Shah Babulal Khimji Vs. Jayaben D. Kania & ANR [1981] INSC 137 (10 August 1981)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) SEN, AMARENDRA NATH (J)
CITATION: 1981 AIR 1786 1982 SCR (1) 187 1981 SCC (4) 8 1981 SCALE (3)1169
CITATOR INFO :
RF 1986 SC1272 (10,108,109) RF 1988 SC 915 (17) RF 1990 SC 104 (8)
ACT:
Code of Civil Procedure, 1908-Section 104 Order 43 Rule 1-Scope of-Letters Patent-Clause 15-Right of Appeal under clause 15-If affected by section 104, Order 43 Rule 1.
HEADNOTE:
In a suit for specific performance of an agreement to sell filed on the original side of the Bombay High Court the plaintiff (appellant) prayed for certain interim reliefs. A single Judge of the High Court dismissed the application. A Division Bench of the High Court, on appeal by the plaintiff, held that the appeal was not maintainable on the ground that the impugned order of the single Judge was not a 'judgment' within the meaning of clause 15 of the Letters Patent of the High Court.
In appeal to this Court it was contended on behalf of the appellant that since the trial Judge is governed by the procedure prescribed by the Code of Civil Procedure , by virtue of the provisions of section 104 read with Order 43 Rule (1) the impugned order is appealable to a larger Bench;
(2) assuming that the Letters Patent was a special law, section 104 read with Order 43 is in no way inconsistent with clause 15 of the Letters Patent; (3) even if section 104 read with Order 43 Rule 1 does not apply an order refusing to appoint a receiver or to grant injunction has the attributes of finality and, therefore, amounts to a judgment' within the meaning of Letters Patent.
Allowing the appeal HELD:
(per Fazal Ali and A. Varadarajan, JJ.) (Amarendra Nath Sen, J. concurring.) Since the Order of the trial Judge was one refusing appointment of a receiver and grant of ad-interim injunction, it is a 'judgment' within the meaning of the Letters Patent both because order 43 rule 1 applies to internal appeals in the High Court, and such an order even on merits contains the quality of finality and would be a judgment within the meaning of clause 15 of Letters Patent.
Hence an appeal is maintainable to the Division Bench. The Division Bench was in error in dismissing the appeal without deciding it on merits. [259 F-G] 188 There is no inconsistency between section 104 read with Order 43 Rule 1, C.P.C. and appeals under Letters Patent.
There is nothing to show that Letters Patent in any way excludes or overrides the application of section 104 read with Order 43 Rule 1 or that these provisions do not apply to internal appeals within the High Court. [237 E-F] Code of Civil Procedure 1877, by sections 588 and 589, did not make any distinction between appeals to the High Court from the District Court and internal appeals to the High Court under Letters Patent. Notwithstanding the clear enunciation of law by the Privy Council that section 588 did not affect nor was it inconsistent with the provisions of Letters Patent and that, therefore, orders of a trial Judge which fall beyond section 588 could be appealable to a larger bench under the Letters Patent if its orders amounted to a 'judgment' within the meaning of clause 15 of the Letters Patent, there was a serious controversy among the High Courts on this question. Section 104 of the C.P.C., 1908 made it clear that appeals against orders mentioned in Order 43 Rule 1 were not in any way inconsistent with the Letters Patent but merely provide additional remedy by allowing appeals against miscellaneous orders passed by the trial Judge to a larger bench. [205 E-G] In dealing with a suit the trial Judge has to follow the procedure prescribed by the Code. It is indisputable that any final judgment passed by the trial Judge amounts to a decree and under the provisions of the Letters Patent an appeal lies to a larger bench. Letters Patent itself does not define the term 'judgment' and has advisedly not used the word 'decree' in respect of a judgment given by the trial Judge. [206 B-D] Section 5 of the Code empowers the State Government to apply the provisions of the Code where any enactment is silent as to its applicability. Section 5 makes clear that, excepting the Revenue Courts, all other Civil Courts would normally be governed by the provisions of the Code in the matter of procedure.[206H,207A] Section 4 of the Code which provides that in the absence of any specific provision to the contrary the provisions of the Code do not limit or affect any special or local law, is not applicable in the instant case because even if the Letters Patent is deemed to be a special law within the meaning of this section the provisions of section 104 do not seek to limit or affect the provisions of the Letters Patent. [207 B-C] By force of section 104 all appeals, as indicated in the various clauses of Order 43 Rule 1, would lie to the appellate court. In short a combined reading of the various provisions of the Code leads to the conclusion that section 104 read with Order 43 Rule 1 clearly applies to proceedings before a trial Judge of the High Court. [207 H; 209 B] In the instant case, therefore, section 104 read with Order 43 Rule 1 does not in any way abridge or interfere with or curb the powers conferred on the trial Judge by clause 15 of Letters Patent. They only give an additional remedy by way of appeal from the orders of the trial Judge to a larger bench. That being so there is no force in the respondent's argument that these provisions do not apply to internal appeals in the High Court. [209 D-E] 189 Hurrish Chunder Chowdry v. Kali Sundari Debia, 10 I.A.
4, Mt. Sabitri Thakurain v. Savi & Anr. A.I.R. 1921 P.C. 80, Union of India v. Mohindra Supply Co., [1962] 3 S.C.R. 497 and Shankarlal Aggarwal & Ors. v. Shankarlal Poddar & Ors.
[1964] 1 S.C.R. 71, referred to.
A number of enactments, as for example, section 202 of the Companies Act, 1956 and section 39 of the Arbitration Act widen, rather than limit, the original jurisdiction of the High Court by conferring additional or supplementary remedy by way of appeal to a Division Bench from the judgment of a single Judge. 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 the various clauses of Order 43 Rule 1 to a larger bench of the High Court without disturbing, interfering with or over-riding the Letters Patent jurisdiction.
[211 B-C] Dayabhai Jiwandas & Ors. v. A.M.M. Murugappa Chettiar, I.L.R. 13 Rangoon 457, Sonbai v. Ahmedbhai Habibhai [1872] 9 Bom. HC Reports. 398, Rajagopal & Ors. (in Re. LPA 8 of 1886) ILR 9 Mad. 447, Ruldu Singh v. Sanwal Singh [1922] ILR 3 Lahore 188, Lea Badin v. Upendra Mohan Roy Chaudhary & Ors. [1934-35] 39 CWN 155, Mathura Sundari Dassi v. Haran Chandra Shaha & Ors. A.I.R. 1916 Cal. 361 Abdul Samad & Ors.
v. The State of J & K. A.I.R. 1969 J&K 52, and Kumar Gangadhar Bagla v. Kanti Chunder Mukerjee & Anr., 40 CWN 1264, approved.
Ram Sarup v. Kaniz Ummehani, ILR 1937 All. 386 over- ruled.
Assuming that Order 43 Rule 1 does not apply to Letters Patent appeals the principles governing these provisions would apply by process of analogy. The provisions of Order 43 Rule 1 possess the traits, trappings and qualities and characteristics of a final order. Although the word 'judgment' has not been defined in the Letters Patent but whatever test may be applied the order passed by the trial Judge appealed against must have the traits and trappings of finality. The appealable orders indicated in the various clauses of Order 43 Rule 1 are matters of moment deciding valuable rights of the parties and are in the nature of final orders so as to fall within the definition of 'judgment'. [237G; 225 E-F] Radhey Shyam v. Shyam Behari Singh [1971] 1 S.C.R. 783 referred to.
Pandy Walad Dagadu Mahar & Anr. v. Jamnadas Chotumal Marwadi, A.I.R. 1923 Bom. 218; Vaman Ravi Kulkarni v. Nagesh Vishnu Joshi & Ors, A.I.R. 1940 Bom. 216; Vishnu Pratap & Ors. v. Smt. Revati Devi & Ors. A.I.R. 1953 All. 647;
Madhukar Trimbaklal v. Shri Sati Godawari Upasani Maharaj of Sakori & Ors. A.I.R. 1940 Nagpur 39; Ratanlal Jankidas Agarwal v. Gajadhar & Ors.; A.I.R. 1949 Nagpur 188; Beads Factory & Anr. v. Shri Dhar & Ors. A.I.R. 1960 All. 692; J. K. Chemicals Ltd. v. Kreba & Co.; A.I.R. 1967 Bom. 56, overruled.
Having regard to the nature of the orders contemplated in the various clauses of Order 43 Rule 1 which purport to decide valuable rights of the parties in the ancillary proceedings even though the suit is kept alive these orders possess the attributes or characteristics of finality so as to be judgments within the meaning of clause 15 of the Letters Patent. They are therefore, appealable to a larger 190 bench. The concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position. [237H-238A-B] The question to be decided in this case which is a vexed and controversial one is as to what is the real concept and purport of the word 'judgment' used in the Letters Patent. The meaning of the word 'judgment' has been the subject matter of conflicting decisions of the various High Courts raging for almost a century and over which despite the length of time no unanimity had been reached and it is high time that this controversy should be settled once and for all as far as possible. [238 E-F] Out of the numerous authorities cited three leading judgments have spelt out certain tests for determining as to when an order passed by a trial Judge can be said to be a 'judgment' within the meaning of clause 15 of the Letters Patent and we are inclined to agree generally with the tests laid down in these cases though some of the tests laid down are far too wide and may not be correct. [238 G-H] While the view taken in the Justices of the Peace for Calcutta v. The Oriental Gas Company (VIII Bengal L.R. 433) is much too strict, the one taken in T. V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar (ILR 35 Madras 1) is much too wide. The correct test seems to lie somewhere in between the tests laid down in these cases. Similarly the full Bench decision in Manohar Damodar Bhoot v. Baliram Ganpat Bhoot (AIR 1952 Nagpur 357) pithily described the essential requisites and the exact meaning of the word 'judgment' as used in the Letters Patent. The pointed observations made in this case try to synthesize the conflicting views taken by the Calcutta and Madras High Courts. They represent the true scope and import of the word 'judgment' as used in the Letters Patent.
[The Court reviewed the entire case law on the subject laying down various tests to determine what a judgment is.] The test for determining as to when an order passed by a trial Judge can be said to be a 'judgment' within the meaning of the Letters Patent are:
(1) Where an order, which is the foundation of the jurisdiction of the Court or one which goes to the root of the action, is passed against a particular party, it amounts to a judgment. [248 B-C] Asrumati Debi v. Kumar Rupendra Deb Raikot [1953] SCR 1159 (2) An order dismissing an application for review would be appealable under the Letters Patent being a judgment, though it is not made appealable under Order 43 rule 1. [249 B] State of Uttar Pradesh v. Dr. Vijay Anand Maharaj [1963] 1 SCR 1.
(3) The Companies Act, 1956 which confers original jurisdiction on the trial Judge expressly makes an order passed by the trial Judge under section 202 appealable and, therefore, any order passed under that section would be appealable under the Companies Act and is, therefore, a judgment. [249 C-D] 191 Shankarlal Aggarwal v. Shankerlal Poddar [1964] 1 SCR 717 (4) Whenever a trial Judge decides a controversy which effects valuable rights of one of the parties it is a judgment within the meaning of the Letters Patent. [249 H] Radhey Shyam v. Shyam Behari Singh [1971] 1 SCR 783.
(5) Where an order passed by the trial Judge allowing amendment of the plaint, takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. [250 A-B] Shanti Kumar R. Canji v. The Home Insurance Co. of New York [1975] 1 SCR 550.
(6) Clause 15 of the Letters Patent does not define the term 'judgment'. The Letters Patent is a special law which carves out its own sphere and it would not be possible to project the definition of the word 'judgment' as defined in the Code of Civil Procedure . Letters Patent were drafted long before the Code of Civil Procedure of 1882 was enacted.
The word 'judgment' used in the Letters Patent does not mean a 'judgment' as defined in the Code. At the same time it does not include every possible order-final, preliminary or interlocutory passed by a Judge of the High Court. [251 D-E] Mt. Shahzadi Begum v. Alak Nath & Ors. A.I.R. 1935 All 628.
Under the Code of Civil Procedure a judgment consists of reasons and grounds for a decree passed by a Court. As a judgment constitutes the reasons for the decree, it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined in the Code seems to be rather narrow and the limitations engrafted by section 2(2) cannot be physically imported into the definition of the word 'judgment' as used in clause 15 of the Letters Patent because the Letters Patent has advisedly not used the terms 'order' or 'decree' anywhere. The intention of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure . At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent.
The word 'judgment' has a concept of finality in a broader and not a narrower sense. [2 52 G-H; 253 A-C] A judgment can be of three kinds:
(1) A final judgment: A judgment, which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves nothing else to be decided is a final judgment. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge is a judgment within the 192 meaning of the Letters Patent and amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. [254 D-E] (2) A preliminary judgment: A preliminary judgment may be of two forms: (i) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Since the suit is finally decided one way or the other, the order passed by the trial judge would be a 'judgment' finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to a larger bench; (ii) where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to the maintainability of the suit as for example, bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under section 80 and the like. An order of the trial Judge rejecting these objections adversely affects a valuable right of the defendant who, if his objections were held to be valid, is entitled to get the suit dismissed on preliminary grounds. Such an order, though it keeps the suit alive, decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger bench. [254 F-H; 255 A-B] (3) Intermediary or Interlocutory judgment: Most of the interlocutory orders which contain the quality of finality are clearly specified in clause (a) to (w) of Order 43 Rule
1. They are judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders not covered by Order 43 Rule 1 but possessing the characteristics and trappings of finality because they adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. Thus when an order vitally affects a valuable right of the defendant it will be a judgment within the meaning of Letters Patent so as to be appealable to a larger bench. [255 C-E; 256 A] Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. [256 H-257 A] The following considerations should prevail with the Court in deciding whether or not an order is a judgment:
(1) The trial Judge being a senior court with vast experience of various branches of law occupying a very high status, should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment.[258D-E] (2) An interlocutory order, in order to be a judgment, must contain the traits and trappings of finality either when the order decides the question in controversy in ancillary proceeding or in the suit itself or in a part of the proceedings. [258 G] 193 It is not the form of adjudication which has to be seen but its actual effects on the suit or proceedings. [243 H] If irrespective of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment. [244A] If the effect of the order, if not complied with, is to terminate the proceedings, the said order would amount to a judgment. [244 B] An order in an independent proceeding which is ancillary to the suit, (not being a step towards judgment) but is designed to render the judgment effectively can also be termed as judgment within the meaning of the Letters Patent. [244C] An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceedings.
[244 D-E] An adjudication based on a refusal to exercise discretion, the effect of which is to dispose of the suit, so far as that particular adjudication is concerned, would amount to a judgment within the meaning of the Letters Patent. [244 E-F] Some illustrations of interlocutory orders which may be treated as judgments may be stated thus:
(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant.
[258 B-C] (2) An order rejecting the plaint. [258 C] (3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure . [258 C] (4) An order rescinding leave to the trial Judge granted by him under clause 12 of the Letters Patent. [258 D] (5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under section 80, bar against competency of the suit against the defendant even though the suit is kept alive. [258 D-E] (6) An order rejecting an application for a judgment on admission under Order 12 Rule 6. [258 E-F] (7) An order refusing to add necessary parties in a suit under section 92 of the Code of Civil Procedure . [258 F] (8) An order varying or amending a decree. [258 F-G] (9) An order refusing leave to sue in forma pauperis.
[258 F-G] (10) An order granting review. [258 F-G] 194 (11) An order allowing withdrawal of the suit with liberty to file a fresh one. [258 G-H] (12) An order holding that the defendants are not agriculturists within the meaning of the special law. [258 G-H] (13) An order staying or refusing to stay a suit under section 10 of the Code of Civil Procedure . [258 H] (14) An order granting or refusing to stay execution of the decree. [259A] (15) An order deciding payment of court fee against the plaintiff. [259 B] (per Amarendra Nath Sen J concurring) On a plain reading and proper construction of the various provisions of the Code of Civil Procedure , section 104 of the Code applies to the original side of the High Court of Bombay and the impugned order of the single Judge is appealable to a Division Bench under this section read with Order 43 thereof.
[279 H; 280 A] The right of appeal under clause 15 of the Letters Patent is in no way curtailed or affected by section 104. By virtue of the provisions of section 104(1) a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein, even though such orders may or may not be appealable under clause 15 of the Letters Patent as a judgment and the right of appeal under clause 15 remains clearly unimpaired. [275 E-G] The argument of the respondent, based mainly on the provisions of sections 3 and 4 of the Code of Civil Procedure that even if various other provisions of the Code apply to the Bombay High Court, including its original side, the provisions of section 104 read with Order 43 could not apply to the original side of a Chartered High Court because the jurisdiction conferred by clause 15 of the Letters Patent is a special jurisdiction is without force. [267 B-C] That by virtue of section 1 (which provides for territorial extent of the operation of the Code) the Civil Procedure Code applies to the State of Maharashtra cannot be disputed. [268 E-F] Section 3 which deals with subordination of Courts to the High Court has no bearing on the point in issue and does not create any bar to the competence and maintainability of an appeal from an order passed by a single Judge on the original side if the order is otherwise appealable. While dealing with any matter on the original side of the High Court a single Judge is in no way subordinate to the High Court. Nor again, could there be a question of his being a subordinate to the Division Bench which hears an appeal from his judgment. If any order passed by him on the original side is a 'judgment' within the meaning of clause 15 of the Letters Patent an appeal lies to a Division Bench. [272 E-G] Similarly there is no force in the argument that since section 104 and Order 43 of the Code affect the special jurisdiction conferred on the High Court under 195 clause 15 of Letters Patent these provisions are not applicable to the present case. [273 C-D] Section 4 of the Code cannot be said to be in conflict with the provisions of clause 15; nor can it be said that it limits or otherwise affects the power and jurisdiction of the High Court under clause 15. [274 A-B] Section 4 provides that nothing in the Code shall be deemed to limit or otherwise affect any special or local law in force or any special jurisdiction conferred by or under any law for the time being in force. Clause 15 confers on the litigant a right to prefer an appeal from the court of original jurisdiction to the High Court in its appellate jurisdiction. It confers a right of appeal from a judgment of any Judge on the original side to the High Court. Though this clause is a special provision it cannot be said that it is intended to lay down that no appeal would lie from an order of a single Judge on the original side even if specific provision is made in any statute making the order appealable. By virtue of this provision any order considered to be a judgment would be appealable. If a statute confers on the litigant right of appeal, it cannot be said that such provision would affect the special provisions of clause 15.
This special power is in no way affected and is fully retained. In addition, the High Court may be competent to entertain other appeals by virtue of specific statutory provisions. [273 C-H: 274 A] On the contrary, the Code contains specific provisions indicating cases in which its provisions are or are not applicable, as for example section 5, which makes specific provision regarding the nature and manner of applicability of the Code to revenue courts. Sections 116 to 120 clearly indicate that section 104 and order 43 apply to the original side of the High Court. Section 104 and Order 43 which is attracted by section 104, clearly provide that an appeal shall lie from the orders mentioned in rule 1 of Order 43.
The impugned order is one such order and is clearly appealable. When the legislature conferred such a right on the litigant a Court would be slow to deprive him of the statutory right merely on the ground that the order had been passed by a single Judge on the original side of the High Court. [274 B-E] Section 104 recognises that, apart from the orders made appealable under the Code, there may be other orders appealable by any law for the time being in force. It further provides that no appeal will lie from any orders other than orders expressly provided in the Code or by any other law in force. The right of appeal against a judgment of a single Judge on the original side under clause 15 is a right conferred by "any other law in force". [275 C-E] Union of India v. Mohindra Supply Co. [1962] 3 SCR 497 and Mt. Savitri Thakurain v. Savi and Anr. [1921] P.C. 80 referred to.
Mathura Sundari Dassi v. Haran Chandra Shaha, A.I.R.
1916 Cal. 361 and Lea Badin v. Upendra Mohan Roy Choudhary, A.I.R. 1935 Cal. 35 approved.
Vaman Raoji Kulkarni v. Nagesh Vishnu Joshi, A.I.R.
1940 Bom. 216 overruled.
Hurrish Chander Chowdhry v. Kali Sundari Debia, 10 I.A.
4, held in applicable.
196 Unless a right is conferred on him by law, a litigant does not have an inherent right of appeal. An order appealable under the C.P.C. or any other statute becomes appealable because the concerned statute confers a right of appeal on the litigant. But yet such an order may or may not be appealable as 'judgment' under clause 15 of the Letters Patent. An order appealable under clause 15 as a 'judgment' becomes appealable because the Letters Patent confers the right of appeal against such order as 'judgment'. Similarly an order appealable under the Letters Patent may or may not be appealable under the Code. [281 C-E] The Letters Patent, by clause 15, confers a right of appeal against a 'judgment' and therefore an order which satisfies the requirements of 'judgment' within the meaning of clause 15 becomes appealable. What kind of order will constitute a 'judgment' within the meaning of this clause and become appealable as such must necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed. [281 F-G] A comprehensive definition of 'judgment' contemplated by clause 15 cannot properly be given. Letters Patent itself does not define 'judgment'. The expression has necessarily to be construed and interpreted in each case. But yet it is safe to say that if an order has the effect of finally determining any controversy forming the subject matter of the suit itself or any part thereto or the same affects the question of the Court's jurisdiction or the question of limitation, it normally constitutes 'judgment' within the meaning of clause 15 of Letters Patent.
[282 E-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 662 of 1981 Appeal by special leave from the judgment and order dated the 15th January, 1981 of the Bombay High Court in Letters Patent Appeal No. 611 of 1980.
Soli J. Sorabji G.L. Sanghi, P.H. Parekh, P.K. Shroff and Gautam Philips for the Appellant.
R.P. Khambata, B.R. Agarwala, K.P. Khambata, Ashok C.
Mehta and Miss Halida Khatun for Respondent No. 1.
K.K. Venugopal, R. Vaidya, M.B. Rele, Rajiv K. Garg and N.D. Garg for Respondent No. 2.
The following judgments were delivered:
FAZAL ALI, J. This appeal by special leave is directed against an Order dated January 15, 1981 of the Division Bench of the Bombay High Court by which the appeal filed by the appellant against the Order of the Trial Judge was dismissed on the ground that the appeal was not maintainable as the Order impugned was 197 not a judgment within the meaning of clause 15 of the Letters Patent of the High Court.
After hearing counsel for the parties at great length we passed the following Order on April 22, 1981:- "We have heard counsel for the parties at great length. In our opinion, the appeal before the High Court was maintainable and the High Court should have entertained and decided it on merits.
We, therefore, allow this appeal, set aside the judgment dated January 15, 1981 of the Division Bench of the Bombay High Court and remand the case to the same and decide it on merits. The High Court will dispose of the appeal as quickly as possible. The interim order passed by this Court on February 16, 1981 will continue until the High Court disposes of the appeal. Liberty to parties to approach the High Court for fixing an early date of hearing. In the circumstances, there will be no order as to costs.
Reasoned judgment will follow." We now set out to give the reasons for the formal Order allowing the appeal which was passed by us on the aforesaid date.
As we are not at all concerned with the facts of the case it is not necessary to detail the same in this judgment. Suffice it to say that the plaintiff-appellant had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver of the suit property and injuncting the defendant from disposing of the suit property during the pendency of the suit. The single Judge after hearing the notice of motion dismissed the application for appointment of receiver as also for interim injunction.
Thereafter, the plaintiff-appellant filed an appeal before the Bombay High Court which dismissed the appeal as being non-maintainable on the ground that the Order impugned (order of the Single Judge) was not a judgment as contemplated by clause 15 of the letters patent of the High Court. Hence, this appeal by special leave.
The substantial questions of law raised in this appeal by the Counsel for the parties are as to the scope, ambit and meaning of 198 the word 'judgment' appearing in clause 15 of the Letters Patent of the Bombay High Court and corresponding clauses in the Letters Patent of other High Courts. We might mention here that the significance of the word 'judgment' assumes a special importance in those High Courts which have ordinary civil jurisdiction depending on valuation of the suit or the action. These High Courts are Calcutta, Bombay, Madras as also Delhi and Jammu & Kashmir. The other High Courts do not have any ordinary civil jurisdiction but their original jurisdiction is confined only to a few causes like probate and administration, admiralty and cases under Companies Act.
It seems to us that the interpretation of the word 'judgment' appearing in the Letters Patent of the High Court has been the subject-matter of judicial interpretation by decisions rendered by various High Courts in India.
Unfortunately, however, the decisions are by no means consistent or unanimous. On the other hand, there appears to be a serious divergence of judicial opinions and a constant conflict between the High Court’s regarding the true scope, ambit and meaning of the word 'judgment' appearing in the Letters Patent so much so that a colossal controversy has been raging in this country for more than a century. Several tests have been laid down by leading judgments of the Calcutta, Madras and Rangoon High Courts. Other High Courts have either followed one or the other of the leading judgments regarding the validity of the tests laid down by the three High Courts. The Calcutta High Court appears to have followed the leading case of its court in The Justices of the Peace for Calcutta v. The Oriental Gas Company where Sir Richard Couch, C.J. had laid down a particular test on a rather strict and literal interpretation of the Letters Patent. Later decisions of the Calcutta High Court have followed this decision of Sir Richard Couch, C.J. with some modifications and clarifications. The Madras High Court has taken a very liberal view in its decision in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar. The Bombay High Court seems to have consistently taken the view that no interlocutory order can ever be said to be a judgment within the meaning of the Letters Patent so as to be appealable from the order of a Single Judge exercising original civil jurisdiction (hereinafter referred to as 'Trial Judge') to a larger Bench. The Rangoon High Court speaking through Sir Page, C.J. in In Re Dayabhai Jiwandas & Ors v. A.M.M.
Murugappa Chettiur has placed a very narrow interpretation on 199 the term 'judgment' and has almost equated it with a decree passed by a civil court.
This Court also has incidentally gone into the interpretation of the word 'judgment' and has made certain observations but seems to have decided the cases before it on the peculiar facts of each case without settling the conflict or the controversy resulting from the divergent views of the High Courts. This Court, however, has expressed a solemn desire and a pious wish that the controversy and the conflict between the various decisions of the High Courts has to be settled once for all some time or the other. In this connection, in Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors. this Court observed as follows:- "In view of this wide divergence of judicial opinion, it may be necessary for this Court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word 'judgment' as it occurs in clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts. We are, however, relieved from embarking on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us, be regarded as a 'judgment' within the meaning of clause 15 of the Letters Patent".
(Emphasis supplied) Similarly, in the case of State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, this Court noticed the divergence of judicial opinions on the subject and observed as follows :- "The scope of the expression "judgment" came under the judicial scrutiny of the various High Courts, there is a cleavage of opinion on that question.
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200 The foregoing brief analysis of judgment shows that the definition given by the Madras High Court is wider than that given by the Calcutta and Nagpur High Courts. It is not necessary in this case to attempt to reconcile the said decision or to give a definition of our own, for on the facts of the present case the order of Mehrotra, J., would be a judgment within the meaning of the narrower definition of that expression".
After, however, analysing the various judgments this Court did not think it necessary to give any definition of its own and refrained from giving a final decision on the question as to the scope and meaning of the word 'judgment' appearing in the Letters Patent. Mudholkar, J. in his concurring judgment expressly refrained from expressing any opinion on the subject.
Again in a later decision in Shankarlal Aggarwal & Ors. v. Shankarlal Poddar & Ors. the conflict in the various decisions of various High Courts was again noticed and this Court observed as follows:
"There has been very wide divergence of opinion between the several High Court in India as to the content of the expression 'judgment' occurring in Cl. 15 of the Letters Patent................We consider that occasion has not arisen before us either since in view of the construction which we have adopted of s. 202 of the Indian Companies Act the scope of the expression 'judgment' in the Letters Patent does not call for examination or final decision".
(Emphasis ours) There are other decisions of this Court also which have touched the fringes of the question but did not choose to give a final verdict on the vexed question and preferred to decide the cases on their own facts. We shall briefly refer to these decisions at a later stage of this judgment.
With due deference to the desire of this Court to settle the controversy in question once for all, the very able, detailed and lengthy arguments advanced by counsel for the parties on various shades, features and aspects of the interpretation of the word 'judgment' appearing in the Letters Patent, the serious legal controversy raging in this country for over a century between the various High Courts resulting in an ir-reconciliable element of judicial uncertainty in the interpretation of the law and further having regard to the huge backlog and accumulation of arrears in the High Courts, we are clearly of the opinion that the time has now come when the entire controversy on the subject should be set at rest and an authoritative pronouncement on the matter may be given by us so as to maintain complete consistency in deciding the matter by the High Courts whenever it arises.
Mr. Sorabjee, learned counsel for the appellants has submitted four important points of law dwelling on the various facts of the question at issue:
(1) It was contended that the provisions of s. 104 read with order 43 Rule 1 of the Code of Civil Procedure , 1908 (hereinafter referred to as 'Code of 1908') does not impose any bar on the trial held by the Trial Judge and thus by virtue of these provisions the order impugned (the order of the trial court refusing to appoint Receiver and to grant injunction) falls squarely under clauses (r) and (s) of order 43 Rule 1 of the Code of 1908 and is therefore appealable to a larger Bench.
In amplification of this contention it was submitted that the Trial Judge is governed by the procedure prescribed by the Code of 1908 in all matters and hence there is no reason why order 43 Rule 1 should not apply to any order passed by the Trial Judge under any of the clauses of order 43 Rule 1 read with s. (2) Even if we assume that the Letters Patent was a special law which overrides the provisions of the Code of Civil Procedure , the power under s. 104 read with order 43 Rule 1 is in no way inconsistent with cl. 15 of the Letters Patent.
Section 104 merely provides an additional remedy and confers a new jurisdiction on the High Court without at all interfering with or overriding the existing provisions of the Letters Patent.
202 (3) Even if order 43 Rule 1 did not apply in terms, the orders which have been mentioned as being appealable to a larger Bench could form valuable guidelines for the Court in arriving at the conclusion that such orders amount to judgments of the Single Judge as contemplated by the Letters Patent.
(4) Even if s. 104 read with order 43 Rule 1 does not apply, an order refusing to appoint a receiver or to grant injunction has the trappings and attributes of finality as it affects valuable rights of the plaintiff in an ancillary proceeding though the suit is kept alive and would, therefore, amount to a judgment within the meaning of the Letters Patent.
The learned counsel for the respondents while countering the arguments of Mr. Sorabjee submitted the following propositions:
(1) S. 104 read with order 43 Rule 1 could not apply to the original trial by the Trial Judge which is governed by the Letters Patent alone.
(2) It was further argued that the forum for an appeal contemplated by s. 104 is the same as that for appeals under sections 96 to 100 of the Code of 1908, that is to say, appeals from the courts in the mofussil (district courts) to the High Court and it has no application to internal appeals within the High Court. In other words, the forum under which an appeal lies from one Judge of the High Court to a larger Bench is not a forum contemplated by s. 104 at all but is created by the Letters Patent.
(3) If s. 104 of the Code of 1908 is held to be applicable to proceedings before the Trial Judge of the High Court certain strange anomalies will arise, viz., where an appeal lies from a district court under order 43 Rule 1 before a Single Judge, a further appeal will have to lie before a larger Bench against the order of the Trial Judge although s. 104 prevents a second appeal against miscellaneous orders under order 43 Rule 1 and permits only one appeal. This will, therefore, lead to an inconsistent and anomalous position.
203 (4) The word 'judgment' should be strictly construed as was done by Sir Richard Couch, C.J. in Oriental Gas Company's case (supra) so as to include only those orders of the Trial Judge which are of a final nature and effectively decide the controversy of the issues in dispute.
We would first deal with the point relating to the applicability of s. 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-founded and must prevail. Moreover, some of the decisions of this Court, those of the Privy Council and other High Courts support the propositions adumbrated by Mr. Sorabjee.
In order, however, to appreciate the applicability of s. 104 read with Order 43 Rule 1, it may be necessary to examine some important provisions of the Code of Civil Procedure as also the previous history which led to the enactment of s. 104 by the Code of 1908. It appears that prior to the Code of 1908 in the earlier Code of Civil Procedure there were two kinds of appeals to the High Court- (1) appeals against judgments and decrees of the Trial Judge, and (2) appeals against orders, either interlocutory or quasi-final, passed by the court during the pendency of the suit or proceedings. In the Civil Procedure Code of 1877 the section corresponding to order 43 Rule 1 of the Code of 1908 was s. 588 which provided for appealable orders under clauses (a) to (t). Section 588 of the Code of 1877 provided that an appeal from any order specified in s. 588 shall lie to the High Court or when an appeal from any other order is allowed by the Chapter it would lie to the Court to which an appeal would lie from the decree in the suit in respect of which such order was made or when such order is passed by a court other than the High Court, then to the High Court. A perusal of ss. 588 and 589 of the Code of 1877 would clearly show that the statute made no distinction between appeals to the High Court’s from the district courts in the mofussils or internal appeals to the High Court’s under the Letters Patent. Section 591 clearly provided that except the orders mentioned in s. 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.
204 "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".
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 there for, did not contemplate any other appeal except those mentioned in ss. 588 and 591.
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 ss. 588 to 591 a serious controversy arose between the various High Courts regarding the interpretation of s. 588. The Bombay and Madras High Courts held that under cl. 15 of the Letters Patent of the said High Courts, an appeal could lie only from orders passed under s. 588 and not even under the Letters Patent. In Sonba'i v. Ahmedbha'i Habibha'i a Full Bench of the Bombay High Court held that under cl. 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 ss. 588 and 591 of the Code of 1877. The Madras High Court in Rajgopal & Ors (in Re: L.P.A. No. 8 of 1886 took the same view. Then came the decision of the Privy Council in the case of Hurrish Chunder Chowdry v. Kali Sundari Debia which while considering s. 588 made the following observations:- "It only remains to observe that their Lordships do not think that s. 588 of Act X of 1877, which has the effect of restricting certain appeals is from one of the Judges of the Court to the full Court." (Emphasis ours) 205 This judgment gave rise to a serious conflict of opinions in the High A Courts in India. The High Courts of Calcutta, Bombay and Madras held that in view of the decision of the Privy Council in the aforesaid case, even though an order may not have been appealable under s. 588 it could be appealable provided it was a judgment within the meaning of cl. 15 of the Letters Patent of the respective High Courts.
Toolsee Money Dassee v. Sudevi Dassee,, Secretary of State v. Jehangir; Chappan v. Modin Kutti, However, the Allahabad High Court in Banno Bibi v. Mehdi Husain held that if an order was not appealable under ss. 588 and 591 of the Code of 1877 it could not be appealed against even under the Letters Patent of the High Court. This view was affirmed by a later decision of the same High Court in Muhammad Naim-ul- Lah Khan v. Ihsan-ul-Lah Khan.
With due respect we would like to point out that the pointed and terse observations of the Privy Council did not leave any room for any doubt or speculation in the matter.
While construing s. 588, the Judicial Committee in Hurrish Chunder Chowdry's case (supra) had made it clear that appeals would lie under s. 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 s.
588 would not lie to a larger Bench of the High Court. In other words, the Privy Council intended to lay down clearly that s. 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 s. 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of cl. 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 s. 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, 206 Bombay and Madras High Courts. Even after the introduction of s. 104, the conflict between the various High Courts still continued as to whether or not s. 104 would apply to internal appeals in the High Court. That is the question which we shall now discuss.
To begin with, it is not disputed that a Trial Judge has to follow the entire procedure laid down by the Code of 1908 starting from the presentation of the plaint right up to the delivery of the judgment. The only difference in the assumption of jurisdiction by the High Court is that a suit of a particular valuation has to be instituted in the High Court rather than in the District court. Secondly, it is indisputable that any final judgment that the Trial Judge passes deciding the suit one way or the other amounts to a decree and under the provisions of the Letters Patent an appeal lies to a larger Bench which normally is a Division Bench as provided for under the Rules made by various High Courts. Thirdly, the Letters Patent itself does not define the term 'judgment' and has advisedly not used the word 'decree' in respect of any judgment that may be given by the Trial Judge. Section 5 of the Code of 1908 may be extracted thus:
"5. Application of the Code to Revenue Courts:
(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent the State Government may, by notification in the Official Gazette, declare that any portions of those pro visions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe.
(2) "Revenue Court" in Sub-section (1) means a court having jurisdiction under any local law to entertain suits of other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature " The importance of this section is that wherever the provisions of the Code of Civil Procedure are sought to be excluded by any special enactment which may be silent on the point, the State 207 Government can by notification apply the provisions of the Code to Revenue courts. A bare perusal of this section would clearly reveal that excepting Revenue courts all other Civil courts would normally be governed by the provisions of the Code of Civil Procedure in the matter of procedure. Section 4(1) of the Code of 1908 which is a saving provision clearly provides that in the absence of any specific provision to the contrary the provisions of the Code does not limit or affect any special or local law. Thus, the test contained in s. 4 is not applicable in the instant case because even if the Letters Patent of the High Court be deemed to be a special law as contemplated by s. 4, the provisions of s. 104 do not seek to limit or affect the provisions of the Letters Patent.
This now takes us to s. 104 of the Code of 1908, the relevant portion of which may be extracted thus:- "104.(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- (a) to (f) annulled;
(ff) an order under section 35-A (g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(1) any order made under rules from which an appeal is expressly allowed by rules:
(2) No appeal shall lie from any order passed in appeal under this section." Thus by the force of s. 104 all appeals as indicated in the various clauses of order 43 Rule 1 viz. (a) to (w) would lie to the appellate court. Section 105 clearly provides that no appeal shall lie from any order of a Court made in the exercise of its original or appellate 208 jurisdiction except according to the procedure laid down by the Code. The relevant part of s. 105 (1) may be extracted thus:
"105. (1) Save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal." Finally, order, 49 Rule 3 expressly exempts matters contained in clauses (1) to (6) of Rule 3 from the operation of the extraordinary original civil jurisdiction of the chartered High Courts, that is to say, the jurisdiction conferred on the High Court by the Letters Patent. The relevant portion of this provision may be extracted thus:
"O. 49.
(3) The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:- (1) rule 10 and rule 11, clauses (b) & (c), of order VII;
(2) rule 3 of order X;
(3) rule 2 of order XVI;
(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15, and 16 (so far as relates to the manner of taking evidence) of Order XVIII;
(5) rules 1 to 8 of order XX; and (6) rule 7 of order XXXIII (so far as relates to the making of a memorandum);
and rule 35 of order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction" It may be pertinent to note that although a number of rules have been exempted from the operation of the Code, order 43 Rule 209 1 and the clauses thereunder have not been mentioned in any of these clauses.
Thus, a combined reading of the various provisions of the Code of Civil Procedure referred to above lead to the irresistible conclusion that s. 104 read with order 43 Rule 1 clearly applies to the proceedings before the Trial Judge of the High Court. Unfortunately, this fact does not appear to have been noticed by any of the decisions rendered by various High Courts.
We might further point out that s. 117 of the Code of 1908 expressly applies the provisions of the Code to High Courts also. Section 117 may be extracted thus:
"117. Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts".
We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case s. 104 read with Order 43 Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by cl. 15 of the Letters Patent. What s. 104 read with order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench. Indeed, if this is the position then the contention of the respondent that s. 104 will not apply to internal appeals in the High Court’s cannot be countenanced.
In fact, the question of application of the Code of Civil Procedure to internal appeals in the High Court does not arise at all because the Code of Civil Procedure merely provides for a forum and if order 43 Rule 1 applies to a Trial Judge then the forum created by the Code would certainly include a forum within the High Court to which appeals against the judgment of a Trial Judge would lie. It is obvious that when the Code contemplates appeals against orders passed under various clauses of order 43 Rule 1 by a Trial Judge, such an appeal can lie to a larger Bench of the High Court and not to any court subordinate to the High Court. Hence, the argument that order 43 Rule 1 cannot apply to internal appeals in the High Court does not appeal to us although the argument has found favour with some of the High Courts.
We might also reiterate that prior to the Code of 1908, in the Code of 1877 an identical provision like order 43 Rule 1 also existed in the shape of s. 588 which was absolutely in the same terms 210 as order 43 Rule 1 and its various clauses. Of course, section 104 was conspicuously absent from the Codes of 1877 or 1882. As indicated earlier, the question of the application of s. 588 (now Order 43 Rule 1) was considered as early as 1882 in Hurrish Chunder Chowdary's case (supra) where the Privy Council in very categorical terms observed thus:- "It only remains to observe that their Lordships do not think that s. 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." We have already shown that a perusal of these observations leaves no room for doubt that the Privy Council clearly held that s. 588 undoubtedly applied to appeal from one of 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 s.588 does not apply to High Courts. We shall deal with those judgments and point out that the view taken by the High Court’s concerned is not at all borne out by the ratio decidendi of the Privy Council. So far as the applicability of s. 588 to proceedings in the High Court’s is concerned, in a later decision the Privy Council reiterated its view in unmistakable terms. In Mt. Sabitri Thakurain v. Savi & Anr., their Lordships observed as follows:
"Section 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 under the Letters Patent, except that they do not restrict the express Letters Patent appeal".
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 211 Judge. In Union of India v. Mohindra Supply Co., this Court made the following observations:- "The intention of the legislature in enacting sub- s. (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 emphasised 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 therefore not affected by s. 104 (1) of the Code of Civil Procedure , 1908".
Thus, this Court has clearly held that the right to appeal against judgments under the Letters Patent was not affected by s. 104 (1) of the Code of 1908 and the decision therefore fully supports the argument of Mr. Sorabjee that there is no inconsistency between the Letters Patent jurisdiction and s. 104 read with order 43 Rule 1 of the Code of 1908. Similarly, in Shankarlal Aggarwal's case (supra) this Court while construing the provisions of s. 202 of the Indian Companies Act observed as follows:- "There was no doubt either that most of the orders or decisions in winding up would not be comprehended within the class of appealable orders specified in s.
104 or O. 43 r.1. If therefore the contention of the respondent were accepted it would mean that in the case of orders passed by the District Courts appeals would lie only against what would be decrees under the Code as well as appealable orders under s. 104 and o. 43 r.1. and very few of the orders passed in the Courts of the winding up would fall within these categories. On the other hand, the expression "judgment" used in cl. 15 is wider. The learned Judge therefore rejected a construction which would have meant that the same orders passed by District Courts and by a Single Judge of a High Court would be subject to different rules as to appealability".
There is yet another aspect of the matter which shows that s. 104 merely provides an additional or supplemental remedy by way 212 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 s. 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, s. 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 of appeal to a larger Bench within the High Court against the order of a Trial Judge.
Take, for instance, a case under the Arbitration Act.
Suppose in a suit the matter is referred to arbitration and after the award is filed by the Arbitrator certain objections are taken, under s. 39 of the Arbitration Act an appeal would lie to a Larger Bench from the order of a Single Judge disposing of the objections taken by the parties against the award. Section 39 runs thus:
"39. Appealable orders.-(1) An Appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decree of the Court passing the orders; An Order- (i) superseding an arbitration;
(ii) on an award stated in the form of a special case;
(iii)Modifying or correcting an award;
(iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;
(vi)setting aside or refusing to set aside an award:
Provided that the provisions of this section shall not apply to any order passed by a small Cause Court.
213 (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court".
It cannot be contended by any show of force that the Order passed by the T
