Vijayaraje Scindia (rajmata) And Others v. Maharaj Madhavrao Scindia And Others

Dr. T.N. Singh, J.

1. Having entertained grave doubt about maintainability of the three letters Patent Appeals listed before us for admission and interim relief, we decided to hear counsel. Indeed, respondents having been noticed on the question of admission and having entered appearance, it was possible to hear their counsel who pressed vigorously the preliminary objection of maintainability of the appeals. We purpose to dispose of, by this common order, all the three appeals-Letters Patent Appeal Nos. 5, 6 and 7 of 1987-as a common question arises in these appeals and we have taken the view that the preliminary objection to the maintainability of the appeals must prevail.

2. A learned Single Judge of this Court passed orders on 11-2-1987, separately, in three Misc. Civil Appeals wherein orders of learned District Judge passed in civil suits were challenged. Those orders were passed by learned District Judge on applications of plaintiffs made under Order 39, Rules 1 and 2 and Section 151, C. P. C., seeking appropriate directions against the defendants restraining them from doing certain acts pending disposal of the suits. Because the learned District Judge made certain directions against them, the defendants appealed to this Court successfully. Plaintiffs/respondents, being aggrieved by the order of the learned Single Judge, have preferred these appeals under clause 10 of the Letters Patent.

3. Although much argument was advanced to us on the connotations and implications of the word "judgment", occuring in clause 10 aforesaid, we have taken a different view of the matter. We would appropriately deal with counsels contention and analyse the language of clause 10 of Letters Patent, but we would first extract relevant portions of Sections 4, 105 and 106 C. P. C. :

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.

104. Orders from which appeal lies.-(1) 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 :-

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(i) any order made under rules from which an appeal is expressly allowed by rules :

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(2) No appeal shall lie from any order passed in appeal under this section.

105. Other orders.-(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

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106. What Courts to hear appeals-Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

What cannot be disputed is that clause (i) of section 104(1) refers evidently to the provisions specifically of Order 43, Rule 1 which refers expressly to section 104 to say that appeals would lie from the orders enumerated in the different clauses thereof. Clause (r) of Rule 1 of order 43 speaks of an order passed under Rules 1, 2, 2A, 4 and 10 of order 39, C. P. C.

4. Reading conjointly sub-section (2) of section 104 and giving due importance to the expressions "save as otherwise expressly provided" which occur in sub-sections (1) of both sections 104 and 105, in the context of the provision of section 106, we entertain no doubt at all that no appeal is contemplated under Code of Civil Procedure against an "order" (as distinguished from a "decree") except those mentioned in any of the clauses of Order 43, Rule 1 categorically and that a second appeal against an "order" is expressly barred. The term "order" defined in section 2(14), C. P. C. refers categorically to "decision of a Civil Court". The conspectus of the provisions of sections 104 to 106 deal specifically with "appeal from orders", under which caption Legislature has clubbed them together. Both sections 105 and 106 speak of "order" and "Court" but the High Court is contemplated as the forum to hear appeals from an order passed "by Court (not being a High Court) in exercise of appellate jurisdiction" contemplating expressly that under the Code itself, there should be specific provision under which "an appeal from any order is allowed." Section 105(1) expressly bars an appeal "from any order made by Court in the exercise of its original or appellate jurisdiction", save as otherwise expressly provided. Section 104(2) similarly bars expressly a second appeal from "any order" made under any of the provisions enumerated in different clauses of Order 43, Rule 1 C. P. C. That can be done only "by any law for the time-being in force" making express provision to the contrary.

5. It is necessary, therefore, to consider whether Clause 10 of Letters Patent is such a "law" as answers to the requirements of the provisions of sections 104, 105 and 106. In other words, whether it contains an express provision overriding sub-section (2) of section 104. Clause 10 is extracted, indeed, in extenso because we propose to analyse it in detail in the context of section 4(1) afore-quoted and other provisions of.

10. Appeal to the High Court from Judges of the Courts-And we do further ordain that an appeal shall lie to the said High Court of Judicature at Nagpur 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 the appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the powers of superintendence under the provisions of section one hundred and seven 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 one hundred and eight of the Government of India Act, and that notwithstanding anything hear-in before 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 one hundred and eight of the Government of India Act, made 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, which the judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgment of Judge of the said High Court or of such Division Court shall be to Us, Our Heirs and Successors in Our or Their Privy Council, as here in after provided.

6. A three-tier jurisdiction to prefer appeal against a decision rendered by a High Court is contemplated under clause 10 and as is indicated by the provision which can be dismentaled into three parts. The third and last part speaks of Privy Council as the forum for an appeal while under the other two parts, forum for an intra-Court appeal in the High Court under different circumstances is contemplated. The forum contemplated under the second part has a restricted access being saddled with the condition precedent that "the Judge who passed the judgment declares that the case is a fit one for appeal". This provision refers evidently to an order passed by a Single Judge of a High Court in second appeal under Section 100, C. P. C. The right to invoke the jurisdiction of the second forum is undisputedly taken away with effect from 1-2-1977 by section 100A, C. P. C. For the purpose of instant appeals, the focus of discussion must, however, be on the first part of clause 10.

7. To undertake an objective and indepth analysis of clause 10 the bearing on it of section 4(1) CPC as also of sections 106 and 108 of the Govt. of India Act, 1915 must always be kept in view. But, the basic position in law also to be remembered always is that a constitutional provision laying down frame work of governance of a country speaks in general terms of juridical forums and functions including jurisdiction of principal Courts while the power to exercise the jurisdiction is always traceable to the right of the litigant to invoke the jurisdiction in a particular manner for a particular purpose as may be laid down in the concerned enactment. The High Courts ordained constitutionally are endowed, under section 105(1) with "original and appellate" jurisdiction and "all such powers and authority over or in relation to the administration of justice............and as are vested in them by letters patent.............". Each High Court is empowered by section 108(1) to provide by its own rules "for the exercise, by one or more judges or by division Courts............of the original and appellate jurisdiction vested in the Court". Power to exercise the particular type of jurisdiction, original or appellate, in different cases and circumstances, for administration of justice under different laws enacted from time to time, cannot be, obviously, constitutionally contemplated and, therefore, only forums for exercise of power under "letters patent" are mentioned. In two places in clause 10 afore-quoted, therefore, section 108 is mentioned to invest power in the Division Court of the High Court to exercise appellate power in respect of a decision rendered by a single judge of the same Court. About the object of section 4, C. P. C., it may suffice to say that by saving the validity and operation of "any special jurisdiction or power conferred, or any special form of procedure prescribed", the right of appeal created under any special law in respect of the decision of a Tribunal (not "Civil Court") is accorded primacy in regard to its prescribed scope and extent.

8. Indeed, it has been held in Shah Babulal Khimji : AIR 1981 SC 1786 , that though Letters Patent may be deemed "special law" within the meaning of section 4, the provisions of section 104 does not affect or limit its operation. On a parity of reasoning it can be said, therefore, that when any "special law" envisages any right or appeal to the High Court, as a part of "special jurisdiction or power or special form of procedure", its scope, ambit and extent can be enlarged neither by CPC nor by Letters Patent. This is brought out clearly in paras 33, 35 and 40 of the report in Shah Babulals case. It was laid that because section 39 of the Arbitration Act speaks of "appealable orders" the provision thereof shall prevail in respect of an original order of a single judge in an arbitration proceedings, if that is an appealable order under section 39, a Larger Bench of the High Court may hear appeal. In other words when a right of appeal is conferred under CPC, section 4 will not apply but when the right is conferred under any other enactment the appellate power of the High Court must be exercised in such manner and to such extent as may be provided in such enactment.

9. The example in Shah Babulal (supra) illustrates the positive role of Letters Patent jurisdiction but the situation when such jurisdiction is denied by the operation of section 4 has also to be illustrated. We may take two types of cases pertaining respectively to exercise by the High Court of original jurisdiction and appellate powers under different enactments. Under the Representation of the People Act, 1951 and the Companies Act, 1956, original jurisdiction is exercised by a single judge of the High Court. But, there is much difference between the "special jurisdiction or power" and also the "special form of procedure" contemplated under the two enactments. While R. P. Act 1951 is a self-contained Code of which section 116- A expressly limits (using the non-obstante clause) to the Supreme Court the power to exercise appellate jurisdiction, the same position does not obtain under the Companies Act under section 483 of the said Act. Thus, although a single judge exercises original jurisdiction in hearing an election petition under R. P. Act, his orders would not be amenable to the appellate jurisdiction contemplated under letters patent. Now, the second category of cases. Under section 30 of the Workmens Compensation Act and section 110-D of the Motor Vehicles Act, an appeal against an "award" passed by the "Commissioner" in one case and the "Tribunal" in the other case lies to "High Court". Even if the High Court Rules provide for such appeals being heard by a single judge, the judgment or order passed by such Judge in the exercise of appellate jurisdiction of the High Court will not create a right of a second appeal merely because the Letters Patent contemplate an infra-Court appeal. Once the appellate power is exercised by the High Court, whether by a single judge or a Division Court, the power contemplated under section 30 W. C. Act in one case and under section 110-D of M. V. Act is exhausted. The scope and extent of that power cannot be enlarged by Letters Patent. It is noteworthy that the word judgment" in the first part of clause 10 is not qualified by the word "any" designedly so as to make it conformable to the constitutional object and purpose of "Letters Patent" mentioned in section 106(1), Govt. of India Act, 1915. In this context, we reiterate once more that Letters Patent provided for forum for exercise of a right of appeal contemplated under different enacted laws and that it does not create itself any general right of appeal without reference to causes, cases and circumstances in respect of which the right can be exercised.

10. In paras 35 and 40 of the report in Shah Bubulal (supra) we read support for this view. The interpretation of the word "judgment" in clause 15 of Letters Patent of Bombay High Court (in pari materia with afore-quoted clause 10) in the words of Sargent, Acting C. J. of that Court is quoted at para 35 with approval "........those orders, which are expressly declared appealable in the various sections of C. P. C.........and holding the word judgment to mean all judgments and orders which are appealable under the provisions of C. P. C." At para 40, it is observed, "the special law, viz., the Letters Patent, contemplates only two kinds of appeal and no other"-(1) against any order passed by a single judge (as a "trial judge"); and (2) when the judge concerned declares his judgment (rendered in appeal against a judgment and decree passed by district Courts) to be a fit case for appeal to a Division Bench. However, what their lordships observed at para 41 is of signal relevance to the instant lis and indeed is decisive of the controversy : "A further second appeal lying to a Division Bench from an appellate order of a trial judge passed under order 43, Rule 1 is wholly foreign to the scope and spirit of Letters Patent". A Division Bench of this Court recently in Chunnilal v. Agarwal and Co, : 1987 JLJ 377 : 1987 MPLJ 377 relying on the Apex Courts decision in Shah Babulal (supra) held that no Letters Patent Appeal is maintainable against an order passed by learned Single Judge of this Court in an appeal arising out of an order passed by the trial Court under order 39, Rules 1 and 2, C. P. C.

11. We are not prepared to accept appellants challenge to Chunnilal (supra) merely because the Bench referred to an unreported Bench decision of this Court in the case of Shri Kunwarji Sonkar v. Nirmal Chand Sonkar LPA No. 151 of 1981 dated 17-1-1986. In Chunnilal (supra) too, the decision in Kunwarji Sonkar was assailed on the footing that Apex Courts decision in Shah Babulal (supra) has overruled it but that question was not considered taking the view that the moot question to be answered now in such a case is not whether the "Judgment" of the learned Single judge was a judgment" within the meaning of clause 10 of the Letters Patent, but whether a second appeal was competent under Letters Patent against such a "judgment", we have not an iota of doubt that the decision in Chunnilals case was not based on what was held in Kunwarji Sonkar (supra). However, we would still observe that even in Kunwarji Sonkar (supra), the decision of the Apex Court in Shah Babulal (supra) was noted, but the Court, in that case, further observed that the Full Bench decision in Manohar Damodar Bhut. v. Baliram Ganpat Bhut : AIR 1952 Nag 357 was not overruled by Shah Babulals case (supra) and that the word "judgment" which appeared in clause 10 of the Letters Patent and not embrace within its fold an "appellate order passed by a Single Judge on an interlocutory matter". Left to ourselves, we have considered it unnecessary, futile and academic to examine that question in this case. We consider it appropriate to cohere to the reasoning adopted in Chunnilals case.

12. Other decisions have also been cited at the Bar on the interpretation of the term "judgment", but as earlier alluded, we do not consider it necessary to pronounce anything on other aspects of interpretation of the word. We have taken the view that under Letters Patent, forum for any appeal is provided but for exercising right of an intra-Court appeal in High Court in respect of any "judgment" independent statutory entitlement therefor must exist. This view, we have taken on the basis of the holding, in Shah Babulals case (supra). Because a single Judge of the High Court has refused, as the trial Court, prayer for appointment of Receiver and temporary injunction, his order was held appealable under order 43, Rule 1 read with section 104, C. P. C. and jurisdiction to hear appeal from that order as per Letters Patent was found by their Lordships at the forum of a Division Bench of the same High Court. To guard ourselves against being misunderstood, we would, however, say that we need not be understood as agreeing with everything said in Kunwarji Sonkar (supra). Appellants counsel have cited Pushkarnath : AIR 1987 SC 1311 wherein it Was held that a judgment delivered by Single Judge of the High Court granting a writ of mandamus was a judgment delivered in exercise of original Civil jurisdiction of the J & K High Court and the order of the learned Single Judge was, thus, appealable under clauses 10 and 12 of Letters Patent (J & K). We fail to understand how any assistance can be derived from this decision by the appellants inasmuch as it supports the view we have taken in this case. Indeed, on facts, the decision is not all applicable to the instant case as the learned Single Judge was not exercising in that case appellate jurisdiction under the Code of Civil Procedure, but he was admittedly exercising Original Civil Jurisdiction.

13. Much stress was laid by counsel for the appellants on paragraphs 10, 85, 113, 120, and 123 of the Report in the case of Shah Babulal (supra) which we have carefully considered. Suffice it to say that in so far as the decision is pressed in support of the contention that the view of this Court on the interpretation of the term "judgment" its earlier decision is impaired, we reiterate that we need not address ourselves to that question, for reasons earlier stated. The decision in Shanti Kumar : AIR 1974 SC 1719 , is also pressed by appellants counsel with the same object because the Full Bench decision in Manohar Damodar Bhut (supra) was considered in that case and the view of the Full Bench on the interpretation of the term "judgment" disapproved. We do not consider it necessary to examine as to what extent Manohar Damodar Bhut (supra) stands overruled. Shrichand Komalchand : 1979 JLJ 180 : 1979 MPLJ 170, is a Division Bench decision of this Court which is also pressed in service, but it is also on the other aspects of interpretation of the term "judgment". We do not consider necessary, therefore, to say anything on it. Respondents counsel have also cited decision of this Court on the interpretation of the term "judgment" which supports the view expressed in Kunwarji Sonkar (supra), but, for reasons earlier alluded, we consider it unnecessary to examine the views expressed in those cases. Suffice it to note that in the three D. B. judgment cited by counsel, the consistent view expressed by this Court is that a judgment of a learned Single Judge of this Court in an appeal arising out of a temporary injunction matter is not a "judgment", appealable under clause 10 of the Letters Patent. (See Punjab Soap works. : AIR 1962 MP 356 ; Sharifullah Khan 1965 MPLJ SN 163; Caltex Oil Refiners 1981 (1) MPWN 163.

14. Appellants counsel also placed reliance on the decision in Asha Devi : AIR 1974 SC 2048 , reading which, if we have to take any view, we must say that the decision fortifies the conclusion we have reached on the interpretation of Clause 10. Although the passage which appears in the second column of para 2 of the Report, appearing at page 2049 was stressed, what is to be read therein, supports merely the view we have taken inasmuch their Lordships observed, "there is no dispute that an appeal lies to a Division Bench of the High Court from the judgment of a Single Judge of that Court in appeal from a judgment or decree of a Court subject to the superintendence of the High Court". Indeed, in Asha Devi (supra), the question was of power of a Division Bench hearing a Letters Patent Appeal under clause 10 and it was held that a Letters Patent Courts power was not limited by the provisions of sections 100 and 101, C. P. C. because a Single Judge of the High Court cannot be said to be a Court subordinate to the High Court.

15. In the premises aforesaid, we are of the view that clause 10 of the Letters Patent does not contemplate a second appeal in derogation of the provisions of sections 104-106, C. P. C. against an order passed under order 43 Rule 1, C. P. C. by a single Judge of the same Court. A Division Bench of the High Court would not be authorised, therefore, under clause 10 of the Letters Patent, to hear an appeal from an order passed by a learned Single Judge of this Court in appeal against trial Courts order passed under order 43, Rule 1 (r), C. P. C. In the instant case the impugned orders being such orders we have no jurisdiction to hear appeals against those orders. All the three appeals must, therefore, be held as not maintainable in law.

16. In the result, the appeals stand dismissed as not maintainable. There shall, however, be no order as to costs in any of the appeals.

17. This order shall also govern disposal of Letters Patent Appeal Nos. 6 and 7 of 1987.