Letters patent appeal - maintainability of appeal.

Advocate, High court

Constitution of India, Arts.226, 227 - Letters Patent (Bom.), Cl.15 - Letters Patent Appeal - Maintainability of - What is required to be seen in a petition either under Art.226 or 227 or under both Articles 226 and 227, is the totality of the facts and circumstances, pleadings of the party, the nature of reliefs claimed and the ultimate order passed by the single Judge, to decide maintainability of Letters Patent Appeal.  

The nomenclature of the proceeding or reference to a particular Article of the Constitution is not final and conclusive. The observations by a Single Judge as to how he had dealt with the matter is also not decisive. A statement of a Single Judge in a petition strictly falling under Article 226 simpliciter, that he is exercising power of Superintendence under Article 227 of the Constitution, cannot take away right of appeal conferred upon a party.  

 What is required to be seen in a petition either under Article 226 or 227 or under both Articles 226 and 227, is the totality of the facts and circumstances of the case, the pleadings of the party, the nature of reliefs claimed and the ultimate order passed by the Single Judge, to decide the maintainability of Letters Patent Appeal. Broadly speaking, where the High Court Suo Motu exercises jurisdiction without there being any prayer made by or on behalf of party aggrieved, it would be an exclusive exercise of jurisdiction under Article 227. Similarly, where the Single Judge of the High Court substitutes his own decision for the decision of the subordinate Court or Tribunal or passes an order which the subordinate Court or Tribunal can pass in its original jurisdiction, it is the power under Article 227 which the High Court exercises. But where, the proceedings of the subordinate Court or Tribunal are quashed and the High Court gives ancillary directions pertaining to Article 227 of the Constitution of India, this shall, however, not to deprive a party right of appeal under Clause 15 of Letters Patent, as the substantial part of the order is under Article 226 i.e. issuance of writ of certiorari.

1989 Mh.L.J. 595 & AIR 1992 SC 185 - Ref. to.           

MRS. MANGALA W/O. SHARAD MUTHA & ORS. VS. STATE OF MAHARASHTRA & ORS.

      2009-ALL MR-6-598  (Paras 53 and 54).

 
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thanks sir
 
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