- (1.) This appeal by special leave arises from the order of the Single Judge of the High Court of Bombay in Special Civil Application No. 2521 of 1978, dated 20-12-1978 wherein the learned Single Judge set aside the order of the Joint Judge, Poona dated 29-8-1973 made in Miscellaneous Appeal No. 92 of 1973. The facts necessary for disposal of this appeal lie in a short compass.
(2.) The Poona Municipality has undertaken widening of the road to remove traffic congestion and initiated proceedings under section 4(1) of the Land Acquisition Act, 1894 for acquiring the two storied building belonging to N.H. Naik at Kotwal Chowk. The notification under section 4(1) was published in the Gazette in December 1966. The Land Acquisition Officer passed his award on 14-12-1970. Thereafter, the compensation was deposited by the competent officer and handed over to the Corporation. However, the earlier 24 appellants/tenants who entered into leave and licence agreements with the Corporation were allowed to get into possession. After the expiry of the period of leave and licence, proceedings were initiated for eviction of the appellants and an order in that behalf came to be passed. Calling at question that order of eviction, they went in appeal and writ petition but were unsuccessful. Ultimately, this Court affirmed the order of eviction of the appellants. Subsequently, they filed Civil Suit No. 590 of 1973 in the Court of the Joint Civil Judge, Poona and sought perpetual injunction from dispossession and for ad interim injunction. The Civil Judge by his order dated 27-4-1973 refused to grant ad interim injunction. The Joint Judge, stated earlier, on appeal under Section 43(r) C.P.C. allowed the appeal and granted ad interim injunction pending disposal of suit. The High Court in the Special Civil Application under article 227 of the Constitution, by its impugned order dated 20-12-1978 set aside the appellate order and confirmed that of the Civil Judge. Thus this appeal, by special leave.
(3.) Shri Rajinder Sachar, learned Senior Counsel for the appellants contended that under section 115 C.P.C, High Court has power of revision where the appeal is not provided for either to it or subordinate Court. Since the Joint Judge had exercised the appellate power by operation of section 115(2), the High Court was devoid of jurisdiction to exercise the revisional power. When statutory prohibition was imposed by C.P.C. which is a more expeditious and efficacious remedy, the exercise of jurisdiction by the High Court under Article 226 was not warranted. At this juncture it is necessary to point out that the High Court exercised its power under article 227 and not either under article 226 or under section 115 C.P.C. Even otherwise the barunder section 115(2) is to exercise revisional power where the party is provided with right of appeal to the High Court or the subordinate court against the impugned order. It is not a bar to exercise revisional power under section 115(1) against appellate order. The ratio in (Aundal Ammal v. Sadasivan Pillai) 1, S.C.R. 485:1987(1) S.C.C. 183, is that no second revision under section 115(1) would lie against revisional order of the subordinate Court.;