Research › Browse › Judgment

Madhya Pradesh High Court · body

1986 DIGILAW 114 (MP)

DEVA v. DURGASHANKAR

1986-04-09

G.G.SOHANI, J.S.VERMA, S.S.SHARMA

body1986
SOHANI, J. ( 1 ) ON a reference made by a Division Bench, this Full Bench has been constituted to decide the following question :-"whether an appeal under Clause 10 of the Letters Patent lies to a Division Bench of this Court against the judgment of a single Judge disposing of a petition under Art. 226 of the Constitution"? ( 2 ) THE facts giving rise to this reference, briefly, are as follows : Under the rules of this High Court certain petitions under Art. 226 of the Constitution are heard by a Single Judge of this Court. Aggrieved by the final decision given by a learned single Judge in such petition, an appeal was preferred under Clause 10 of the Letters Patent constituting this High Court. When that appeal came up for hearing before a Division Bench of this Court, a preliminary objection was raised as to the maintainability of the appeal. Reliance was placed on a decision of a Division Bench of this Court in L. P. A. 16/85 (reported in 1986 Lab IC 640 ). (National Textile Corporation (MP) Limited, Indore v. Radheshyam Suroliya.) The Division Bench which heard this appeal, rioted that on the question of maintainability of an appeal under Cl. 10 of the Letters Patent, from an Order disposing of a petition under Art. 226 of the Constitution, there was a conflict in two Division Bench decisions of this Court In Laxmi Kumari Devi v. Radhakishan Mataram Marwadi, 1961 MPLJ 1403, a Division Bench had held that an appealfrom the decision of a single Judge disposing of a petition under Article 226 of the Constitution was maintainable under CL 10 of the Letters Patent. However, in LP. A. 16/85, another Division Bench of this court was of the opinion that an appeal under Cl. 10 of the Letters Patent from the decision of single Judge in a petition under Art. 226 of the Constitution was not maintainable. As, there was thus, a conflict between the two Division Bench decisions of this Court to resolve that conflict the aforesaid question was referred to a Larger Bench and that is how this question has come up before us for consideration. ( 3 ) BEFORE we proceed to answer the question referred to us, it is necessary to note certain facts. ( 3 ) BEFORE we proceed to answer the question referred to us, it is necessary to note certain facts. Clause 10 of the Letters Patent constituting this court corresponds to CL 15 of the Letters Patent constituting the High Court of Bombay and Calcutta. Under that clause an appeal lies from a judgment of one Judge of the High Court pursuant to S. 108 Government of India Act, 1915, provided the judgment does not fall in any such category as is specified in that behalf in Clause 10. It therefore, follows that an appeal from a decision of a single Judge to a Division Bench is maintainable if two conditions are satisfied (1) that the decision amounts to a judgment not falling in any category specified in CL 10 of the Letters Patent from which no appeal lies and (2) that the judgment is pursuant to S. 108 of the government of India Act, 1915. It was not and could not be disputed before us that a decision given by a single Judge disposing of a petition under Art 226 of the Constitution amounts to a judgment within the meaning of Cl. 10 of the Letters Patent. Such judgment does not fall in any category excepted by cl. 10 from the purview of appeals. The main controversy in this case centres round the question as to whether such judgment is pursuant to Sec. 108 of the Government of India Act, 1915. ( 4 ) NOW under S. 108 of the Government of India Act, 1915, each High Court was empowered to frame rules providing for the exercise by one or more Judges of the original and appellate jurisdiction vested in the Court The question as to whether the power vested in the High Court under S. 108 of the Government of India Act, 1915 could only be exercised in respect of the jurisdiction which the High Court possessed on the date when the Act of 1915 came into force, came up for consideration before the Supreme Court in National Sewing Thread Co. Ltd. , Chidambaram v. James Chadwick and Bros. Ltd. , AIR 1953 SC 357 . Ltd. , Chidambaram v. James Chadwick and Bros. Ltd. , AIR 1953 SC 357 . Dealing with that question, the Supreme Court held as follows :-"it is thus difficult to accept the argument that the power vested in the High Court under sub-s. (1) of S. 108 was a limited one, and could only be exercised in respect to such jurisdiction as the High Court possessed on the date when the Act of 1915 came into force. The words of the sub-section "vested in the Court" cannot be read as meaning "now vested in the Court". It is a well known rule of construction that when a power is conferred by a statute that power may be exercised from time to time when occasion arises unless a contrary intention appears. This rule has been given statutory recognition in S. 32, Interpretation Act The purpose of the reference to S. 108 in Cl. 15 of the Letters Patent was to incorporate that power in the charter of the Court itself, and not to make it moribund at that stage and make it rigid and inflexible. We are, therefore, of the opinion that S. 108 of the Government of India Act 1915 conferred power on the High Court which that Court could exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act 1915 or whether conferred on it by any subsequent legislation. It was argued that simultaneously with the repeal of Section 108, Government of India Act 1915 and of the enactment of its provisions in Section 223, Government of India Act of 1935 and later on in Article 225 of the Constitution of India there had not been any corresponding amendment of Cl. 15 of the Letters Patent and the reference to S. 108 in Cl. 15 of the Letters Patent could not therefore, be taken as relating to these provisions, and that being so, the High Court had no power to make rules in 1940 when the Trade Marks Act was enacted under the repealed section and the decision of Mr. Justice Shah, therefore, could not be said to have been given pursuant to S. 108. Justice Shah, therefore, could not be said to have been given pursuant to S. 108. This objection also in our opinion is not well founded as it overlooks the fact that the power that was conferred on the High Court by S. 108 still subsists and it has not been affected in any manner whatever either by the Government of India Act 1935 or by the new Constitution. On the other hand, it has been kept alive and reaffirmed with great vigour by these statutes. The High Courts still enjoy the same unfettered power as they enjoyed under S. 108 of the Government of India Act 1915 of making rules and providing whether an appeal; has to be heard by one judge or more judges or by Division Courts consisting of two or more judges of the High Court. It is immaterial by what label or nomenclature, that power is described in the different statutes or in the Letters Patent. The power is there and continues to be there and can be exercised in the same manner as it could be exercised when it was originally conferredandquot. In spite of the aforesaid observations it was strenuously contended before us by Shri Sanghi and Shri Saxena, the learned counsel for the respondents, that a judgment given by a single Judge of this court in pursuance of rules framed by this High Court providing for the exercise of jurisdiction vesting in this Court under Art 226 of the Constitution, could not be held to be a judgment pursuant to S. 108 of the Government of India Act, 1915 and hence, was not appealable under CL 10 of the Letters Patent In our opinion, the aforesaid contention cannot be upheld in view of the fact that the matter is concluded by the decision of the Supreme Court in AIR 1953 SC 357 (Supra ). In view of that decision, reference in Cl. 10 of the Letters Patent of this Court to S. 108 of the Govt. of India Act, 1915 has got to be read as a reference to the corresponding provision of the Constitution, which is Art. 225 of the Constitution. ( 5 ) IT was then contended that the jurisdiction exercised by a single Judge under Art 226 of the Constitution was a special jurisdiction and not original jurisdiction. In this connection, we may usefully refer to the. ( 5 ) IT was then contended that the jurisdiction exercised by a single Judge under Art 226 of the Constitution was a special jurisdiction and not original jurisdiction. In this connection, we may usefully refer to the. following observations in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946 :"it is, therefore, clear from the nature of the power conferred under Art. 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Art. 226 of the Constitution, exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court This jurisdiction, though original in character, as contrasted with its appellate and revisional jurisdiction, is exercisable throughout the territories in relation to which itexercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction". It is thus clear that the High Court in exercise of its powers under Article 226 of the Constitution exercises extraordinary original jurisdiction. Such jurisdiction is civil and not criminal. An order passed by a learned single Judge disposing of a petition under Art 226 of the Constitution, thus amounts to a judgment from which an appeal lies under CL 10 of the Letters Patent. ( 6 ) THE learned counsel for the respondents, however, laid great stress on an observation of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786 . It seems that the learned Judges of the Division Bench, who decided Letters Patent Appeal No. 16 of 1985 (reported in 1986 Lab IC 640) were also of the opinion that the said observations of the Supreme court in AIR 1981 SC 1786 (Supra) laid down in unambiguous terms that proceedings under Art. 226 of the Constitution are not governed by Letters Patent but by rules framed under the Civil P. C. and that in the absence of any rule providing an appeal from , the decision of a single Judge, no appeal to a Division Bench of the High Court was maintainable. It is therefore, necessary to turn to the decision of the Supreme Court in AIR 1981 SC 1786 (supra) to ascertain what was laid down by that decision. It is therefore, necessary to turn to the decision of the Supreme Court in AIR 1981 SC 1786 (supra) to ascertain what was laid down by that decision. ( 7 ) NOW the facts in AIR 1981 SC 1786 (supra) were these; In a suit filed on the original side of the Bombay High Court, the plaintiff had prayed for an interim relief for grant of temporary injunction and for appointment of a receiver of the suit property. The single Judge dismissed that application. Aggrieved by that order, the plaintiff filed an appeal before the Bombay High Court, which was dismissed as not maintainable on the ground that the impugned order of the single Judge was not a 'judgment', as contemplated by Cl. 15 of the Letters Patent. Hence, the plaintiff preferred an appeal before the Supreme Court. The Supreme Court held that S. 104, CPC read with O. 43 R. 1, CPC clearly applied to the proceedings before the trial Judge of the High Court and to the internal appeals in the High Court. The Supreme Court further held that the orders contemplated by O. 43 R. 1 C. P. C. possess the attributes or character of the finality so as to be 'judgments' within the meaning of Cl. 15 of the Letters Patent constituting the Bombay High Court and hence, appealable to a larger Bench. The Supreme Court also formulated guidelines to decide whether an order passed by a trial Judge does or does not amount to a judgment and referred to various interlocutory orders passed by a trial Judge in a suit which, in the opinion of the Supreme Court, amounted to judgments. The question as to whether any order passed by a trial Judge in the proceeding under Art. 226 of the Constitution would or would not be appealable to a larger Bench, did not at all arise for consideration before the Supreme Court in that case nor did the Supreme Court consider it necessary to give its opinion on that question. In High Courts, which are not constituted by Letters Patent proceedings under Art. 226 of the Constitution are not governed by Letters Patent but by rules framed under the Code of Civil Procedure. In High Courts, which are not constituted by Letters Patent proceedings under Art. 226 of the Constitution are not governed by Letters Patent but by rules framed under the Code of Civil Procedure. In such proceedings, a question may arise as regards maintainability of an appeal from an order passed by a single Judge, when the rules of that High Court empower a single judge to hear a petition under Art. 226 of the Constitution. The Supreme Court did not want toexpress any opinion on that question as the Supreme Court in AIR 1981 SC 1786 (supra) was dealing with the question of maintainability of an appeal from an interlocutory order passed in a civil suit on the original side of the Bombay High Court, which is constituted by Letters Patent. With a view to clarify this position, the Supreme Court observed in para 125 of its judgment in AIR 1981 SC 1786 (Supra) as follows : -"before closing this judgment, we may indicate that we have refrained from expressing any opinion on the nature of any order passed by a trial Judge in any proceeding under Art. 226 of the Constitution which are not governed by the Letters Patent but by rules framed under the Code of Civil Procedure under which, in some High Courts, writ petitions are heard by a Division Bench. In other High Courts, writ petitions are heard by a Single Judge and a right of appeal is given from the order of the Single Judge to the Division Bench after preliminary hearing. "the aforesaid observations cannot be construed to mean that the Supreme Court was laying down the principle that even though certain High Courts might have been constituted by the Letters Patent, proceedings under Art. 226 of the Constitution in those High Courts, are not governed by Letters Patent and that an appeal from a decision of a Single Judge in such High Court in a petition under Art. 226 of the Constitution would, in no case, be maintainable under the Letters Patent. It is true, as urged on behalf of the respondents, that even an obiter dictum of the Supreme Court is binding on this Court but before it could be held to be binding, it should be possible to spell out such dictum from the judgment of the Supreme Court. It is true, as urged on behalf of the respondents, that even an obiter dictum of the Supreme Court is binding on this Court but before it could be held to be binding, it should be possible to spell out such dictum from the judgment of the Supreme Court. In our opinion, the Supreme Court has not decided any principle whatsoever in para 125 of its judgment. All that the Supreme Court has observed is that having formulated tests to decide whether an order passed in a suit should or should not be treated as judgment, the Supreme Court should not be held to have expressed any opinion on the question as to whether any order passed by a trial Judge, in such proceedings, under Art. 226 of the Constitution of India as are governed by rules framed under the Civil P. C. and not by the Letters Patent, would or would not amount to judgment. As already observed, many High Courts are not constituted by Letters Patent, and that rules under Civil P. C. have been framed by these High Courts to govern proceedings under Art. 226 of the Constitution. In deciding the question of maintainability of appeals from orders arising out of those proceedings, the guidelines formulated by the Supreme Court for deciding the question as to whether any order passed in any suit would or would not amount to judgment were likely to be pressed into service. The Supreme Court, however, wanted to leave that question open and with a view to make it very clear that it was leaving that question open, the Supreme Court expressly stated that it was refraining from expressing any opinion in that behalf. With great respect to the learned Judges, who decided Letters Patent Appeal No. 16 of 1985 (reported in 1986 Lab IC 640) (Madh Pra), we are of the opinion that from the observations of the Supreme Court in para 125 of its judgment in AIR 1981 SC 1786 (supra), it cannot be deduced that the Supreme Court has expressed any opinion on the question of maintainability of an appeal under Letters Patent from a decision of a single Judge in a proceeding under Article 226 of the Constitution in a High Court, constituted by a Letters Patent. ( 8 ) THE decision in Mt. ( 8 ) THE decision in Mt. Sabitri Thakurain v. Savi, AIR 1921 PC 80, referred to in the decision in Letters Patent Appeal No. 16 of 1985, dealt with the question of applicability of the regulations duly made by orders and rules under the Code of Civil Procedure, 1908, to the jurisdiction exercisable under the Letters Patent It was for this reason that a reference was made to that decision in AIR 1981 SC 1786 (supra ). Neither the decision in AIR 1921 PC 80 (supra) nor the decision in AIR 1981 SC 1786 (supra) has, in our opinion, any bearing on the question of maintainability of an appeal under cl. 10 of the Letters Patent from the decision of a single Judge disposing of a petition under Art. 226 of the Constitution. ( 9 ) HAVING given our anxious consideration to the matter, we have come to the conclusion that the decision in Letters Patent Appeal No. 16 of 1985 (reported in 1986 Lab 1c 640) does not lay down correct law. Therefore, our answer to the question referred to us is that an appeal under cl. 10 of the Letters Patent lies to a Division Bench of this Court from the judgment of a Single Judge disposing of a petition under Art. 226 of the Constitution. The matter shall now be placed before the Division Bench for deciding the appeal. In the circumstances of the case, parties shall bear their own costs of this reference. Order accordingly. .