1997 (1) TMI 542

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....g them from disturbing its possession. Pending suit, they sought ad interim injunction not to dispossess them from the hotel. The trial Court by order dated July 12, 1994 granted status quo whereby the appellant remained in possession of the suit premises. On appeal filed by the respondents, the learned single Judge vacated the status quo order by order dated May 18, 1995. Feeling aggrieved the appellant filed Letters Patent Appeal. By the impugned order the Division Bench has held that the appeals are not maintainable. Thus this appeal by special leave. Shri A.M. Singhvi, learned Addl, Solicitor General appearing for the appellant, contents that under Clause 10 of the Letters Patent an appeal would lie against the judgment of the learned ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... Rule 1 (r) of the Code. Sub-section (2) of Section 104 specifically prohibits Second Appeal against such an order postulating that "No appeal shall lie from any order passed in appeal under this Section". In Resham Singh Pyara Sing vs. Abdul Sattar [(1996) 2 SCC 49] a Bench of this Court consisting of K. Ramaswamy and B.L. Hansaria, JJ. has held that against an appellate order of a learned single Judge of a High Court passed by the Civil Court, a Letters Patent Appeal would not lie by reason of the bar created by sub-section (2) of Section 104 of the Code. Clause 10 of the Letters Patent reads as under: "An appeal shall lie... from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tion: and (iii) against judgment of a single Judge passed in exercise of its appellate jurisdiction against the judgment passed by a Court subject to the superintendence of the High Court in exercise of its appellate jurisdiction; The above analysis of the learned Judges in that behalf is not correct as we have stated above. The same was repeated by the Full Bench in Birendra Kr. Majhi's case (supra). The question then is: whether notwithstanding such prohibition, though an order of injunction passed by the learned single Judge in the appellate jurisdiction under Order XXXIX Rule 1 is a judgment as held by this Court in Shah Babulal Khimji vs. Jayaben D.C. Kania & Anr. [(1981) 4 SCC 8], an appeal would lie on the basis thereof? It i....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....because it envisages that "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." Since Section 104(2) expressly prohibits an appeal, against an order passed by the appellate Court under Order XLIII Rule 1 read with Section 104(1) no... appeal would lie. As a consequence no Letters Patent Appeal would lie. The view taken in Madhusudan Vegetable Products Co. Ltd. Ahmedabad vs. Bapa Chemicals Vapi & Ors. [AIR 1986 Guj. 156] and Firm Chhunilal Laxman Prasad vs. M/s. Agarwal and Co. ....