TaxTMI 
TaxTMI 
TaxTMI 
2004 (10) TMI 605
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 has drawn our attention to a decision of the Constitution Bench in Gulab Bai and Anr. vs. Puniya, 1966 (2) SCR 102 and has contended that the observations in the said judgment clearly support his contention that by virtue of provisions similar to Clause 15 of the Letters Patent an appeal could be filed against he judgment of the Single Judge. We are aware of the fact that Clause 15 of the Letters Patent applicable to Madras High Court was similar to Clause 10 applicable to Orissa High Court which was construed in the case of New Kenilworth (supra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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, applies to such a case as this, where the appeal is from one of the Judges of the Court to the Full Court." These observations of the Privy Council again led to a conflict of decisions amongst various High Courts. The Bombay, Calcutta and Madras High Courts held that Section 588 did not take away the right of Appeal given under the Letters Patent. On the other hand, the Allahabad High Court took a different view and held that a Letters Patent Appeal was barred under Section 588 C.P.C. In view of this conflict of views the Legislature stepped in and amended the law. It introduced Section 4 and also introd....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 or power which is conferred on the High Court. The Letters Patent undoubtedly confers such special jurisdiction and power. It would therefore follow that the provisions of the Letters Patent are saved by virtue of S. 4, unless there is specific provision to the contrary. We do not find any specific provision in S. 104 showing that that section is intended to apply to Letters Patent appeals as well. The opinion expressed by the Division Bench in Piare Lal's case [AIR 1917 All. 325] has not been followed in other High Courts. It seems to us that it is not necessary to refer this point to a Full Bench because of one important circumstance.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Cl. 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act." Referring to Clause 44 of the Letters Patent, it was held that the provisions of the Letters Patent were subject to the legislative powers of the Governor General in Legislative Council, and therefore, in the present day context, subject to the legislative power of the appropriate legislature. But this Court found nothing in the Trade Marks Act restricting the right of appeal under Clause 15 of the Letters Patent. This question was also considered by a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 appeal shall lie from any order passed in appeal under this section." Section 105 was substantially in the same terms as s. 591 of the earlier Code. The intention of the legislature in enacting subs. (1) of s. 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasized by s. 4 which provides that in the absence of any specific provision to the contrary, nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees) under the Letters Patent, was th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oceedings, 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 under Clause 10 of the Letters Patent of the High Court of Lahore against the judgment of a single Judge in a second appeal under Section 39 of the aforesaid Act. Section 39 provided an appeal to the High Court against the judgment of the Tribunal only on a substantial question of law. Section 43 read as under: "Save as otherwise expressly provided under this Act, every order made by the Controller or an order passed an appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding." It was not even disputed before this Court that the right of appeal conferred by Clause 10 of the Letters Patent could be taken away by law made by the appropriate legislat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 relevant facts ought to be mentioned. The Act was extended to Rajasthan by the Part B States (Laws) Act, 1951 (Act III of 1951) on the 23rd February; 1951; but before the Act was thus extended to Rajasthan, the Ordinance had already been promulgated. Clause 18(1) of the Ordinance provides, inter alia, that an appeal shall lie to the High Court from the Judgment of one Judge of the High Court; it accepts from the purview of this provision certain other judgments with which we are not concerned. It is common ground that the judgment pronounced by the learned single Judge of the High Court on the appeal preferred by the respondent before the High Court, does not fall within the category of the exceptions provided by clause 18(1) of the ordinance; so that if the question abo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 section shall be final. Before the enactment of the present Code, High Courts in India had occasion to consider whether the provision as to the finality of the appellate orders prescribed by s. 588 precluded an appeal under the relevant clauses of the Letters Patent of different High Courts. There was a conflict of decisions on this point. When the matter was raised before the Privy Council in Hurrish Chunder Chowdhry v. Kali Sundari Debia (10 I.A. 4 at p. 17.); the Privy Council thus tersely expressed its conclusion: "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, applies to such a case as this, where the appeal is from one of the Judges of the Court to the Full Court". Basing themselve....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rvations 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 stated above, this would include a Letters Patent Appeal. Also, the observations quoted above are not in the context of Sections 47 and 48 of the Guardians and Wards Act, but in the context of whether a Letters Patent Appeal can be barred. That was the question before the Court. The Constitution Bench was considering whether a Letters Patent Appeal was maintainable. It was then submitted that this authority does not take into consideration and does not refer to sub-clause (2) of Section 104. It was submitted that as subclause (2) of Section 104 was not considered a fresh look is required. Once it is noted that Section 104(1) saves such Appeals there is no need to refer to or mention Section 104(2). Section 104(2) cannot lay down anything contrary to Section 104(1). To be remembered that Legislature has now put in the saving ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 word 'judgment' used in the Code of Civil Procedure. It was held that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. Their Lordships came to the conclusion that the order passed by a single Judge on the original side refusing to appoint a receiver and grant an injunction amounted to a judgment and was therefore appealable under Clause 15 of the Letters Patent. Though the question did not directly arise for consideration, in the Judgment of Fazal Ali, J. there is a discussion on the interplay of Section 104 and Letters Patent. The relevant portions read as follows: "15. We would first deal with the point relating to the applicability of Section 104 read with Order 43 Rule 1 of the Code of 1908 because it seems to us that the arguments of Mr. Sorabjee on this score are well....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 the provisions of Sections 588 to 591 a serious controversy arose between the various High Courts regarding the interpretation of Section 588. The Bombay and Madras High Courts held that under Clause 15 of the Letters Patent of the said High Courts, an appeal could lie only from orders passed under Section 588 and not even under the Letters Patent. In Sonba'i v. Ahmedbha'i Habibha'i [(1872) 9 Bom HCR 398] a Full Bench of the Bombay High Court held that under Clause 15 of the Letters Patent an appeal to the High Court from an interlocutory order made by one of the Judges lies only in those cases in which an appeal was allowed under the Code of Civil Procedure, that is to say, under Section 588 and 591 of the Code of 1877. The Madras High Court in Rajgopal (In re L.P.A. No. 8 of 1886 [ILR 9 Mad 447]) took the same view. Then came....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ta, 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 the Letters Patent and merely provided an additional remedy by allowing appeals against miscellaneous orders passed by the Trial Judge to a larger Bench. In other words, the legislature gave full statutory effect to the views of the Calcutta, Bombay and Madras High Courts. Even after the introduction of Section 104, the conflict between the various High Courts still continued as to whether or not Section 104 would apply to internal appeals in the High Court. That is the question, which we shall now discuss." (emphasis supplied). The Court then went on to consider whether Section 104 applied to internal appeals in the High Court. The Court considered various provisions to conclude that Section 104 applied even to internal appeals in the High Court. The entire discussion is lengthy and not relevant for our purposes. But during ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atent 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 under the Letters Patent, except that they do not restrict the express Letters Patent appeal. 31. Though not directly, some observations made by this Court also support the consistent view taken by the Privy Council that Order 43 Rule 1 applies to the original proceedings before the Trial Judge. In Union of India v. Mohindra Supply Co. [(1962) 3 SCR 497 : AIR 1962 SC 256], this Court made the following observations : The intention of the legislature in enacting sub-section (1) of Section 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by Section 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er 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 of appeal to a larger Bench within the High Court against the order of a Trial Judge." It now remains to be shown why the case of Ram Sarup (supra) was overruled. The relevant portion reads as follows: "38. The Lahore High Court relied on the decision of the Privy Council in Hurrish Chunder Chowdry's case [10 IA 4 : ILR (1883) 9 Cal 482]. The High Court further held that Section 104 does not in any way take away the right of appeal conferred by the Letters Patent of the High Court but merely bars a second appeal from orders passed under Order 43 Rule 1 to Division Bench. A contrary view was taken by the Allahabad High Court in Ram Sarup v. Kaniz Ummehani [ILR 1937 All 386 : AIR 1937 All 165] where the following observations were made : It may, however, be conceded that this saving clause does not occur in sub-section (2) of Section 104. But under the corres....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th 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 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 1929) 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 for appeal. 40. A perusal of the Letters Patent would clearly reveal two 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 (2) that when the Trial....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Section 104 did not bar a Letters Patent appeal was specifically accepted. It is also accepted that Letters Patent is a special law. However on the wordings of the concerned Letters Patent as noticed, it was held that the Letters Patent did not permit a second appeal. Had the Letters Patent permitted a second appeal, on the ratio laid down earlier, a Letters Patent Appeal would have been held to be maintainable. In our case it is an admitted position that the concerned Letters Patent permits an appeal. It must also be mentioned that, as set out hereinabove, their Lordships considered the relevant portion of Clause 15 of the Letters Patent which has been extracted in the judgment, but unfortunately another relevant portion of Clause 15 has been missed. If Clause 15 of the Letters Patent of the Bombay High Court is read in its entirety it leaves no manner of doubt that it provides for an appeal to th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cted 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 (2) that where the Trial Judge decides an appeal against a judgment or decree passed by the district courts in the mofussil, a further appeal shall lie only where the judge concerned declares it to be a fit one for appeal to a Division Bench. Thus the special law, viz., the Letters Patent, contemplates only these two kinds of appeals and no other. There is, therefore, no warrant for accepting the argument of the respondent that if Order 43 Rule 1 applies, then a further appeal would also lie against the appellate order of the Trial Judge to a Division Bench. As this is neither contemplated nor borne out by the provisions of the Letters Patent extracted above, the contention of the respondent on this score must be overruled." We are of the opinion that in reaching this conclusion the Court missed the relevant portion of Clause 15 of the Letters Patent of the Bombay High Court. Reliance cannot, there....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nilworth 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 Judge of the High Court, vacated the Order of status quo. Attention of this Court was drawn to the 3 Judge Bench decision in the case of Shah Babulal Khimji (supra) and to the 2 Judge Bench decision in the case of Resham Singh Pyara Singh (supra). Shah Babulal Khimji's case being a 3 Judge Bench decision would prevail over Resham Singh Pyara Singh's case. It was also a binding decision on this Bench yet surprisingly the Court followed Resham Singh Pyara Singh's case. Of course the other decisions of this Court do not appear to have been brought to the attention of the Court. In this case it was also held that the concerned Order was not covered by Clause 10 of the Letters Patent. The following observations make this clear: "It would, thus, be seen that clause 10 of the Letters Patent consists of only two parts. In the first part, an appeal shall lie from a judgment of a learned Single Judge to the Division Bench not being a ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fic 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 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 Section 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 nigh Court exercising original jurisdiction of the court. Only on that short ground the appeal is required to be allowed." The question whether a Letters Patent Appeal was maintainable against the Judgment/Order of a single Judge passed in a Fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplicable 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 under Section 104. The further Appeal was under Letters Patent only. Section 299 of the Indian Succession Act did not permit it. The Letters Patent Appeal was saved/permitted by the words "any other law for the time being in force" in Section 104(1). It was thus held that Clause 15 of the Letters Patent permitted a right of Appeal against Order/Judgment passed under any Act unless the same was expressly excluded. It was held that the bar under Section 104 (2) would not apply if an Appeal was provided in any other law for the time being in force. Thus this authority also recognizes that an appeal permitted by "any other law for the time being in force" will not be hit by Section 104(2). Thus, the consensus of judicial opinion has been that Section 104(1) Civil Procedure Code expressly saves a Letters Patent Appeal. At this stage it would be appropriate to analyze Section 104 C.P.C. Sub-section (1) of Section 104 CPC provides for an appeal from the orders enumerated under sub-section....
X X X X Extracts X X X X
X X X X Extracts X X X X
....trary, 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 statue 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 cases, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ate or subservient piece of law. Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent but then which legislation is not subject to amendment or alteration. CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar'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 concern....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in an appeal against the order of a Tribunal, no such declaration is necessary for taking the matter on further appeal to the said High Court. If the express intention of the Legislature is clear, it is not permissible to speculate on the possible reasons that actuated the Legislature to make a distinction between the two classes of cases. It may, for ought we know, the Legislature thought fit to impose a limitation in a case where 3 Courts gave a decision, whereas it did not think fit to impose a limitation in a case where only one Court gave a decision". We find ourselves in respectful agreement with the reasoning of this Court in the aforesaid decision. The same reasoning would apply in respect of the submission that if it is held that Section 104(2) did not bar a Letters Patent Appeal an anomalous situation would arise in as much as if the matter were to come to the High Court a further Appeal would be permitted but if it went to the District Court a further Appeal would not lie. An Appeal is a creature of a Statute. If a Statute permits an Appeal, it will lie. If a Statute does not permit an Appeal, it will not lie. Thus for example in cases under the Land Acquisition Act, ....