New Kenilworth Hotel (P) Ltd. Vs. Orissa State
Finance Corporation & Ors  INSC 54 (20 January 1997)
RAMASWAMY, G.T. NANAVATI
O R D E
appeals by special leave arise from the judgment and order of the High Court of
Orissa, made on December
16, 1996 in A.H.O.
admitted facts are that the appellant had filed a suit for declaration that the
steps taken by the respondents under section 29 of the State Financial
Corporation Act were illegal and sought permanent injunction restraining them
from disturbing its possession. Pending suit, they sought ad interim injunction
not to dispossess them from the hotel.
trial Court by order dated July 12, 1994
granted status quo whereby the appellant remained in possession of the suit
premises. On appeal filed by the respondents, the learned single Judge vacated
the status quo order by order dated May 18, 1995. Feeling aggrieved the appellant
filed Letters Patent Appeal. By the impugned order the Division Bench has held
that the appeals are not maintainable. Thus this appeal by special leave.
A.M. Singhvi, learned Addl, Solicitor General appearing for the appellant,
contents that under Clause 10 of the Letters Patent an appeal would lie against
the judgment of the learned single Judge to the Division Bench.
the order granting status quo by the trial court was vacated by the High Court,
it is a judgment within the meaning of Section 2 (9) of the Code of Civil
Procedure, 1908 (for short, the `Code']. Therefore, the bar under Sec.
(2) of the Code is not attracted by operation of Sec. 4 (1) of the Code. In
support thereof, he placed strong reliance on the judgment of the Division
Bench of that Court 431 (civil) 1 and a Full Bench Judgment of that Court in Birendra
Kr. Majhi vs. Sitamani Bewa [ 1992 (34) OJD 473 (Civil)]. He also contends that
though this Court has considered the non-maintainability of an appeal by
operation of Sec. 104 (2) of the Code read with Order XLIII Rule 1(r), the
above distinction was not brought to the notice of this Court and that,
therefore, the Full Bench Judgment of the High Court still holds the field. We
find no force in the contention.
settled legal position that right of appeal is a creature of the statute. Against
an interlocutory order, an appeal has been provided under Sec. 104 (1) of the
Code read with Order XLIII Rule 1. In respect of interim injunction, it is
covered by Order XLIII Rule 1 (r). In this case, the order of status quo was
passed in an application filed under Order XXXIX Rule 1 of the Code. Therefore,
it is not in dispute that it is an order passed by the civil Court under Order
XXXIX Rule 1 appealable under Order III Rule 1 (r) of the Code. Sub-section (2)
of Section 104 specifically prohibits Second Appeal against such an order
postulating that "No appeal shall lie from any order passed in appeal
under this Section". In Resham Singh Pyara Sing vs. Abdul Sattar [(1996) 2
SCC 49] a Bench of this Court consisting of K. Ramaswamy and B.L. Hansaria, JJ.
has held that against an appellate order of a learned single Judge of a High
Court passed by the Civil
Court, a Letters
Patent Appeal would not lie by reason of the bar created by sub-section (2) of
Section 104 of the Code.
10 of the Letters Patent reads as under:
appeal shall lie... from the judgment (not being a judgment passed in exercise
of appellate jurisdiction in respect of a decree or order made in exercise of
the appellate jurisdiction by a Court subject to the superintendence of High
Court... and not being an order made in exercise of reversional
jurisdiction...) of one Judge of the said High Court... and in exercise of
appellate jurisdiction in respect of a decree or order made in exercise of
appellate jurisdiction by a court subject to the Superintendence of the said
High Court where the Judge who passed the judgment declares that the case is a
fit one for appeal..." It would, thus, be seen that Clause 10 of the
Letters Patent consists of only two parts. In the first part, an appeal shall
lie from a judgment of a learned single Judge to the Division Bench not being a
judgment passed in exercise of the appellate jurisdiction or reversional
jurisdiction. In other cases, where the learned single Judge exercises the
appellate jurisdiction, if he certifies that it is a fit case for an appeal to
the Division Bench.
the prohibition contained in the latter part of clause 10, an appeal would lie.
It is seen that the Division Bench in Sukuri Dibya's case (supra) has
interpreted Clause 10 and stated that it consists of three components, namely:
Judgment of single Judge passed in exercise of original jurisdiction;
Judgment of a single Judge passed in exercise of appellate jurisdiction against
a judgment passed by a court subject to the superintendence of the High Court
in exercise of its original jurisdiction: and (iii) against judgment of a
single Judge passed in exercise of its appellate jurisdiction against the
judgment passed by a Court subject to the superintendence of the High Court in
exercise of its appellate jurisdiction;
above analysis of the learned Judges in that behalf is not correct as we have
stated above. The same was repeated by the Full Bench in Birendra Kr. Majhi's
question then is: whether notwithstanding such prohibition, though an order of
injunction passed by the learned single Judge in the appellate jurisdiction
under Order XXXIX Rule 1 is a judgment as held by this Court in Shah Babulal Khimji
vs. Jayaben D.C. Kania & Anr. [(1981) 4 SCC 8], an appeal would lie on the
basis thereof? It is contended that an appeal would lie to the Division Bench.
We find no force in the contention. It is true that the learned Judges
composing of the Division Bench as well as the Full Bench of the High Court
construed that the ratio in Shah Babulal Khimji's case would attract item (ii)
of the analysis of the learned Judges and, therefore, an appeal would lie to
the Division Bench. We are of the view that the learned Judges, with due
respect, have no understood the scope of the judgment in Shah Babulal Khimji's
case in its proper perspective. Therein, the learned single Judge exercising
the original jurisdiction of the High Court passed an order in applications
filed under Order XL Rule 1 for appointment of a receiver and issue of
injunction order under Order XXXIX Rule 1.
question, therefore, was: whether it was appealable? Since the learned Judge
had exercised the original jurisdiction and an appeal would lie to the Division
Bench under Order XLIII Rule 1, this Court considered that the order of the
learned single Judge was a judgment within the meaning of Section 2(9) of the
Code and, therefore, it was appealable. It is seen that the exercise of power
by the learned single Judge was as a first Judge under the Code and, therefore,
the order, though it is one passed under Order XLIII Rule 1, since it gives a
finality as regards that Court is concerned, was held to be a judgment within
the meaning 8 Section 2(9) of the Code.
4(1) of the Code does not apply because it envisages that "In the absence
of any specific provision to the contrary, nothing in this Code shall be deemed
to limit or otherwise affect any special or local law now in force or any
special jurisdiction or power conferred, or any special form of procedure
prescribed, by or under any other law for the time being in force." Since
Section 104(2) expressly prohibits an appeal, against an order passed by the
appellate Court under Order XLIII Rule 1 read with Section 104(1) no... appeal
would lie. As a consequence no Letters Patent Appeal would lie. The view taken
in Madhusudan Vegetable Products Co. Ltd. Ahmedabad vs. Bapa Chemicals Vapi
& Ors. [AIR 1986 Guj. 156] and Firm Chhunilal Laxman Prasad vs. M/s. Agarwal
and Co. & Ors. [AIR 1987 MP 172] by the two High Courts is correct in law.
The view of the Division Bench in Shashikala vs. Hiren [71 (1991) CLT 197] is
correct in law. Sukuri Dibya's case and the Birendra's case and not good law.
seen that the very object of introducing these amendments was to cut down the
delay in disposal of suits and to curtail spate of remedial steps provided
under the Code. As held earlier, the right of appeal is a creature of the
statute and the statute having expressly prohibited the filing of second appeal
under sub-section (2) of Section 104, the right of appeal provided under Clause
10 of the Letters Patent would not be available. As already noted, the main
part of Clause 10 clearly indicates that "an appeal would lie from the
judgment not being a judgment passed in exercise of appellate
jurisdiction". Thereby the judgment from an appellate jurisdiction stands
excluded under the first part of Clause 10 of the Letters Patent itself.
the Division Bench of the High Court was right in holding that the Letters
Patent Appeal would not lie against an order of the learned single Judge.
appeals are accordingly dismissed. No costs.