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2015 DIGILAW 41 (GUJ)

ARCHANABEN v. NIMESHBHAI HARJIVANDASBHAI PATEL

2015-01-13

A.G.URAIZEE, K.S.JHAVERI

body2015
JUDGMENT : K.S. JHAVERI, J. 1. By way of filing these appeals under Clause 15 of the Letters Patent, the appellants – original respondents of Misc. Civil Applications No.1174 and 1175 of 2013 have challenged the order passed by the learned Single Judge whereby the learned Single Judge has allowed the transfer petitions while in other appeal, the learned Single Judge has rejected the transfer application. 2. Mr. Vivek Bhamare, learned advocate appearing for Mr. Y.N. Ravani, learned advocate for the respondent has raised a preliminary objection about the maintainability of the writ petition in view of the decision of the Supreme Court in the case of Asrumati Debi, Appellant v. Kumar Rupendra Deb Raikot and others, Respondents, AIR 1953 SC 198 wherein in paragraphs 12, 13 and 15 it is observed as under: “12. As stated already, it is not our purpose in the present case to frame an exhaustive definition of the word' judgment' as used in Cl. 15 of the Letters Patent. We have indicated what the essential features of a 'judgment' are according to both the Calcutta and the Madras High Courts and all that we need say is, that in our opinion, an order under Cl. 13 of the Letters Patent does not satisfy the tests of a 'judgment' as formulated by either of these High Courts. 13. The question that requires determination in an application under Cl. 13 of the Letters Patent is, whether a particular suit should be removed from any Court which is subject to the superintendence of the High Court an tried and determined by the latter as a Court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the 'Court. In the present case, a Single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a judgment. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the Court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another Court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under Cl. 13 of the Letters Patent, is, in the first place, not at all an order made by the Court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter, to be taken only from the stage at which they were left in the Court in which the suit was originally filed. 15. Leave granted under Cl. 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that such order would be a judgment. If, on the other hand, an order is made dismissing, the Judge's summons to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed off vide 29 Bom. 249 (P), that a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against him so far as the court making the order is concerned. This brings the order within the category of a 'judgment' as laid down in the Calcutta cases. We need not express any final opinion as to the propriety or otherwise of this view. This brings the order within the category of a 'judgment' as laid down in the Calcutta cases. We need not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is a difference between an order refusing to rescind leave granted under Cl. 12 of the Letters Patent and one under Cl. 13 directing the removal of a suit from one Court to another, and there is no good reason to hold that the principle applicable to one applies to the other also.” The same view is taken by the Karnataka High Court in the case of M.V. Ganesh Prasad, Petitioner v. M.L. Vasudevamurthy and others, AIR 2003 Kar. 39 . 3. However, Mr. Majmudar and Mr. Parth Divyeshwar, learned advocate for the appellants have contended that the appeal is maintainable. They have relied upon the decision of the Apex Court in the case of P.S. Sathappan (Dead) by L.Rs., Appellant v. Andhra Bank Ltd. and others, 2004 11 SCC 672 para 30 and decision of the Full Bench of Kerala High Court reported in 2006 Kerala 15 FB page 58. In the case of P.S. Sathappan (supra) the Five Bench Constitution Bench has held as under in paragraph 30: “30. 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 Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. 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 Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. As Appeals under 'any other law for the time being in force' undeniably include a Letters Patent Appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in sub-clause (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a Letters Patent Appeal. However when Section 104(1) specifically saves a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in 104(2) that a Letters Patent Appeal is also prohibited. It is for this reason that Section 4 of the Civil Procedure Code provides as follows :- "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 statute 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 case, 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. 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 case, 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 is 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. 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.” In AIR 2006 Kerala 58 the Full Bench of Kerala High Court has held as under:- “12. In Sanganbhat v. Vasudev, AIR 1976 Kant 229 it was held that order passed under Section 24, CPC when made by a single Judge of the High Court, such order is not appealable under Section 4 of the Karnataka High Court Act. The Court was only considering the question whether it should be considered in the appellate side or original side. Court relied upon the decision of the Madras High Court wherein it was held that even though an application under Section 24, CPC is in the nature of original proceeding, since only appeal is provided against judgement under the Letters Patent and application under section 24, IPC is to be treated as one to be filed on the appellate side and appeal will not lie. We are concerned with the Kerala High Court Act and rules made thereunder. Application under Section 24, CPC when filed before the High Court, it is a proceeding of this Court in its original jurisdiction. Notice shall be issued and Court has to pass orders after giving an opportunity to both sides for hearing, it cannot be stated that none of the rights of the parties are affected. For example, in M.F.A. No. 101 of 2004, according to the petitioner therein, a retired lady teacher aged about 80 years, who is staying in Kannur district sought for a transfer of the case from the family Court in Trichur district, more than 200 Km. from her native place, to Kannur. She has nobody to accompany her to Trichur. Her application was dismissed. Can anybody say that her rights are not affected by rejecting her application to transfer the case from Thrissur to Kannur. Whether her application is justifiable or not has to be considered when appeal is decided. We are not expressing any view on the merits of that application in this judgement. Her application was dismissed. Can anybody say that her rights are not affected by rejecting her application to transfer the case from Thrissur to Kannur. Whether her application is justifiable or not has to be considered when appeal is decided. We are not expressing any view on the merits of that application in this judgement. Hence, when an application is filed under section 24 by one party to the suit and when the learned Judge decides the matter in the matter of transfer or withdrawal of the case, it is an adjudicated order in the original jurisdiction. According to us, the wording in Section 5(i) of the High Court Act is clear and gives no room for doubt that such an order passed under Section 24, CPC by a single Judge appeal will lie. 13. Crawford on 'Construction of Statutes' states as follows :- "........Statutes pertaining to the right of appeal should be given a liberal construction in favour of the right, since they are remedial. Accordingly, the right will not be restricted or denied unless such a construction is unavoidable. In a few States, however, where the statute pertains to appeals from interlocutory orders the rule of strict construction has been applied. But, there seems to be no real justification for this departure from the general rule in accord with which a liberal construction would be given by the Court." (Emphasis supplied) In Sutherland's Statutory Construction (3rd Edn., Vol. 3, para 6807) it is said in relation to 'statutes allowing appeals' :- "Statutes giving the right of appeal are liberally construed in furtherance of justice, and an interpretation which will work a forfeiture of that right is not favoured. Thus provisions limiting the time for bringing an appeal are liberally interpreted so that the party pursuing the remedy of appeal will not be defeated on mere technicalities. Likewise, an interpretation limiting the cases from which an appeal may be brought or the persons who may bring an appeal is not preferred." (Emphasis supplied) In Premavalli v. State of Kerala (1998) 1 Ker LT 822 : (AIR 1998 Kerala 231) (FB), a Full Bench of this Court held that even though right of appeal is not automatic, but, statutory, it is an equally well settled proposition of law that if there is a power conferring right of appeal, it should be read in a reasonable practical and liberal manner. In that case, Full Bench held that an appeal will lie against judgement of a single Judge rendered under Section 54 of the Land Acquisition Act in view of the Section 5(ii) of the Kerala High Court Act. The intention of the legislature is primarily to be gathered from the language used in the Statute itself as held by the Apex Court in Gwalior Rayons Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747 at page 1752. Merely because the modern trend is to reduce appeals, we cannot ignore the clear provision under Section 5(i) of the Kerala High Court Act. If appeal is to be transferred as a policy decision specific provision like Section 100-A can be incorporated in CPC or suitable amendment can be made to the Kerala High Court Act. The Supreme Court in Commissioner of Sales Tax, Madhya Pradesh v. M/s. Popular Trading Company, AIR 2000 SC 1578 and in State of Jharkhand v. Govind Singh 2004 AIR SCW 6799 : AIR 2005 SC 294 held that while interpreting a provision, the Court only interprets the law. It is for the legislature to amend, modify or repeal it. By judicial interpretative process, Courts cannot usurp legislative powers. Courts cannot legislate, either creating or taking away substantial rights by stretching or straining piece of legislation as held by the Apex Court in Sri Ram Saha v. State of West Bengal, 2004 AIR SCW 5807 : AIR 2004 SC 5080 , para 18. As observed by Gejendra Gadkar, J. in Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907 he words used in the material provisions of the Statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise'. When Section 5(i) clearly provides for appeal from orders, it cannot be stated that no appeal will lie from the adjudicated 'order' under Section 24, CPC, of the single Judge to the Division Bench. When Section 5(i) clearly provides for appeal from orders, it cannot be stated that no appeal will lie from the adjudicated 'order' under Section 24, CPC, of the single Judge to the Division Bench. Merely because no appeal is provided from the order of District Court under Section 24, CPC, it cannot be stated that right of appeal given under Section 5(i) should be denied despite the clear wordings used in that section, if the District Court passes an illegal order, parties can approach the High Court under Article 227 of the Constitution of India. 14. In State of Maharashtra v. Nanded-Parbhani Z.L.B.M.V., AIR 2000 SC 725 , it is observed by the Apex Court quoting with approval the views of Tindal, C.J. in Sussex Peerage case (1844) 11 C1 and F 85 at page 53) and Viscount Simonds, J. in Emperor v. Bengarilal Sarma, AIR 1945 PC 48 at page 53 as follows :- ".................It is a cardinal principle of rule of construction of statute that when the language of a statute is fairly and reasonably clear, then inconvenience or hardships are no considerations for refusing to give effect to that meaning. It is not the contention of the learned counsel, appearing for the State nor can it be said that on giving a plain meaning to the words used in Section 207(1) of the Act. There will be any absurdity or would make the statute offending any provisions of the Constitution. Tindal, C.J. in Sussex Peerage case (1844) 11 C1 and F 85, p. 143, applying the rule has stated- If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver". In Emperor v. Benoarilal Sarma, AIR 1945 PC 48 p. 53, Viscount Simonds held :- "This Board has insisted that in construing unambiguous words, we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used". The same view was expressed by the Apex Court in State of West Bengal v. Scene Screen (Pvt.) Ltd., AIR 2000 SC 3089 , it was observed as follows :- "22. The same view was expressed by the Apex Court in State of West Bengal v. Scene Screen (Pvt.) Ltd., AIR 2000 SC 3089 , it was observed as follows :- "22. It is a well accepted principle of interpretation of statutory provisions that if the plain language of the section is clear or unambiguous it is not open to a Court to interpret it giving a meaning different from plain grammatical meaning of the provision. The learned single Judge, in view of the plaint and unambiguous language of the provisions of the Act, was in error in introducing the condition of ............" Same view was taken by the Apex Court in a catena of decisions. (See State of Himachal Pradesh v. Pawan Kumar (2005) 3 Supreme 321 : ( AIR 2005 SC 2265 ) (para 7). The wordings in Section 5(i) of the Kerala High Court Act are very clear and unambiguous. When an application for transfer or withdrawal of a suit from one Court is made under Section 24, CPC, the Court has to adjudicate that matter regarding transfer or withdrawal after issuing notice to the parties interested and after giving an opportunity of hearing. Order passed after such an adjudication is certainly appealable under Section 5(i) of the High Court Act. But, if the High Court passes an order of transfer in its own motion, without notice to the parties as provided in the second part of Section 24(1) CPC, there is no adjudged order and no appeal is maintainable as it is an order in the supervisory jurisdiction of the High Court. For example, if a judicial officer requests for transfer of a case from his Court to another Court because one of the parties is related to him, this Court under Section 24 can transfer the case to another Court. Because of heavy pendency in one Court, cases can be transferred from one Court to another without causing much inconvenience to the parties. But, this is not after adjudication or with notice to concerned parties. Such orders are only made in the supervisory jurisdiction of the High Court and under inherent powers. Thus, it is clear from the above decisions that an order for transfer of suit is not a judgment within the meaning of Clause 15 of the Letters Patent and therefore the Letters Patent Appeal is not competent in law. Such orders are only made in the supervisory jurisdiction of the High Court and under inherent powers. Thus, it is clear from the above decisions that an order for transfer of suit is not a judgment within the meaning of Clause 15 of the Letters Patent and therefore the Letters Patent Appeal is not competent in law. The preliminary objection raised by Mr. Vivek Bhamare, learned advocate for Mr. Y.N. Ravani is well founded and is required to be accepted. 4. Accordingly, all the three Appeals and the Civil Applications deserve to be dismissed and the same are accordingly dismissed. Appeal Dismissed.