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2008 DIGILAW 427 (UTT)

ACME TELE POWER LTD. v. SINTEX INDUSTRIES LTD.

2008-09-17

J.C.S.RAWAT, V.K.GUPTA

body2008
JUDGMENT Hon’ble V.K. Gupta, C.J. This common order is being passed in both the Appeals. 2. In Special Appeal No. 131 of 2008, order dated 30th June, 2008, passed by the learned Single Judge of this Court, rejecting the Temporary Injunction Application filed by the appellant/plaintiff in Original Suit No. 02 of 2008, is under challenge. 3. In Special Appeal No. 67 of 2008, order dated 11th April, 2008, whereby the learned Single Judge of this Court has affirmed the ex-parte ad interim injunction earlier granted in favour of respondent No. 1 in Original Suit No. 01 of 2008, is under challenge. 4. Whereas in Special Appeal No. 131 of 2008, the appellant is aggrieved of the denial of Temporary Injunction to it by the learned Single Judge, in Special Appeal No. 67 of 2008, the appellants are aggrieved of the grant of Temporary Injunction in favour of respondent No. 1/plaintiff. In other words, in both the Appeals, orders on Temporary Injunction Applications have been passed by the learned Single Judge in the aforesaid two Original Suits. It will not be out of place to mention here that both the aforesaid Original Suits are being tried in this Court on the original side as were transferred to this Court in terms of Section 104 of the Patents Act, 1970 because the counter-claims, filed by the defendants in the said Suits originally filed in the court of District Judge, Udham Singh Nagar, had also come up for consideration. 5. At the very outset, an objection has been raised about the maintainability of these Special Appeals. On 4th & 5th September, 2008, we had heard detailed arguments of the learned counsel for the parties with respect to the limited issue of maintainability of these two Special Appeals filed against the two impugned orders passed in the Temporary Injunction Applications. By this common judgment, we propose to decide the limited question of maintainability of the Appeals. 6. The Appeals have been filed under Rule 5 contained in Chapter VIII of the Allahabad High Court Rules, 1952 (hereinafter to be referred as ‘1952 Rules’), as these are applicable to the High Court of Uttarakhand. Rules 5 reads thus : “5. Special appeal. 6. The Appeals have been filed under Rule 5 contained in Chapter VIII of the Allahabad High Court Rules, 1952 (hereinafter to be referred as ‘1952 Rules’), as these are applicable to the High Court of Uttarakhand. Rules 5 reads thus : “5. Special appeal. — An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award – (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act) of one Judge.” 7. What are the cases in which Special Appeals against the judgments of the Single Judges to the Division Benches are contemplated and maintainable and what are those cases where these appeals are not maintainable, has been the subject matter of controversy and discussion for a long time. In the celebrated judgment of Vajara Yojna Seed Farm, Kalyanpur (M/s) and others Vs. Presiding Officer, Labour Court II, U.P. Kanpur and others, reported in (2003) 1 UPLBEC 496 (also reported in 2003 All L.J. 883), a detailed and comprehensive history of Legislation has been traced by the Hon’ble Judges of Allahabad High Court comprising the Division Bench. This Judgment was followed and relied upon by subsequent Division Bench judgment of Allahabad High Court in the case of P.D. Jaiswal Vs. Sri Dwarikadhish Temple Trust, Kanpur & another, reported in AIR 2006 Allahabad 259. 8. This Judgment was followed and relied upon by subsequent Division Bench judgment of Allahabad High Court in the case of P.D. Jaiswal Vs. Sri Dwarikadhish Temple Trust, Kanpur & another, reported in AIR 2006 Allahabad 259. 8. Letters Patent of the High Court of Allahabad dated 17th March, 1866 contained Clause 10 which provided that an appeal was maintainable from a judgment of a Single Bench to a Division Bench of Allahabad High Court, except with respect to some specified categories of judgments mentioned in Clause 10 itself. For ready reference, Clause 10 of said Letters Patent dated 17th March, 1866 is reproduced hereunder, which reads thus : “10. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Allahabad from the judgment (not being a judgment passed in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed of made in the exercise of the power of superintendence under the provision of section 107 of the Government of India Act, or in the exercise of Criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act. Made on or after the first day of February one thousand nine hundred and twenty nine 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 appeal: but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or successors or Our or Their Privy Council, as hereinafter provided.” 9. U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 (U.P. Act No. XIV of 1962) [hereinafter to be referred as ‘1962 Act’] was enacted by the U.P. Legislature with a view to provide for abolition of Letters Patent Appeals in some types of cases in the High Court of Allahabad. The Statement of Objects and Reasons of this Act envisaged, after noticing that the law as it existed before the enactment of the aforesaid 1962 Act catered for multiplicity of appeals due to the existence of the provisions in the Letters Patent. The 1962 Act, therefore, intended to provide for the abolition of these Letters Patent appeals in some types/classes of cases. For ready reference, Statement of Objects and Reasons of 1962 Act is reproduced hereunder, which reads thus : “STATEMENT OF OBJECTS AND REASONS. – The present law makes for multiplicity of appeals due to the provisions for appeals under the Letters Patent of the High Court, resulting in the inconvenience and expense to the litigants besides causing delay in the final disposal of a suit. This Bill is, therefore, intended to provide for the Abolition of Letters Patent Appeals is against appellate jurisdiction of Single Judges in the High Court of Judicature at Allahabad.” 10. The 1962 Act, after its original enactment, underwent some amendments from time to time and, accordingly, Rule 5 of Chapter VIII of 1952 Rules, in conforming with the periodical amendments in 1962 Act, also underwent some amendments, but the Rule, which we have reproduced in the earlier part of this judgment, is the one which is up-to-date. It is noteworthy to mention here that 1952 Rules were framed by the High Court of Allahabad in exercise of the power conferred upon that Court by Article 225 of the Constitution of India. 11. It is noteworthy to mention here that 1952 Rules were framed by the High Court of Allahabad in exercise of the power conferred upon that Court by Article 225 of the Constitution of India. 11. By tracing in brief the aforesaid Legislative History leading to the enactment of 1962 Act as well as the framing of Rule 5 of 1952 Rules, both of which have substantially, explicitly as well as by necessary implication, modified Clause 10 of the Letters Patent dated 17th March, 1866, what emerges is that presently appeals which relate to or arise out of the following categories, classes, or types of judgment/cases : (i) Judgments passed by a Single Bench in exercise of the appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the High Court; (ii) Judgments passed by a Single Judge in exercise of the revisional jurisdiction; (iii) Judgments passed in the exercise of the power of superintendence of the High Court (Single Judge) under Article 227 of the Constitution of India; (iv) Judgments passed in exercise of criminal jurisdiction; (v) Any judgment passed by a Single Judge either under Article 226 or Article 227 of the Constitution of India if it relates to or arises out of any judgment or order :- (a) passed by a court, tribunal or statutory arbitrator while exercising jurisdiction under any U.P. Act (read Uttarakhand Act) or a Central Act with respect to any matter enumerated in the State List or the Concurrent List of the Seventh Schedule of the Constitution of India; and (b) passed by the Government, any Officer, or any Authority of the Government in the exercise of appellate or revisional jurisdiction vesting in the said Government, the said Officer, or the said Authority under any U.P. Act (read Uttarakhand Act) or a Central Act with respect to any matter enumerated in the State List or the Concurrent List of the Seventh Schedule of the Constitution of India. 12. All judgment except the categories and types of judgments mentioned above passed by a Single Judge are appealable to a Division Bench of the High Court. In other words, if a judgment does not fall in anyone of the aforesaid categories and is passed by a Single Judge, it is appealable to a Division Bench of the High Court. 12. All judgment except the categories and types of judgments mentioned above passed by a Single Judge are appealable to a Division Bench of the High Court. In other words, if a judgment does not fall in anyone of the aforesaid categories and is passed by a Single Judge, it is appealable to a Division Bench of the High Court. We are fortified in this view of ours by a aforesaid two Division Bench judgments of Allahabad High Court in the cases of Vajara Yojna Seed Farm, Kalyanpur (M/s) and others Vs. Presiding Officer, Labour Court II, U.P., Kanpur and others, (supra) and P.D. Jaiswal Vs. Sri Dwarikadhish Temple Trust, Kanpur & another (supra). 13. We present this picture in a slightly different, more elaborate manner. By now and for long it is a well settled proposition of law that no appeal lies as matter of right and an appeal is maintainable only if a statute creates a right of appeal upon a party aggrieved of a judgment passed by a lower court. In the absence of a statutory creation of the right of appeal, an appeal is not maintainable. In the present case, as the legislative history would bear testimony, appeals from the judgments of Single Judges to the Division Benches of Allahabad High Court were maintainable in terms of Clause 10 of the Letters Patent until the coming into force of 1962 Act, when the right of appeal was curtailed as itself provided in 1962 Act. Rule 5 (supra) correspondingly and in conformity with 1962 Act also accordingly curtailed the right of appeal, both 1962 Act as well as Rule 5 superseding to the extent indicated therein Clause 10 of the Letters Patent. 1962 Act is a plenary, substantive piece of legislation, it having been enacted by a competent Legislature and Rule 5, being a part of 1952 Rules, is also a valid piece of legislation, framed in terms of Article 225 of the Constitution of India. 14. It is under the aforesaid two laws that the curtailed, limited, abridged right of appeal now is available. The curtailment, the abridgment and the limitation to the right of appeal is with respect to the excluded categories of cases in which the appeals are not maintainable. If one takes out the excluded categories of cases (as an exception), in all other cases the appeals are maintainable. The curtailment, the abridgment and the limitation to the right of appeal is with respect to the excluded categories of cases in which the appeals are not maintainable. If one takes out the excluded categories of cases (as an exception), in all other cases the appeals are maintainable. Whenever, therefore, a question might arise as to whether an appeal in this High Court against the judgment of a Single Judge is maintainable or not, one has to look at the aforesaid five categories of excluded, excepted cases. If the judgment sought to be challenged in the appeal falls in anyone of the said categories of cases, the appeal is not maintainable. If, however, the judgment under challenge in the appeal does not come or fail within the aforesaid five categories, the appeal undoubtedly is maintainable. 15. Mr. V.K. Kohli, learned Senior Counsel appearing for the respondents in Special Appeal No. 131 of 2008, submitted that the order under challenge in this appeal passed by the learned Single Judge on 30th June, 2008 does not have the trappings of a judgment, and is not a judgment as contemplated by Rule 5 (supra) and, therefore, it is not appealable. In the case of Shah Babulal Khimji Vs. Jayaben D. Kania and another reported in (1981) 4 S.C.C. 8, it has been observed as under : “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. Indeed, if this is the position then the contention of the respondent that Section 104 will not apply to internal appeals in the High Courts cannot be countenanced. Indeed, if this is the position then the contention of the respondent that Section 104 will not apply to internal appeals in the High Courts cannot be countenanced. In fact, the question of application of the Code of Civil Procedure to internal appeals in the High Court does not arise at all because the Code of Civil Procedure merely provides for a forum and if Order 43 Rule 1 applies to a trial Judge then the forum created by the Code would certainly include a forum within the High Court to which appeals against the judgment of a trial Judge would lie. It is obvious that when the Code contemplates appeals against orders passed under various clauses of Order 43 Rule 1 by a trial Judge, such an appeal can lie to a larger Bench of the High Court and not to any court subordinate to the High Court. Hence, the argument that Order 43 Rule 1 cannot apply to internal appeals in the High Court does not appeal to us although the argument has found favour with some of the High Courts.” 16. It was also observed : “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 authorizes 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. 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. Take, for instance, a case under the Arbitration Act. Suppose in a suit the matter is referred to arbitration and after the award is filed by the Arbitrator certain objections are taken, under Section 39 of the Arbitration Act an appeal would lie to a larger Bench from the order of a Single Judge disposing of the objections taken by the parties against the award. Section 39 runs thus : 39. Appealable orders. – (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 decree of the court passing the orders : An Order – (i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an 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 the section shall not apply to any order passed by a Small Cause Court. (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.” 17. It was further observed as under :- “34. It cannot be contended by any show of force that the order passed by the trial judge being an interlocutory order, no appeal would lie to the Division Bench or that the provisions of the Arbitration Act giving a right of appeal to a litigant from the order of a trial Judge to the Division Bench in any way fetter or override the provisions of the letters patent.” 18. After culling out various relevant aspects in a very detailed and comprehensive Judgment, their Lordships went on to observe as under : “115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment. 116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the letters patent. Suppose the trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory, it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the letters patent. This is what was held by this Court in Shanti Kumar’s case, as discussed above.” 19. In the subsequent judgment in the case of Jugal Kishore Paliwal Vs. S. Sat Jit Singh and another reported in (1984) 1 S.C.C. 358, by referring to and relying upon Shah Babulal Khimji Vs. Jayaben D. Kania and another (supra), their Lordships made the following pertinent observation : “All that was held by the Supreme Court in Babulal Khimji case was that Letters Patent does not exclude or override the application of Section 104 read with Order 43, Rule 1, CPC. This only means that in interpreting the word judgment in Letters Patent broadly the ‘orders’ mentioned in Order 43 Rule 1 would be construed as judgment and appealable. But the reverse does not automatically follow. This only means that in interpreting the word judgment in Letters Patent broadly the ‘orders’ mentioned in Order 43 Rule 1 would be construed as judgment and appealable. But the reverse does not automatically follow. That an order which are appealable under Section 10 of the Delhi High Court Act should not be limited by Order 43 but be given the general meaning given to the word ‘judgment’ under Letters Patent is not part of the ratio of Babulal Khimji case. The thrust of the decision was merely that Order 43 was not excluded by Letters Patent. What has now in effect been held by the Supreme Court is that not only an order under Order 43 but all orders and judgments become appealable under the Delhi High Court Act. Curiously both in the instant case and even in Babulal case on which reliance has been placed there is no reference to the full bench decision of the Delhi High Court. The Delhi High Court was not unaware that appeals under Letters Patent judgment have been interpreted very liberally and not confined within the contours of Order 43, Rule 1. Nevertheless it took the view that in 1966 the Legislature clearly did not intend to introduce substantive change except the change of forum for civil matters of a certain valuation by enacting that they be tried by the High Court rather than by the subordinate courts.” 20. Dealing specifically with the question as to whether an order relating to the amendment of the Written Statement was appealable or not, their Lordships held as under : “2. In the instant case as the amendment of the written statement was sought at the time of framing issues and it vitally affects the right of the parties and seeks to work some injustice to the plaintiff, it merits serious consideration by the appellate court on the question whether or not amendment should be allowed. It would certainly not be a purely interlocutory order against which no appeal before the LPA bench would be maintainable. More than this we would not like to say at this stage as we intend to send the case back to the division bench for admitting the appeal and disposing it of according to law on merits. It would certainly not be a purely interlocutory order against which no appeal before the LPA bench would be maintainable. More than this we would not like to say at this stage as we intend to send the case back to the division bench for admitting the appeal and disposing it of according to law on merits. The order of the division bench dated April 1, 1982 is set aside and the division bench is directed to admit the appeal and decide it on merits in accordance with law and in the light of the observations made above. We would request the High Court to decide the appeal as early as possible as the suit is still pending. The appeal is accordingly allowed.” 21. In view of the clear ratio laid down in the aforesaid two judgments, we have no doubt in our minds that the impugned orders in both the Appeals, whereby the learned Single Judge has disposed of the Temporary Injunction Applications, in one case granting the temporary injunction and in the other case refusing to do so, decided matters of moment which affected vital and valuable rights of the parties in the two Suits. Both the orders impugned in both the Appeals, therefore, are judgments within the meaning of the expression “Judgment” as occurring in Rule 5 (supra). 22. Based upon the aforesaid reasoning, we have no hesitation in holding that the Special Appeals filed under Rule 5 (supra) are maintainable. 23. Heard the learned counsel for the parties with respect to the admission of the Appeals. Both the Appeals are admitted to hearing. 24. List on 14th October, 2008 for further proceedings.