NARENDRA S. CHAVAN & ORS.versusVAISHALI V. BHADEKAR,

                        [2009] 10 S.C.R. 1218


A                 NARENDRA S. CHAVAN & ORS.
                                  v.
                      VAISHALI V. BHADEKAR
                   (Civil Appeal No.3371 of 2003)
                            JULY 21, 2009
B
       [MARKANDEY KATJU AND V.S. SIRPURKAR, JJ.)

        LETTERS PA TENT (Bombay High Court):

c       Clause 15 - Letters patent appeal - Maintainability of -
  Tenant after losing before rent control appellate authority filing
  writ petition before High court - Writ petition dismissed for non-
  prosecution - Application for restoration filed by tenant also
  dismissed by order dated 14.6.2002 - Possession of
D premises delivered to landlords - Order dated 14.6.2002
  challenged by tenant in letters patent appeal - Division Bench
  of High Court deciding the matter on merits, set aside the
  order of rent control appellate authority - Held: The judgment
  of Division Bench was without jurisdiction - No letters patent
  appeal could have been filed against the order rejecting the
E
  application for restoration as that was not a judgment - Even
  otherwise, there was no justification for the Division Bench to
  go into the merits of the matter and all that it could have done
  was to remit the ma Tter to the Single Judge for decision on
  merits - Even if there was consent of parties, it would not
F confer jurisdiction - Accordingly, judgment of Division Bench
  set aside - Practice and procedure - Jurisdiction.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3371 of 2003.
G                                                                      •·
         From the Judgment & Order dated 17.8.2002 of the High
    Court of Judicature at Bombay in Letter Patent Appeal No. 249
    of 2002.


H                                1218
           NARENDRA S. CHAVAN & ORS. v. VAISHALI V.                  1219
                         BHADEKAR

    ..       N.S. Gahlot, R.K. Singh and A.S. Pundirforthe Appellants.        A

             K. Sarada Devi for the Respondents.

             The following Order of the Court was delivered

                                       ORDER                                  B

               1. This appeal by special leave is directed against the
    ,    judgment and order dated 17 .8. 2002 of the Division Bench of
         the High Court of Bombay where by the Letters Patent Appeal
         file~ by the respondent-tenant was allowed .
                                                                              c
              2. The respondent-tenant after losing before the rent control
         appellate authority had filed a writ petition, which writ petition
         also came to be dismissed by order dated 13.3. 2002 for non-
         prosBcution and the civil application filed for restoration of the
         same was also dismissed by order dated 14.6. 2002.                   D
         Thereafter possession was given to the appellants . Instead of
         challenging the order dated 14.6. 2002 before a proper court,
         the respondent-tenant filed a Letters Patent Appeal before the
         Division Bench. The said Letters Patent Appeal was allowed
         and while allowing the same, the Division Bench even set aside       E
         the orders passed by the ·rent control appellate authority on
         merits.

               3: The learned counsel appearing on behalf of the
         app~llants-landlord herein contends that every thing was without
                                                                              F
         juifsdiction . We entirely agree. In fact, after the dismissal of
         the restoration application by the learned Single Judge, no
         Letters Patent Appeal could have been filed against that order
         because that was not a judgment. This is apart from the fact
         that even assuming that a Letters Patent Appeal was
                                                                              G
l ...
         maintainable, there was no justification for the Division Bench
         to go straight into the merits of the matter and all that the
         Division Bench could have done was to send back the matter
~        to the Single Judge for being decided on merits. That was not
         done. Instead, the Division Bench went into the merits of the
         matter. It is stated that this course was adopted because the        H
    1220      SUPREME COURT REPORTS [2009] 10 S.C.R.


A parties agreed that the writ petition should be restored to file
  and should be heard and disposed of on merits . We do not
                                                                     ..
   understand as to how the Division Bench had the jurisdiction
   under Clause XV of the Letters Patent because even if the
  matter was decided by the Single Judge then the Division
B Bench would not have had the jurisdiction to decide the matter
  on merits. Consent does not confer jurisdiction. In that view of
  the matter, we allow this appeal and set aside the impugned
  judgment and order of the Division Bench but without any order
  as to the costs.
c R.P.                                           Appeal allowed.