Vinita
M. Khanolkar Vs. Pragna M. Pai & Ors [1997] INSC 864 (26 November 1997)
S.B.
MAJMUDAR, K. VENKATASWAMI
ACT:
HEADNOTE:
THE
28TH DAY OF NOVEMBER, 1997 Present:
Hon'ble
Mr. Justice S.B. Majmudar Hon'ble Mr. Justice K. Venkataswami G.B.Sathe, D.N. Hungod,
Advs. for the appellant D.N. Mishra, Adv. for M/s. J.B.D. & Co., Advs. for
the Respondents.
O R D
E R The following Judgment of the Court was delivered:
Leave
granted. We have heard learned counsel for the parties.
The
short question is whether an appeal would lie before a Division bench of the
High Court against an order of the learned Single Judge rendered by him in
proceedings under sec. 6 of the Specific Relief Act, 1960 (hereinafter refer to
as 'the act'). Learned Single Judge passed an order dated 15.11.1994 in Suit
No. 411/93 decreeing the suit in terms thereof. When an appeal was carried to
the Division Bench of the High Court against the said order, it was contended
on behalf of the respondents that the appeal was not maintainable in view of sub-sec.
(3) of sec. 6 of the Act. The said provision certainly bars any appeal or
revision against any order passed by the court under sec. 6 of the Act. To that
extent the decision of the Division Bench cannot be found fault with. However,
one contention canvassed by learned counsel for the appellant requires closer
scrutiny. he submitted that even if an appeal would not lie under sub-sec. (3)
of sec. 6 of the act by itself against any order passed by the court under sec.
6 of the Act, this was an order passed by learned Single Judge of the High
Court exercising original jurisdiction. Therefore, under clause 15 of the
Letters Patent which is a charter under which the High Court of Bombay functioned,
the said provision for appeal would not have been whittled down by the
statutory provisions of sec. 6(3) of the Act. Clause 15 of the Letters Patent
is extracted hereunder:- "15, Appeal from the Courts of original
jurisdiction to the High Court in its appellate jurisdiction, ...And we do
further ordain that an appeal shall lie to the said High Court of Judicature at
Madras, Bombay, Fort William in Bengal from the judgment (not being a judgment
passed in the exercise of appellate jurisdiction in respect of a decree or
order made in the exercise of appellate jurisdiction by a Court subject to the
superintendence of the said High Court and not being an order made in the
exercise of a revisional jurisdiction, and not being a sentence or order passed
or made in exercise of the power of superintendence under the provisions of
section 107 of the Government of India Act, or in the exercise of criminal
jurisdiction) of one Judge of the said High Court or one Judge of any Division
Court, pursuant to section 106 of the Government of India Act, and that
notwithstanding anything hereinbefore provided, an appeal shall lie to the said
High Court from a Judgment of one Judge of the said High Court or one Judge of
any division Court, pursuant to section 108 of the government of India Act, on
or after the first day of February 1929 in the exercise of appellate
jurisdiction in respect of a decree or order made in the 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; but that the right of appeal from other judgments of Judges of the said
High Court or of such Division Court shall be to Us. Our heirs or successors in
Our or Their Privy Council, as hereinafter provided." Now it is well
settled that any statutory provision barring an appeal or revision cannot cut
across the constitutional power of a High Court. Even the power flowing from
the paramount charter under which the High Court functions would not get
excluded unless the statutory enactment concerned expressly excludes appeals
under letters patent. No such bar is discernible from sec. 6(3) of the act. it
could not be seriously contended by learned counsel for the respondents that if
clause 15 of the Letters Patent is invoked then the order would be appealable.
Consequently,
in our view, on the clear language of clause 15 of the Letters Patent which is
applicable to Bombay High Court, the said appeal was maintainable as the order
under appeal was passed by learned Single Judge of the High court exercising
original jurisdiction of the court. Only on that short ground the appeal is
required to be allowed.
The
judgment and order of the High Court in appeal No. 960/94 are set aside and the
appeal is restored to the file of the High Court for being proceeded further in
accordance with law. As the appeal of 1994 is being restored to the file of the
High Court, the High Court is requested to decide the appeal as expeditiously
as possible.
The
appeal is accordingly allowed. No costs. We make it clear that we express no
opinion on the merits of the controversy between the parties.
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