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 whereby the
Letters Patent Appeal filed by the respondent-tenant was allowed.
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-prosecution and the civil application filed for
restoration of the same was also dismissed by order dated 14.6.2002. 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 the orders passed by the rent
control appellate authority on merits.
The learned counsel appearing on behalf of the appellants-landlord
herein contends that everything was without jurisdiction. 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 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 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 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.
New Delhi;