to be entertained only against the orders, judgments, etc. passed in
exercise of original jurisdiction only as interpreted in the five Judge judgment in the
case of Gurushanth Pattedar, sought to be justified by the learned Assistant Solicitor
General, it amounts to taking away the powers conferred upon two judges of this Court
under Sections 4 read with 10(iva) of the Act and denying the statutory right of Appeal
conferred upon the public litigant, which is impermissible in law. Therefore, in my
considered view, the points referred to this Bench for consideration have to be
answered in favour of the writ appellants/petitioners
8 . Section 100A CPC debars second appeal against the judgment, decree or order
passed by the Single Judge in the first appeal. That is only in respect of civil matters. In
fact by a proposed amendment, the right of appeal provided against the orders passed
under Article 226 and 227 was sought to be deleted but proposal was given-up. This is
an indication that right of writ appeal conferred upon the public litigants should not be
taken away by interpreting the statutory provisions contrary to the object and
intentment of the Act. Even if it is considered that such right had been taken away by
the proposed amendment in the bill, still right of appeal as provided under Section 4
read with 10(iva) of the Act is available in view of Article 254(2) of the Constitution of
India in view of the fact that the Karnataka High Court Act has received the assent of the
President.
9 . Access to justice being a human right and the right of a citizen to move the
Constitutional Court to exercise its constitutional powers of this Court as the
Constitutional Remedy of the public litigants is a part of Part III of the Constitution of
India and the judicial review power conferred upon this Court being the basic structure
of the Constitution, the conferment of the fundamental rights upon the citizens under
the Constitution is conceived in the national interest. Therefore, the remedy being the
constitutional remedy, if denial of juridical review power of this Court which is the basic
structure of the Constitution. A citizen cannot waive his fundamental rights this legal
principle is laid in the case reported in AIR 1959 SC 149.
10. The remedy under Article 226 and 227 of the Constitution of India is a Public Law
remedy for different purpose and the remedy provided under CPC is a private law
remedy and for a different purpose. Therefore, the remedy provided under Section 4 of
the High Court Act, 1961 read with rules relating to Article 226 and 227 of the
Constitution of India and also as per the High Court Rules of 1959 and the Writ petition
Proceedings Rules of 1977 are special provisions and Constitutional Public Law Remedy
and the remedy provided under the CPC is general and Private Law Remedy. The special
provisions of the Act and Rules would prevail over the general provisions of the Act.
11. The learned Advocate General in support of his legal contention that the writ appeal
is maintainable against the order of a learned Single Judge in respect of the
interlocutory orders passed in the original suit proceedings by the civil Courts has
rightly relied upon the decision reported in MANU/SC/0645/2004 : (2004)6SCC71
wherein it is held that even though revisional power is taken away under Section 115
CPC, writ appeal under Section 4 read with 10(iva) of the Act is maintainable in law.
12. In the case of Gurushanth Pattedar v. Mahabood Shahi Kulbarga Mills (Supra), the
five Judge Bench of this Court held that intra-Court appeal lies only against the order of
learned Single Judge passed in exercise of original jurisdiction and not in supervisory
jurisdiction under Article 227 of the Constitution of India. The said view of the five
Judge Bench of this Court is contrary to the law laid down by the Apex Court in the
decision Surya Dev Rai v. Ram Chander Rai and Ors. (Supra). The relevant paragraphs

from the above decision of the Apex Court are extracted hereunder in support of my
view that the right of appeal is available to the public litigants.
22. Article 227 of the Constitution confers on every High Court the powers of
superintendence over all Courts and tribunals throughout the territories in
relation to which it exercises jurisdiction excepting any Court or tribunal
constituted by or under any law relating to the armed forces. Without prejudice
to the generality of such power the High Court has been conferred with certain
specific powers by Sub-articles (2) and (3) of Article 227 with which we are not
concerned here, It is well settled that the power of superintendence so
conferred on the High Court is administrative as well as judicial, and is capable
of being invoked at the instance of any person aggrieved or may even be
exercised suo motu. The paramount consideration behind vesting such wide
power of superintendence in the High Court is paying the path of justice and
removing any obstacles therein. The power under Article 227 is wider than the
one conferred on the High Court by Article 226 in the sense that the power of
superintendence is not subject to those technicalities of procedure or traditional
fetters which are to be found in certiorari jurisdiction. Else the parameters
invoking the exercise of power are almost similar.
23. The history of supervisory jurisdiction exercised by the High Court, and
how the jurisdiction has culminated into its present shape under Article 227 of
the constitution, was traced in Warvam Singh and Anr. v. Amarnath and Anr.
MANU/SC/0121/1954 : [1954]1SCR565 . The jurisdiction can be traced back to
S ecti on 15 of High Courts Act, 1861 which gave a power of judicial
superintendence to the High Court apart from the independently of the
provisions of other laws conferring revisional jurisdiction on the High Court.
Section 107 of the Government of India Act 1915 and then Section 224 of the
Government of India Act, 1935, were similarly worded and reproduced the
predecessor provision. However, Sub-section (2) was added in Section 224
which confined the jurisdiction of the High Court to such judgments of subject
to appeal or revision. That restriction has not been carried forward in Article
227 of the Constitution. In that sense Article 227 of the Constitution has width
and vigour unprecedented.
Difference between a writ of certiorari under Article 226 and supervisory
jurisdiction under Article 227.
25. Upon a review of decided cases and a survey of the occasions wherein the
High Courts have exercised jurisdiction to command a writ of certiorari or to
exercise supervisory jurisdiction to command a writ of certiorari or to exercise
supervisory jurisdiction under Article 227 in the given facts and circumstances
in a variety of cases, it seems that the distinction between the two jurisdictions
stands almost obliterated in practice. Probably, this is the reason why it has
become customary with the lawyers labelling their petitions as one common
under Articles 226 and 227 of the constitution, though such practice has been
deprecated in some judicial pronouncement. Without entering unto niceties and
technically of the subject. We venture to state the broad general difference
between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its
original jurisdiction by the High Court; exercise of supervisory jurisdiction is
not an original jurisdiction and in this sense it is akin to appellate revisional or
corrective jurisdiction. Secondly, in a writ of certiorari, the record of the
proceedings, having been certified and sent up by the inferior Court or tribunal

to the High Court, the High Court if inclined to exercise its jurisdiction. May
simply annual or quash the proceedings and then do no more. In exercise of
supervisory jurisdiction the High Court may not only quash or set aside the
impugned proceedings, judgment or order but it may also make such directions
as the facts and circumstances of the case may warrant, may be by way of
guiding the inferior Court or tribunal as to the manner in as which it would now
proceed further or afresh as commended to or guided by the High Court. In
appropriate cases the High Court while exercises supervisory jurisdiction, may
substitute such a decision of its own in place of the impugned decision, as the
inferior Court or tribunal should have made. Lastly, the jurisdiction under
Article 226 of the constitution is capable of being exercised on a prayer made
by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of
being exercised suo motu as well.
26. In order to safeguard against a mere appellate or revisional jurisdiction
being exercised in the garb of exercise of supervisory jurisdiction under Article
227 of the Constitution, the Courts have devised self imposed rules of discipline
on their power. Supervisory jurisdiction may be refused to be exercised when
an alternative efficacious remedy by way of appeal or revision is available to
the person aggrieved. The High Court may have regard to legislative policy
formulated or experience and expressed by enactments where the legislature in
exercise of its wisdom has deliberately chosen certain orders and proceedings
to be kept away from exercise of appellate and revisional jurisdiction in the
hope of accelerating the conclusion of the proceedings and avoiding delay and
procrastination which is occasioned by subjecting every order at every stage of
proceedings to judicial review by way of appeal or revision. So long as an error
is capable of being corrected by a superior Court in exercise of appellate or
revisional jurisdiction though available to be exercised only at the conclusion of
the proceedings, it would be sound exercise of discretion on the part of the
High Court to refuse to exercise power of superintendence during the pendency
of the proceedings. However, there may be cases where but for invoking the
supervisory jurisdiction, the jurisdictional error committed by the inferior Court
or tribunal would be incapable of being remedied once the proceedings have
concluded.
Empahsis supplied by me
13. The above said legal position has been reiterated by the Apex Court in the decision
reported in Salem Advocates Bar Association T.N. v. Union of India
MANU/SC/0450/2005 : AIR2005SC3353 . While examining the constitutional validity of
the amended provisions of 115 and other amended provisions by Act No. 46/99 and Act
22/02 were examined by the Apex Court in the above case. The relevant paragraphs
from the said case are extracted hereunder:
40. Section 115 of the code vests power of revision in the High Court over
Courts subordinate to it. Proviso to Section 115 of the code before the
amendment by Act 46 of 1999 read as under;
Provided that the High Court shall not, under the Section, vary or
reverse any order made, or any order deciding an issue, in the Court of
a suit or other proceeding, except where the order, if it had been made
in favour of the party applying for revision, would have finally disposed
of the suit or other proceeding, or

a) the order, if allowed to stand, would occasion a failure of justice or
(emphasis supplied)
Now, the aforesaid proviso has been substituted by the following proviso;
Provided that the High Court shall not, under this Section, vary or
reverse any order made, or any order deciding an issue, in the course
of a suit or other proceeding, except where the order, it had been made
in favour of the party applying for revision, would have finally disposed
of the suit or other proceeding.
The aforesaid Clause (b) stands omitted. The question is about the
constitutional powers of the High Court under Article 227 on account of
omission made in Section 115 of the Code. The question stands settled by a
decision of this Court in Surya Dev Rai v. Ram Chander Rai holding that the
power of the High Court under Article 226 and 227 of the Constitution is always
in addition to the revisional jurisdiction conferred on it. Curtailment of
revisional jurisdiction of the High Court under Section 115 of the code does not
take away and could not have taken away the constitutional jurisdiction of the
High Court. The power exists, untrammelled by the amendment in Section 115
and is available to be exercised subject to rules of self-discipline and practice
which are as well settled.
(Emphasis supplied)
1 4 . According to learned Counsel Mr. V. Laxminarayana, in view of the decision
reported in AIR 1987 SC 2003, para 24 the powers exercisable by this Court under
Section 115 CPC and Articles 226 and 227 by this Court are not inter-changeable. He
has further relied upon the 42nd amendment to Article 227 of the Constitution of India
which confers supervisory powers of this Court subject to appellate jurisdiction. Clause
(5) of Article 227 was as under:
(5) Nothing in this article shall be construed as giving to a High Court any
jurisdiction to question any judgment of any inferior Court which is not
otherwise subject to appeal or revision.
This amendment is very relevant to answer the points in issue, particularly in view of
the amendment to Section 115 CPC by which the revisional power of this Court is taken
away, the constitutional validity of which has been upheld in Salem Advocates case
referred to supra.
1 5 . The restraints of Article 227 of Constitution of India as amended under 42nd
Constitutional amendment has been deleted by the 44th Constitutional amendment and
the original power of this Court under Article 227 was restored. Therefore, the
conclusion arrived at in Gurushanth Pattedar's case by this Court that order passed
under Article 227 in the writ petition is not appealable, is against the spirit of 44th
Amendment of the Constitution. The amendment to Section 115 CPC is not governed by
the Constitutional powers of this Court under Articles 226 and 227 and exercise of such
powers are regulated by the provisions of the Karnataka High Court Act of 1961 and writ
petition proceedings Rules.
16. In the decision reported in Tirupati Balaji Developers (P) Limited v. State of Bihar
MANU/SC/0369/2004 : AIR2004SC2351 , upon which decision strong reliance is placed

by the learned Counsel Mr. V. Lakshminarayan in support of his legal submissions
regarding the powers of this Court under Article 226 and 227 of the Constitution of
India and Appellate jurisdiction, it is held as under:
9 . In a unified hierarchical judicial system which India has accepted under its
Constitution, vertically the Supreme Court is placed over the High Courts. The
very fact that the constitution confers an appellate power on the Supreme Court
over the High Courts, certain consequences naturally flow and follow. Appeal
implies in its natural and ordinary meaning the removal of a cause from any
inferior Court or tribunal to a superior one for the purpose of testing the
soundness of decision and proceedings of the inferiror Court or tribunal. The
superior forum shall have jurisdiction to reverse, confirm annual or modify the
decree or order of the forum appealed against and in the event of a remand the
lower forum shall have to rehear the matter and comply with such directions as
may accompany the order of remand. The appellate jurisdiction inherently
carries with it a power to issue corrective directions binding on the forum below
and failure on the part of the latter to carry out such directions or show
disrespect to or to question the propriety of such directions or show disrespect
to or to question the propriety of such direction would-it is obvious-to
destructive of the hierarchical system in administration of justice. The seekers
of justice and the society would lose faith in both.
1 0 . In Shankar Ramachandra Abhyankar v. Krishnaji Dattatreya Bapat this
Court pointed out that appeal is the right of entering the superior Court and
invoking its aid and interposition to redress the error of the Court below. There
are two important postulates of constituting the appellate jurisdiction (i) the
existence of the relation of superior and inferior Court; and (ii) the power in the
former to review decisions of the latter. Such jurisdiction is capable of being
exercised in a variety of forms. An appeal is process of civil law origin and
removes a cause, entirely subjecting the facts as well as the law, to a review
and a retrial.
1 1 . The very conferral of appellate jurisdiction carries with it certain
consequences. Conferral of a Principal substantive jurisdiction carries with it, as
a necessary concomitant of that power, the power to exercise such other
incidental and ancillary powers without which the conferral of the principal
power shall be rendered redundant. As held by Their Lordships of the Privy
Council in Nagendra Nath Dey v. Suresh Chandra Dev (Sir Dinshaw Mulla
speaking for the Bench of five), an appeal is an application by a party to an
appellate Court asking it to set aside or revise a decision of subordinate Court.
The appeal does not cease to be an appeal though irregular or incompetent.
Placing on record his opinion, Subramania Ayyar, J. as a member of the Full
Bench (of five Judges) in Channapa v. Moidin Kutti (at ILR p.80) stated inter
alia that appeal is "the removal of a cause or a suit from an inferior to a
superior judge or Court for re-examination or review". According to Wharton's
Law Lexicon such removal of a cause or suit it for the purpose of testing, the
soundness of the decision of the inferior Court. In consonance with this
particular meaning of appeal, "appellate jurisdiction" means "the power of a
superior Court to review the decision of an inferior court".
Here the two things which are required to constitute appellate jurisdiction, are
the existence of the relation of superior and inferior Court and the power on the
part of the former to review decisions of the latter. This has been well put by

story: The essential criterion of appellate jurisdiction is, that is revises and
correctness the proceedings in a cause already instituted and does not create
that cause. In reference to judicial tribunals an appellate jurisdiction, therefore,
necessarily implies that the subject-matter has been already instituted and
acted upon, by some other Court, whose judgement or proceedings are to be
revised,' (Section , Commentaries on the Constitution of United States). (ILR
p.80)
(Emphasis supplied)
17. In the decision reported in Town House Building Co-operative Society Limited v.
Special Deputy Commissioner 1998 (2) Kar L J 510 a Division Bench of this Court has
held thus:
10. There can be no gainsaying that a learned Single Judge while exercising
the power of deciding a writ petition (by virtue of allocation of work) does not
sit as a subordinate Court or Judge sub-ordinate to those who constitute a
Division Bench as the question of subordination does not arise at all.
Resultantly the applicability of the provisions of Order 41, Rules 23 to 26A is
not attracted. But a power or a jurisdiction entrusted to a particular Judge as
part of the function of the High Court may involve the exercise of a power or
jurisdiction which is subject to a superior power like an appellate power.
XXX
Another question which arises would be whether even the parliament in
exercise of its ordinary legislative power under Articles 245 and 246 can create
an appellate jurisdiction over the High Courts? In this context it appears to me
there exists a clear distinction between the power of the Legislature to a make a
law providing that a Single Judge or specified number of Judges of the High
Court should exercise the jurisdiction vested in a High Court under the
Constitution and the power to make a law that an appeal shall lie from the
decision of the High Court in exercise of the Jurisdiction vested in it by the
Constitution under Articles 226, 227 and 228.
18. The above said legal principles laid down by the Apex Court in the above case aptly
applicable to the case on hand in view of the provisions of Section 4 r/w 10(iva) of the
Karnataka High Court Act, enacted by the Karnataka State Legislature in exercise of its
constitutional powers 246(3) of the constitution of India.
1 9 . The earlier 5 Judge Bench of this Court in Guttedar's case while answering the
points referred to it as to whether right of appeal is available under Section 4 of the Act
against orders passed by Single Judge in the writ petitions filed against interlocutory
orders of Civil Court and Others Courts, held in the negative placing reliance placed on
the decision in Sadhana Lodh v. National Insurance Company Limited
MANU/SC/0080/2003 : [2003]1SCR567 . The reliance placed on that decision is
misplaced as the Apex Court in that case has held as under:
Where a statutory right to file an appeal has been provided for, it is not open to
the High Court to entertain a petition under Article 227 of the Constitution. Even
if where a remedy by way of an appeal has not been provided for against the
order and judgment of a District Judge, the remedy available to the aggrieved
person is to file a revision before the High Court under Section 115 of the Code
of Civil Procedure. Where remedy for filing a revision before the High Court

under Section 115 CPC has been expressly barred by a State enactment, only in
such case a petition under Article 227 of the Constitution would lie and not
under Article 226 of the Constitution.
In view of the decisions in the case of Suryadev Rai and Salem Bar Association, and
right of revision under Section 115 CPC is taken by the amendment except in respect of
the cases falling under the proviso thereto and aggrieved person can file writ petition
and in view of Section 4 and 10(iva) of the Act power is conferred to exercise appellate
power, the ratio of Sadhana Lodh's case has no application. Applying the said ratio and
ignoring the statutory provisions of Section 9 Clause (xii) Sub-Clause (a) and (b) and
10 Clause (iva) of the Act, with regard to exercise the constitutional powers under
Articles 226 and 227 of Constitution of India the conclusion arrived at by five Judge
Bench in the case of Gurushanth Pattedar that order passed under Article 227 of the
Constitution of India by a learned Single Judge of this Court is not amenable to the
appellate jurisdiction, under Section 4 of the High Court Act is wholly untenable in law,
as the same are contrary to the constitutional powers of this Court Under Articles 226
and 227 of constitution of India's particularly the 44th amendment to the constitution to
Article 227 of constitution and interpretation of the above provisions by the Apex Court
in various cases referred to supra. The Constitutional Bench of the Apex Court in the
decision of Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu MANU/SC/0416/1978 :
[1979]1SCR26 has held regarding the Rule of interpretation of a statute.
64. Where two alternative constructions are possible, the Court must choose
the one which will be in accord with the other parts of the statute and ensure
its smooth, harmonious working, and eschew the other which leads to
absurdity, confusion, or friction, contradiction and conflict between its various
provisions, or undermines, or tends to defeat or destroy the basic scheme and
purpose of the enactment. These canons of construction apply to the
interpretation of our constitution with greater force, because the Constitution is
a living, integrated organism, having a soul and consciousness of its own. The
pulse beats emanating from the spinal cord of the basic framework can be felt
all over its body, even in the extremities of its limbs. Constitutional exposition
is not mere literary garniture, nor a mere exercise in grammar. As one of us
(Chandrachud J. as he then was) put it in Kesavananda Bharati's case
MANU/SC/0445/1973 : AIR1973SC1461 "While interpreting words in a solemn
document like the Constitution, one must look at them not in a school masterly
fashion, not with the cold eye of a lexicographer, but with the realization that
they occur in 'a single complex instrument in which one part may throw light on
the other' so that the construction must hold a balance between all its parts.
Emphasis supplied by me.
In the decision reported AIR 1997 SC 1016, it is held as follows:
12.3- It has to be borne in mind by all the Courts, all the time that when there
are two conflicting provision in an Act, which cannot be reconciled with each
other, they should be so interpreted that is possible/effect should be given to
both. This is the essence of the rule of "Harmonious Construction.
12.4- the Courts have also to keep in mind that an interpretation which reduces
one of the provisions as a "dead Letter" or "Useless lumber" is not harmonious
construction.
Mr. S.P. Shankar, learned Senior Counsel relied upon the above decision to interpret

Section 4 read with Sections 9 Clause (xii) Sub-clause (a) and (b) and 10 Clause (iva)
of the Act and the law laid down in Suryadev's Case, which legal principle has been
reiterated by the Apex Court in the subsequent Judgment of Salem Bar Association case.
20. Mr. V. Lakshminarayana relied upon the Constitutional Bench decisions of the Apex
Court in the case of S.R. Bommai v. Union of India MANU/SC/0444/1994 :
[1994]2SCR644 , wherein it has held that "The High Court has Judicial power over
territorial jurisdiction over the area over which it exercises power including control over
lower judiciary and rightly placed reliance upon another decision of the Apex Court
reported in MANU/SC/0518/2008 : 2008[9]S.T.R.337 to contend that Section 4 of the
Act should be interpreted keeping in view the provisions of Sections 9 Clause (xii) Sub-
Clauses(a) and (b) and 10 Clause (iva) of the Act, harmoniously to construe the
intentment and object of the State Legislature in conferring statutory rights conferred
upon the Public litigant to protect his fundamental and statutory rights and the power of
this High Court to regulate the business of this Court.
21. In the another decision reported in MANU/SC/0518/2008 : 2008[9]S.T.R.337 relied
upon by Sri Lakshminarayan is held as under:
31. The Court, while interpreting a statute, must bear in mind that the
legislature was supposed to know law and the legislation enacted is a
reasonable one. The Court must also bear in mind that where the application of
a parliamentary and a legislative Act comes up for consideration; endeavours
shall be made to see that provisions of both the Acts are made applicable.
Whether it is original or supervisory jurisdiction, it is a judicial review power conferred
upon the High Court, as held by the Supreme Court in the case reported in
MANU/SC/7166/2008 : AIR2008SC1438 . Conferment of power upon this Court under
Articles 226 and 227 of the Constitution is the original jurisdiction under the
Constitution. The five judge Bench of this Court in Gurushanth Pattedar's case and
Kalpana Theatre's case did not consider the effect of the language used in Sections 4
and 10(iva) of the Act about the original jurisdiction of single Judge and Appellate
Jurisdiction under the above provisions of the Act. They proceeded to examine the
points referred to it and answered the same ignoring the original jurisdiction of single
Judge of this Court under Articles 226 and 227 of the Constitution. Mr. V.
Lakshminarayana has rightly relied upon the decision in the case of Ashok Tanvar v.
State of Himachal Pradesh MANU/SC/1070/2004 : AIR2005SC614 wherein it is held that
Constitutional provisions cannot be cut down by technical construction rather it has to
be given liberal and meaningful interpretation. The words and expressions used in the
Constitution, have no fixed meaning and must receive interpretation based on the
experience of the people in the course of working of the Constitution. If any statutory
provisions are conflict with constitutional provisions, they cannot prevail. The learned
Counsel has also rightly cited the decision reported in MANU/SC/0961/2003 :
(2004)11SCC26 wherein it is held that Constitution is the supreme law subject to Article
141 of the Constitution. Any other inconsistent provisions of the statutory enactment
would be void and the constitutional provisions shall prevail over them and the same
shall be given effect to at the time of interpretations of the statutory provisions keeping
in view the fundamental and statutory rights of the public litigant.
22. Learned Advocate General has relied upon the decisions reported in AIR 1987 SC
1 0 2 3 Para 33, MANU/SC/0225/2000 : [2000]2SCR781 regarding interpretation of
statute. For the same purpose, Mr. V. Lakshminarayana relied upon the decisions
reported in MANU/SC/0226/1989 : [1991]188ITR690(SC) India Cement Limited v. State

of T.N MANU/SC/0073/1994 : AIR1994SC268 , Supreme Court Advocates on Record
Association v. Union of India MANU/SC/0753/1992 : [1992]1SCR686 , By a careful
reading of the above decisions I am of the view that principles laid down in these cases
with all fours applicable to the fact situation of these cases to hold that the intention of
the State Legislature under the provisions of Section 4 and 10(iva) of the Act certainly
confers statutory right of Appeal to the Public Litigant.
23. Learned Senior Counsel Mr. S.P. Shankar in the course of his legal submission he
has very rightly pointed that this Court in Gurusanth Pattedar's case referred to supra
has extracted paragraphs 99 and 100 of Umaji Keshao Meshram's case reported in
MANU/SC/0132/1986 : [1986]1SCR731 without noticing the relevant paragraph 109,
which reads thus:
109. The question whether an intra-court appeal lay against the judgment of a
single Judge in a petition under Article 226 or 227 of the Constitution was not
before the Court in Shah Babulal Khimji's case and did not fall to be decided in
it. In fact, as stated in the above passage, the Court refrained from expressing
any opinion with respect to the nature of an order passed in a proceeding under
Article 226 of the Constitution. The statement in the above passage that such
proceedings are governed by rules framed under the Code of Civil Procedure
and not by Letters Patent was merely a casual and passing observation and not
intended to be a statement of the law on the point. In fact, proceeding under
Article 226 cannot be governed by rules made by the High Courts under the
Code of Civil Procedure, 1908. Under Sections 122 and 125 of the Code, the
High Courts are conferred the power to make rules regulating their own
procedure and the procedure of the Civil Courts subject to their
superintendence and they can by such rules annual, alter or add to all or any of
the rules in the First Schedule to the Code. These rules are, therefore, intended
to regulate the exercise of procedure in respect of matters to which the Code
applies. The Code deals with suits and appeals, reference review and revision
arising out of orders and decrees passed in suits. Under Section 141, the
procedure provided in the Code in regard to suits is to be followed, as far as it
can be made applicable, in all proceedings in any Court of civil jurisdiction. The
Explanation to that Section inserted by the Code of Civil Procedure
(Amendment) Act, 1976, provides as follows:
Explanation.- In this section, the expression 'proceedings' includes
proceedings under Order IX, but does not include any proceeding under
Article 226 of the Constitution.
The power of a High Court to make rules of Court and to regulate the sittings of
the Court and members thereof sitting singly or in Division Courts is to be
found in its Charter, whether it be a statute or Letters Patent. The position with
respect to existing High Courts has already been set out in detail above. So far
High Courts which came into existence after the commencement of the
Constitution are concerned, whenever new High Courts were set up the relevant
statute made provisions in that behalf, for instance, the Andhra State Act, 1953,
the State Reorganisation Act, 1956, the Bombay Reorganisation Act, 1956, the
Delhi High Court Act, 1966, and the State of Himachal Pradesh, 1970.It is the
charter of the High Court which generally confers a right of intra-Court appeal
and it is the rules made under the rule making power of the High Court while
generally provide which matters are to be heard by a single Judge and which be
a Division Bench though at times statues may also do so, as for example, the

Kerala High Court Act, 1958, and the Karnataka High Court Act, 1961. Where by
the charter of a High Court matters are not required to be heard by any
particular number of Judges and such charter provides for an intra-Court appeal
from the decision of a single Judge, whether such an appeal would lie or not
would depend upon whether by the rules made by the High Court in the
exercise of its rule-making power the matter is heard by a single judge or a
Division Bench subject to the condition that such right of appeal is not
otherwise excluded.
Emphasis supplied by me
The Apex Court in Chandrakumar's case reported in MANU/SC/0261/1997 :
[1997]228ITR725(SC) has held that the power under Article 227 is wider than the
power under Article 226 of Constitution of India. Further having regard to the
Constitutional powers conferred upon this Court, supervisory power under Article 227
cannot be exercised without exercising its power under Article 226 of the Constitution
and further very aptly held that conferment of powers upon the High Courts under the
above provisions of constitution of India are basic features of the constitution, therefore
by technical interpretation of the above relevant provisions of Act this Court cannot hold
that Public Litigant has no statutory right of Appeal against the orders that would be
passed in the writ petitions in exercise of this Court power under Articles 226 and 227
of constitution of India.
In view of the above said legal position of law laid down by the Apex Court, the
statutory provisions of the Act viz. Section 4, 9 Clause (XII) Sub-clauses (a) and (b)
and 10(iva) read with Rules 2(1) 26 and 39 of the Rules framed by this Court in
exercise of its Constitutional power under Article 225 of constitution and also the
amendment to the Karnataka Court Fee and Suits Valuation Act of 1957 in Schedule II
Article 11(sa), by the State Legislature in exercise of its Legislative power wherein there
is prescription of Court fee payable on the writ appeal to be filed before this Court
against the orders passed in the writ petitions filed under Articles 226 and 227 of
Constitution of India would be another strong indicator to come to the conclusion that
against the orders passed in the writ petitions filed under Articles 226 and 227 of the
Constitution of India. Public Litigant has got right of filing Writ Appeal under the above
provisions of the Act, Rules and various decisions of the Apex Court referred to supra.
2 4 . Learned Advocate General Mr. Uday Holla has cited the decision in Baby v.
Travancore Devaswom Board MANU/SC/0692/1998 : AIR1999SC519 wherein it is held
that powers of the High Court under Article 227 of constitution is in addition to powers
of revision. Provided under CPC read with Section 8 of the Act since revisional power of
this Court against interlocutory orders passed in the original suit proceedings by the
Civil Courts is taken away by the parliament by amending Section 15 CPC this decision
would further support my conclusion that the statutory right of appeal is available to the
Public Litigant against the order of Single Judge. Another decision relied upon by him is
reported in Ouseph Mathai v. M. Abdul Khadir MANU/SC/0718/2001 : AIR2002SC110
wherein it is held that petition under Article 227 cannot be treated as extension of
appeal or revision.
2 5 . In view of the decision in Suryadev Rai's case and other decisions referred to
above, As the revisional power of the High Court under Section 115 CPC is taken away
by amending the same and in the light of the powers conferred under Sections 9(xii)(a)
and (b) and Section 10(iva) of the Act, I am of the opinion that right of appeal is
available to a litigant against the orders passed by the single judge under Articles 226
and 227 of the Constitution in the writ petitions filed against the judgments, awards and

orders/interlocutory orders of Industrial Tribunal/Labour Court, quasi Judicial
Tribunals/Authorities, Family Courts and Civil Courts in their respective proceedings and
the said power is expressly conferred and the same is restricted to the orders,
judgments etc., passed under original jurisdiction only.
26. Accordingly, while differing from the view taken by Hon'ble Chief Justice, I answer
the points referred to this Bench in the affirmative as referred to in the penultimate
paragraph of this Judgment.
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MANU/KA/0165/2009

Equivalent Citation: AIR2009Kant119, ILR 2009 KARNATAKA 1207

IN THE HIGH COURT OF KARNATAKA

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