K.B. SIPAHIMALANI Vs. FIDAHUSSEIN VALLIBHOY

JUDGEMENT

(1.) THIS is an appeal from a judgment of Mr. Justice Desai who issued a writ of certiomri on a petition presented by the respondent. By this petition he challenged an order of the Custodian who held that one Kassam Abba was an evacuee and his tenancy right in rooms Nos. 13 to 16 on the first floor of Haji Yusuf Building had vested in him.

(2.) THE first order in these proceedings was made by the Assistant Custodian on January 2, 1953, and he held that Kassam Abba was an evacuee, and that the tenancy rights in these premises vested in the Custodian. From that order the respondent appealed to the Custodian and the Custodian passed the order, to which reference has been made, on February 10, 1953, confirming the order of the Assistant Custodian and dismissing the appeal. On April 10, 1954, the respondent went in revision to the Custodian General, and on April 10, 1954, the revision application was dismissed, and the present petition was filed on April 7, 1953.

(3.) IN support of this contention reliance has been placed on a decision of this Court in Mohamed Oomer v. Noorudin (1951) 54 Bom. L.R. 28. In that case we were dealing with an appeal and not with a revision application, and what we held there was that it is only on a judicial determination that the order of the lower Court becomes merged in the decision of the Court of appeal. But no merger takes place when the Court of appeal does not judicially determine the appeal but dismisses it on any preliminary ground like limitation or maintainability. Then, on the dismissal by the appellate Court, the order that still stands is the order of the lower Court and not the order of the Court of appeal. In the same volume there is another decision reported at page 947 (Hussain Sab v. Sitaram 1952) 54 Bom. L.R. 047, and there it was held that when an appeal is summarily dismissed by the High Court under Order XLI, Rule 11 of the Civil Procedure Code, the original decree from which the appeal was preferred remains untouched and it is the original decree which is the substantive decree. The Advocate General wants us to apply the same test to revision applications, and what he says is that if there is a judicial determination by the revisional Court, then the order of the Court from which the revision application is preferred becomes merged in the order passed by the revisional Court.