Madras High Court
The Employees' State Insurance ... vs Shanmugha Theatres And Ors. on 20 June, 1997
Equivalent citations: (1998)1MLJ89
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT AR. Lakshmanan, J.
1. L.P.A. No. 53 of 1993 was filed by the Employees State Insurance Corporation (here-inafter referred to as the Corporation) against the judgment and decree of a learned single Judge of this Court dated 16.12.1991 in C.M.A. No. 554 of 1985 dismissing the appeal filed by the Corporation against the order of the Principal District Judge, Coimbatore, in E.S.I.O.P. No. 283 of 1983.
2. L.P.A. No. 179 of 1993 was filed by the Proprietor of Madras Type Foundry against the judgment and decree of a learned single Judge of this Court dated 24.10.1991 in C.M.A. No. 469 of 1984 dismissing the appeal filed against the order of the First Additional District Judge, City Civil Court, Madras, in E.S.I.O.P. No. 26 of 1983.
3. L.P.A. No. 148 of 1995 was filed by the Corporation against the judgment and decree of a learned single Judge of this Court dated 7.9.1994 in C.M.A. No. 933 of 1986 dismissing the appeal filed against the order of the First Additional Judge, City Civil Court, Madras, in E.S.I.O.P. No. 59 of 1983.
4. L.P.A. No. 257 of 1995 was filed by the Corporation against the judgment and decree of a learned single Judge of this Court dated 3.4.1995 in C.M.A. No. 908 of 1986 allowing the appeal filed by Devi Designers and Decorators, Madras-41 against the order of the First Additional Judge, City Civil Court, Madras, in E.S.I.O.P. No. 14 of 1985.
5. When these appeals were taken up for hearing, Mr. S.R. Sundaram, learned Counsel appearing for the respondent in L.P.A. No. 53 of 1993, raised a. preliminary objection to the maintainability of the Letters Patent Appeals under Clause 15 of the Letters Patent.
6. On 18.2.1997, when L.P.A. Nos. 148 and 257 of 1995 came up for hearing before us, we passed the following order:
Both the Letters Patent Appeals were filed by the Employees State Insurance Corporation by its Regional Director against the order in C.M.A. No. 933 of 1986 dated 7.9.1994 and C.M.A. No. 908 of 1986 dated 3.4.1995. When the appeals were listed for hearing, learned Counsel for the respondent in both the appeals filed a memo raising an objection about the maintainability of the Letters Patent Appeals under Clause 15 of the Letters Patent and that the learned Counsel for the respondent intends to raise the above issue as a preliminary issue by virtue of Section 82 of the Employees State Insurance Act. In the memo filed in L.P.A. No. 257 of 1986, apart from raising the plea of maintainability under Clause 15 of the Letters Patent, another objection has also been raised by the counsel for the respondent stating that the appellant/Employees State Insurance Corporation has not obtained leave to prefer the above appeal from the learned single Judge in pursuance of Rule 28 of the Appellate Side Rules. Since it is a question of law of public importance, we issue notice to the Additional Solicitor General, South-ern Region, Madras, Mr. G. Masilamani, and also to the Presidents of the Madras Bar Association, the Madras High Court Advocates Association requesting them to assist the Court in deciding the question of maintainability of the Letters Patent Appeal under Clause 15 of the Letters Patent against the order passed by the learned single Judge of this Court in an appeal filed under Section 82 of the Employees State Insurance Act. We also request the learned Senior Counsel who are willing, to assist the court. Post the appeals on 27.2.1997.
7. The Employees State Insurance Act, 1948 (Act 34 of 1948)(hereinafter referred to as the Act) was en-acted by the Dominion Legislature and was assented to by the Governor General of India on 19.4.1948. Under Section 1(3) of the Act, that Act was brought into force by notification in the Official Gazette. From Volume 18 of the Civil Court Manual published by the Madras Law Journal, it found that Chapters 1, 2, 3 and 8 of the Act came into force on 1.9.1948 in all the Provinces in India and Sections 77 to 79 and 81 of Chapter 6 came into force in the whole of India except Jammu and Kashmir on 1.9.1952. It is, how-ever, not possible to ascertain when Section 82 of the Act was brought into force.
8. In this case, we are concerned with Section 82 of the Act and Clause 15 of the Letters Patent. Section 82 of the Act reads thus:
82. Appeal,: (1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees Insurance Court.
(2) An appeal shall lie to the High Court from an order of an Employees Court if it involves a sub-stantial question of law.
(3) The period of limitation for an appeal under this section shall be sixty days.
(4) The provisions of Sections 5 and 12 of the Limitation Act, 1963 (36 of 1963) shall apply to appeals under this section.
9. Clause 15 of the Letters Patent reads thus:
15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction: And We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed 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, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 17 of the Government of India Act, or in the exercise of criminal jurisdiction) 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 herein before 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 1st 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, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, our heirs of successors in our or Their Privy Council, as hereinafter provided.
10. Under Section 82 of the Act, an appeal shall lie to the High Court from an order of an Employees Insurance Court if it involves a substantial question of law. The period of limitation shall be sixty days for an appeal. Section 82(2) of the Act has been operative in this country almost for the last more than forty years. Numerous appeals under this' provision have come before this Court during this period of nearly more than forty years and the appeals therefrom under Clause 15 of the Letters Patent have been filed by both the employers and the Corporation alike and have been heard and disposed of without any objection taken to their maintainability.
11. In this connection, we are reminded of the obser-vations made by P.V. Rajamannar, C.J., when presiding over a Full Bench of this Court on 12.11.1948.
That judgment is reported in S.M. Nathaniel, In re. , says the learned Chief Justice at page 269 as under:
It was a matter for surprise that the objection to the maintainability of the appeal based on an attack on the validity of Act XXVI of 1943 should have been taken on behalf of the Government. Section 411 A had been inserted by that Act and has remained in force for nearly five years, without any objection being taken to its validity. Several appeals including appeals by the Madras Government have been preferred and disposed of on the footing that the new section had been validly inserted in the Code. There was no apparent reason why after the lapse of such a long period the Provincial Government should have suddenly raised this objection. Apart, however, from the lapse of time, there is one circumstance which calls for particular comment. Before the passing of the Act, the Provincial Government was consulted, and it was also at the desire and with the consent of this Provincial Government among other Government that the impugned legislation was undertaken by the Central Legislature. Having practically invited the Central Legislature to pass the Act in question, it was not proper on their part to have now raised this objection. Presumably, the Provincial Government was aware of what had taken place before the passing of the Act. But the learned Advocate General was unable to explain why in spite of that, the Government now insisted on taking this objection to the maintainability of the appeals. He did not say that in the opinion of the provincial Government such a right of appeal as has been conferred by Section 411-A should not have been conferred. If that were not so, I fail to see why this objection was taken.
12. The novelty of a point is no reason to refuse to consider it and render our decision on it. We, therefore, decided to hear the views of the members of the Bar on this important question of law raised by the learned Counsel for the employer and the respondent in one of the appeals filed by the Corporation. We requested Mr. G. Subramaniam, learned Senior Counsel, who happened to be present in the Court Hall at that time, to assist us to decide the above question. We directed the Registry to notify Mr. G. Masilamani, Additional Solicitor General, Southern Region, the Madras Bar Association, the Madras High Court Advocates Association and the Women Lawyers Association to be present at the hearing and address arguments. We have heard submissions from the learned Counsel who have entered appearance in these batch of appeals, as also from Mr. G. Masilamani, learned Additional Solicitor General, Southern Region, Mr. G. Subramaniam, learned Senior Counsel, Mr. S. Gopalaratnam, learned Senior Counsel on behalf of the Madras Bar Association and Mr. A. Krishna Rao.
13. Mr. G. Masilamani, learned Additional Solicitor General, Southern Region, submitted that an appeal under Clause 15 of the Letters Patent was competent in the instant case. He drew our attention to the following decisions in support of his argument. They are reported in The National Sewing Thread Co. Ltd. v. James Chadwick Bros. Ltd. (1953) 2 M.L.J. 215 (S.C.), Shah Babulal Khimji v. Jayaben D. Kania , Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadarsinhji Solanki , General Manager (H), Hazaribagh Area of Central Coalfields Ltd. v. Anjan Banerjee, 1990 A.C.J. 550, M. Lakshmi Narayanan v. The Chairman, Oil and Natural Gas Commission .
14. The judgment in The National Sewing Thread Co. Ltd. v. James Chadwick Bros. Ltd. (1953) 2 M.L.J. 215 (S. C), was rendered by three Judges of the Supreme Court of India. That was an appeal from the judgment of the High Court of Judicature at Bombay, in Appeal No. 95 of 1950 arising from the order dated 28.8.1950 of the said High Court exercising its Ordi-nary Original Civil Jurisdiction in Miscellaneous No. 2 of 1950. The Bench reversed the judgment of S.C. Shah, J. in Civil Miscellaneous No. 2 of 1950 and restored the order of the Registrar of Trade Marks refusing to register the appellants' trade mark. The two questions that were canvassed before the Supreme Court and that fell for determination were, (i) whether the judgment of Shah, J., was subject to appeal under Clause 15 of the Letters Patent of the Bombay High Court; and (ii) whether Shah, J., was right in interfering with the discretion exercised by the Registrar in refusing registration of the appellant's trade mark. In the instant case, we are concerned with question No. 1 alone.
15. Section 76 of the 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 Section 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 Clause 15 of the Letters Patent (Bombay), there being nothing contrary in the Trade Marks Act. The Supreme Court while considering the question as to whether the judgment of a single Judge disposing of the appeal under Section 76 of the Trade Marks Act is subject to further appeal under Clause 15 of the Letters Patent (Bombay), held as follows:
The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of an appeal (under Section 76 of the Act against the decision of the Registrar) in the High Court, indeed Section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal has reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the char-ter under which that court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court... Section 76 of the 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 Section 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 Clause 15 of the Letters Patent (Bombay), there being nothing to the contrary in the Trade Marks Act. Section 108 of the Government of India Act, 1915, conferred power on the High Court which that Court could exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915, or whether conferred on it by any subsequent legislation. The power to make rules given by Section 108 of the Government of India Act, 1915, still subsists and it has not been affected in any manner whatever either by the Government of India Act, 1935, or by the Constitution of India, 1950. The reference in Clause 15 of the Letters Patent to Section 108 should be read as a reference to the corresponding provisions of the Government of India Act, (Section 223) and the Constitution of India, 1950 (Article 225), Indian Electric Works v. Registrar of Trade Marks A.I.R. 1947 Cal. 49, overruled.
16. The appeal in Shah Babulal Khimji v. Jayaben D. Kania was directed against the order of a 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 not a judgment within the meaning of Clause 15 of the Letters Patent of the High Court of Bombay. In that case, the appellant/plaintiff 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 learned single Judge after hearing the notice of motion dismissed the application for appointment of receiver as also for interim injunction. Thereafter, the plaintiff filed an appeal before the Bombay High Court which dismissed the appeal as being non-maintainable on the ground that the order of the learned single Judge impugned was not a judgment as contemplated by Clause 15 of the Letters Patent of the High Court. Hence the above appeal by Special Leave. The Supreme Court observed as follows:
Whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent. Every inter-locutory 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... An order of the trial Judge refusing to appoint a receiver or to grant and interim injunction is undoubtedly a judgment within the meaning of the Letters Patent both because Order 43, Rule 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of Clause 15 of the Letters Patent.
17. In Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadarsinhji Solanki , the question that arose for consideration before the Supreme Court was, whether a Letters Patent Appeal lies to a Division Bench of the High Court of Gujarat from an interlocutory order passed by a single Judge of that High Court in the course of the trial of an election petition filed under the provisions of the Representation of the People Act, 1951, or not. The Supreme Court held as follows:
Clause 15 of the Letters Patent of the High Court of Gujarat (omitting the unnecessary portions) reads as follows:
15. Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction: And we do further ordain that an appeal shall lie to the said High Court... from the judgment (not being a judgment passed in the exercise of appellate jurisdiction...) 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.
The relevant part of Clause 15 of the Letters Patent which is referred to above provides for an appeal against a judgment passed by a single Judge of High Court to the same High Court and the scope of the said appellate power has been explained by this Court in Shah Babulal Khimji v. Jayaben D. Kania . An appeal no doubt lies under that clause from an order of a single Judge of the High Court exercising origi-nal jurisdiction to the High Court itself irrespective of the fact that the judgment is preliminary or final or that it is one passed at an interlocutory stage provided it satisfies the conditions set out in the above decision but the said provision cannot be extended to an election petition filed under the Act. Conferment of the power to try an election petition filed under the Act does not amount to enlargement of the existing jurisdiction of the High Court. The jurisdiction exercisable by the single Judge under the Act is a special jurisdiction conferred on the High Court by vir-tue of Article 329(b) of the Constitution. Having regard to the history of the legislation and the lim-ited nature of the appeal expressly provided in Section 116-A of the Act it should be held that any other right of appeal (excluding that under the Constitution) is taken away by necessary implication. We, therefore, find it difficult to subscribe to the view that when once the jurisdiction to try an election petition is conferred on the High Court all other powers incidental to the ordinary origi-nal jurisdiction exercised by a single Judge of a High Court would become applicable to an election petition filed under the Act.
18. In General Manager (H), Hazaribagh Area of Central Coalfields Ltd. v. Aryan Banerjee, 1990 A.C.J. 550, the question raised is as to whether a Letters Patent Appeal lies to the High Court in terms of Clause 10 of the Letters Patent of the Patna High Court before a Division bench from the decision of a learned single Judge of that court when the same arises out of a decision of a Tribunal or court constituted under a self-contained code. It is to be noticed that the provision in Clause 10 of the Letters Patent of the Patna High Court is pari materia with Clause 15 of the Letters Patent of the Bombay High Court and similar provisions of the Letters Patent of different High Courts. From a bare perusal of the aforementioned provisions, it is clear that an appeal lies before a Di-vision Bench of the Patna High Court from a judgment of a single Judge, if an order has been passed in terms of Section 108 of the Government of India Act, 1915. It is not in dispute that in that case, the exception provided for in clause 10 of the Letters Patent of the Patna High Court is not applicable.
19. In the case of Municipal Corporation of Delhi v. Kuldip Lal Bhandari, 1969 A.C.J. 276 (Del.), it was held that an appeal lies to a Division Bench in terms of Clause 10 of the Letters Patent from a judgment of a single Judge passed under Section 110-D of the Motor Vehicles Act, as the same comes within the purview of the word 'judgment' within the meaning of Clause 10 of its Letters Patent. It was held in that case that while hearing an appeal, the High Court acts as a court and not as a Tribunal.
20. Similarly, the Punjab and Haryana High Court in the case of Shanti Devi v. General Manager, Haryana Roadways 1971 A.C.J. 247 (P. and H.), held that a Letters Patent Appeal will be maintainable before the Division Bench against the judgment passed by learned single Judge of the High Court in terms of Clause 10 of its Letters Patent.
21. In General Manager (H), Hazaribagh Area of Central Coalfields Ltd. v. Anjan Banerjee, 1990 A.C.J. 550, the Patna High Court has held as follows:
Section 108 of the Government of India Act reads as follows: 'Each High Court may by its rules provide as it thinks fit for the exercise, by one or more Judges, or by Division Courts, constituted by two or more Judges of the High Court, of the original and appellate jurisdiction vested in the court.
It is well known that the said provision is saved by reason of Section 8 of the General Clauses Act as also in terms of the provisions of Article 225 of the Constitution of India... It is, therefore, clear from the aforementioned authoritative pronouncements of the Supreme Court that a right of appeal provided for under Clause 10 of the Letters Patent cannot be curtailed, unless the same is excluded either by a charter or by statutory provisions... There is no doubt that a right of appeal provided for under Section 110-D of the Act is restricted, but while an appeal is maintainable and is decided in terms of Section 110-D of the said Act, there can be no doubt that the same becomes a judgment within the meaning of Clause 10 of the Letters Patent.
In this view of the matter, the Division Bench of the Patna High Court held that the appeal decided in terms of Section 110-D of the Act becomes a judgment within the meaning of Clause 10 of the Letters Patent and therefore, a right of appeal provided under Clause 10 of the Letters Patent cannot be curtailed inasmuch as the same is excluded either by a character or by statutory provisions. The Bench has also held that in terms of Section 110-D of the Act, neither a finality has been given to an appellate order nor the right of further appeal has been curtailed in any manner.
22. In (1997) 1 C.T.C. 210, a Letters Patent Appeal was filed under Clause 15 of the Letters Patent against an order dismissing the Contempt Application. The Letters Patent Appeal was dismissed by our Bench (AR. Lakshmanan and A. Raman, JJ.) by observing as follows:
"The question for consideration is, as to whether the appeal is maintainable under Clause 15 of the Letters Patent. The proceeding in question is one arising out of Contempt of Courts Act. In these proceedings there is no other matter decided or dealt with which can be said to fall outside the purview of the Contempt of Courts Act. We have, therefore, no hesitation to hold that the present appeal is not maintainable. Three other Division Benches of this Court have also taken the same view, and they are reported in Vidya Charan Shukla v. Tamil Nadu Olympic Association (1991) 2 L.W. 29); K. Karthikeyan v. The State Bank of Mysore, LEA. No. 112 of 1995, dated 6.4.1995 and T. Marappan v. The Executive En-gineer (1996) 2 L.W. 117, in the last cited decision, one of us (AR. Lakshmanan, J.) was a party to the Division Bench.
For the foregoing reasons, the Letters Patent Appeal is dismissed as not maintainable.
23. Mr. G. Subramaniam, learned Senior Counsel, took up the position that an appeal under Clause 15 of the Letters Patent was not competent in the instant case. He drew our attention to the following points, which he formulated before making his submissions:
(a) The appellate court has to decide if the remedy of appeal is available in a given case;
(b) No appeal is available against the orders made under Clause 13 of the Letters Patent or Section 24 of the Code of Civil Procedure;
(c) A remedy by way of appeal is a creature of statute;
(d) A special law will override a general law; and
(e) In the instant case, Section 82 of the Act was provided for only one appeal and after one appeal, the right gets exhausted.
In support of his above contention, he cited some decisions, which we will deal with in the paragraphs infra.
24. The decision reported in Vijay Prakash & Jawahar v. Collector of Customs (Preventive), Bombay was cited by Mr. G. Subramanaiam learned Senior Counsel for the proposition that the right of appeal contemplated under Sections l29-A and 129-E of the Customs Act, 1962 is a conditional one and the legislature in its wisdom has imposed that condition of depositing duty demanded or penalty levied. Although Section 129-E does not expressly provided for rejection of the appeal for nondeposit of duty or penalty. Yet it makes it obligatory on the appellant to deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal. The proviso, however, gives power to the Appellate Authority to dispense with such conditions in cases of undue hard-ships. It is a matter of judicial discretion of the Appellate Authority. That discretion must be exercised on relevant materials, honestly, bona fide and objectively. Once that position is established it cannot be contended that there was any improper exercise of the jurisdiction by the Appellate Authority. Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of natural justice would be violative of any right Constitutional or statutory without any right of appeal, as such. If the statutory give a right to appeal upon cer-tain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant.
25. In the decision reported in Shantha V. Pai v. Vasanth Builders, Madras, 1991 Crl. L.J. 3026, a Division Bench of this Court dismissed an appeal under Section 19(1) of Contempt of Courts Act, 1971 filed against an order of the trial court refusing to commit the contemnor for alleged contempt of court. The Division Bench consisted of Dr. A.S. Anand C.J., and Nainarsundaram, J. (as they then were) held that the order of the trial court refusing to commit the contemnor is not appealable as of right. The Bench observed as follows:
Except to the extent of the field occupied by Section 19(1) of the Act, an appeal would be competent under Clause 15 of the Letters Patent, provided it satisfies the conditions prescribed in Clause 15 of the Letters Patent itself. A Letters Patent Appeal under Clause 15 would not lie against any order passed in exercise of the contempt jurisdiction by the High Court where the trial Judge refuses to take cognizance of an application seeking to punish the opposite party for contempt of court or where it rejects the application after being satisfied that its order had not been flouted and was of the opinion that no vindication of its order was called for by committing the alleged contemnor for contempt of Court. Since in the instant case, the court after a detailed discussion, came to the conclusion that his order had not been violated or flouted by the respondent and in exercise of his proper judicial discretion, refused to commit the respondent for the alleged contempt of court, such an order of refusal is not a "judgment" within the meaning of Clause 15 of the Letters Patent and as such, is not appealable under Clause 15.
26. In the decision reported in Rajagopal, R. v. M.P. Chellamuthu and 3 others (1993) 2 1 W. 225, the Letters Patents Appeal was filed against the order made in a contempt Application filed by the first respondent directing respondents 2 to 4 to permit the first respondent to quarry sand in Amaravathi river and a preliminary objection was raised by the first respondent with regard to the maintainability of the L.P.A. contending that inasmuch as by the order under appeal, respondents 2 to 4, had been discharged and nobody was punished under the provisions of the Act, the appeal filed against such an order was riot maintainable under Section 19(1) of the Contempt of Courts Act. It was further contended that if an appeal against the order made in contempt application would not lie under Section 19(1) of the Act, it does not follow that Clause 15 of the Letters Patent could be invoked and therefore, the present appeal filed under Clause 15 of the Letters Patent is also not maintainable. The said Division Bench consisted of K.A. Swami, C.J., and T. Somasundaram, J., held as follows:
Inasmuch as by the order under appeal, the learned single Judge has declared that the first respondent is entitled to quarry sand in the area in question for a period of 3 1/2 months and directed respondents 2 to 4 to permit the 1st respondent, to quarry sand for a period of 3 1/2 months from 1.5.1993, such an order is a 'judgment' for the purpose of Clause 15 of the Letters Patent and that the order under appeal satisfies the conditions prescribed in Clause 15 of the Letters Patent. "In these circumstances, we have no hesitation in holding that the present appeal is maintainable under Clause 15 of the Letters Patent.
27. In the decision reported in State of Maharashtra v. Mahboob S. Allibhoy and Anr. , the Supreme Court has held that no appeal is maintainable against an order dropping proceedings for contempt or refusing to initiate a proceeding for contempt is apparent not only from Sub-section (1) of 'Section 19 but also from Sub-section (2) of Section 19 indicates that the reliefs provided under Clauses (a) to (c) can be claimed at the instance of the person who has been proceeded against for contempt of court.
28. Resham Singh Pyara Singh v. Abdul Sattar was cited by Mr. G. Subramaniam, learned senior counsel. In that case, the Supreme Court held that no appeal shall lie from any order passed in appeal under Section 104(2), C.P.C. This decision was cited for the proposition that when an appeal was filed against the order of the City Civil Court, Bombay to the learned single Judge under Order 43, Rule l(r) as provided in Sub-section (1) of Section 104 by operation of Sub-section (2) of Section 104, no further appeal shall lie from any order passed in appeal under this section.
29. To the same effect is the judgment of a Division Bench of the Bombay High Court reported in Charity Commissioner, Bombay v. Rajendrasingh .
30. In the decision reported in Asrumati Debi v. Rupendra Deb , the Supreme Court held that an order for transfer of a suit made under Clause 13 of Letters Patent, is not a judgment within the meaning of Clause 15 and therefore, is not appealable. The order neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground.
31. Mr. G. Subramaniam, learned senior counsel also relied on the decision reported in M/s. New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and Ors. , in order to say that the judgment in Shah Babulal Khimji v. Jayaben D. Kania was distinguished by the Supreme Court in this judgment. We have al-ready referred to the judgment . In the present case cited M/s. Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and Ors. , the plaintiff filed the suit for declaration that the steps taken by the respondent under Section 29 of the State Financial Corpo-ration Act were illegal and sought permanent injunction restraining 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 qua 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. Aggrieved, the appellate filed Letters Patent Appeal and the Division Bench held that the appeals are not maintainable. The plaintiff preferred a further appeal by special leave. Learned Counsel for the appellant/plaintiff contends that under Clause 10 of the Letters Patent an appeal would lie against the judgment of the learned single Judge to the Division Bench. It is further contended that though the order granting status quo by the trial court was vacated by the High Court, it is a judgment within the meaning of Section 2(9) of the C.P.C. Therefore, the bar under Section 104(2) of C.P. C, is not attracted by operation of Section 4(1) of the Code. In support of the said contention the counsel for the appellant relied on some judgments. The Supreme Court held as follows:
It is settled legal position that right of appeal is a creature of the statute. Against ah interlocutory order, an appeal has been provided under Section 104(1) of the Code read with Order 43, Rule 1. In respect of interim injunction, it is covered by Order 43, Rule l(r). In this case, the order of status quo was passed in an application filed under Order 49, Rule 1 of the Code. Therefore, it is not in dispute that it is an order passed by the civil court under Order 39, Rule 1 appealable under Order 43, Rule l(r) of the Code. Sub-section (2) of Section 104 specifically prohibits second appeal against such an order postu-lating that "No appeal shall lie from any order passed in appeal under this section. " In Resham Singh Pyara Singh v. Abdul Sattar, , 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.
The Supreme Court also construed Clause 10 of the Letters Patent which reads as under:
An appeal shall lie... from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree of order made in exercise of the appellate jurisdiction by a court subject to the superintendence of High Court... and not being an order made in exercise of revisional jurisdiction..) of one Judge of the said High Court.. and in exercise of appellate jurisdiction in respect of a decree or order made in 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.
By construing Clause 10 of the Letters Patent as above, the Supreme Court observed that the gain part of clause 10 clearly indicates that an appeal would lie from the judgment not being a judgment passed in exercise of the appellate jurisdiction. Thereby the judgment from an appellate jurisdiction stands excluded under the first part of Clause 10 of the Letters Patent itself. Therefore, the Supreme Court held that the Division Bench of the High Court was right in holding that the Letters Patent Appeal would not lie against an order of the learned single Judge.
32. The above decision of the Supreme Court was rendered on 20.1.1997 dealing with an order made by a single Judge of the Orissa High Court in the exercise of Appellate Jurisdiction under Section 104(1) read with Order 43 of the C.P.C. As it was not an original order under Section 104(2) of the Code, an further appeal is not made available. It was only this position and this provision of law, in which the learned Judges of the Supreme Court had to draw the attention of the Additional Solicitor General of India. It has to be noted that the order of the single Judge will not be a judgment within the meaning of T.V. Tuljaram Row v. M.K.R.V. Alagappan Chettiar, I.L.R. 35 Mad. 1 and as an order made in exercise of powers under the C.P.C. any further appeal stood barred under Section 104(2). In our opinion there is no conflict between the two decisions of the Supreme Court reported in Shah Babulal Khimji v. Jayaben D. Kania and the one reported in M/s. Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and Ors. , as contended by Mr. G. Subramaniam.
33. Mr. Krishna Rao, learned Counsel for the respondents in one of the appeals submitted that the Letters Patent Appeal is not maintainable. He cited the the decision reported in Umaji Keshao Meshram v. Radhikabai, 1990 L.W. 37, wherein the question fell for determination in the appeal before the Supreme Court was, "Whether an appeal lies under Clause 15 of the Letters Patent of the Bombay High Court to a Division Bench of two judges of that High Court from the judgment of a single Judge of that High Court in a petition filed under Article 226 or 227 of the Constitution of India?". The Letters Patent Appeal was dis-missed as being not maintainable by reason of the judgment given by the Full Bench of the said High Court which was challenged before the Supreme Court. The Supreme Court held thus:
We are afraid, the Full Bench has misunderstood this scope and effect of the powers conferred by these Articles 226 and 227. These two Articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their sources and origin are different and the mod-els upon which they are patterned are also differ-ent. Under Article 226 the High Courts have power to issue directions, orders and Writs to any per-son or authority including any Government. Under Article 227 every High Court has the power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Article 227 is a supervi-sory jurisdiction intended to ensure that subordinate courts and tribunals act within the limits of their authority and according to law. The orders, directions and writs under Article 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in addition to that conferred upon the High Courts by Article 226. Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same.
It was further held as follows:
Consequently, where a petition filed under Article 226 of the Constitution is according to the rules of a particular High Court heard by a single Judge, an intracourt appeal will lie from that judgment if such a right of appeal is provided in the charter of that High Court, whether such Charter be Letters Patent or a statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-court appeal and, therefore, the decision of a Single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High Court. It is equally well-settled law that a proceeding under Article 227 is not an original proceeding.
34. In the decision reported in Obedur Rehman v. Ahmedali Bharucha , a Division Bench of the Bombay High Court held that Section 104(2) applies also to Letters Patent Appeals and therefore, Letters Patent Appeal against order of single Judge dismissing appeal filed under Section 104 against order refusing to grant temporary injunction was liable to be dismissed as not maintainable under Section 104(2).
35. In the course of his submissions, Thiru Gopalaratnam drew our attention to the decision rendered by a Full Bench of four learned Judges of our High Court, consisting of Mr. Justice Kernan, Mr. Justice Muttusami Ayyar, Mr. Justice Parker and Mr. Justice Wilkinson, reported in Kamaraju v. The Secretary of State for India, I.L.R. 11 Mad. 309. He pointed out that in that case which arose under the Madras Forest Act, 1882, the appellant having filed a second appeal, S.A. No. 786 of 1885, against the decision of the District Court Madurai, in an appeal filed before it under the terms of Section 10 of the Forest Act, the State (respondent) took a preliminary objection, that the appeal did not lie. On 15.9.1886, the Bench, Collins, C.J., and Kernan, J., referred the case to the full bench for deciding, among others, the following question: "Is there an appeal?". At page-312 the learned Judges of the Full Bench have observed as follows:
The decision of the District Court passed on appeal from the decisions of the Forest Settlement Officer is clearly a decree within the meaning of the C.P.C., and the second appeal is not taken away by express enactment. It remains to consider whether the second appeal has been taken away by necessary implication on the part of the legis-lature. The presumption is against the taking away of a substantive right of a very valuable nature by mere implication, and it may be fairly contended that had the legislature so intended, it would have expressly said so.
After an elaborate discussion on that question, the Full Bench returned the answer to the question, at page 314 as follows:
On the first question referred to us, we would therefore reply to the Division Bench that a second appeal does lie to the High Court from a decision of the District Court under Section 10 of the Forest Act.
36. Mr. Gopalaratnam next cited the judgment reported in National Telephone Company Ltd., v. His Majesty's Postmaster General, 1913 A.C. 546 and invited our attention to the passage in Lord Viscount Haldane speech at page 552 which reads thus:
When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the proce-dure of that Court are to attach, and also that any general right of appeal from its decisions like-wise attaches.
37. Learned Senior Counsel Mr. Gopalaratnam next read to us the decision of the Privy Council reported in Secretary of State for India v. Chellikani Rama Rao, I.L.R. 39 Mad. 617 and relied on Lord Shaw's observations contained in page 624 reading.
What happened in the present case was that the claim was rejected. An appeal by the respondents was thereupon made to the District Court, and a decision was pronounced. It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded, by the terms of the Statute just quoted. In their Lordship's opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply. This is in full accord with the decision of the Full Bench, Kamaraju v. The Secretary of State for India in Council (1888) I.L.R. 11 Mad. 309 (F.B.), a decision which was given in 1888 and has been acted on in Madras ever since.
38. The next case cited to us was the decision reported in Hem Singh and Ors. v. Shiromani Gurudwara Parbandhak Committee and Ors. 63 LA. 180 : A.I.R. 1936 P.C. 93 and he drew our attention to the observation of Sir George Rankin at page 95 Col. 2, where the observations in Secretary of State for lndia v. Chellikani Rama Rao, I.L.R. 39 Mad. 617 are quoted and relied on.
39. The case next cited was the decision of the Judicial Committee reported Adaikappa Chettiar v. Chandrasekhara Thevar (1948) 1 M.L.J. 41, wherein it has been held at page 44 as follows:
The true rule is that where a legal right is in dis-pute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.
40. Learned senior counsel next relied on the decision of the Apex Court reported in The National Sewing Thread Co. Ltd. v. James Chandwick Bros. Ltd. (1953) 2 M.L.J. 215 (S.C.). The said decision was also cited by the learned Addl. Solicitor General to which we have already made reference in the paragraphs supra. That was a decision of the Apex Court in a case which arose under the Trade Marks Act, 1940. He drew our attention to the following passage at page No. 222 of the report which is as follows:
The rights created by the Trade Marks Act are civil rights for the protection of persons carrying on trade under marks which have acquired reputation. The statute creates the Registrar, a tribunal for safeguarding these rights and for giving effect to the rights created by the Act, and the High Court as such without more has been given appellate jurisdiction over the decisions of this tribunal. It is not easy to understand on what grounds it can be said that the High Court while exercising this appellate jurisdiction has to exercise it in a manner different from its other appellate jurisdiction. It seems to us that this is merely an addition of a new subject matter of appeal to the appellate jurisdiction already exercised by the High Court.
41. Mr. Gopalaratnam, learned senior counsel invited us to apply the above passage to the case presently under discussion. He next drew our attention to the new Act, Act 43 of 1958, having by Section 108(3), expressly recognising an appeal under clause 15 of the Letters Patent, in contrast to the terms of Section 76(1) of the Trade Marks Act, 1940, which, was, that came up for consideration before the Supreme Court in The National Sewing Thread Co. Ltd. v. James Chadwick Bros. Ltd. (1953) 2 M.L.J. 215 (S.C.) case referred to above. Our attention was drawn to two other decisions of the Supreme Court reported in Hanskumar Kishan Chand v. Union of India and Collector, Varanasi v. Gauri Shanker of which was decided by three Judges and was decided by a Constitution Bench of 5 Judges. decision was dissented by the decision made in . The Supreme Court held that the High Court functions as a court while acting under Section 19(1)(f) and not as designated person. A.I.R. 1916 P.C. 21 was relied on by the Supreme Court. The Supreme Court stated that their conclusion in this regard receive support from the decision of the Judicial Committee in 43 LA. 192 : A.I. R 1916 P.C. 21 referred to earlier.
42. The decisions reported in Penugonda Radhakrishnamurthy v. Ethirajulu Chetty (1945) 1 M.L.J. 54 : A.I.R. 1945 Mad 184 : I.L.R. 1945 Mad. 584 : 58 L.W. 10(1): 1945 M.W.N. 164, Kevelchand Daga v. Girdhardoss (1961) 2 M.L.J. 528) and Union of India v. Mohindra Supply Company , were also cited which arose under the Indian Arbitration Act. Act 10 of 1940, by way of contrast, holding that an appeal under Clause 15 of the Letters Patent did not lie under certain circumstances. The decision in Penugonda Radhakrishnamurthy v. Ethirajulu Chetty (1945) 1 M.L.J. 54 : A.I.R. 1945 Mad. 184 : I.L.R. 1945 Mad. 564 : 58 L.W. 10(1): 1945 M.W.N. 164(2) was by a Division Bench consisted of Sir Alfred Henry Lionel Leach, Chief Justice and Mr. Justice Shahbuddin. That was an appeal from the judgment of Kuppusami Ayyar, J., setting aside the order of the Principal Judge of the City Civil Court under the provisions of Section 39 of the Indian Arbitration Act, 1940. Two applications had been filed in the City Civil Court for an order extending the time allowed to the umpire for the passing of his award. The umpire awarded the first respondent a sum of Rs. 600, but the award was not made within the time allowed by law. The City Civil Court refused the applications on the ground that by granting them the opposite party would lose valuable rights. The first respondent then appealed to the High Court. Learned single Judge considered that application for extension of time should have been granted and allowed the appeal. Accordingly, he sent the case back to the City Civil Court to decide the other points raised in the proceedings. A preliminary objection has been taken before the Division Bench and it was contended that the Letters Patent Appeal does not lie by reason of Sub-section (2) of Section 39. which says that no second appeal shall lie from an order passed in an appeal under the section, although nothing in the section shall affect or take away the right to appeal to His Majesty in Council. The Bench accepted the said contention as sound. The Bench observed as follows:
It is true that Clause 15 of the Letters Patent, if it stood alone, would allow the appeal; but Clause 44 of the Letters Patent says that the provisions are subject inter alia to the legislative powers of the Governor-General in Legislative Council. The Indian Arbitration Act is an Act of the Central Legislature and the provisions of Section 39 must prevail. The appeal is dismissed with costs.
43. This judgment of the Division Bench was overruled in the decision reported in Kevelchand Dega v. Girhardoss (1961) 2 M.L.J. 528 : A.I.R. 1962 S.C. 52 above referred to, rendered by a Full Bench of our High Court consisted of Mr. P.V. Rajamannar, Chief Justice, Mr. Justice Veeraswami and Mr. Justice Venkatadri, wherein it was held thus:
An appeal under Clause 15 of the Letters Patent (Madras) would normally lie from an order of a single Judge of the High Court provided the order is a judgment within the meaning of that clause. Clause 44 of the Letters Patent is in gen-eral terms and provides that the provisions of the Letter Patent are subject to the Legislative powers of the Governor-General. It only provides that in the exercise of such legislative powers all the provisions of the Letters Patent may in all respects be amended and altered. It is no doubt true that the term "second appeal" in Section 10(2) of the Arbitration Act is not used in the narrow and technical sense of a second appeal under Section 100 of the Civil Procedure Code but means a further appeal, that is numerically a second appeal. But the fur-ther appeal contemplated is to the court of a higher grade. Hence an appeal under clause 15 of the Letters Patent from one Judge of the High Court to two or more Judges of the same High Court cannot fall within the category of 'second appeal' mentioned in Section 39(2) of the Arbitration Act. There is thus nothing in Section 39(2) of the Arbitration Act, either in express terms or by necessary implication, which amends or alters Clause 15 of the Letters Patent restricting the right of appeal conferred thereunder. Hence an appeal under Clause 15 of the Letters Patent would lie from the judgment of a single Judge of the High Court setting aside an order of the City Civil Court under the provisions of Section 39 of the Arbitration Act. Section 39(2) of the Arbitration Act read with Clause 14 of the Letters Patent does not have the effect of barring such appeal.
The above Full Bench judgment was disapproved by the Supreme Court in Union of India v. Mohindra Supply Company referred to above.
44. Learned Senior counsel Mr. Gopalaratnam also brought to our notice pages 28 and 29 of journal portion of (1991) 1 L.W., where the provisions of Clause 15 of the Letters Patent as it stood on various dates is given.
45. For consideration of any question as the present, we have to start with the Full Bench decision of our High Court reported in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar, I.L.R. 35 Mad. 1 (KB.), wherein an objection has been taken that he appeal lies against the order of a judge on the original side declining to frame additional issue for which one of the parties asked. The Full Bench held that an order of a single Judge refusing to frame an additional issue not appealable as a judgment. It was held by the Full Bench as follows:
An order of a single Judge on the Original Side, refusing to frame an issue asked for by one of the parties is not a judgment within Clause 15 of the Letters Patent and is not appealable.
Per Chief Justice (Sir Arnold White): An adju-dication is a judgment within the meaning of the clause if its effect, whatever its form may be and whatever may be the nature of the application in which it is made, is to put an end to the suit or proceeding so far as the court before which the suit or proceeding is pending is con-cerned or if its effect, if not complied with, is to put an end to the suit or proceeding. It is not necessary that the decision must affect the merits by determining some right or liability. An adjudication based on a refusal to exercise dis-cretion, is appealable if the effect of the adjudication is to dispose of the suit so far as the court making the adjudication is concerned.
Per V. Krishnaswami Ayyar, J. : The word 'judgment in Clause 15 must be so constructed as to include the various kinds of judgments dealt with in other clauses of the Letters Patent. It must be understood as including preliminary or interlocutory judgments but not preliminary or interlocutory orders.
The same has stood the test all these days and has received universal acceptance, when it gives us the answer to the question what is the meaning of the word, 'judgment', found in Clause 15 of the Letters Patent, To put it shortly, a judgment is that adjudication, whatever its form may be and whatever may be the nature of the application in which it is made, if its effect be to put an end to the suit or proceeding so far as the court before which such suit or proceeding is pending is concerned.
46. It had been the practice all along to file L.P. Appeals, against or3ers on the original side appointing a receiver or issuing a temporary injunction and the like. There always used to be an under current of protest, that 'no right of either party has been finally adjudicated, when a court takes the property in custodia legis, by appointing a receiving or is putting a party to the section under a temporary restraint.
47. In the decision reported in M/s. V/O. Tractoro Export, Moscow v. M/s. Tarapore and Co., 82 L.W. 361, it has been held by a Division bench of our High Court thus:
For more than half a century our High Court, under Clause 15 of Letters Patent, has been entertaining appeals from orders, made on applications for injunction or for appointment of receiver pendente lite in the exercise of original and appellate jurisdiction and we are having scores of appeals from interlocutory orders granting or re-fusing injunction by single Judges of the court in the exercise of the Special Original Jurisdiction of the court under Article 226 of the Constitution. In Palaniappa v. Krishnamurthy, this Court recently followed the decision in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar. The preliminary objection to the maintainability of the appeal is, therefore, not sustainable.
48. In the decision reported in Tarapore & Co., v. Tractoro Export, Moscow , the Supreme Court granted special leave to one of the parties after executing the delay. The Civil Appeal by M/s. Tractoro export, Moscow and the Civil Appeal filed by M/s. Tarapore & Co., Madras who had lost before a Division Bench of this Court were heard by the Supreme Court and the Supreme Court on 26.11.1968 allowed the appeal filed by the Tractoro export, Moscow and dismissed those of the plaintiff. The Supreme Court held thus:
Ordinarily Supreme Court does not interfere with interim order. But where legal principles of great importance affecting international trade are involved trade are involved and the Orders of Court, if allowed to stand are bound to have their repercussion on our international trade, the Supreme Court will interfere the interim orders of court below.
In the result, the Supreme Court allowed C.A. Nos. 2305 of 2306 of 1988 filed by M/s. Tractoro Export, Moscow and set aside the temporary injunction granted by the trial Judge. The other appeals filed by M/s. Tarapore & Co., were also dismissed.
49. As already noticed, the Supreme Court in the decision reported in Shah Babulal Khimji v. Jayaben D. Kania cited supra, has been pleased to hold that in additional to appeals which will strictly come within the scope of the decision reported in T.V. Tuljaram Row v. M.K.R.V. Alagappan Chettiar, I.L.R. 35 Mad. 1, under Clause 15 of the Letters Patent, appeals against orders, which are provided for under Section 104(1) of C.P. C, read with Order 43 are also available to a party. In other words, the strin-gent requirements of I.L.R. 35 Mad. 1, are waived so far as regards appeals from orders are concerned. Here one must not lose sight of the definition of the terms, 'decree', 'judgment' and 'order', contained in Section 2 of C.P. C, We have already dealt with a latest decision of the Supreme Court reported in M/s. Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and Ors. which dealt with an order made by a single Judge of the Orissa High Court in the exercise of appellate jurisdiction, under Section 104(1) read with Order 43 of the Code. In our opinion there is no conflict between the two decisions of the Supreme Court, as contended by Mr. G. Subramaniam, learned senior counsel, viz. and .
50. Before concluding we would like to make a ref-erence to the decision of the Supreme Court reported in S.A. Industries (P) Ltd. v. Sarup Singh , which will make a very instructive reading. That case arose under the Delhi Rent Control Act. Section 43 of that Act, made the judgment of a single judge of the High Court, hearing an appeal under Section 39 of the Rent Control Act, final. The learned Judge after making reference to the decision reported in (1953) 2 M.L.J. 215 (S.C.) as also the other cases decided by the judicial committee, to which we have made reference earlier, says in para. 11 as follows:
A statute may give a right of appeal from an order of a tribunal or a Court to the High Court without any limitation thereon. The appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. Under the rules made by the High Court in exercise of the powers conferred on it under Section 108 of the Government of India Act, 1915, an appeal under Section 39 of the Act will be heard by a single judge. Any judgment made by the single Judge in the said appeal will under Clause 10 of the Letters Patent, be subject to an appeal to that court. If the order made by a single Judge is a judgment and if the appropriate legislature has, expressly or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a single Judge under Clause 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent Appeal, an appeal shall certainly lie from the judgment of the single Judge to the High Court.
It is our considered view that our present case is the fittest illustration. It will have to be noticed that under our Act 34 of 1948, there is no provision similar in wording as was found by the Supreme Court in the above judgment in Section 43 of Delhi Rent Control Act, whereunder the Supreme Court held that Letters Patent Appeal will not be available.
51. In the decision reported in Asha Devi v. Dukhi Sao , a Full Bench of the Patna High Court opined that the Letters Patent Appeal from the first appellate judgment of a learned single Judge is controlled by the provisions of Section 100 of C.P.C., The said decision of the Full Bench was reversed by the Supreme Court in the decision reported in A.I.R. 1974 S.C. 2048. 52. For all the foregoing reasons, we are of the view that the appeal under Clause 15 of the Letters Patent of the High Court is competent against the judgment of a learned single Judge of the High Court rendered under Section 82 of the Employees' State Insurance Act, 1948 (Act 34 of 1948), We therefore hold that all these L.P. As. are maintainable in law and the preliminary objections raised by the respondents are overruled. Post all these L.P. As for final disposal before a Division Bench of the court to dispose of the same on merits. We place on record our deep appreciation for the valuable assistance rendered by Mr. G. Masilamani, Additional Solicitor General for Southern States, Mr. S. Gopalaratnam, learned Senior counsel and Mr. G. Subramaniam, learned senior counsel in disposing of the above appeals on the issue raised therein.