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2015 DIGILAW 517 (CAL)

Jaishree Devi v. Ashok Kumar Raidani

2015-06-20

DEBI PROSAD DEY, JOTIRMAY BHATTACHARYA

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JUDGMENT JOTIRMAY BHATTACHARYA, J. 1. Due to non-appearance of the appellants, both the appeal and the application were dismissed by the other Division Bench of this Court on 13th February, 2015. Subsequently, the present application has been taken out by the appellants for restoration of this appeal and the application. 2. The reason which prevented the appellants from appearing before the Court when the appeal and the application were called on for hearing, has been explained by the appellants in this application. 3. It was stated therein that the learned advocate and his clerk missed the said matter in the list on that date. As a result, the learned advocate of the appellants could not make himself present before the Court when the appeal and the application were called on for hearing. 4. Considering the uncontroverted statements made by the appellants in this application, we hold that the reason for non-appearance has been sufficiently explained by the appellants in this application. 5. Accordingly, the order of dismissal of the appeal and the application which was passed by the other Division Bench of this Court on 13th February, 2015, is recalled. 6. The appeal and the application are restored to its original file and number. 7. The appeal is readmitted for hearing. 8. Both the applications are thus, allowed. 9. This first appeal is directed against the judgment and/or decree passed on 29th November, 2014 by the learned 7th Bench, City Civil Court at Calcutta, in Title Suit No. 3369 of 1995. 10. The said suit was framed under Section 6 of the Specific Relief Act. The suit was decreed. Challenging the decree passed by the learned Trial Judge, the instant appeal was filed by the defendant. 11. In view of the provision contained in Section 6(3) of the Specific Relief Act, no appeal lies for challenging the decree passed by the Court in a suit under Section 6 of the Specific Relief Act. 12. Mr. Bagchi, learned advocate, appearing for the appellants submits that in view of the provision contained in Section 8 of the City Civil Court Act, 1953; every decree passed by the City Civil Court is appealable before the High Court. Mr. Bagchi also relies upon a decision of the Hon’ble Supreme Court in the case of Vanita M. Khanolkar vs. Pragna M. Pai & Others, AIR 1998 SC 424 . Mr. Bagchi also relies upon a decision of the Hon’ble Supreme Court in the case of Vanita M. Khanolkar vs. Pragna M. Pai & Others, AIR 1998 SC 424 . Paragraph 3 of the said decision is set out hereunder : "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 S. 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 High Court exercising original jurisdiction of the Court. Only on that short ground the appeal is required to be allowed." 13. We have considered the said decision of the Hon'ble Supreme Court. That was a case where a question came up for consideration as to whether an order passed by a learned single Judge of the Bombay High Court under Section 6 of the Specific Relief Act is appealable before the Division Bench of the said High Court as per the provision contained in Clause 15 of the Letters Patent. Considering the provision contained in Clause 15 of the Letters Patent as well as the provision contained in Section 6 of the Specific Relief Act, the Hon'ble Supreme Court held that since Clause 15 of the Letters Patent is applicable to Bombay High Court, and a right of appeal against an order of the single Judge of the High Court is recognized under Clause 15 of the Letters Patent, the said appeal against the decree passed by a Learned single Judge of Bombay High Court is maintainable before the Division Bench of the said High Court. 14. In our considered view, the said decision of the Hon'ble Supreme Court has no application in the fact of the present case. 14. In our considered view, the said decision of the Hon'ble Supreme Court has no application in the fact of the present case. Here is the case where a decree under Section 6 of the Specific Relief Act was passed by the City Civil Court and not by a single Judge of the High Court in Original Side jurisdiction. The decree passed by the City Civil Court is not appealable before this Court under the provision contained in Clause 15 of the Letters Patent. Decrees of the City Civil Court are assailable in appeal before the High Court in view of the provision contained in Section 8 of the City Civil Court Act, 1953. 15. In this context, we are required to consider as to whether an aggrieved party can prefer any appeal from a decree passed by City Civil Court in a suit under Section 6 of the Specific Relief Act in view of the provision contained in the Section 8 of the City Civil Court Act, when Specific Relief Act, specifically bars maintainability of such appeal before any higher forum? 16. Right of appeal is a creation of statute. Unless such right is conferred upon a litigant by the statute, aggrieved party cannot prefer any appeal for challenging any order and/or decree before any higher forum. 17. Specific Relief Act is a central legislation. Section 6 of the Specific Relief Act provides for suit for recovery of possession by a person who is dispossessed by another, on the strength of possession of the dispossesed person therefrom. Sub-section (3) of Section 6 of the Specific Relief Act provides that no appeal will lie against any decree passed in such a suit under Section 6 of the Specific Relief Act. Thus, we find that the statute creates a bar in preferring an appeal against the decree passed under Section 6 of the Specific Relief Act. 18. Section 8 of the City Civil Court Act deals with the procedural right prescribing the forum where an appeal will lie from the judgment and decree of the City Civil Court. Such right cannot be construed as substantial right of a party to prefer any appeal before the High Court against the decree passed by the City Civil Court under Section 6 of the Specific Relief Act. 19. Such right cannot be construed as substantial right of a party to prefer any appeal before the High Court against the decree passed by the City Civil Court under Section 6 of the Specific Relief Act. 19. Thus, when the Act itself instead of conferring any right of appeal upon the aggrieved party, denies the right of appeal to the aggrieved party expressly, can it be held that such an aggrieved party can exercise his right of appeal because the procedural law prescribes forum of appeal under Section 8 of the City Civil Court Act? 20. Our answer to this question is no. 21. That apart we are also conscious of the settled principle of law that when the provision contained in the State Act is inconsistent with or repugnant to the provision contained in the Central Act, the provision contained in the Central Act will prevail over the State Act. This is the other reason which prompted us in coming to the aforesaid conclusion that appeal does not lie against any decree passed by the City Civil Court in a suit under Section 6 of the Specific Relief Act. 22. Thus, we hold that the appeal is not maintainable. We, thus, decline to entertain this appeal. The appeal is, thus, dismissed. 23. On the prayer of Mr. Bagchi, learned advocate, appearing for the appellants, we permit the learned advocate-on-record of the appellants to take back the certified copy of the impugned order and decree by supplying a photostat copy of the same, for challenging the same in revision before the appropriate forum. 24. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. 25. I agree : Debi Prasad Dey, J. Appeal dismissed.