P.S.
Sathappan Vs. Andhra Bank Ltd. & Ors [2004] Insc 620 (7 October 2004)
N. Santosh Hegde & S.B. Sinha W I T H CIVIL APPEAL NO. 5385 OF 1998 AND CIVIL APPEAL NOS. 5389-90 OF 2002
S.B. SINHA, J :
Interpretation of Section 104 of the Code of Civil Procedure (for short,
'the Code') vis-`-vis Clause 15 of the Letters Patent of the High Court of
Madras is in question in these appeals.
BACKGROUND FACTS :
Although these appeals involve common questions of law, the factual matrix
of the matter would be noticed from Civil Appeal No.689 of 1998.
The First Respondent herein filed a suit against the Appellant herein in the
Court of II Addl. Subordinate Judge, Coimbatore which was marked as O.S. No.403
of 1974. The said suit was decreed on or about 15.4.1976.
An execution petition was filed by the First Respondent-decree holder for
executing the said decree. In the said execution proceeding for realization of
the decretal amount the property belonging to the Appellant herein was put to
auction. The validity of the said auction came to be questioned by the
Appellant by filing an Execution Application on or about 8.10.1979 praying
therein for setting aside the court auction sale held on 26.9.1979 in respect
of Ginning factory situate at Tirurppur named and styled Sree Krishna Ginning
Factory. The said application was marked as Executive Application No. 419 of
1979. The said application was dismissed by the Execution Court on 10.10.1985
against which an appeal was preferred by the Appellant which was also dismissed
by a learned Single Judge of the Madras High Court by a judgment and order
dated 8.10.1990. A Letters Patent Appeal thereagainst purported to be in terms
of Clause 15 of the Letters Patent of the Madras High Court was filed by the
Appellant which was dismissed by a Full Bench of the Madras High Court by a
judgment and order dated 22.8.1998 holding that in terms of sub-section (2) of
Section 104 of the Code, an appeal against an order passed by the Appellate
Court under Order XVIII Rule 1 read with Section 104 of the Code, was not
maintainable. A certificate of fitness, however, in terms of Article 133 of the
Constitution of India was prayed for by the Appellant and granted by the said
Full Bench.
When the matter was placed before a Division Bench of this Court, it noticed
a conflict of opinion between a decision of a 3-Judge Bench of this Court in
New Kenilworth Hotel (P) Ltd. vs. Orissa State Finance Corporation and Others
[(1997) 3 SCC 462] and a two Judge-Bench in Resham Singh Pyara Singh vs. Abdul
Sattar [(1996) 1 SCC 49], on the one hand, and a Constitution Bench decision in
Gulab Bai and Another vs.
Puniya [1966 (2) SCR 102], on the other; and referred the matter to a
Constitution Bench observing :
"We are aware of the fact that Clause 15 of the Letters Patent
applicable to Madras High Court was similar to Clause 10 applicable to Orissa
High Court which was construed in the case of New Kenilworth (supra). This
Court did not, in New Kenilworth's case, consider the effect of the decision in
Gulab Bai's case (supra). Furthermore, reference in Clause 15 of the Letters
Patent which excludes the applicability of the same in relation to a judgment
passed in exercise of appellate jurisdiction in respect of a decree or order
made in exercise of appellate jurisdiction by a court subordinate to the
superintendence of the High Court would prima facie indicate that it is only
where the Single Judge is hearing an appeal from an appellate order of the
court subordinate to it that the said clause 15 would not apply.
In our opinion, the matter is not free from doubt, especially in view of the
decision of the Constitution Bench in Gulab Bai's case [1966 (2) SCR 102] and
it would be appropriate therefore that the papers are placed before Hon'ble the
Chief Justice for referring the case to a larger Bench, in view of not only the
conflict in decisions which is stated to be there but also in view of the
importance of the point in issue, namely, the effect of the provisions of
Section 104(2) vis-`-vis Clause 15 of the Letters Patent.
That is how the matter is before us.
SUBMISSIONS :
Mr. R. Sundravardhan, learned Senior Counsel appearing on behalf of the
Appellant, would submit that the Letters Patent of a High Court setting out the
constitutional power of the court must be held to be a special statute and,
thus, in case of a conflict between the provisions thereof and the Code of
Civil Procedure, the former would prevail. The learned counsel would contend
that the Letters Patent being a special statute, the right to appeal contained
in Clause 15 thereof cannot be taken away by reason of sub- section (2) of
Section 104 of the Code which is general in nature.
Drawing our attention to the Constitution Bench decision of this Court in
Gulab Bai (supra), the learned counsel would contend that therein several
decisions including the decision of the Full Bench of the Allahabad High Court
L. Ram Sarup vs. Mt. Kaniz Ummehani [AIR 1937 (Allahabad) 165] having been
approved, it is beyond any pale of doubt that a right of appeal under clause 15
of the Letters Patent of the Madras High Court would be available to a suitor
irrespective of the provisions contained in sub-section (2) of Section 104 of
the Code of Civil Procedure.
Mr. Sundravardhan would urge that the nature and character of a Letters
Patent being distinct and different from the Code of Civil Procedure, a right
of appeal conferred upon the suitor by reason thereof cannot be taken away. In
support of the said contention, the learned counsel has relied upon Union of
India vs. Mohindra Supply Company [1962 (3 ) SCR 497], Gulab Bai (supra),
Vinita M. Khanolkar vs. Pragna M. Pai and Others [(1998) 1 SCC 500], Central
Mine Planning and Design Institute Ltd. vs. Union of India and Another [(2001)
2 SCC 588], Chandra Kanta Sinha vs. Oriental Insurance Co. Ltd. and Others
[(2001) 6 SCC 158], Sharda Devi vs. State of Bihar [(2002) 3 SCC 705], and
Subal Paul vs. Malina Paul and Another [(2003) 10 SCC 361].
The decisions of this Court in Resham Singh Pyara Singh (supra) and New
Kenilworth Hotel (supra) do not lay down the correct law, Mr.
Sundravardhan would submit, having regard to the aforementioned decisions.
The learned counsel would argue that once the appellate jurisdiction is
exercised by the High Court, Clause 15 of the Letters Patent of the Madras High
Court would govern the forum for a second appeal therefrom; the only
restriction being that such an order must be a 'judgment'. Strong reliance in
this behalf has been placed on Radhy Shyam vs. Shyam Behari Singh [1971 (1) SCR
783].
Mr. Sundravardhan would contend that had the intention of the Parliament
been to take away the appellate forum created under Clause 15 of the Letters
Patent, it would have expressly been stated in Sub-Section (2) of Section 104
of the Code as has been done by the Parliament while inserting Section 100A in
the Code by reason of Code of Civil Procedure amendment Act, 1976 or Code of
Civil Procedure Amendment Act, 2002. In any event, the provision of Section
100-A of the Code being not retrospective in operation, the right of the
Appellant to prefer an appeal cannot be said to have been taken away. Strong
reliance, in this connection, has been placed on Garikapatti Veeraya vs. N.
Subbiha Choudhury [1957 SCR 488].
Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of the
respondents, on the other hand, would contend that having regard to Clause 44
of the Letters Patent of the Madras High Court, it is beyond any doubt or
dispute that the provisions thereof are subject to statutory provisions framed
by the State Legislature or the Parliament. It was urged that as an order
passed under Order XXI, Rule 90 of the Code can be appealed against only in
terms of sub-section (1) of Section 104 of the Code, the restrictions by way of
a further appeal placed in terms of sub-section (2) of Section 104 would
automatically operate. In other words, Mr.
Vaidyanathan would submit that sub-section (2) of Section 104 of the Code
applies when an order is appealable in terms of sub-section (1) thereof.
Drawing our attention to a decision of a 4-Judge Bench of this Court in
South Asia Industries Private Ltd. vs. S.B. Sarup Singh and Others [1965 (2)
SCR 756], the learned counsel would argue that a right of appeal conferred by
reason of Letters Patent can be taken away by a statute either expressly or by
necessary implication and in that view of the matter having regard to the
legislative scheme contained in Section 104 of the Code, it was not necessary
for it to expressly mention that such appeal would not be maintainable irrespective
of the fact that the same is provided for under the Letters Patent of different
High Courts.
Mr. Vaidyanathan would contend that the decisions of this Court in Mohindra
Supply Company (supra) and South Asia Industries Private Ltd.
(supra) do not lay down any law contrary to or inconsistent with the
decision of this Court in Gulab Bai (supra).
It was urged that while enacting Section 100-A of the Code, the Parliament
specifically referred to the Letters Patent of the High Court keeping in view the
fact that by reason thereof all appeals provided for thereunder became barred
whether under the Letters Patent or special statute.
STATUTORY PROVISIONS :
Clauses 15 and 44 of the Letters Patent of the Madras High Court read as
under :
"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 108 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." "44. Powers of the Indian
Legislature preserved.- And we do further ordain and declare that all the
provisions of these Our Letters Patent are subject to the Legislative powers of
the Governor-General in Legislative Council, and also of the Governor- General
in Council under section 71 of the Government of India Act, 1915; and also of
the Governor-General, in cases of emergency under Section 72 of the Act, and
may be in all respects amended and altered thereby." Sections 4(1), 100A,
104 and 117 of the Code read as under :
"4. Savings.-(1) 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." "100A. (as inserted in 1976)
Notwithstanding anything contained in any Letters Patent for any High Court or
in any other instrument having the force of law or in any other law for the
time being in force, where any appeal from an appellate decree or order is
heard and decided by a single Judge of a High Court, no further appeal shall lie
from the judgment, decision or order of such single Judge in such appeal or
from any decree passed in such appeal." "100A. (as substituted in
2002) No further appeal in certain cases. Notwithstanding anything contained
in any Letters Patent for any High Court or in any other instrument having the
force of law or in any other law for the time being in force, where any appeal
from an original or appellate decree or order is heard and decided by a single
Judge of a High Court, no further appeal shall lie from the judgment and decree
of such single Judge." "104. Orders from which appeal lies (1) An
appeal shall lie from the following orders, and save as otherwise expressly
provided in the body of this Code or by any law for the time being in force,
from no other orders :- [***} (ff) an order under section 35A;
(i) any order made under rules from which an appeal is expressly allowed by
rules:
Provided that no appeal shall lie against any order specified in clause (ff)
save on the ground that no order, or an order for the payment of a less amount,
ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this
section." "117. Application of Code to High Court.-Save as provided
in this Part or in Part X or in rules, the provisions of this Code shall apply
to such High Courts." Order XLIII, Rule 1 and Order XLIX , Rules 1, 2 and
3 of the Code read as under "1. Appeal from orders.- An appeal shall lie
from the following orders under the provisions of section 104, namely :- "
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to
set aside a sale;" "Order XLIX of the Code of Civil Procedure
Chartered High Courts
1. Who may serve processes of High Court.-Notice to produce documents,
summons to witnesses, and every other judicial process, issued in the exercise
of the original civil jurisdiction of the High Court, and of its matrimonial,
testamentary and intestate jurisdictions, except summonses to defendants writs
of execution and notice to respondents may be served by the attorneys in the
suits or by persons employed by them, or by such other persons as the High
Court, by any rule or order, directs."
2. Savings in respect of Chartered High Courts.- Nothing in this Schedule
shall be deemed to limit or otherwise affect any rules in force at the
commencement of this Code for the taking of evidence or the recording of
judgments and orders by a Chartered High Court.
3. Application of rules.- The following rules shall not apply to any
Chartered High Court in the exercise of its ordinary or extraordinary original
civil jurisdiction, namely :- (1) rule 10 and rule 11, clauses (b) and (c), of
Order VII;
(2) rule 3 of Order X;
(3) rule 2 of Order XVI;
(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the
manner of taking evidence) of Order XVIII;
(5) rules 1 and 8 of Order XX; and (6) rule 7 of Order XXXIII (so far as
relates to the making of a memorandum); and rule 35 of Order XLI shall not
apply to any such High Court in the exercise of its appellate
jurisdiction." ANALYSIS :
The Code of Civil Procedure, 1908 (Code) was enacted to consolidate and
amend the laws relating to the procedure of the Courts of Civil Jurisdiction.
The Code includes rules contained in the Schedule appended thereto. Section 3
provides for the hierarchy of the courts for the purposes of the said Code
stating that the District Court is subordinate to the High Court, and every
Civil Court of a grade inferior to that of a District Court and every Court of
Small Causes is subordinate to the High Court and District Court. Sub-section
(1) of Section 4 of the Code provides for savings, which is subject to any
provisions to the contrary.
By Section 4 of the Code it is not to be inferred that the provisions
thereof do not apply to proceedings under special or local laws, but only
points out that where there is inconsistency, the rules of the Code shall not
prevail.
Section 104 of the Code which occurs in Part VII of the Code provides for
appeals from original decrees and orders. Sections 96 to 103 provide for
appeals from original and appellate decrees whereas Sections 104 and 105
provide for appeals from orders.
It is not in dispute that an appeal refusing to set aside a court auction
sale in terms of Order XXI Rule 92 of the Code would be appealable under Order
XLIII, Rule 1 read with Section 104(1)(i) thereof. The special or local law,
the provisions whereof may be in conflict with the Code of Civil Procedure as
stated in Section 4 is subject to "in the absence of any specific
provision to the contrary" which would mean "in the absence of any
specific provision to the contrary contained in the Code". Such a
provision contrary to the Code may be found in another statute, be it a special
or a local law.
Section 104 of the Code has to be read as a whole. Sub-section (1) of
Section 104 provides for appeals from the orders specified therein and from no
other; save as otherwise expressly provided in the body of the said Code or any
law for the time being in force. When the special statute confers a right of
appeal, such right is saved, but by reason thereof no right of appeal is
created under Section 104 of the Code.
When a right of appeal is conferred under a special statute, the bar
contained in sub-section (2) of Section 104 of the Code would not operate and a
right of intra-court appeal provided for in the Letters Patent of the High
Court subject to any statutory embargo would, thus, be saved. To put the matter
differently, if a right of appeal is created by a statute, the same would be
governed by the terms thereof. The question as to whether any appeal governed
by Clause 15 of the Letters Patent is maintainable or not will have to be
judged having regard to the provisions contained therein as also the scheme
thereof.
It is not in dispute that an appeal under Order XLIII, Rule 1 of the Code
may either lie before the District Court or the High Court. An appealable order
may also be passed by a High Court in its original jurisdiction. A right to
maintain an appeal indisputably would depend upon the subject matter thereof.
Having regard to Section 4 read with Order 49 of the Code only certain
provisions of the Code as specified therein would have no application on the
original side of the High Court. In the event, an appealable order is passed by
the High Court in its original jurisdiction, an appeal may be maintainable both
under Section 104 of the Code as also under Clause 15 of the Letters Patent,
although the said right arises from two different sources, but as at present
advised we need not advert to the effect thereof.
Sections 104 and 105 provide for an integrated scheme. The provisions
contained therein must be read as a whole. By reason of sub- section (1) of
Section 104, a limited right of appeal has been conferred in relation to the
categories of cases specified therein. However, if an order is passed which
does not come within the purview of sub-section (1) of Section 104, the right
of appeal must be referable to any other provision of the Code, as for example,
Section 96 or Section 100 or any other special statute.
Section 104 provides for an appeal from an order passed by an appropriate
court. Section 104 and Order XLIII of the Code contain provisions as regard
appealability of the orders in the cases specified therein and in that view of
the matter they must be invoked in their entirety and not in isolation.
A right of appeal is a creature of statute and the said right, thus, can
only be enjoyed if law confers the same. The Legislature thought it fit to
confer such a right upon the suitor by reason of Section 104 of the Code read
with Order XLIII thereof. When a right is granted under a statute, a further
right of appeal must receive such construction which would give effect to the
plain meaning of the words emphasized in the section.
By reason of sub-section (1) of Section 104, apart from the orders made
appealable therein, the Code recognizes that there may be other orders
appealable under any other law for the time being in force and further provides
that other orders save as otherwise expressly provided in the body of the Code
or by any law for the time being in force, would not be appealable ones.
Sub-section (1) of Section 104 of the Code provides for an appeal from the
original order whether passed by a subordinate court or High Court exercising
an original jurisdiction and not from an appellate order. In other words, it
provides for a first appeal. An appeal under Clause 15 of the Letters Patent is
saved under Sub-section (1) of Section 104 of the Code when a right of appeal
is required to be exercised in relation to an original order. An appellate
order is not contemplated by Sub-section (1) of Section 104 of the Code.
Letters Patent of a High Court or a special statute also in the context of
Section 104(1) of the Code do not speak of an appellate order.
Thus, when an appeal under Section 104(1) or the Letters Patent of the High
Court is availed of, there is no question of any further appeal unless the same
is provided for under the statute itself.
Sections 4 and 104 of the Code, furthermore, must be read together.
Appeals under the special statute is saved only to the extent a contrary
provision is not contained in other provision thereof.
Confusion in judicial mind has arisen as to whether an appellate order passed
by the High Court is also saved in terms of sub-section (1) of Section 104 of
the Code of Civil Procedure. As noticed hereinbefore, sub-section (1) of
Section 104 provides for an appeal from an original order; but saving clause
contained in sub-section (1) of Section 104 postulates that an appeal from an
order other than those specified in sub-section (1) thereof shall be
maintainable provided a provision therefor exists in the said statute. An
appeal under the Letters Patent may, therefore, be availed of in relation to an
order which has not been specifically provided for under sub-section (1) of
Section 104 of the Code of Civil Procedure, which is otherwise a judgment
within the meaning thereof. The saving clause contained in sub- section (1) of
Section 104 of the Code of Civil Procedure does not go further and say that
even an order passed in appeal from an order specified under sub-section (1) of
Section 104 of the Code of Civil Procedure would stand saved.
By reason of Sub-section (1) of Section 104 of the Code, appeals provided
for under the statutes including Letters Patent might have been saved but that
became necessary only because of appeals irrespective of the source of appeal
whether accruing from the Code or any other statute were treated alike. What
is, thus, saved is the right of appeal conferred under special statutes. By
reason of such saving clause per se a right of appeal is not conferred nor such
appeal can be said to have been preferred in terms of Sub-section (1) of
Section 104 of the Code. In case a right of appeal is limited or circumscribed
by any condition under any special statute, the same would prevail over
Sub-section (1) of Section 104 because saving of such right would be subject to
such limitations or conditions.
Let us consider this from a slightly different angle.
Sub-section (1) of Section 104 saves Letters Patent Appeal. The remedy of
appeal under Letters Patent may be availed of in relation to an order passed by
a court other than those enumerated under Sub-section (1) of Section 104 of the
Code subject to the condition that the same must be a 'judgment'.
Once, however, a right of appeal either in terms of Sub-section (1) of
Section 104 or Letters Patent is availed of, there would not be any further
right of appeal from the appellate order in view of Sub-section (2) of Section
104, for the simple reason, that Letters Patent also provides for only one
appeal, i.e., from a Single Judge of a High Court to a Division Bench. It may
be true that in certain cases, Letters Patent Appeals are available even from
an appellate order passed by a learned Single Judge of the High Court to a
Division Bench but the same was permissible only when there was no bar thereto
and subject to the condition laid down in clause 15 itself. We may notice that
when a first appeal or second appeal was disposed of by a Single Judge, a
Letters Patent Appeal had been held to be maintainable therefrom only because
there existed no bar in relation thereto. Such a bar has now been created by
reason of Section 100-A of the Code. No appeal would, therefore, be
maintainable when there exists a statutory bar. When the Parliament enacts a
law it is presumed to know the existence of other statutes. Thus, in a given
case, bar created for preferring an appeal expressly cannot be circumscribed by
making a claim by finding out a source thereof in another statute.
For proper construction of Section 104 of the Code, vis-`-vis Clause 15 of
the Letters Patent, it is necessary to ascertain the intention of the
Parliament. If a right of appeal, it is trite, is a creature of statute, it
must be governed thereby. Sub-section (2) of Section 104 clearly states that no
appeal from an order passed under sub-section (1) thereof would be
maintainable. Proviso appended to Section 104 of the Code provides for a
limited right of appeal in respect of clause (ff) of sub-section (1) of Section
104 of the Code which is an indicia of the fact that such a right may be
circumscribed. The statute has used the language in the negative and, thus must
be construed as mandatory. In view of the fact that an appeal from an order
specified in Section 104 of the Code is maintainable only thereunder and from
no other it leads to incongruity that in the event the forum is the High Court
the appellate judgment would be governed by Clause 15 of the Letters Patent,
but in the event the forum is the District Judge, the judgment would be
governed by sub-section (2) of Section 104 of the Code. If such a contention is
accepted, the same would not only give rise to an anomalous situation which may
be culled out from a plain reading of the said provision but also would give
rise to different treatment to different classes of litigants, although a right
of appeal is available to both the classes from orders of similar nature which
possibility should, as far as possible, be avoided. The wordings of Section
104(2) of the Code, in our opinion, do not call for more than one
interpretation. Liberal interpretation, as is well known, is the rule.
Furthermore, it is now well-settled that when two interpretations of a
statute are possible, the court may prefer and adopt the purposive
interpretation having regard to object and intent thereof. [See Swedish SCALE
158] The purport and object of enacting sub-section (2) of Section 104 of the
Code is to avoid delay in disposal of the matter. When the statutory intention
of minimizing the delay in the finality of the decision is manifest, the Court
must interpret the provisions accordingly. [See Municipal Corporation of
Brihanmumbai and Another vs. State of Bank of India (1999) 1 SCC 123]. Appeals
under the aforementioned provision as also under Order LXIII of the Code relate
to interlocutory orders. By reason of an order passed thereunder the matter may
not be finally disposed of. If the Parliament in the aforementioned situation
thought it fit to cut down a further appeal, no exception thereto can be taken.
In any event, even if it be held that by reason of Sub-section (2) of Section
104 of the Code a party may be deprived of a Letters Patent Appeal in terms of
Clause 15 of the Letters Patent, he would be at liberty to file, in an
appropriate case, an application under Article 136 of the Constitution of India
before this Court.
Even, in a case where the remedy under Section 104(1) is not availed of, in
an appropriate case the order may be questioned in the appeal against the
ultimate decree in terms of Section 105 thereof.
NATURE AND EXTENT OF POWER OF THE HIGH COURT UNDER LETTERS PATENT :
Letters Patent is a special statue but in the event of a conflict, as would
appear from the discussions made hereinafter, the provisions of the Code shall
prevail. The power under Clause 15 of the Letters Patent is not a
constitutional power of a High Court. Reliance placed on Vinita M.
Khanolkar (supra) and Sharda Devi (supra) in which one of us (Variava, J.)
was a member is misplaced. This Court in the aforementioned decisions did not
lay down a law that the statutory provision providing for an appeal under the
Letters Patent was in terms of the constitutional power of a High Court.
The British Parliament passed Indian High Courts Act in August, 1861. The
Act of 1861 empowered the crown to establish, by Letters Patent, High Courts of
Judicature at Calcutta, Madras and Bombay. The jurisdiction and powers of the
High Courts were to be fixed by Letters Patent. Letters Patent, therefore, is a
subordinate legislation.
For history of the establishment of the High Courts of India, reference
Chunial Basu and Another vs. The Hon'ble Chief Justice of the High Court at
Calcutta and Others [AIR 1972 Calcutta 470] The Letters Patent although is a
subordinate legislation but nevertheless would be a law within the meaning of
Articles 225 and 372 of the Constitution of India, but the same cannot prevail
over a Legislative Act, if clause 44 of the Letters Patent is to be given a
proper meaning. The provisions of Letters Patent despite attainment of
independence by India are saved by Section 106 of the Government of India Act,
1919, Section 223 of the Government of India Act, 1935, Clause 2(1) of India
(Adaptation of Existing Laws) Order, 1949 and Section 18(3) of the Independence
Act, 1947. Letters Patent, thus, would undoubtedly come within the meaning of
existing law but the status thereof cannot be higher than that of the statute
made law. Not only in terms of Clause 44 of the Letters Patent, but having
regard to the fact that the same is a subordinate legislation, it would be
subject to laws made by a competent legislature.
The Letters Patent is not a statutory enactment although it has the force of
law. Clause 44 of the Letters Patent in no uncertain terms states that the
provisions thereof would be subject to the legislative powers of the
Governor-General in Legislative Council, and also of the Governor General-
General in Council under Section 71 of the Government of India Act, 1915.
In Black's Law Dictionary, Fifth Edition at page 1278 the expression
"Subject to" has been defined as under :
"Liable, subordinate, subservient, inferior,obedient to;
governed or affected by; provided that; provided, answerable for. Homan v.
Employers Reinsurance Corp,., 345 Mo. 650, 136 S.W. 2d 289, 302" [See
Printers (Mysore) Ltd. vs. M.A. Rasheed and Others (2004) 4 SCC 460] The
provisions of the Letters Patent are also in all respects amenable to
amendments and alterations by any Legislative or Parliamentary Acts.
The Code of Civil Procedure is a Parliamentary Act. Section 4 of the Code
saves only such provisions in relation whereto there does not exist any
provision contrary thereto in the Code. The said clause would, thus, apply only
when there is no specific provision in the Code to the contrary or in any other
provision contained in any other special statute. We have, thus, no hesitation
in coming to the conclusion that when an appeal is maintainable only in terms
of sub-section (1) of Section 104, sub-section (2) thereof would control such
appeal and the limitation provided thereunder on further appeal shall be fully
applicable.
The Letters Patent under the seal may be issued for various purposes, but
primarily by way of executive function. The Letters Patent, however, may be
issued also on the advice of the Privy Council or under a Statute.
(See Halsbury's Laws of England, Fourth Edition, Vol. 8, page 677).
In Law Lexicon cum Digest by N.M. Mulchandani, Vol. A to L, at page 932
'Letters Patent' has been defined to mean 'Letters by which the King/ Sovereign
makes his grants, whether of lands, honours, franchise or anything else'.
If Letters Patent was to prevail over the Code, no appeal may lie from a
judgment of Single Judge to Division Bench in relation to orders specified in
Section 104. Conflict in this behalf is sought to be resolved in Shah Babulal
Khimji (supra) Before adverting further as regard this question, we may notice
that in it is stated :
"In fact, the question of application of the Code of Civil Procedure to
internal appeals in the High Court does not arise at all because the Code of
Civil Procedure merely provides for a forum and if Order 43 Rule 1 applies to a
Trial Judge then the forum created by the Code would certainly include a forum
within the High Court to which appeals against the judgment of a Trial Judge
would lie" 191 : AIR 1917 All 325] were approved whereas Ramsarup (supra)
and 216] were expressly overruled.
Unfortunately, before us the overruled decisions in Ram Sarup (supra) and
Vaman Ravji (supra) were relied upon. We may notice that recently a Bench of
this Court expressed its anguish when an overruled decision was It is,
therefore, clear that no Letters Patent Appeal would lie against the orders
passed in appeals disposed of by a learned Single Judge of the High Court in
appeals preferred thereto under Order XLIII Rule 1 read with Section 104 of the
Code against the order passed by the subordinate court or district courts.
SCHEME OF THE STATUTE:
The question as to whether a Letters Patent Appeal would be maintainable or
not would also depend upon the scheme of the statute.
Such a scheme barring a Letters Patent Appeal is found to be existing in
Representation of the People Act. Under Article 329(b) of the Constitution, a
Single Judge of a High Court exercises a jurisdiction to hear an election
dispute. While doing so he exercises a special jurisdiction.
Having regard to the history thereof as also the limited nature of appeal
from judgment disposing of an election petition expressly provided under
Section 116-A of the Representation of the People Act, it will be evident that
a right of appeal under the Letters Patent had been held to have been taken
away by Namakkal Constituency and Ors. 1952 SCR 218, Upadhyaya Hargovind SCC
66) Even in the aforementioned cases also, it has been held that a Letters
Patent appeal may be barred by implication.
APPEAL UNDER SPECIAL STATUTE :
The question, however, may be different when an appeal is provided for under
a special statute. It is trite that Section 104(1) of the Code saves such an
appeal. Section 104, therefore, saves such appeal in view of the appeals
provided under the special statute but it does not create a right of appeal as
such, and it does not, therefore, bar any further appeal also, if the same is
provided for under any other Act for the time being in force which would
include a Letters Patent. Whenever the statute provides such a bar, it is so
stated either expressly or by necessary implication.
It is true that Section 100A of the Code contains a non-obstante clause as
regard the overriding effect of the said provision over the Letters Patent of
the High Court but the same, in our considered opinion, was done by way of ex
abundanti cautela. Furthermore, the Code of Civil Procedure (Amendment) Act,
1976 and the Code of Civil Procedure (Amendment) Act, 2002 being subsequent
statutes, the same may not have any application in relation to the
interpretation of sub-section (2) of Section 104 of the Code.
It is not necessary, in my considered opinion, that the provision
restricting a further right of appeal must specifically mention the provisions
of the Letters Patent of the High Courts or any other statute inasmuch as the
same has to be construed having regard to the scheme thereof. What is
recognized under Sub-section (1) of Section 104 of the Code following the
decisions of the Calcutta, Madras and Bombay High Courts in Toolsee Cursetji
[(1902) 4 Bom. L.R. 342] respectively, are those appeals which are provided for
under special statute and not an appeal from the appellate order therein. Let
us at this juncture notice as to what had been decided in those cases although
the position in law is, to some extent, sought to be clarified in Shah Babulal
Khimji (supra) which would fall for discussions hereinafter at some details.
In Toolsee Money Dassee (supra), the question which arose for consideration
was whether refusing to set aside an award against an order by a Single Judge
of the High Court in the original side of the appeal would be governed by
Section 588 of the Code of Civil Procedure, 1861. The said contention was
rejected on the premise that Section 588 of the Code does not control appeals
under special statute. The Court followed Hurrish Chunder In Sabhapathi
Chetti(supra), the question which arose for consideration was as to whether an
order passed by a judge sitting on the Original Side of the Court dismissing a
claim preferred under Sections 278 and 282 of the Code of Civil Procedure by
the mortgagees of immovable property which had been attached in execution of a
decree is subject to appeal. It was held that Article 15 of the Letters Patent
is not restricted by Sections 588 and 591 of the Code of Civil Procedure.
In Jehangir Maneckji Cursetji (supra), the question which arose for
consideration was as to whether an order under Section 135 of the Code of Civil
Procedure is a judgment within the meaning of Clause 15 of the Letters Patent.
It was opined that the same is not a judgment but while doing so an observation
was made that Section 588 of the Code of Civil Procedure has not taken away the
right of appeal given by Clause 15 of the Letters Patent having regard to the
decisions prevailing at the relevant time.
Section 104 of the Code of Civil Procedure requires appeals preferred under
the special statute having regard to the aforementioned decisions. The
decisions of the Calcutta High Court and the Bombay High Court would indicate
that a right of appeal under a special statute was not held to be barred. The
Bombay High Court merely held that even though an order under Section 135
although is not an order against which an appeal would lie under Section 588 of
the Code of Civil Procedure, still it proceeded to hold that if such an order
was a judgment, an appeal under Clause 15 of the Letters Patent would be
maintainable. In Jehangir Maneckji Cursetji (supra), as noticed hereinbefore,
it was held that an order under Section 135 would be a judgment within the
meaning of Clause 15 of the Letters Patent and only in that context it was held
that Section 588 of the Code does not govern the Letters Patent Appeal.
Section 104 of the Code opens with the words "an appeal shall lie from
the following orders and from no other orders". What is, thus, saved is an
appeal which is expressly provided for under any other statute including the
Letters Patent of the High Court. The saving clause contained in Section 104(1)
of the Code must be literally construed having regard to the fact that the
provisions other than specifically mentioned in Order 49 of the Code the other
provisions of the Code are applicable even on the original side of the High
Court.
To put it pithily, if there is a conflict between an appeal under the Code
and the Letters Patent both the provisions have to be read harmoniously so as
to save an appeal which is not otherwise provided for.
By way of example it may be noticed that when an appeal is maintainable
under the Letters Patent by reason of its being a 'judgment' within the meaning
of Letters Patent such an appeal would be maintainable despite the fact that no
provision therefor has been made in Section 104 thereof. In a case, however,
where an appeal may be maintainable both under Sub-section (1) of Section 104
as also the Letters Patent a difficulty may arise to the extent that where the
orders sought to be appealed against is not a 'judgment' whether Order XLIII
Rule 1 would come into play. But if both the provisions are read together, it
may be held that Order XLIII Rule 1 provides for an additional right. So
construed, a harmonious meaning can be attributed both to Section 104 of the
Code and to Letters Patent but we have no doubt in our mind that if a right of
appeal is availed under Sub-section (1) of Section 104 of the Code, no further
appeal would be maintainable.
We may notice that sub-section (2) of Section 39 of the Arbitration Act, 1940 does
not contain any non-obstante clause. The said provision does not refer to the
Letters Patent of the High Court or any other special Act. Despite the same, it
was held in Mohindra Supply Company (supra) that a Letters Patent Appeal would
be barred by necessary implication.
The point at issue is no longer res integra in view of several decisions of
this Court in National Sewing Thread Co. Ltd. vs. James Chadwick and Bros Ltd.
[AIR 1953 SC 357], Maharashtra State Financial Corporation vs.
Jaycee Drugs and Pharmaceuticals (P) Ltd. and Ors. [(1991) 2 SCC 637], Union
of India vs. Aradhana Trading Co. and Ors. [(2002) 4 SCC 447], Sharda Devi
(supra), Subal Paul (supra) and Liverpool & London S.P. & I SECTION 104
OF THE CODE WHETHER APPLIES TO ORIGINAL SIDE :
The Code indisputably applies to the original side of the High Court.
Section 117 and Order XLIX specifically exclude only such provisions of the
Code which would not apply to the original side of the High Court. [See Mt.
Sabitri Thakurain vs. Savi and Another AIR 1921 PC 80]. Thus, the rest of the
code applies.
Although there is a divergence of opinion on this point but it is useful to
note that in a 3-Judge Bench decision of this Court in Shah Babulal Khimji
(supra), it was held to be applicable. Therein the following questions were
raised:
"1) Whether in view of clause 15 of the Letters Patent an appeal under
section 104 of the Code of Civil Procedure would lie? 2) Whether clause 15 of
the Letters Patent supersedes Order 43 Rule 1 of the Code of Civil Procedure?
3) Even section 104 of the CPC has no application, whether an order refusing to
grant injunction or appoint a receiver would be a judgement within the meaning
of clause 15 of the Letters Patent?" The answers thereto were rendered
from different angles stating :
a) Section 104 of the Code of Civil Procedure read with Order 43 Rule 1
expressly authorizes a forum of appeal against orders falling under various
clauses of Order 43 Rule 1 to a Larger Bench of a High Court without at all
disturbing interference with or overriding the Letters Patent jurisdiction.
b) Having regard to the provisions of section 117 and Order 49 Rule 3 of the
Code of Civil Procedure which excludes various other provisions from the
jurisdiction of the High Court, it does not exclude Order 43 Rule 1 of the CPC.
c) There is no inconsistency between section 104 read with Order 43 Rule 1
and the appeals under Letters Patent, as Letters Patent in any way does not exclude
or override the application under section 104 read with Order 43 Rule 1 which
shows that these provisions would not apply in internal appeals within the High
Court." However, this Court in Shah Babulal Khimji (supra) had not
adverted to various questions; but therewith we need not deal with at present.
We may notice that the decision of the Allahabad High Court in L.
Ram Sarup (supra) was not approved by this Court in Shah Babulal Khimji
(supra), stating :
"With due deference to the Hon'ble Judges we are of the opinion that
the decision of the Allahabad High Court on this point is based on a serious
misconception of the legal position. It is true that Section 104 was introduced
by the code of 1908 and the aforesaid section, as we have already indicated
clearly saved the Letters Patent jurisdiction of the High Court. From this,
however, it does not necessarily follow that the restriction that there is no
further appeal from the order of a Trial Judge to a larger Bench would be
maintainable or permissible. In the first place, once Section 104 applies and
there is nothing in the Letters Patent to restrict the application of Section
104 to the effect that even if one appeal lies to the Single Judge, no further
appeal will lie to the Division Bench. Secondly, a perusal of Clause 15 of the
Letters Patent of the Presidency High Courts and identical clauses in other
High Courts, discloses that there is nothing to show that the Letters Patent
ever contemplated that even after one appeal lay from the subordinate court to
the Single Judge, a second appeal would again lie to a Division Bench of the
Court. All that the Letters Patent provides for is that where the Trial Judge
passes an order, an appeal against the judgment of the said Trial Judge would
lie to a Division Bench.
Furthermore, there is an express provision in the Letters Patent where only
in one case a further or a second appeal could lie to a Division Bench from an
appellate order of the Trial Judge and that it is in cases of appeals decided
by a Single Judge under Section 100 of the Code of Civil Procedure.
Such a further appeal would lie to a Division Bench only with the leave of
the court and not otherwise" (Emphasis supplied) Referring to Clause 15 of
the Letters Patent of the Bombay High Court, it was observed :
" A perusal of the Letters Patent would clearly reveal two essential
incidents - (1) that an appeal shall lie against any order passed by the Trial
Judge to a larger Bench of the same High Court, and (2) that where the Trial
Judge decides an appeal against a judgment or decree passed by the district
courts in the mofussil, a further appeal shall lie only where the judge
concerned declares it to be a fit one for appeal to a Division Bench. Thus, the
special law, viz., the Letters Patent, contemplates only these two kinds of
appeals and no other. There is, therefore, no warrant for accepting the
argument of the respondent that if Order 43 Rule 1 applies, then a further
appeal would also lie against the appellate order of the Trial Judge to a Division
Bench. As this is neither contemplated nor borne out by the provisions of the
Letters Patent extracted above, the contention of the respondent on this score
must be overruled.
A further second appeal lying to a Division Bench from an appellate order of
the Trial Judge passed under Order 43 Rule 1 is wholly foreign to the scope and
spirit of the Letters Patent. Unfortunately, however, the Allahabad High Court
in Ram Sarup's case [ILR 1937 All 386 : AIR 1937 All 165] refused to follow a
Division Bench decision in Piare Lal v. Madan Lal [AIR 1917 All 325 :
ILR (1917) 39 All 191] and also tried to explain away the Full Bench
decision in Muhammad Naimul Khan case [ILR (1892) 14 All 226 : 1892 AWN 14
(FB)] where it was clearly pointed out that in such cases no further appeal
would lie to the Division Bench under the Letters Patent" The Court
referred with approval the decisions of Mathura Sundari Dassi vs. Haran Chandra
Shaha [AIR 1916 Cal 361] and Lea Badin vs.
Upendra Mohan Roy Choudhury [AIR 1935 Cal. 35] to hold hat that Order XLIII
Rule 1 of the Code will also apply to the proceedings before the original side
of the High Court.
The views taken contrary thereto by the other High Courts had been expressly
overruled. If the provisions of Section 104 read with Order XLIII Rule 1 of the
Code are applicable as regard appealability of the orders in the matters
specified therein, the said provisions must be invoked in their entirety and
not in isolation. An appeal is the right of entering a superior court and
invoking its aid and interposition to redress an error of the Court below. An
appeal when expressly provided can be filed as a matter of right and in no
other situation. No right of appeal can be inferred by implication or
otherwise.
In Shah Babulal Khimji (supra), the decision of the Bombay High Court in
Waman Ravji (supra) also did not find favour. [See para 147].
Shah Babulal Khimji (supra) has brought about a synthesis of the Code of
Civil Procedure vis-`-vis the Letters Patent. It lays down that an appeal from
an order envisaged under Section 104(1) would be maintainable, even if it is
not a judgment within the meaning of Clause 15 of the Letters Patent. An
attempt has been made therein to harmonize the Code of Civil Procedure and the
Letters Patent. It implies that the Code shall prevail over the Letters Patent
if a harmonious construction is out of place.
In Shah Babulal Khimji (supra), it is stated :
"Thus, a combined reading of the various provisions of the Code of
Civil Procedure referred to above lead to the irresistible conclusion that
Section 104 read with Order 43 Rule 1 clearly applies to the proceedings before
the Trial Judge of the High Court. Unfortunately, this fact does not appear to
have been noticed by any of the decisions rendered by various High
Courts." In Waman Ravji Kulkarni (supra), a learned Judge of the High
Court construing Section 4 vis-`-vis Section 104 of the Code proceeded to hold
that unless an appeal under the Letters Patent is specifically excluded, sub-
section (2) of Section 104 cannot be read to create a bar as regard
maintainability of the appeal under Clause 15 of the Letters Patent. Section 4
of the Code therein, in our opinion, has not been construed in its proper
perspective. The said decision also does not lay down a good law.
GULAB BAI:
In Gulab Bai (supra), this Court was concerned with the provisions of appeal
specially conferred under Sections 47 and 48 of the Guardians and Wards Act.
Such provisions providing for appeal under the Special Act are saved both by
reasons of Sections 4 as also 104 of the Code. Section 47 of the said Act
provided for an appeal to the High Court from an order made by a court
including an order passed under Section 25 (c) making or refusing to make an
order for the return of a ward to the custody of his guardian. A question arose
as to whether a further appeal would be maintainable in terms of Clause 18(1)
of the Rajasthan High Court Ordinance, 1949. It was held that as no finality
clause has been attached to the appellate order, such appeal would be
maintainable. Gajendragadkar, CJ, speaking for the Constitution Bench pointed
out that the finality clause is attached only to Section 47 of the said Act and
not to the appellate order stating :
"It is clear that what is made final by s. 48 is an order made under
this Act; and the context shows that it is an order made by the trial Court
under one or the other provision of the Act. This position is made perfectly
clear if the first part of s. 48 is examined. The finality prescribed for the
order made under this Act is subject to the provisions of s. 47 and s. 622 of
the earlier Code which corresponds to s. 115 of the present Code. In other
words, the saving clause unambiguously means that an order passed by the trial
Court shall be final, except in cases where an appeal is taken against the said
order under s. 47 of the Act, or the propriety, validity, or legality of the
said order is challenged by a revision application preferred under s. 115 of
the Code. It is, therefore, essential to bear in mind that the scope and
purpose of s. 48 is to make the orders passed by the trial Court under the
relevant provisions of the Act final, subject to the result of the appeals
which may be preferred against them, or subject to the result of the revision
applications which may be filed against them. In other words, an order passed
on appeal under s. 47 of the Act, or an order passed in revision under s. 115
of the Code, are, strictly, speaking, outside the purview of the finality
prescribed for the orders passed under the Act, plainly because they would be
final by themselves without any such provision, subject, of course, to any
appeal provided by law or by a constitutional provision, as for instance, Art.
136. The construction of s. 48, therefore, is that it attaches finality to the
orders passed by the trial Court subject to the provisions prescribed by s. 47
of the Act, and s. 115 of the Code. That is one aspect of the matter which is
material." A bare perusal of the said judgment would clearly show that had
such finality clause been attached to the appellate order, this Court would
have come to the conclusion that an appeal thereagainst would also be barred.
It is worth noticing that even in Gulab Bai (supra) no law has been laid down
to the effect that a right of further appeal can be barred only expressly and
not by necessary implication. If a finality clause bars an appeal, the same
would be by way of necessary implication only.
Gulab Bai (supra) significantly has not been noticed in any other subsequent
decision.
As regard another aspect of the matter, namely, that the provisions of
Section 47 of the said Act are expressly saved by Section 48 and which would
mean that Section 47 will work out in an ordinary way without any restriction
imposed by Section 48; it was observed :
"The competence of an appeal before the Division Bench will have to be
judged by the provisions of cl. 18 itself. Section 48 saves the provisions of
s. 47, and as we have already indicated, considered by themselves the provisions
of s. 47 undoubtedly do not create any bar against the competence of an appeal
under cl. 18(1) of the Ordinance where the appeal permitted by s. 47 is heard
by a learned single Judge of the High Court.
Therefore, we are satisfied that the High Court was in error in coming to
the conclusion that an appeal before a Division Bench of the said High Court
under clause 18(1) of the Ordinance was incompetent." It will, thus, be
safe to arrive at the conclusion that had the finality clause been attached to Section
48 of the said Act, no further appeal would have been held to be maintainable.
The said decision, therefore, is an authority for the proposition that when
a finality clause is not attached to an appellate order, the right of appeal
expressly provided for by a statute cannot be held to be taken away, but the
converse may not be true.
Therein the Bench although noticed the consensus of judicial opinion to the
effect that despite finality clause contained in sub-section (2) of Section 588
of the Code of Civil Procedure, 1877, a Letters Patent Appeal would be
maintainable but there are no discussion as regard the interpretation of
sub-section (2) of Section 104 of the Code. It was furthermore not necessary
for the Constitution Bench to consider the said aspect of the matter having
regard to its earlier findings that the appellate order contained in Section 47
of the Guardians and Wards Act did not contain any finality clause, as would
appear from the following :
"We have referred to these decisions to emphasize the fact that even
where the relevant provision of s.588 of the earlier Code made certain
appellate orders final, the consensus of judicial opinion was that the said
provision did not preclude an appeal being filed under the relevant clause of the
Letters Patent of the High Court. In the present case, as we have already
indicated, s.
48 in terms saves the provisions of s.47 of the Act as well as those of
s.115 of the Code, and that gives full scope to an appeal under clause 18 of
the Ordinance which would be competent when we deal with the question about
appeals under s. 47 of the Act considered by itself." The Constitution
Bench, therefore, did not decide the questions raised herein nor was there any
occasion for it to do so. No reliance, therefore, can be placed on certain
observations made therein as regard the legal position, as it then stood. It is
well known that a judgment is an authority for what it decides and not what may
even logically be deduced therefrom.
SOUTH ASIA INDUSTRIES PRIVATE LTD. :
In South Asia Industries Private Ltd. (supra), this Court referring to a
large number of decisions enumerated the legal position stating :
"A statute may give a right of appeal from an order of a tribunal or a
Court to the High Court without any limitation thereon. The appeal to the High
Court will be regulated by the practice and procedure obtaining in the High
Court. Under the rules made by the High Court in exercise of the powers
conferred on it under section 108 of the Government of India Act, 1915, an
appeal under section 39 of the Act will be heard by a single Judge.
Any judgment made by the single Judge in the said appeal will, under cl. 10
of the Letters Patent, be subject to an appeal to that Court. If the order made
by a single Judge is a judgment and if the appropriate Legislature has,
expressly or by necessary implication, not taken away the right of appeal, the
conclusion is inevitable that an appeal shall lie from the judgment of a single
Judge under cl. 10 of the Letters Patent to the High Court. It follows that, if
the Act had not taken away the Letters Patent appeal, an appeal shall certainly
lie from the judgment of the single Judge to the High Court." (Emphasis
Supplied) This Court referring to the provision contained in Section 39 of the
Delhi Rent Control Act, 1958 noticed the scheme of the statute and observed
that as finality clause has been attached therein, a further appeal would not
be entertained stating :
"The Act is a self-contained one and the intention of the Legislature
was to provide an exhaustive code for disposing of the appeals arising under
the Act. The opening words of section 43 of the Act "save as otherwise
expressly provided in this Act" emphasize the fact that the finality of
the order cannot be questioned by resorting to something outside the Act"
It is, therefore, also an authority for the proposition that a Letters Patent
appeal can be held to be barred by necessary implication having regard to the
scheme of the statute.
MOHINDRA SUPPLY COMPANY :
In Mohindra Supply Company (supra) the Court upon considering the scope of
Section 39 of the Arbitration
Act, 1940, held that sub-section (2) thereof prohibits a Second Appeal from
an order passed in appeal thereunder. It rejected the contention that despite
such bar of appeal, a Letters Patent would be maintainable. Stating that
Section 39(2) expressly prohibits a Second Appeal from an order under Section
39(1), it was held :
"The two sub-sections of s. 39 are manifestly part of a single
legislative pattern. By sub-s. (1), the right to appeal is conferred against
the specified orders and against no other orders; and from an appellate order
passed under sub-s.(1) no second appeal (except an appeal to this Court) lies"
Section 39 of the Arbitration
Act, 1940, it is interesting to note, does not contain a non-obstante
clause.
Noticing that there had been a divergence of opinion as regard intra- court
appeal, it was opined :
"There is clear indication inherent in sub-s.(2) that the expression
"second appeal" does not mean an appeal under s. 100 of the Code of
Civil Procedure. To the interdict of a "second appeal", there is an exception
in favour of an appeal to this Court; but an appeal to this Court is not a
second appeal. If the legislature intended by enacting s.
39(2) merely to prohibit appeals under s. 100 of the Code of Civil
Procedure, it was plainly unnecessary to enact an express provision saving
appeals to this Court. Again an appeal under s.
39(1) lies against an order superseding an award or modifying or correcting
an award, or filing or refusing to file an arbitration agreement or staying or
refusing to stay legal proceedings where there is an arbitration agreement or
setting aside or refusing to set aside an award or on an award stated in the
form of a special case. These orders are not decrees within the meaning of the
Code of Civil Procedure and have not the effect of decrees under the Arbitration Act.
Section 100 of the Code of Civil Procedure deals with appeals from appellate
decrees and not with appeals from appellate orders. If by enacting s.39(2)
appeals from appellate decrees were intended to be prohibited, the provision
was plainly otiose; and unless the context or the circumstances compel the
Court will not be justified in ascribing to the legislature an intention to
enact a sterile clause. In that premise the conclusion is inevitable that the
expression 'second appeal' used in s.39(2) of the Arbitration Act
means a further appeal from an order passed in appeal under s.39(1) and not an
appeal under s.100 of the Civil Procedure Code" This Court upon further
noticing that the Letters Patent is subject to the legislative power of the
Governor-General in Council, held :
"If by the express provision contained in s.39(1), a right to appeal
from a Judgment which may otherwise be available under the Letters Patent is
restricted, there is no ground for holding that clause (2) does not similarly
restrict the exercise of appellate power granted by the Letters Patent. If for
reasons aforementioned the expression "second appeal" includes an
appeal under the Letters Patent, it would be impossible to hold that
notwithstanding the express prohibition, an appeal under the Letters Patent
from an order passed in appeal under sub-s.(1) is compeent." Tracing the
history of the Arbitration
Act vis-`-vis the provisions of Section 588 of the Code of Civil Procedure,
1877 and Section 104 of the Code, it was held that under Arbitration Act
there does not exist any provision similar to Section 4 of the Code of Civil
Procedure which would save an appeal under a special statute, opining :
"Under the Code of 1908, the right to appeal under the Letters Patent
was saved both by s.4 and the clause contained in s.104(1), but by the Arbitration Act
of 1940, the jurisdiction of the Court under any other law for the time being
in force is not saved; the right of appeal can therefore be exercised against
orders in arbitration proceedings only under s.39, and no appeal (except an
appeal to this Court) will lie from an appellate order.
There is no warrant for assuming that the reservation clause in s.104 of the
Code of 1908 was as contended by counsel for the respondents,
"superfluous" or that its "deletion from s.39(1) has not made
any substantial difference" : the clause was enacted with a view to do
away with the unsettled state of the law and the cleavage of opinion between
the Allahabad High Court on the one hand and Calcutta, Bombay and Madras High
Courts on the other on the true effect of s.588 of the Code of Civil Procedure
upon the power conferred by the Letters Patent. If the legislature being
cognizant of this difference of opinion prior to the Code of 1908 and the
unanimity of opinion which resulted after the amendment, chose not to include
the reservation clause in the provisions relating to appeals in the Arbitration Act
of 1940, the conclusion is inevitable that it was so done with a view to
restrict the right of appeal within the strict limits defined by s.39 and to
take away the right conferred by other statutes" The Court was, thus,
concerned with the saving clause contained in Section 4 of the Code vis-`-vis
sub-section (1) of Section 104 of the Code and not sub-section (2) thereof.
It is true that some stray observations had been made therein to the effect
that under the Code of 1908, an appeal did lie under the Letters Patent from an
order passed by a Single Judge of a Chartered High Court in an arbitration
proceedings even if the order was passed in exercise of appellate jurisdiction,
but that was so, because the power of the Court to hear appeals under a special
law for the time being in operation was expressly preserved.
Furthermore, as has been noticed in Shah Babulal Khimji (supra) that in
terms of Clause 15 of the Letters Patent a second appeal could have been
maintained only subject to leave granted by the appellate court therefor. No
such leave has been taken in this case. The said observation would not mean in
absence of any detailed discussion as regard interpretation of the provisions
of the Code, that despite bar created thereunder, an appeal would still be
maintainable under Clause 15 of the Letters Patent.
Such observations were not only wholly unnecessary but the same did not
arise for consideration directly. Furthermore, the questions raised herein were
not raised at the Bar nor the Bench had any occasion to consider the same in
details. The said decision is also an authority for the proposition that a
Letters Patent Appeal can be barred by necessary implication.
RESHAM SINGH :
The issue which is involved in these appeals was also involved therein. The
question which arose for consideration as to whether if a right of appeal is
provided under Sub-section (1) of Section 104 of the Code whether a further
appeal is barred under Sub-section (2) thereof. Therein, the said question was
answered in the affirmative holding:
"5. Section 104 CPC provides for an appeal from the orders provided in
Order 43 save as otherwise expressly provided in the body of this Code or by any
law for the time being in force and from no other orders. Sub-section (2)
envisages that "(2) No appeal shall lie from any order passed in appeal
under this Section".
6. It would, therefore, be clear that when an appeal was filed against the
order of the City Civil Court, Bombay to the learned Single Judge under Order
43 Rule 1(r) as provided in sub-section (1) of Section 104 by operation of
sub-section (2) of Section 104, no further appeal shall lie from any order
passed in appeal under this section." NEW KENILWORTH HOTEL (P) LTD. :
In New Kenilworth Hotel (P) Ltd. (supra) also the question which arose for
consideration was as to whether Subs-section (2) of Section 104 of the Code
bars an appeal against an order passed by the appellate court in terms of
Sub-section (1) of Section 104 thereof following Resham Singh (supra). The
answer thereto was rendered in the affirmative. Therein it was noticed that
Clause 10 of the Letters Patent of the Orissa High Court was in pari materia
with Clause 15 of the Letters Patent of the Madras High Court.
It was held :
"9. The 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 43, 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 43, Rule 1,
since it gives a finality as regards that Court is concerned, was held to be a
judgment within the meaning of Section 2(9) of the Code. Section 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 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 43, 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. v.
Rupa Chemicals [AIR 1986 Guj 156 : (1986) 27 Guj LR 101 : 1986 Guj LH 93] and
Firm Chhunilal Laxman Prasad v. Agarwal and Co. [AIR 1987 MP 172 : 1987 MPLJ
165] by the two High Courts is correct in law. The view of the Division Bench
in Sashikala Padhi v. Hiren Ghosh [(1991) 71 Cut LT 197] is correct in law.
Sukuri Dibya case [(1990) 32 OJD 431 (Civil)] and the Birendra case [(1992) 34
OJD 473 (Civil)] are not good law.
10. It is seen that the very object of introducing these amendments was to
cut down the delay in disposal of suits and to curtail the spate 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.
Therefore, 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." The aforementioned decisions meet our approval.
SOME OTHER CASE LAWS :
Mr. Sundravardhan had placed reliance on L. Ram Sarup (supra) which has been
referred to in Gulab Bai (supra) for the proposition that when a matter comes
before the High Court even on the appellate side, the appeal from a judgment
passed shall be governed by the Letters Patent. We do not agree with the said
view and are of the opinion that the decision in Gulab Bai (supra) must be read
in the context in which it was rendered.
In the said case, the court was concerned with the construction of sub-
section (2) of Section 588 of the Code of Civil Procedure, 1877 which provided
for finality clause. Having held that despite such finality clause, as an
appeal thereagainst in terms of Clause 15 of the Letters Patent had not been
expressly prohibited, the same was maintainable.
We have noticed hereinbefore that in South Asia Industries Private Ltd.
(supra), it has clearly been held that filing of appeal may be barred by the
Legislature either expressly or by necessary implication.
In Chandra Kanta Sinha (supra), New Kenilworth Hotel (P) Ltd.
(supra) was distinguished stating :
"12. Learned counsel for the respondents, however, argued that clause
10 provides that an appeal shall lie to the said High Court only from "a
judgment passed in exercise of the appellate jurisdiction not being a judgment
passed in the exercise of the appellate jurisdiction" and as the judgment
of the learned Single Judge was passed in the appellate jurisdiction, a letters
patent appeal was not maintainable. In our view, the contention of the learned
counsel is based on a misreading of clause 10. He has overlooked the vital
words, namely, "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" in the first limb of clause 10. If those words are also read
along with the words relied upon by the learned counsel, it becomes clear that
the appellate jurisdiction mentioned therein refers to a second appeal under
Section 100 CPC (or under any provision of a special Act) which is in respect
of a decree or order made in exercise of appellate jurisdiction in the first
appeal, filed under Section 96 CPC (or under any provision of a special Act) by
a court subject to the superintendence of the High Court. In other words, from
a judgment passed by one Judge in second appeal, under Section 100 CPC or any
other provision of a special Act no letters patent appeal will lie to the High
Court provided the second appeal was against a decree or order of a District
Judge or a Subordinate Judge or any other Judge subject to the superintendence
of the High Court passed in a first appeal under Section 96 CPC or any other
provision of a special Act." It was further held :
"13. In New Kenilworth Hotel (P) Ltd. case aggrieved by the order of
the trial court passed under Order 39 Rules (1) and (2), an appeal under
Section 104(1) CPC read with Order 43 Rule 1(r) was filed before the High Court
which was disposed of by one Judge of the High Court. From the order/judgment
of one Judge, a letters patent appeal (second appeal) was filed before the
Division Bench under Clause 10 of the Letters Patent of the Orissa High Court.
The Division Bench of the High Court held that the letters patent appeal was
not maintainable. Having regard to the provision of Section 104(2), the appeal
before the Division Bench was barred. On appeal to this Court it was held :
(SCC p.466, para 10) "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." Therefore,
reliance on the judgment of this Court in New Kenilworth Hotel (P) Ltd. case
will be of no avail to the respondents." In Subal Paul (supra), it was
held :
"46. We may notice that even in Municipal Corporation of Brihanmumbai
and Another vs. State Bank of India [(1999) 1 SCC 123], this Court while
interpreting the provisions of Section 218-D and 217(1) of the Bombay Municipal
Corporation Act, 1888, held that when an appeal is in the form of second appeal
having regard to the bar contained in Section 100A of the Code of Civil
Procedure, no further appeal shall lie. It was observed :
"This section has been introduced to minimize the delay in the finality
of a decision. Prior to the enactment of the above provision, under the letters
patent, an appeal against the decision of a Single Judge in a second appeal
was, in certain cases, held competent, though under Section 100 of the Code of
Civil Procedure, there was some inhibition against interference with the
findings of fact. The right of taking recourse to such an appeal has now been
taken away by Section 100-A of the Code of Civil Procedure (supra). Since an appeal
under Section 217(1) of the Act is a first appeal in a second forum/court and
an appeal under Section 218-D of the Act is the second appeal in the third
forum/court, no further appeal would be competent before the fourth forum/court
in view of Section 100-A of the Code of Civil Procedure (supra)." In
Prataprai N. Kothari vs. John Braganza [(1999) 4 SCC 403], even in a suit for
possession only not based on title, a letters patent appeal was held to be
maintainable." In this case, we are not concerned with such a situation,
as sub-section (2) of Section 104 of the Code would clearly bar such appeals.
In Central Mine Planning and Design Institute Ltd. (supra), the question
which falls for our consideration did not fall therein. The only question which
was raised was as to whether an order passed under Section 17-B of the
Industrial Disputes Act is a judgment within the meaning of Clause 10 of the
Letters Patent of Patna High Court.
In Madhusudan Vegetable Products Co. Ltd., Ahmedabad vs. Rupa Chemicals Vapi
and Others [AIR 1986 Guj. 156], Majmudar, J. (as His Lordship then was)
speaking for a Division Bench of the Gujarat High Court inter alia analyzing
the provisions of Section 104 of the Code observed :
"11All further appeals from appellate orders under S.104(1) read with
O.43, R.1 are expressly barred by S. 104, sub-sec. (2) and S. 105 of the Civil
P.C. If any lower appellate Court decides a miscellaneous appeal under O. 43,
R.1, only revision lies before High Court. There is no occasion for the High Court
to exercise second appellate jurisdiction against appellate orders passed by
subordinate Courts. Second appeal lies only against appellate decrees of
subordinate Courts as per S. 100, Civil P.C. Hence the words "appellate
decree or order" must mean appeal before learned single Judge of the High
Court either against appellate decree as per S. 100, Civil P.C. or against
original order of subordinate Court under O. 43, Rule 1, Civil P.C." Yet
again in Firm Chhunilal Laxman Prasad vs. M/s Agarwal and Co.
and Others [AIR 1987 M.P. 172] , N.D. Ojha, J. (as His Lordship then was)
opined :
"5. The effect of the aforesaid decision is that if an order has been
passed by a learned single Judge of the High Court either appointing a receiver
or granting or refusing injunction under O.39 Rules 1 and 2 in some original
proceedings, letters patent appeal would lie against that order treating it to
be a judgment. The Supreme Court, however, does not go a step further and say
that if the order passed by the High Court was not an original order, but had
been passed in exercise of its appellate jurisdiction u/s. 104 read with O.43
Rule 1 C.P.C., even then a letters patent appeal would lie. Indeed such an
argument is not open on the clear language of sub-section (2) of S. 104 C.P.C.,
which has been held by the Supreme Court to be applicable to a letters patent
appeal. Sub-section (2) of Section 104 provides that no appeal shall lie from
any order passed in appeal under this section." The aforementioned two
decisions have expressly been approved by this Court in New Kenilworth Hotel
(P) Ltd. (supra).
Law in this country, which is prevailing since 1986, has been consistent and
we do not see any reason to depart from the said view.
PRECEDENT:
While analyzing different decisions rendered by this Court, an attempt has
been made to read the judgments as should be read under the rule of precedents.
A decision, it is trite, should not be read as a statute.
A decision is an authority for the questions of law determined by it.
While applying the ratio, the court may not pick out a word or a sentence
from the judgment divorced from the context in which the said question arose
for consideration. A judgment, as is well-known, must be read in its entirety
and the observations made therein should receive consideration in the light of
the questions raised before it. (See Haryana Financial Corporation & Anr.
v. M/s. Jagdamba Oil Mills & Anr.[JT 2002(1)SC 482], Union of India &
Ors. v. Dhanwanti Devi & Ors[(1996) 6 SCC 44], Dr.
Nalini Mahajan v. Director of Income Tax (Investigation) & Ors(2002) 257
ITR 123, State of UP & Anr. v. Synthetics and Chemicals Ltd. & Anr.
(1991) 4 SCC 139, A-One Granites v. State of U.P. & Ors. 2001 (1) AIR
Others [(2003) 2 SCC 111] Although, decisions are galore on this point, we may
refer to a recent Mahamandal and Others [AIR 2004 SC 3894] wherein this Court
held:
"It is trite that any observation made during the course of reasoning
in a judgment should not be read divorced from the context in which they were used."
It is further well-settled that a decision is not an authority for the
proposition which did not fall for its consideration.
CONCLUSION :
The upshot of our decision would be :
(1) Finality clause contained in a statute, unless attached to an order
passed in appeal, would not take away the right of appeal expressly provided
for under the special statute;
(2) Letters Patent being a subordinate legislation has the force of law but
the same is subject to an Act of Parliament;
(3) If an appeal is maintainable under sub-section (1) of Section 104 of the
Code, no further appeal threfrom would be maintainable in terms of sub-section
(2) thereof.;
(4) A right of appeal being creature of a statute, it may provide for a
limited right of appeal or limiting the applicability thereof.
(5) Clause 15 of the Letters Patent cannot override the bar created under
Section 104 of the Code. Section 104 (1) of the Code must be read with
sub-section (2) of Section 104; and by reason thereof saving clause in relation
to the Letters Patent would not be attracted. An attempt should be made to
uphold a right of appeal only on harmonious construction of Sections 4, 104 and
other provisions of the Code.
(6) However, when an appeal is provided for under a Special Act, Section 104
of the Code shall have no application in relation thereto as it merely
recognizes such right but does not provide for a right of appeal.
(7) If a higher status is given to a Letters Patent over a law passed by the
Parliament including the Code of Civil Procedure, the same would run contrary
to the history of the Letters Patent as also the Parliamentary Acts.
(8) The judgment of this Court must be read as a whole and the ratio
therefrom is required to be culled out from reading the same in its entirety and
not only a part of it;
In view of our foregoing findings, it is not necessary to consider the other
submissions made at the Bar.
For the reasons aforementioned, there is no merit in these appeals which are
dismissed accordingly. No costs.
Back