TaxTMI 
TaxTMI 
1898 (10) TMI 1
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.... superintendence conferred on the High Courts by Section 15 of the statute stood quite apart and distinct from their appellate jurisdiction. So that it could not possibly be said that in passing orders of a revisional character the High-Court was exercising its appellate jurisdiction. I hesitate, however, to assert my opinion in contradiction to the opinion hitherto entertained and acted upon by this as well as by the other High Courts, especially when I find that cases have been brought before the Judicial Committee in which the present question might have been but was not raised. 2. Accordingly, I think it must be that the judgment of a single Judge acting under Section 622 of the Code is open to appeal, unless the right of appeal has been taken away by Section 588 of that Code. On that question I entirely agree with Mr. Justice Subrahmania Aiyar. The question is, in my opinion, concluded by authority which it is beyond our province to criticise. 3. The answer which I would give to the question is that, if the order appealed against amounts to a judgment, an appeal against it does lie. S. Subramania Iyer, J 4. The first question for consideration is whether the power ....
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....t by Story in the passage immediately following that already quoted, "may be exercised in a variety of forms and indeed in any form which the Legislature may choose to prescribe." Such jurisdiction may be exercisable only in certain specified classes of cases. Its exercise may be claimable by party as a matter of right or only subject to his obtaining the leave of the Court which passed the decision to be appealed against. Again, the power to review or revise may be confined to points of law or may extend to matters of fact also. Clearly legislative provisions as to such matters only lay down some of the limitations under' which the jurisdiction is allowed to be exercised. Nor are the conditions prescribed by Section 622 for the exercise of the power of revision conferred by it, different in essence from the kind of limitations just above referred to and more commonly imposed by legislature's on the exercise of appellate functions. But none of such limitations, however much they may circumscribe the exercise of the power, touches, as already remarked, the intrinsic quality of the power itself. Now as Section 622 in question gives in terms to this Court the power to revise d....
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.... v. Turner L. R., 16 I. A. 156 . There, Counsel contended that under the High Courts Act and Charter the division of jurisdiction is fourfold, Ordinary Original, Extraordinary Original, Appellate, and those special matters which are the subject of special and separate provisions. Their Lordships, however, held that the last mentioned specially provided matters did not form a distinct head of jurisdiction and the real division is threefold: Ordinary, Extraordinary, and Appellate. This decision seems to go against the view that the power to revise exercisable under Section 622 is not a part of the appellate jurisdiction. 8. The power so to revise may be taken to be, so far as it goes, analogous to the power of superintendence, exercisable by the Court under Section 15 of the statute and under which the Privy Council held in Nilmoni Singh Deo v. Taranath Mukerjee I. L. R., 9 C., 295 that a High Court is competent to revise certain decisions of the Courts subordinate to it. And the ruling of the Judicial Committee that the classification is threefold implies that the power of superintendence, though specially provided for, being obviously neither Original jurisdiction nor Extraordin....
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...., as Lord Bowen put it in re-Knight and the Tabernacle Building Society, effective, and is, therefore, attended with the ordinary and usual incidents attaching to such determinations. 10. With reference to the remaining question in the case, I have but few observations to make. If I am right in the view that appellate jurisdiction includes revisional powers, it follows that against an order passed under Section 622 an appeal lies if it amounts to a judgment within the meaning of Clause 15 of the Letters Patent cannot be questioned unless the said clause has, as contended before us, been modified by Section 588 of the Code of Civil Procedure. This contention is, however, opposed to the ruling of the Judicial Committee in Hurrishchander Chowdhry v. Kali Sundari Delia L. R., 10. I. A. 4 in which their Lordships laid down that that Section does not apply to a case such as the present where the appeal is from one of the Judges of the Court to the Full Court. I am unable to persuade myself, as I have already stated on a previous occasion, that the observations of the Committee on the point are mere obiter dicta. The contention that Section 588 modified Clause 15 was not only distinctl....
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....f appeal given by-Clause 15 of the Letters Patent from the judgment of one Judge of this Court extends only to, cases falling within the original or appellate jurisdiction of the High Court, and that the phrase "appellate jurisdiction" does not include its revisional jurisdiction under Section 622 of the Code of Civil Procedure. 14. Section 622 of the Civil Procedure Code which may be compared with Section 35 of Act XXIII of 1861, under which a limited power of revision was given to the Sadr Court, may be said to be a development of the provision, contained in Section 15 of the Statute 24 and 25 Vict. c. 104. That Section declares that each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its appellate jurisdiction, and then goes on to give other powers, the power of calling for returns, directing transfer of cases, making rules of practice, and the like. In the original Letters Patent it is clear that orders passed by the High Court in the exercise of its powers of superintendence were not judgments in respect to which an appeal could be brought under Clause 14 of those Letters Patent corresponding to Clause 50 of ....
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....e appellate jurisdiction does not include revisional jurisdiction, for the mention of functions hereby directed to be performed in the exercise of original or appellate jurisdiction cannot include the function of superintendence, because that is not a function directed by the Letters Patent to be performed. The power of superintendence conferred by Section 15 of the statute is not controlled by anything in the Letters Patent. 15. Further, it does not seem possible to identify the appellate jurisdiction with the power of superintendence given under Section 622 of the Code. So far from it being correct to say that the two powers are indentical, it would be more correct to say that the one is exclusive of the other. The power of revision or superintendence is invoke d when there is no right of appeal and its existence may be attributed to the absence of that right. There is no necessary connection between the one jurisdiction and the other. A jurisdiction similar to that which may be exercised under Section 15 of the Statute or under Section 622 of the Code was exercised by the Court of Queen's Bench over inferior Courts which were not subject to its appellate jurisdiction. The....
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....passed in the exercise of the appellate jurisdiction of the Court. Such are my reasons for holding that when a single Judge of this Court has passed an order admitting or rejecting an application for revision made under Section 622 of the Code, which he may lawfully do under our rules, no appeal lies against that order. Benson, J. 16. The question referred for our decision involves two other questions, viz: (1) Whether the jurisdiction exercised by the High Court under Section 622, Civil Procedure Code, is included in the expression "appellate jurisdiction" as used in Section 13 of the High Court Act (24 and 25 Vict. c. 104) and in Section 86 of the Letters Patent of 1866, and (2) Whether the right of appeal given by Section 15 of the Letters Patent against an order passed by a single Judge of the High Court is controlled and limited by Sections 588 and 591; Civil Procedure Code. 17. I am of opinion that both of these questions must be answered in the affirmative, the first for the reasons stated by my learned colleague Mr. Justice Subrahmania Aiyar in the judgment, which he has just delivered, and the second for the reasons stated at length in the judgme....
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....n 622 and under the Small Cause Courts Act and for transfer of suits it is also the practice, founded on obvious convenience, to hear the parties by their pleaders. The procedure is of an essentially appellate character as invoking the interference of a superior Court, and I am of opinion that all these acts were intended to be included in the term "appellate", as opposed to "original" jurisdiction in Section 13 of the High" Court Act and in Section 36 of the Letters Patent founded thereon. 19. As to the second question, every argument urged before us in the present case has been fully dealt with in my judgment already referred to. The reasons I have there set forth would, I think, be regarded as absolutely conclusive but for an observation of their Lordships of the Privy Council in Harish Chunder Chowdhry v. Kali Sundar Debia I. L. R., 9 C., 482 . I have, however, given reasons for thinking that that observation was not intended to lay down a general interpretation of the law applicable to all cases in which an appeal is sought to be made to the Full Court under Section 15 of the Letters Patent against an order of a single Judge, but was made with reference to a particular case....
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.... reference is as to an "order" alone, nor do I imagine that it was the intention of the Court referring the question that the answer to the reference should amount to nothing more than that it depends upon what the order, is (e.g., whether it amounts to a judgment or not and is final or otherwise): for in that case the particular Order should have been set out in the reference. 27. It must, therefore, in the first place, be assumed that the question is confined to an order in its limited sense. The argument was that as the Civil Procedure Code did not in so many words repeal any part of Clause 15 of the Letters Patent, in every case where a single Judge sat his decision was appealable to a Bench of two Judges under that clause even when it resulted only in an order and no more as distinct from a judgment. This argument has been carefully and exhaustively refuted by Mr. Justice Benson in his judgment in Vasudeva Upadyaya v. Visvaraja Thirthasami, I. L. R. 20, M. 407. He says inter alia, and I adopt his words. Section 44 of the Letters Patent expressly contemplates the Governor-General in Council passing laws which shall have the effect of amending or altering the provisi....
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....hat the right given by Section 15 of the Letters Patent to appeal from the order of a single Judge is only limited by the Code to such orders as do not amount to a judgment whereby the rights of the parties are concluded but, where this is the case, the order amounts to a judgment within the meaning of Section 15 of the Letters Patent 3. M. H. C. R. 384 and an appeal lies. 32. If the question before us were whether the particular order passed out of which this reference arose is appealable under Section 15 of the Letters Patent (and I was responsible for the order), I should have no hesitation in holding that the answer should be in the affirmative as it amounts to a judgment; but, as I have said before, that is not the question referred and, indeed, the Vakil supporting the affirmative proposition distinctly stated in answer to a question put to him from the Bench when the question was first argued that he contended all orders made under Section 622 were appealable so that if the High Court calls for the records of a case or declines to do so, in either case, according to this contention, the order is appealable. If this is the question we are required to answer in this referen....
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....ent within the meaning of Section 15 of the Letters Patent, there can be no appeal from it under the provisions of the Letters. As to what is a judgment under this Section, reference may be made to the decision of Mr. Justice Bittlestone reported at 3. M. H. C. R.--384, where he observed. "The word judgment there (i.e. Section 15 of the Letters) used cannot be limited to a final judgment in a suit, nor indeed to a judgment in a suit at all, but must be held to have the more general meaning of any decision or determination affecting the rights or the interest of any suitor or applicant." (Reference may also be made to the decision of Markby, J., on the point in Justices of the Peace for Calcutta v. The Oriental Gas Company 8 B. L. R., 433 followed in In the matter of the. petition of Kally Soondery Dabia I. L. R., 6, C. 594. The question, therefore, to be considered is, whether an order amounting to a judgment having been passed under Section 622, an appeal from it lies, no express appeal being provided for from such an order in the Civil Procedure Code in view of the provisions of Section 591, Civil Procedure Code, which lays down that no appeal is to lie from any order passed by a....
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....eir Lordships of the Privy Council referred to in the order of reference I. L. R., 9 C. 482 remains for consideration. The ruling of their Lordships to be found there as to the effect of Section 588, Civil Procedure Code, is as follows: "It only remains to observe that their Lordships do not think that Section 588, Act IX 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 High Court to the Full Bench."-The ruling has been recently considered at length in a judgment by Subrahmania Aiyar and Benson, JJ., reported at I. L. R., 20 M. 407. It has there been held by Mr. Justice Benson (pp. 411 and 412) that the words used by their Lordships, as quoted in the present order of reference, do not lay down as a general rule that Section 588 of the of the Civil Procedure Code does not apply to any case in which an appeal is sought to be made under Section 15 of the Letters Patent from the order of a single Judge. It is pointed out that in the case there under consideration a Judge of the High Court of Calcutta had by an order passed under Section 610, Civil Procedure Code, refused to transmit to the Cou....
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.... decision. It appears to me to be very difficult to understand why, if the Legislature intended by Sections 588, 591 and 629 to take away the right of appeal, from decisions of single Judges of the High Court granted by Section 15 of the Letters Patent, this very important change in the law was not made by clear and distinct enactment. It must, I think, in considering this question, be borne in mind that no attempt is made in Act XIV of 1882 to provide a complete Code of Procedure for the High Courts in all branches of their civil judicial work. Nothing is said, for example, as to whether appeals are to be heard by one Judge or by a Bench of two or more Judges. The power given to the Chief Justice to make rules as to such matters under Sections 13 and 14 of 24 and 25 Vic. ch. 104 is not interfered with. If it was intended that the right of appeal given by Section 15 of the Letters Patent from all judgments of a single Judge should be taken away, it is only reasonable to presume that the Code would have gone further and provided as to what judicial acts may be done by a single Judge and what matters should go before a Bench of at least two Judges. 39. It is further urged that Sec....