P.S. Sathappan (Dead) By Lrs vs Andhra Bank Ltd. & Ors
on 7 October, 2004
Cites 55 docs - [View All]
The Indian Penal Code, 1860
Section 104 in The Indian Penal Code, 1860
The Code Of Civil Procedure (Amendment) Act, 1956
Section 47 in The Indian Penal Code, 1860
Section 48 in The Indian Penal Code, 1860
Supreme Court of
Bench: S
CASE NO.:
Appeal (civil) 689 of 1998
PETITIONER:
P.S. Sathappan (Dead) by LRs
RESPONDENT:
Andhra Bank Ltd. & Ors.
DATE OF JUDGMENT: 07/10/2004
BENCH:
S. N. Variava, B. P. Singh & H. K. Sema
JUDGMENT:
J U D G M E N T
WITH
Civil Appeal No. 5385 of 1998
and
Civil Appeal No. 5389-5390 of 2002
S. N. VARIAVA, J.
We have had the benefit of reading the Judgment of Brother Sinha, J. With the greatest of respect to him we are unable to agree with his view for the following reasons. Facts have been set out in detail by Brother Sinha, J. and need not be repeated here except to state that this Appeal is against the Judgment of the High Court of Madras dated 22nd August, 1997, by which it has been held that a Letters Patent Appeal is not maintainable against an Order passed by a single Judge of the High Court sitting in Appellate Jurisdiction.
Because of the importance of the question involved, this Court by an Order dated 9th August, 2001 referred the matter to a larger Bench. The Order reads as follows:
"Against an application filed before the
executing court for setting aside the court auction which was dismissed, an appeal was filed before the High Court. On the dismissal of the same by the Single Judge, a letters patent appeal was filed. A Full Bench relying upon a decision of this Court in New Kenilworth Hotel (P) Ltd. vs. Orissa State Financial Corporation and Others, 1997 (3) SCC 462 came to the conclusion that in view of the provisions of Section 104(2), C.P.C., appeal to the Division Bench was not maintainable. To the same effect are two other decisions of this Court in Resham Singh Pyara Singh vs. Abdul Sattar [1996 (1) SCC 49] and Vinita M. Khanolkar vs. Pragna M. Pai and Others, 1998 (1) SCC 500.
Learned senior counsel for the appellant has drawn our attention to a decision of the Constitution Bench in Gulab Bai and Anr. vs. Puniya, 1966 (2) SCR 102 and has contended that the observations in the said judgment clearly support his contention that by virtue of provisions similar to Clause 15 of the Letters Patent an appeal could be filed against he judgment of the Single Judge.
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."
The Chief Justice has since placed this matter before a Constitution Bench.
Before us, it has not been disputed that if Section 104 of the Civil Procedure Code did not provide a bar, then in this case a Letters Patent Appeal would be maintainable. It is also not disputed that at the relevant time Section 100A C.P.C. did not bar such an Appeal in this case.
In order to decide whether Section 104(2) C.P.C. would bar a Letters Patent Appeal, one has to first notice the history and the view taken by various Courts in
588. It reads as follows:
"588 An appeal shall lie from the following orders under this Code and from no other such orders:- ..
The orders passed in appeals under this section shall be final"
To be noted that Section 588 did not contain words to the effect "under a law for the time being in force". However, Section 588 did provide that "an appeal shall lie from the following orders and no other such orders". It also provided that "orders passed in Appeal under that Section shall be final". These words have the same meaning and effect as the words "no Appeal shall lie from any Order passed in Appeal under this Section". Section 588 by giving a finality to orders passed under that Section precluded further appeals. The question was whether Section 588 also barred a Letters Patent Appeal.
There was a divergence of opinion amongst the High Courts on this point. This question then came up before the Privy Council in the case of Hurrish Chunder Chowdhry vs. Kali Sundari Debia reported in 10 I.A. Pg. 4. The Privy Council held as follows:
"It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the Full Court."
These observations of the Privy Council again led to a conflict of decisions amongst various High Courts. The
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.
(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.
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 -
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."
To be immediately noted that now the Legislature provides that the provision of this Code will not affect or limit special law unless specifically excluded. The Legislature also simultaneously saves, in Section 104(1), appeals under "any law for the time being in force". These would include Letters Patent Appeals. After this amendment, even the Allahabad High Court changed its view. In the case of L. Ram Sarup vs. Mt. Kaniz Ummehani reported in AIR 1937 Allahabad 165 the earlier view was noted and it was thereafter observed as follows: "There is however one material distinction between the provisions of the old Code and those of the new Code. In the Code of 1882 there was no exemption as regards any special law that may be in force for the time being and the Code of Civil Procedure, except as regards certain enactments mentioned in S. 4 and other similar sections, would supersede all such laws. In Cl.35 of the Letters Patent, there was a clear provision that the Letters Patents are subject to the legislative powers of the Governor-General in Council. It was accordingly thought that the Code of Civil Procedure would prevail against the provisions of the Letters Patent. In the new Code of 1908 there is a special provision in S. 4 to the effect that: In the absence of any specified 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.
It follows that unless there is any specific provision to the contrary in this Code of Civil Procedure, it cannot affect any special law or special jurisdiction or power which is conferred on the High Court. The Letters Patent undoubtedly confers such special jurisdiction and power. It would therefore follow that the provisions of the Letters Patent are saved by virtue of S. 4, unless there is specific provision to the contrary. We do not find any specific provision in S. 104 showing that that section is intended to apply to Letters Patent appeals as well. The opinion expressed by the Division Bench in Piare Lal's case [AIR 1917 All. 325] has not been followed in other High Courts. It seems to us that it is not necessary to refer this point to a Full Bench because of one important circumstance. At the time when the case of Piare Lal was decided the new Code of Civil Procedure had come into force and its provisions could be considered by the Bench to supersede the provisions of the Letters Patent. Thereafter Cl. 10, Letters Patent, was amended in 1929 when a right of appeal has been allowed from every judgment of a Single Judge where leave is granted. At this latest provision in the Letters Patent has not been superseded by any provision of the Code of Civil Procedure, we think that it must prevail.
It may further be pointed out that Sec. 104(1), C.P.C., itself provides "save as otherwise expressly provided. . . by any law for the time being in force." Accordingly the prohibition contained in that sub- section that an appeal shall not lie from any other order, would not apply to a case where an appeal is provided for under the Letters Patent. It may however be conceded that this saving clause does not occur in sub-s. (2), S. 104. But under the corresponding S. 588 of the old Code where the words were "orders passed in appeal under this section shall be final," their Lordships of the Privy Council in 9 Cal 482, at p. 492, observed that S. 588, which has the effect of restricting certain appeals, does not apply to a case where the appeal is from one of the Judges of the High Court to the full Court. Obviously S. 104(2) was intended to apply to appeals where allowable under the Code of Civil Procedure. In any case S. 104(2) does not contain any express provision which would suggest that the provisions of the Letters Patent have been abrogated. We accordingly hold that under Cl. 10, Letters Patent, an appeal lies from the order of a Single Judge passed in appeal."
Thus now all High Courts in
In National Sewing Thread Co. Ltd., Chidambaram vs. James Chadwick and Bros. Ltd. (AIR 1953 SC 357) the question arose whether a Letters Patent appeal under Clause 15 of the Letters Patent of the Bombay High Court was maintainable against the Judgment of a single Judge exercising appellate jurisdiction under Section 76 of the Trade Marks Act, 1940. Holding that such an appeal was maintainable, this Court observed:
"Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by S.76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Cl. 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act."
Referring to Clause 44 of the Letters Patent, it was held that the provisions of the Letters Patent were subject to the legislative powers of the Governor General in Legislative Council, and therefore, in the present day context, subject to the legislative power of the appropriate legislature. But this Court found nothing in the Trade Marks Act restricting the right of appeal under Clause 15 of the Letters Patent. This question was also considered by a four Judges Bench of this Court in the case of Union of India vs. Mahindra Supply Company reported in (1962) 3 SCR 497. In this case, a dispute between the parties was referred to Arbitration. The Arbitrator gave an award. An application was made for setting aside the award. That application was rejected. Against that order an Appeal was preferred to the High Court under Section 39(1) of the Indian Arbitration Act, 1940. A single Judge of the High Court allowed the Appeal and set aside the award. Thereupon a Letters Patent Appeal was filed. The question was whether a Letters Patent Appeal was barred. Section 39 of the Indian Arbitration Act reads as follows:
"(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order: An order
(i) superceding an arbitration;
(ii) on an award stated in the form
of a special case;
(iii) modifying or correcting a
award;
(iv) filing or refusing to file an
arbitration agreement
(v) staying or refusing to stay legal
proceedings where there is an
arbitration agreement;
(vi) setting aside or refusing to set
aside an award:
Provided that the provisions of this section shall not apply to any order passed by a
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."
It is thus to be seen that Section 39 specifically barred a second Appeal. Also to be noticed that in Section 39 there is no saving clause similar to that in Section 104(1) C.P.C. Further, in the Arbitration Act there is no provision similar to Section 4 C.P.C. It was submitted that, even though Section 39 barred a second Appeal, an analogy should be taken from Section 104 C.P.C. and it must be held that a Letters Patent Appeal was maintainable. In considering this submission the conflict of opinions amongst the various High Courts regarding maintainability of a Letters Patent Appeal, in spite of Section 104 C.P.C., was set out and this Court then held as follows:
"The legislature in this state of affairs intervened, and in the Code of 1908 incorporated s. 4 which by the first sub-section provided: "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:;
and enacted in s. 104(1) that an appeal shall be from the orders set out therein and save as otherwise expressly provided, in the body of the Code or by any law for the time being in force, from no other orders. The legislature also expressly provided that "no appeal shall lie from any order passed in appeal under this section."
Section 105 was substantially in the same terms as s. 591 of the earlier Code.
The intention of the legislature in enacting sub- s. (1) of s. 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasized by s. 4 which provides that in the absence of any specific provision to the contrary, nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees) under the Letters Patent, was therefore not affected by s. 104(1) of the Code of Civil Procedure, 1908."
Thus a four Judges Bench of this Court, as early in 1962, recognized that the Legislature had now specifically saved a Letters Patent Appeal. This Court then went on to hold that Section 4 C.P.C. provided as follows:
"By this clause, a right to appeal except in the cases specified, from one Judge of the High Court to a Division Bench is expressly granted. But the Letters Patent are declared by Cl. 37 subject to the legislative power of the Governor-General in Council and also of the Governor-in-Council under the Government of India Act, 1915, and may in all respects be amended or altered in exercise of legislative authority. Under S. 39(1), an appeal lies from the orders specified in that sub-section and from no others. The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away. 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 cl.(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 competent."
This Court however noticed that in the Arbitration Act, there was no provision similar to Section 4 of the Code of Civil Procedure which preserved powers reserved to Courts under special statutes. Under the Code of Civil Procedure, the right to appeal under the Letters Patent is saved both by Section 4 and the clause contained in Section 104(1), but by the Arbitration Act, 1940, the jurisdiction of the Courts under any other law for the time being in force is not saved. The right of appeal could therefore be exercised against orders in arbitration proceedings only under Section 39, and no appeal lay from the appellate order (except an appeal to this Court). The provisions in the Letters Patent providing for appeal, in so far as they related to orders passed in Arbitration proceedings, were held to be subject to the provisions of Section 39(1) and (2) of the Arbitration Act, as the same is a self contained Code relating to arbitration. The aforesaid two decisions were noticed in South Asia Industries (P) Ltd. vs. S.B. Sarup Singh & Ors. (AIR 1965 SC 1442). This Court was called upon to interpret the provisions of Sections 39 and 43 of the Delhi Rent Control Act, 1958 with a view to answer the question whether an appeal was competent under Clause 10 of the Letters Patent of the High Court of Lahore against the judgment of a single Judge in a second appeal under Section 39 of the aforesaid Act. Section 39 provided an appeal to the High Court against the judgment of the Tribunal only on a substantial question of law. Section 43 read as under:
"Save as otherwise expressly provided under this Act, every order made by the Controller or an order passed an appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding."
It was not even disputed before this Court that the right of appeal conferred by Clause 10 of the Letters Patent could be taken away by law made by the appropriate legislature. Under the Rules an appeal under Section 39 was to be heard by a Single Judge, and under Clause 10 of the Letters Patent an appeal to the High Court lay against the judgment of a single Judge. This Court held that unless the right of appeal was taken away by the appropriate legislature either expressly or by necessary implication, an appeal was competent under Clause 10 against the judgment of the single Judge to the High Court. However, on an interpretation of Section 43 of the Act, this Court held that the expression "final" put an end to a further appeal and the section imposed a total bar. The question whether a Letters Patent Appeal would be barred was considered by a Constitution Bench of this Court in the case of Gulab Bai vs. Puniya reported in (1966) 2 SCR 102. In this case, an application under Section 25 of the Guardians and Wards Act was rejected by a
"47. Orders appealable.- An appeal shall lie to the High Court from an order made by a Court,- (a) under section 7, appointing or declaring or refusing to appoint or declare a guardian; or (b) under section 9, sub-section (3), returning an application; or
(c) under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian; or
(d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or
(e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or
(f) under section 32, defining, restricting or extending the powers of a guardian; or
(g) under section 39, removing a guardian; or (h) under section 40, refusing to discharge a guardian; or
(i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order; or
(j) under section 44 or section 45, imposing a penalty.
48. Finality of other orders.- Save as
provided by the last foregoing section and section 622 of the Code of Civil Procedure, 1882, an order made under this Act shall be final, and shall not be liable to be contested by suit or otherwise." Thus Section 47 permitted "an appeal" to the High Court whilst Section 48 gave a finality. The Constitution Bench, inter alia, held as follows:
"Before dealing with this point, two relevant facts ought to be mentioned. The Act was extended to Rajasthan by the Part B States (Laws) Act, 1951 (Act III of 1951) on the 23rd February; 1951; but before the Act was thus extended to Rajasthan, the Ordinance had already been promulgated. Clause 18(1) of the Ordinance provides, inter alia, that an appeal shall lie to the High Court from the Judgment of one Judge of the High Court; it accepts from the purview of this provision certain other judgments with which we are not concerned. It is common ground that the judgment pronounced by the learned single Judge of the High Court on the appeal preferred by the respondent before the High Court, does not fall within the category of the exceptions provided by clause 18(1) of the ordinance; so that if the question about the competence of the appeal preferred by the appellants before the Division Bench of the High Court had fallen to be considered solely by reference to clause 18(1), the answer to the point raised by the appellants before us would have to be given in their favour. The High Court has, however, held that the result of reading ss. 47 and 48 together is to make the present appeal under clause 18(1) of the Ordinance incompetent. The question arises before us is: is this view of the High Court right?" This Court then considered the effect of Sections 47 and 48 of the Guardians and Wards Act and held as follows: "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 case 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 appeal 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.17 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 provisions, 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."
Thus even though Section 48 provided for a finality it still saved appeals permitted by Section 47 and revisions under Section 622 of the then Civil Procedure Code (Section 115 of the present Civil Procedure Code). This Court then went on to hold as follows: "The question as to whether an appeal
permitted by the relevant clause of the Letters Patent of a High Court can be taken away by implication, had been considered in relation to the provisions of s. 588 of the Codes of Civil Procedure of 1877 and 1882. The first part of the said section had provided for an appeal from the orders specified by clauses (1) to (29) thereof, and the latter part of the said section had laid down that the orders passed in appeals under this section shall be final. Before the enactment of the present Code, High Courts in
"It only remains to observe that their
Lordships do not think that section 588
of Act X of 1877, which has the effect of restricting certain appeals, applies to
such a case as this, where the appeal is
from one of the Judges of the Court to
the
Basing themselves on these observations, the High Courts of Calcutta, Madras, and Bombay had held that s. 588 did not take away the right of appeal given by clause 15 of the Letters Patent, vide Toolsee Money Dassee & Others v. Sudevi Dassee & Others ((1899) 26 Cal. 361.), Sabhapathi Chetti and others v. Narayanasami Chetti ((1902) 25 Mad. 555.), and The Secretary of State for India in Council v. Jehangir Maneckji Cursetji ((1902) 4 Bom. L.R. 342.) respectively. On the other hand, the Allahabad High Court took a different view, vide Banno Bibi and others v. Mehdi Husain and Others ((1889) 11 Alld. 375.), and Muhammad Naim-ul-Lah Khan v. Ihsan- Ullah Khan ((1892) 14 Alld. 226 (F.B.)). Ultimately, when the present Code was enacted, s. 104 took the place of s. 588 of the earlier Code. Section 104(1) provides that 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. It will be noticed that the saving clause which refers to the provisions of the Code, or to the provisions of any law for the time being in force, gives effect to the view taken by the
"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 provisions did not preclude an appeal being filed under the relevant clause of the Letters patent of the High Court"
Thus, a Constitution Bench of this Court has held that the words "under any law for the time being in force" in Section 104(1) saves Letters Patent Appeals. This decision is binding on this Court.
Faced with the situation it was submitted that the above observations have been made only in the context of Sections 47 and 48 of the Guardians and Wards Act. It was submitted that therefore these observations cannot be applied to a case where an Appeal is under Section 104 itself. This argument overlooks sub-clause (1) of Section 104 C.P.C. which now categorically saves Appeals under any law for the time being in force. Thus if any other law for the time being in force permits an appeal the same would be maintainable irrespective of Section 104(2) C.P.C. As stated above, this would include a Letters Patent Appeal. Also, the observations quoted above are not in the context of Sections 47 and 48 of the Guardians and Wards Act, but in the context of whether a Letters Patent Appeal can be barred. That was the question before the Court. The Constitution Bench was considering whether a Letters Patent Appeal was maintainable. It was then submitted that this authority does not take into consideration and does not refer to sub-clause (2) of Section 104. It was submitted that as sub- clause (2) of Section 104 was not considered a fresh look is required. Once it is noted that Section 104(1) saves such Appeals there is no need to refer to or mention Section 104(2). Section 104(2) cannot lay down anything contrary to Section 104(1). To be remembered that Legislature has now put in the saving clause in order to give effect to the
In the case of Shah Babulal Khimji (supra) a suit for specific performance was filed. Interim reliefs of appointment of Court Receiver and injunction were refused by a single Judge of the High Court. The Appeal preferred before the Division Bench was dismissed as not maintainable on the ground that the impugned Order of the Single Judge was not a Judgment as contemplated by Clause 15 of the Letters Patent of the High Court. It was also held that Section 104 read with Order 43 Rule 1 only applied to appeals from Subordinate Courts to the High Court.
Thus in Shah Babulal Khimji's case (supra) this Court was concerned with an order passed by a single Judge on the original side of the High Court, which, if it amounted to a judgment, was admittedly appealable under Clause 15 of the Letters Patent. The only question, therefore, which arose before this Court was whether the order of the learned single Judge refusing to grant an injunction or appoint a receiver on the Interlocutory Application of the appellant was a judgment, and consequently whether an appeal against the order of the learned single Judge to the Division Bench of the High Court was competent and maintainable under Clause 15 of the Letters Patent. This Court took the view that the word 'judgment' in the Letters Patent should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. It was held that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. Their Lordships came to the conclusion that the order passed by a single Judge on the original side refusing to appoint a receiver and grant an injunction amounted to a judgment and was therefore appealable under Clause 15 of the Letters Patent. Though the question did not directly arise for consideration, in the Judgment of Fazal Ali, J. there is a discussion on the interplay of Section 104 and Letters Patent. The relevant portions read as follows:
"15. We would first deal with the point relating to the applicability of Section 104 read with Order 43 Rule 1 of the Code of 1908 because it seems to us that the arguments of Mr. Sorabjee on this score are well-founded and must prevail. Moreover, some of the decisions of this Court, those of the Privy Council and other High Courts support the propositions adumbrated by Mr. Sorabjee.
16. In order, however, to appreciate the
applicability of Section 104 read with Order 43 Rule 1, it may be necessary to examine some important provisions of the Code of Civil Procedure as also the previous history which led to the enactment of Section 104 by the Code of 1908. It appears that prior to the Code of 1908 in the earlier Code of Civil Procedure there were two kinds of appeals to the High Court : (1) appeals against judgments and decrees of the Trial Judge, and (2) appeals against orders, either interlocutory or quasi-final, passed by the court during the pendency of the suit or proceedings. In the Civil Procedure Code of 1877 the section corresponding to Order 43 Rule 1 of the Code of 1908 was Section 588 which provided for appealable orders under clauses (a) to (t). Section 588 of the Code of 1877 provided that an appeal from any order specified in Section 588 shall lie to the High Court or when an appeal from any other order is allowed by the Chapter it would lie to the court to which an appeal would lie from the decree in the suit in respect of which such order was made or when such order is passed by a court other than the High Court, then to the High Court. A perusal of Sections 588 and 589 of the Code of 1877 would clearly show that the statute made no distinction between appeals to the High Courts from the district courts in the mofussils or internal appeals to the High Courts under the Letters Patent. Section 591 clearly provided that except the orders mentioned in Section 588 no further appeal could lie from any order passed by any court in exercise of its original or appellate jurisdiction. Section 591 may be extracted thus:
591. No other appeal from orders; but
error therein may be set forth in memorandum of appeal against decree. - Except as provided in this chapter, no appeal shall lie from any order passed by any court in the exercise of its original or appellate jurisdiction but if any decree be appealed against, any error, defect or irregularity in any such order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of
appeal.
17. In other words, the position was that while the statute provided only for appeals against orders, all other appeals could only be against a decree passed by the court concerned. The statute, therefore, did not contemplate any other appeal except those mentioned in Sections 588 and 591.
18. The Code of 1877 was later on replaced by the Code of 1882 but the provisions remained the same. In view of the rather vague and uncertain nature of the provisions of Sections 588 to 591 a serious controversy arose between the various High Courts regarding the interpretation of Section 588. The
Lordships do not think that Section 588 of Act X of 1877, which has the effect of restricting certain appeals is from one of the Judges of the Court to the
This judgment gave rise to a serious conflict of opinions in the High Courts in
19. With due respect we would like to point out that the pointed and terse observations of the Privy Council did not leave any room for any doubt or speculation in the matter. While construing Section 588, the Judicial Committee in Hurrish Chunder Chowdry's case [10 IA 4 : ILR (1883) 9 Cal 482] had made it clear that appeals would lie under Section 588 to the High Court and the section did not contain any restriction to the effect that appeal against the orders of the Trial Judge mentioned in Section 588 would not lie to a larger Bench of the High Court. In other words, the Privy Council intended to lay down clearly that Section 588 did not affect nor was it inconsistent with the provisions of the Letters Patent and hence those orders of the Trial Judge which fell beyond Section 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of Clause 15 of the Letters Patent. Therefore, the views taken by the
(emphasis supplied).
The Court then went on to consider whether Section 104 applied to internal appeals in the High Court. The Court considered various provisions to conclude that Section 104 applied even to internal appeals in the High Court. The entire discussion is lengthy and not relevant for our purposes. But during the course of that discussion at a number of places the interplay of Letters Patent and Section 104 was considered. To that extent, the observations are relevant for our purpose and are accordingly set out:
"A bare perusal of this section would clearly reveal that excepting Revenue Courts all other civil courts would normally be governed by the provisions of the Code of Civil Procedure in the matter of procedure. Section 4(1) of the Code of 1908 which is a saving provision clearly provides that in the absence of any specific provision to the contrary the provisions of the Code does not limit or affect any special or local law. Thus, the test contained in Section 4 is not applicable in the instant case because even if the Letters Patent of the High Court be deemed to be a special law as contemplated by Section 4, the provisions of Section 104 do not seek to limit or affect the provisions of the Letters Patent."
28. We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case Section 104 read with Order 43 Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by Clause 15 of the Letters Patent. What Section 104 read with Order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench."
.
"30. We have already shown that a perusal of these observations leaves no room for doubt that the Privy Council clearly held that Section 588 undoubtedly applied to appeal from one of the Judges of the High Court to the Full Court, which really now means the Division Bench constituted under the Rules. In spite of the clear exposition of the law on the subject by the Privy Council it is rather unfortunate that some High Courts have either misinterpreted these observations or explained them away or used them for holding that Section 588 does not apply to High Courts. We shall deal with those judgments and point out that the view taken by the High Courts concerned is not at all borne out by the ratio decidendi of the Privy Council. So far as the applicability of Section 588 to proceedings in the High Courts is concerned, in a later decision the Privy Council reiterated its view in unmistakable terms. In Mt. Sabitri Thakurain v. Savi [AIR 1921 PC 80], their Lordships observed as follows:
Section (sic Clause) 15 of the Letters
Patent is such a law, and what it expressly provides, namely an appeal to the High Court's appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by Orders and Rules under the Code of Civil
Procedure, 1908, are applicable to the
jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal.
31. Though not directly, some observations made by this Court also support the consistent view taken by the Privy Council that Order 43 Rule 1 applies to the original proceedings before the Trial Judge. In Union of India v. Mohindra Supply Co. [(1962) 3 SCR 497 : AIR 1962 SC 256], this Court made the following observations :
The intention of the legislature in
enacting sub-section (1) of Section 104 is clear: the right to appeal conferred by any other law for the time being in force is
expressly preserved. This intention is
emphasised by Section 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees) under the Letters Patent, was
therefore not affected by Section 104(1) of the Code of Civil Procedure, 1908.
32. Thus, this Court has clearly held that the right to appeal against judgments under the Letters Patent was not affected by the Section 104(1) of the Code of 1908 and the decision therefore fully supports the argument of Mr. Sorabjee that there is no inconsistency between the Letters Patent jurisdiction and Section 104 read with Order 43 Rule 1 of the Code of 1908." Similarly, in Shankarlal Aggarwal's case [(1964) 1 SCR 717 : AIR 1965 SC 507] this Court while construing the provisions of Section 202 of the Indian Companies Act observed as follows :
There was no doubt either that most of
the orders or decisions in winding up would not be comprehended within the class of
appealable orders specified in Section 104 or Order 43, Rule 1. If therefore the contention of the respondent were accepted it would mean that in the case of orders passed by the
District Courts appeals would lie only against what would be decrees under the Code as well as appealable orders under Section 104 and Order 43, Rule 1 and very few of the orders passed in the courts of the winding up would fall within these categories. On the other hand, the expression "judgment" used in Clause 15 is wider..... The learned Judge therefore rejected a construction which would have meant that the same orders passed by District Courts and by a Single Judge of a High Court would be subject to different rules as to appealability.
33. There is yet another aspect of the matter which shows that Section 104 merely provides an additional or supplemental remedy by way of appeal and, therefore, widens rather than limits the original jurisdiction of the High Court. For instance, in this very case with which this Court was dealing, an order passed under Section 202 of the Companies Act was appealable to a larger Bench and yet it was argued that the order being of an interlocutory nature would not be a judgment and therefore no appeal would lie to the Division Bench. This contention was negatived by the Supreme Court and it was held that against the order passed by a Trial Judge under the Companies Act, an appeal would lie to the Division Bench. On a parity of reasoning, therefore, Section 104 read with Order 43 Rule 1 expressly authorises and creates a forum for appeal against orders falling under various clauses of Order 43 Rule 1, to a larger Bench of the High Court without at all disturbing, interfering with or overriding the Letters Patent jurisdiction. There are a number of other Acts also which confer additional powers of appeal to a larger Bench within the High Court against the order of a Trial Judge."
It now remains to be shown why the case of Ram Sarup (supra) was overruled. The relevant portion reads as follows: "38. The Lahore High Court relied on the
decision of the Privy Council in Hurrish Chunder Chowdry's case [10 IA 4 : ILR (1883) 9
It may, however, be conceded that this
saving clause does not occur in sub-section (2) of Section 104. But under the corresponding Section 588 of the old Code, where the words were "orders passed in appeal under this
section shall be final," their Lordships of the Privy Council in Hurrish Chunder Chowdry v. Kali Sundari Debia [10 IA 4 : ILR (1883) 9 Cal 482] observed that Section 588, which has the effect of restricting certain appeals, did not apply to a case where the appeal is from one of the Judges of the High Court to the Full Court.... In any case Section 104(2) does not contain any express provision which would suggest that the provisions of the Letters Patent have been abrogated. We accordingly hold that under Clause 10 of the Letters Patent an appeal lies from the order of a Single Judge passed in appeal.
39. 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 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. The relevant portion of Clause 15 of the Letters Patent may be extracted thus:
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....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, made (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.
40. 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 when the Trial Judge decides an appeal against a judgment or decree passed by the district courts in the mofussil, a further appeal shall only lie 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.
41. 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 is clearly pointed out that in such cases no further appeal would lie to the Division Bench under the Letters Patent. The distinction drawn by the Allahabad High Court regarding the application of Section 104 is a distinction without any difference"
Much emphasis is sought to be put on the sentence, i.e. "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 will lie to the Single Judge, no further appeal will lie to the Division Bench" and it is submitted that the Court was laying down that a further appeal will not lie even if Letters Patent permitted. The sentence cannot be read in isolation. It must be read in the context of all that is stated before it. It is already held that Section 104 read with Order 43 Rule 1 C.P.C. confers additional powers of appeal to a larger Bench within the High Court. When read in context the sentence only means that in case of Orders not covered by Letters Patent a further appeal will not lie. This is also clear from the subsequent sentence that there is nothing else in Letters Patent which permits a further appeal barred by Section 104(2) C.P.C. As set out above, Section 104(2) only bars appeals against Order passed in appeal under the Section. Thus Section 104(2) does not bar appeals permitted by any law in force. Also to be noted that principle in Ram Sarup's case (supra), that Section 104 did not bar a Letters Patent appeal was specifically accepted. It is also accepted that Letters Patent is a special law. However on the wordings of the concerned Letters Patent as noticed, it was held that the Letters Patent did not permit a second appeal. Had the Letters Patent permitted a second appeal, on the ratio laid down earlier, a Letters Patent Appeal would have been held to be maintainable. In our case it is an admitted position that the concerned Letters Patent permits an appeal.
It must also be mentioned that, as set out hereinabove, their Lordships considered the relevant portion of Clause 15 of the Letters Patent which has been extracted in the judgment, but unfortunately another relevant portion of Clause 15 has been missed. If Clause 15 of the Letters Patent of the Bombay High Court is read in its entirety it leaves no manner of doubt that it provides for an appeal to the said High Court from the judgment of one Judge of the said High Court, subject to certain exceptions enumerated therein. The first part of Clause 15 contemplates two types of orders passed by a Single Judge of the High Court against which an appeal shall lie to the High Court First an order of the Single Judge exercising Original Jurisdiction which amounted to judgment; and second, orders of a Single Judge of the High Court exercising appellate jurisdiction subject to the orders specified, which were excepted, such as 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 High Court, or an order made in the exercise of revisional jurisdiction etc. etc. Clearly, therefore, Clause 15 of the Letters Patent contemplates an appeal against the judgment of a Single Judge of the High Court exercising appellate jurisdiction, provided the judgment appealed against is not one which was preferred against an appellate order, meaning thereby that no Letters Patent Appeal would lie against an order passed by a Single Judge in Second Appeal, or an order passed in revisional jurisdiction, The latter part of Clause 15, however, provides that an appeal shall lie to the High Court from a judgment of the Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal. Thus under Clause 15 a Letters Patent Appeal is competent even against an order passed by the High Court in Second Appeal provided the Judge deciding the case declares that the case is fit for appeal. In substance, therefore, Clause 15 of the Letters Patent of the Bombay High Court provided for an appeal (1) against a judgment of a Single Judge of the High Court ; (2) against a judgment of a Single Judge of the High Court exercising appellate jurisdiction, except in cases where the Single Judge is sitting in Second Appeal or where he exercises the revisional jurisdiction; and (3) judgment of the High Court even if passed in Second Appeal provided the Judge certifies it as fit for appeal to a Division Bench. Since the relevant portion of the Letters Patent was not extracted in the judgment, Their Lordships came to the conclusion set out above viz.:
"40. A perusal of the Letters Patent would clearly reveal that 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."
We are of the opinion that in reaching this conclusion the Court missed the relevant portion of Clause 15 of the Letters Patent of the Bombay High Court. Reliance cannot, therefore, be placed on this judgment for the proposition that under Clause 15 of the Letters Patent of the Bombay High Court no appeal to a Division Bench from the order of the Single Judge in exercise of appellate jurisdiction is maintainable.
Thus the unanimous view of all Courts till 1996 was that Section 104(1) C.P.C. specifically saved Letters Patent Appeals and the bar under 104(2) did not apply to Letters patent Appeals. The view has been that a Letters Patent Appeal cannot be ousted by implication but the right of an Appeal under the Letters Patent can be taken away by an express provision in an appropriate Legislation. The express provision need not refer to or use the words "Letters Patent" but if on a reading of the provision it is clear that all further Appeals are barred then even a Letters Patent Appeal would be barred.
For the first time in the case of Resham Singh Pyara Singh vs. Abdul Sattar reported in (1996) 1 SCC 49 a contrary view was adopted by a 2 judge bench of this Court. In this case there was an Appeal, before a Single Judge of the High Court, against an order of the
"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. In Khimji case [(1981) 4 SCC 8] the suit was filed on the original side of the High Court and the learned Single Judge on the original side passed an interlocutory order. Against the orders of the learned Single Judge, though it was an interlocutory order, since the appeal would lie to the Division Bench under the Letters Patent, this Court held that against the interlocutory orders passed by the Single Judge, Letters Patent Appeal would be maintainable. That ratio, therefore, is clearly inapplicable to the facts in this case."
Then in the case of New Kenilworth Hotel (P) Ltd. vs. Orissa State Finance Corporation and Ors. reported in (1997) 3 SCC 462 the question, whether a Letters Patent Appeal was maintainable, again arose. In this case a status quo order was passed by the trial Court. In Appeal, a single Judge of the High Court, vacated the Order of status quo. Attention of this Court was drawn to the 3 Judge Bench decision in the case of Shah Babulal Khimji (supra) and to the 2 Judge Bench decision in the case of Resham Singh Pyara Singh (supra). Shah Babulal Khimji's case being a 3 Judge Bench decision would prevail over Resham Singh Pyara Singh's case. It was also a binding decision on this Bench yet surprisingly the Court followed Resham Singh Pyara Singh's case. Of course the other decisions of this Court do not appear to have been brought to the attention of the Court. In this case it was also held that the concerned Order was not covered by Clause 10 of the Letters Patent. The following observations make this clear:
"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 revisional 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. Notwithstanding the prohibition contained in the latter part of clause 10, an appeal would lie." With greatest of respect to the learned Judges it must be mentioned that it has been omitted to be noticed that the concerned Letters Patent had three limbs as set out in Central Mine Planning & Design Institute Ltd. vs. Union of India reported in (2001) 2 SCC 588. In this case the three limbs have been noted. It is held as follows:
"8. A close reading of the provision, quoted above, shows that it has three limbs : the first limb specifies the type of judgments of one Judge of the High Court which is appealable in that High Court and the categories of judgments/orders which are excluded from its ambit; the second limb provides that notwithstanding anything provided in the first limb, an appeal shall lie to that High Court from the judgment of one Judge of the High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act (now Article 225 of the Constitution of India), on or after 1-2-1929 passed 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; and the third limb says that the right of appeal from other judgments of Judges of the said High Court or such Division Court shall be to "us, our heirs or successors in our or their Privy Council, as hereinafter provided."
Thus it is clear that the cases of Resham Singh Pyara Singh and New Kenilworth Hotel (P) Ltd. lay down wrong law and are overruled.
It must now be noticed that even after the aforementioned two decisions this Court has continued to hold that a Letters Patent Appeal is not affected.
In the case of Vinita M. Khanolkar vs. Pragna M. Pai reported in (1998) 1 SCC 500 an Appeal had been filed against an Order passed under Section 6 of the Specific Relief Act. It was contended that such an Appeal was barred by sub-section (3) of Section 6 of the Specific Relief Act. This Court agreed that Section 6(3) of the Specific Relief Act barred such an Appeal but went on to consider whether Section 6(3) could bar a Letters Patent Appeal. In this context this Court held as follows: "3. 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 Section 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 nigh Court exercising original jurisdiction of the court. Only on that short ground the appeal is required to be allowed."
The question whether a Letters Patent Appeal was maintainable against the Judgment/Order of a single Judge passed in a First Appeal under Section 140 of the Motor Vehicles Act was considered by this Court in the case of Chandra Kanta Sinha vs. Oriental Insurance Co. Ltd. reported in (2001) 6 SCC 158. In this case, it was held that such an Appeal was maintainable. It is held that the decision of this Court in the case of New Kenilworth Hotel (P) Ltd. (supra) was inapplicable. Thereafter in the case of Sharda Devi vs. State of Bihar reported in (2002) 3 SCC 705 the question again arose whether a Letters Patent Appeal was maintainable in view of Section 54 of the Land Acquisition Act. A three Judges Bench of this Court held that a Letters Patent was a Charter under which the High Courts were established and that by virtue of that Charter the High Court got certain powers. It was held that when a Letters Patent grants to the High Court a power of Appeal, against a Judgment of a single Judge, the right to entertain such an Appeal does not get excluded unless the statutory enactment excludes an Appeal under the Letters Patent. It was held that as Section 54 of the Land Acquisition Act did not bar a Letters Patent Appeal such an Appeal was maintainable. At this stage it must be clarified that during arguments, relying on the sentence "The powers given to a High Court under the Letters patent are akin to the constitutional powers of a High Court" in para 9 of this Judgment it had been suggested that a Letters Patent had the same status as the Constitution of India. In our view these observations merely lay down that the powers given to a High Court are the powers with which that High Court is constituted. These observations do not put Letters Patent on par with the Constitution of India.
In the case of Subal Paul vs. Maline Paul reported in (2003) 10 SCC 361, the question was whether a Letters Patent Appeal was maintainable against an Order passed by a single Judge of the High Court in an Appeal under Section 299 of the Succession Act, 1925. It was held that an Appeal under Section 299 was permitted by virtue of Section 299 and not under Section 104 C.P.C. Section 299 of the Indian Succession Act, 1925 reads as follows:
"299. Appeals from orders of District Judge. Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals."
Thus Section 299 permitted an Appeal to the High Court in accordance with the provision of CPC. That provision was Section 104. The Order passed by the Single Judge was an Order under Section 104. The further Appeal was under Letters Patent only. Section 299 of the Indian Succession Act did not permit it. The Letters Patent Appeal was saved/permitted by the words "any other law for the time being in force" in Section 104(1). It was thus held that Clause 15 of the Letters Patent permitted a right of Appeal against Order/Judgment passed under any Act unless the same was expressly excluded. It was held that the bar under Section 104 (2) would not apply if an Appeal was provided in any other law for the time being in force. Thus this authority also recognizes that an appeal permitted by "any other law for the time being in force" will not be hit by Section 104(2).
Thus, the consensus of judicial opinion has been that Section 104(1) Civil Procedure Code expressly saves a Letters Patent Appeal. At this stage it would be appropriate to analyze Section 104 C.P.C. Sub-section (1) of Section 104 CPC provides for an appeal from the orders enumerated under sub-section (1) which contemplates an appeal from the orders enumerated therein, as also appeals expressly provided in the body of the Code or by any law for the time being in force. Sub-section (1) therefore contemplates three types of orders from which appeals are provided namely,
1) orders enumerated in sub-section (1).
2) appeals otherwise expressly provided in the body of the Code and
3) appeals provided by any law for the time being force. It is not disputed that an appeal provided under the Letters Patent of the High Court is an appeal provided by a law for the time being in force.
As such an appeal is expressly saved by Section 104(1). Sub-clause 2 cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading sub-clause (2) by ignoring the saving clause in sub-section (1) would lead to a conflict between the two sub-clauses. Read as a whole and on well established principles of interpretation it is clear that sub-clause (2) can only apply to appeals not saved by sub-clause (1) of Section 104. The finality provided by sub-clause (2) only attaches to Orders passed in Appeal under Section 104, i.e., those Orders against which an Appeal under "any other law for the time being in force" is not permitted. Section 104(2) would not thus bar a Letters Patent Appeal. Effect must also be given to Legislative intent of introducing Section 4 C.P.C. and the words "by any law for the time being in force" in Section 104(1). This was done to give effect to the
"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.
(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."
As stated hereinabove, a specific exclusion may be clear from the words of a statue even though no specific reference is made to Letters Patent. But where there is an express saving in the statute/section itself, then general words to the effect that "an appeal would not lie" or "Order will be final" are not sufficient. In such cases, i.e., where there is an express saving, there must be an express exclusion. Sub-clause (2) of Section 104 does not provide for any express exclusion. In this context reference may be made to Section 100A. The present Section 100A was amended in 2002. The earlier Section 100A, introduced in 1976, reads as follows:
"100A. 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 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."
It is thus to be seen that when the Legislature wanted to exclude a Letters Patent Appeal it specifically did so. The words used in Section 100A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 in the C.P.C. Thus now a specific exclusion was provided. After 2002, Section 100A reads as follows:
"100A. 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."
To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a Letters Patent Appeal.
Applying the above principle to the facts of this case, the appeal under Clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law. It was next submitted that Clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent but then which legislation is not subject to amendment or alteration. CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar's case (supra) and Sharda Devi's case a Letters Patent is the Charter of the High Court. As held in Shah Babulal Khimji's case (supra) a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100A.
It was also sought to be argued that if such be the interpretation of Section 104 CPC, it may create an anomalous situation and may result in discrimination in as much as an appeal under the Letters Patent will be available against an order passed by the High Court on its original side, whereas such an appeal will not be available in a case where the order is passed by the High Court in its appellate jurisdiction. A similar argument was urged before this Court in South Asia Industries (P) Ltd. (supra) but the same was repelled in the following words:-
"The arguments that a combined reading of cls. 10 and 11 of the Letters Patent leads to the conclusion that even the first part of cl.10 deals only with appeals from Courts subordinate to the High Court has no force. As we have pointed out earlier, cl.11 contemplates conferment of appellate jurisdiction on the High Court by an appropriate Legislature against orders of a Tribunal. Far from detracting from the generality of the words "judgment by one Judge of the said High Court", cl. 11 indicates that the said judgment takes in one passed by a single Judge in an appeal against the order of a Tribunal. It is said, with some force, that if this construction be accepted there will be an anomaly, namely that in a case where a single Judge of the High Court passed a judgment in exercise of his appellate jurisdiction in respect of a decree made by a Court subordinate to the High Court, a further appeal to that Court will not lie unless the said Judge declares that the case is a fit one for appeal, whereas, if in exercise of his second appellate jurisdiction, he passed a judgment in an appeal against the order of a Tribunal, no such declaration is necessary for taking the matter on further appeal to the said High Court. If the express intention of the Legislature is clear, it is not permissible to speculate on the possible reasons that actuated the Legislature to make a distinction between the two classes of cases. It may, for ought we know, the Legislature thought fit to impose a limitation in a case where 3 Courts gave a decision, whereas it did not think fit to impose a limitation in a case where only one Court gave a decision".
We find ourselves in respectful agreement with the reasoning of this Court in the aforesaid decision. The same reasoning would apply in respect of the submission that if it is held that Section 104(2) did not bar a Letters Patent Appeal an anomalous situation would arise in as much as if the matter were to come to the High Court a further Appeal would be permitted but if it went to the District Court a further Appeal would not lie. An Appeal is a creature of a Statute. If a Statute permits an Appeal, it will lie. If a Statute does not permit an Appeal, it will not lie. Thus for example in cases under the Land Acquisition Act, Guardian and Wards Act and the Succession Act a further Appeal is permitted whilst under the Arbitration Act a further Appeal is barred. Thus different statutes have differing provisions in respect of Appeals. There is nothing anomalous in that. A District Court cannot be compared to a High Court which has special powers by virtue of Letters Patent. The District Court does not get a right to entertain a further Appeal as it does not have "any law for the time being in force" which permits such an Appeal. In any event we find no provisions which permit a larger Bench of the District Court to sit in Appeal against an order passed by a smaller Bench of that Court. Yet in the High Court even, under Section 104 read with Order 43 Rule 1 C.P.C., a larger Bench can sit in Appeal against an order of a Single Judge. Section 104 itself contemplates different rights of Appeals. Appeals saved by Section 104(1) can be filed. Those not saved will be barred by Section 104(2). We see nothing anomalous in such a situation. Consequently the plea of discrimination urged before us must be rejected.
Under these circumstances, the Order of the High Court cannot be sustained. It is hereby set aside. The appeals are accordingly allowed with no order as to costs. The matters are remitted back to the High Court for decision on merits.
