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TMI Blog2004 (10) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... nolkar s case (supra) and Sharda Devi s case a Letters Patent is the Charter of the High Court. As held in Shah Babulal Khimji s case (supra) a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. only a specific provision to the contrary can exclude the spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that this Appeal is against the Judgment of the High Court of Madras dated 22nd August, 1997, by which it has been held that a Letters Patent Appeal is not maintainable against an Order passed by a single Judge of the High Court sitting in Appellate Jurisdiction. Because of the importance of the question involved, this Court by an Order dated 9th August, 2001 referred the matter to a larger Bench. The Order reads as follows: "Against an application filed before the executing court for setting aside the court auction which was dismissed, an appeal was filed before the High Court. On the dismissal of the same by the Single Judge, a letters patent appeal was filed. A Full Bench relying upon a decision of this Court in New Kenilworth Hotel (P) Ltd. vs. Orissa State Financial Corporation and Others, 1997 (3) SCC 462 came to the conclusion that in view of the provisions of Section 104(2), C.P.C., appeal to the Division Bench was not maintainable. To the same effect are two other decisions of this Court in Resham Singh Pyara Singh vs. Abdul Sattar [1996 (1) SCC 49] and Vinita M. Khanolkar vs. Pragna M. Pai and Others, 1998 (1) SCC 500. Learned senior counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lie from the following orders under this Code and from no other such orders:- The orders passed in appeals under this section shall be final" To be noted that Section 588 did not contain words to the effect "under a law for the time being in force". However, Section 588 did provide that "an appeal shall lie from the following orders and no other such orders". It also provided that "orders passed in Appeal under that Section shall be final". These words have the same meaning and effect as the words "no Appeal shall lie from any Order passed in Appeal under this Section". Section 588 by giving a finality to orders passed under that Section precluded further appeals. The question was whether Section 588 also barred a Letters Patent Appeal. There was a divergence of opinion amongst the High Courts on this point. This question then came up before the Privy Council in the case of Hurrish Chunder Chowdhry vs. Kali Sundari Debia reported in 10 I.A. Pg. 4. The Privy Council held as follows: "It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting certain appeals, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is however one material distinction between the provisions of the old Code and those of the new Code. In the Code of 1882 there was no exemption as regards any special law that may be in force for the time being and the Code of Civil Procedure, except as regards certain enactments mentioned in S. 4 and other similar sections, would supersede all such laws. In Cl.35 of the Letters Patent, there was a clear provision that the Letters Patents are subject to the legislative powers of the Governor-General in Council. It was accordingly thought that the Code of Civil Procedure would prevail against the provisions of the Letters Patent. In the new Code of 1908 there is a special provision in S. 4 to the effect that: In the absence of any specified 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. It follows that unless there is any specific provision to the contrary in this Code of Civil Procedure, it cannot affect any special law or special jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia were unanimously of the view that Section 104 C.P.C. did not prohibit a Letters Patent Appeal. At this stage it must be mentioned that the abovementioned authority of the Allahabad High Court has been overruled by this Court in Shah Babulal Khimji vs. Jayaben D. Kania reported in (1981) 4 SCC 8. But, as is set out in greater details hereafter, the view that a Letters Patent Appeal is maintainable is specifically approved. The overruling is on another aspect set out hereinafter. In National Sewing Thread Co. Ltd., Chidambaram vs. James Chadwick and Bros. Ltd. (AIR 1953 SC 357) the question arose whether a Letters Patent appeal under Clause 15 of the Letters Patent of the Bombay High Court was maintainable against the Judgment of a single Judge exercising appellate jurisdiction under Section 76 of the Trade Marks Act, 1940. Holding that such an appeal was maintainable, this Court observed: "Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by S.76 it has to exercise that jurisdiction in the same manner as it exercises its other app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act there is no provision similar to Section 4 C.P.C. It was submitted that, even though Section 39 barred a second Appeal, an analogy should be taken from Section 104 C.P.C. and it must be held that a Letters Patent Appeal was maintainable. In considering this submission the conflict of opinions amongst the various High Courts regarding maintainability of a Letters Patent Appeal, in spite of Section 104 C.P.C., was set out and this Court then held as follows: "The legislature in this state of affairs intervened, and in the Code of 1908 incorporated s. 4 which by the first sub-section provided: "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:; and enacted in s. 104(1) that an appeal shall be from the orders set out therein and save as otherwise expressly provided, in the body of the Code or by any law for the time being in force, from no other orders. The legislature also expressly provided that "no ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, there was no provision similar to Section 4 of the Code of Civil Procedure which preserved powers reserved to Courts under special statutes. Under the Code of Civil Procedure, the right to appeal under the Letters Patent is saved both by Section 4 and the clause contained in Section 104(1), but by the Arbitration Act, 1940, the jurisdiction of the Courts under any other law for the time being in force is not saved. The right of appeal could therefore be exercised against orders in arbitration proceedings only under Section 39, and no appeal lay from the appellate order (except an appeal to this Court). The provisions in the Letters Patent providing for appeal, in so far as they related to orders passed in Arbitration proceedings, were held to be subject to the provisions of Section 39(1) and (2) of the Arbitration Act, as the same is a self contained Code relating to arbitration. The aforesaid two decisions were noticed in South Asia Industries (P) Ltd. vs. S.B. Sarup Singh & Ors. (AIR 1965 SC 1442). This Court was called upon to interpret the provisions of Sections 39 and 43 of the Delhi Rent Control Act, 1958 with a view to answer the question whether an appeal was competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of a ward to the custody of his guardian; or (d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or (e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or (f) under section 32, defining, restricting or extending the powers of a guardian; or (g) under section 39, removing a guardian; or (h) under section 40, refusing to discharge a guardian; or (i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order; or (j) under section 44 or section 45, imposing a penalty. 48. Finality of other orders.- Save as provided by the last foregoing section and section 622 of the Code of Civil Procedure, 1882, an order made under this Act shall be final, and shall not be liable to be contested by suit or otherwise." Thus Section 47 permitted "an appeal" to the High Court whilst Section 48 gave a finality. The Constitution Bench, inter alia, held as follows: "Before dealing with this point, two re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purview of the finality prescribed for the orders passed under the Act, plainly because they would be final by themselves without any such provisions, subject, of course, to any appeal provided by law or by a constitutional provision, as for instance, Art. 136. The construction of S.48, therefore, is that it attaches finality to the orders passed by the trial Court subject to the provisions prescribed by S.47 of the Act, and S.115 of the Code." Thus even though Section 48 provided for a finality it still saved appeals permitted by Section 47 and revisions under Section 622 of the then Civil Procedure Code (Section 115 of the present Civil Procedure Code). This Court then went on to hold as follows: "The question as to whether an appeal permitted by the relevant clause of the Letters Patent of a High Court can be taken away by implication, had been considered in relation to the provisions of s. 588 of the Codes of Civil Procedure of 1877 and 1882. The first part of the said section had provided for an appeal from the orders specified by clauses (1) to (29) thereof, and the latter part of the said section had laid down that the orders passed in appeals under this sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be excluded by implication. This is clear from the following observations: "We have referred to these decisions to emphasize the fact that even where the relevant provision of s. 588 of the earlier Code made certain appellate orders final, the consensus of judicial opinion was that the provisions did not preclude an appeal being filed under the relevant clause of the Letters patent of the High Court" Thus, a Constitution Bench of this Court has held that the words "under any law for the time being in force" in Section 104(1) saves Letters Patent Appeals. This decision is binding on this Court. Faced with the situation it was submitted that the above observations have been made only in the context of Sections 47 and 48 of the Guardians and Wards Act. It was submitted that therefore these observations cannot be applied to a case where an Appeal is under Section 104 itself. This argument overlooks sub-clause (1) of Section 104 C.P.C. which now categorically saves Appeals under any law for the time being in force. Thus if any other law for the time being in force permits an appeal the same would be maintainable irrespective of Section 104(2) C.P.C. As st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... single Judge of the High Court. The Appeal preferred before the Division Bench was dismissed as not maintainable on the ground that the impugned Order of the Single Judge was not a Judgment as contemplated by Clause 15 of the Letters Patent of the High Court. It was also held that Section 104 read with Order 43 Rule 1 only applied to appeals from Subordinate Courts to the High Court. Thus in Shah Babulal Khimji's case (supra) this Court was concerned with an order passed by a single Judge on the original side of the High Court, which, if it amounted to a judgment, was admittedly appealable under Clause 15 of the Letters Patent. The only question, therefore, which arose before this Court was whether the order of the learned single Judge refusing to grant an injunction or appoint a receiver on the Interlocutory Application of the appellant was a judgment, and consequently whether an appeal against the order of the learned single Judge to the Division Bench of the High Court was competent and maintainable under Clause 15 of the Letters Patent. This Court took the view that the word 'judgment' in the Letters Patent should receive a much wider and more liberal interpretation than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternal appeals to the High Courts under the Letters Patent. Section 591 clearly provided that except the orders mentioned in Section 588 no further appeal could lie from any order passed by any court in exercise of its original or appellate jurisdiction. Section 591 may be extracted thus: 591. No other appeal from orders; but error therein may be set forth in memorandum of appeal against decree. - Except as provided in this chapter, no appeal shall lie from any order passed by any court in the exercise of its original or appellate jurisdiction but if any decree be appealed against, any error, defect or irregularity in any such order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. 17. In other words, the position was that while the statute provided only for appeals against orders, all other appeals could only be against a decree passed by the court concerned. The statute, therefore, did not contemplate any other appeal except those mentioned in Sections 588 and 591. 18. The Code of 1877 was later on replaced by the Code of 1882 but the provisions remained the same. In view of the rather vague and uncertain nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peculation in the matter. While construing Section 588, the Judicial Committee in Hurrish Chunder Chowdry's case [10 IA 4 : ILR (1883) 9 Cal 482] had made it clear that appeals would lie under Section 588 to the High Court and the section did not contain any restriction to the effect that appeal against the orders of the Trial Judge mentioned in Section 588 would not lie to a larger Bench of the High Court. In other words, the Privy Council intended to lay down clearly that Section 588 did not affect nor was it inconsistent with the provisions of the Letters Patent and hence those orders of the Trial Judge which fell beyond Section 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of Clause 15 of the Letters Patent. Therefore, the views taken by the Calcutta, Bombay and Madras High Courts, referred to above, were undoubtedly correct. At any rate, since a fresh controversy had arisen, the legislature stepped in to settle the controversy by enacting the new Section 104 in the Code of 1908. Section 104 made it clear that appeals against orders mentioned in Order 43 Rule 1 were not in any way inconsistent with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Judges of the High Court to the Full Court, which really now means the Division Bench constituted under the Rules. In spite of the clear exposition of the law on the subject by the Privy Council it is rather unfortunate that some High Courts have either misinterpreted these observations or explained them away or used them for holding that Section 588 does not apply to High Courts. We shall deal with those judgments and point out that the view taken by the High Courts concerned is not at all borne out by the ratio decidendi of the Privy Council. So far as the applicability of Section 588 to proceedings in the High Courts is concerned, in a later decision the Privy Council reiterated its view in unmistakable terms. In Mt. Sabitri Thakurain v. Savi [AIR 1921 PC 80], their Lordships observed as follows: Section (sic Clause) 15 of the Letters Patent is such a law, and what it expressly provides, namely an appeal to the High Court's appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by Orders and Rules under the Code of Civil Procedure, 1908, are applicable to the jurisdiction exercisable unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a Single Judge of a High Court would be subject to different rules as to appealability. 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 authorises 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch. Secondly, a perusal of Clause 15 of the Letters Patent of the Presidency High Courts and identical clauses in other High Courts, discloses that there is nothing to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge, a second appeal would again lie to a Division Bench of the Court. All that the Letters Patent provides for is that where the Trial Judge passes an order, an appeal against the judgment of the said Trial Judge would lie to a Division Bench. Furthermore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that it is in cases of appeals decided by a Single Judge under Section 100 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise. The relevant portion of Clause 15 of the Letters Patent may be extracted thus: And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment....of one Judge of the said High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; Much emphasis is sought to be put on the sentence, i.e. "Once Section 104 applies and there is nothing in the Letters Patent to restrict the application of Section 104 to the effect that even if one appeal will lie to the Single Judge, no further appeal will lie to the Division Bench" and it is submitted that the Court was laying down that a further appeal will not lie even if Letters Patent permitted. The sentence cannot be read in isolation. It must be read in the context of all that is stated before it. It is already held that Section 104 read with Order 43 Rule 1 C.P.C. confers additional powers of appeal to a larger Bench within the High Court. When read in context the sentence only means that in case of Orders not covered by Letters Patent a further appeal will not lie. This is also clear from the subsequent sentence that there is nothing else in Letters Patent which permits a further appeal barred by Section 104(2) C.P.C. As set out above, Section 104(2) only bars appeals against Order passed in appeal under the Section. Thus Section 104(2) does not bar appeals permitted by any law in force. Also to be noted that principle in Ram Sarup's case (supra), that Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal. Thus under Clause 15 a Letters Patent Appeal is competent even against an order passed by the High Court in Second Appeal provided the Judge deciding the case declares that the case is fit for appeal. In substance, therefore, Clause 15 of the Letters Patent of the Bombay High Court provided for an appeal :- (1) against a judgment of a Single Judge of the High Court ; (2) against a judgment of a Single Judge of the High Court exercising appellate jurisdiction, except in cases where the Single Judge is sitting in Second Appeal or where he exercises the revisional jurisdiction; and (3) judgment of the High Court even if passed in Second Appeal provided the Judge certifies it as fit for appeal to a Division Bench. Since the relevant portion of the Letters Patent was not extracted in the judgment, Their Lordships came to the conclusion set out above viz.: "40. A perusal of the Letters Patent would clearly reveal that essential incidents :- (1) that an appeal shall lie against any order passed by the Trial Judge to a larger Bench of the same High Court, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on it) held as follows: "6. It would, therefore, be clear that when an appeal was filed against the order of the City Civil Court, Bombay to the learned Single Judge under Order 43 Rule 1(r) as provided in sub-section (1) of Section 104 by operation of sub-section (2) of Section 104, no further appeal shall lie from any order passed in appeal under this section. In Khimji case [(1981) 4 SCC 8] the suit was filed on the original side of the High Court and the learned Single Judge on the original side passed an interlocutory order. Against the orders of the learned Single Judge, though it was an interlocutory order, since the appeal would lie to the Division Bench under the Letters Patent, this Court held that against the interlocutory orders passed by the Single Judge, Letters Patent Appeal would be maintainable. That ratio, therefore, is clearly inapplicable to the facts in this case." Then in the case of New Kenilworth Hotel (P) Ltd. vs. Orissa State Finance Corporation and Ors. reported in (1997) 3 SCC 462 the question, whether a Letters Patent Appeal was maintainable, again arose. In this case a status quo order was passed by the trial Court. In Appeal, a single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; and the third limb says that the right of appeal from other judgments of Judges of the said High Court or such Division Court shall be to "us, our heirs or successors in our or their Privy Council, as hereinafter provided." Thus it is clear that the cases of Resham Singh Pyara Singh and New Kenilworth Hotel (P) Ltd. lay down wrong law and are overruled. It must now be noticed that even after the aforementioned two decisions this Court has continued to hold that a Letters Patent Appeal is not affected. In the case of Vinita M. Khanolkar vs. Pragna M. Pai reported in (1998) 1 SCC 500 an Appeal had been filed against an Order passed under Section 6 of the Specific Relief Act. It was contended that such an Appeal was barred by sub-section (3) of Section 6 of the Specific Relief Act. This Court agreed that Section 6(3) of the Specific Relief Act barred such an Appeal but went on to consider whether Section 6(3) could bar a Letters Patent Appeal. In this context this Court held as follows: "3. Now it is well settled that any statutory provision barring an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the same status as the Constitution of India. In our view these observations merely lay down that the powers given to a High Court are the powers with which that High Court is constituted. These observations do not put Letters Patent on par with the Constitution of India. In the case of Subal Paul vs. Maline Paul reported in (2003) 10 SCC 361, the question was whether a Letters Patent Appeal was maintainable against an Order passed by a single Judge of the High Court in an Appeal under Section 299 of the Succession Act, 1925. It was held that an Appeal under Section 299 was permitted by virtue of Section 299 and not under Section 104 C.P.C. Section 299 of the Indian Succession Act, 1925 reads as follows: "299. Appeals from orders of District Judge.\027 Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals." Thus Section 299 permitted an Appeal to the High Court in accordance with the provision of CPC. That provision was Section 104. The Order passed by the Single Judge was an Order und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. Applying the above principle to the facts of this case, the appeal under Clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law. It was next submitted that Clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds:- "The arguments that a combined reading of cls. 10 and 11 of the Letters Patent leads to the conclusion that even the first part of cl.10 deals only with appeals from Courts subordinate to the High Court has no force. As we have pointed out earlier, cl.11 contemplates conferment of appellate jurisdiction on the High Court by an appropriate Legislature against orders of a Tribunal. Far from detracting from the generality of the words "judgment by one Judge of the said High Court", cl. 11 indicates that the said judgment takes in one passed by a single Judge in an appeal against the order of a Tribunal. It is said, with some force, that if this construction be accepted there will be an anomaly, namely that in a case where a single Judge of the High Court passed a judgment in exercise of his appellate jurisdiction in respect of a decree made by a Court subordinate to the High Court, a further appeal to that Court will not lie unless the said Judge declares that the case is a fit one for appeal, whereas, if in exercise of his second appellate jurisdiction, he passed a judgment in an appeal against the order of a Tribunal, no such declaration is necessary for taking ..... 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