Kerala High Court
Kinhanna Moolya vs Sadasiva Bhat And Anr. on 2 February, 1976
Equivalent citations: AIR 1977 KERALA 32, ILR (1976) 1 KER 384
JUDGMENT Bhaskaran, J.
1. The appeal is against an order passed by the Vacation Judge of this Court on C. M. P. No. 6361 of 1975 on the file, of this Court in O. S. No. 7 of 1975 on the file of the Munsiff's Court, Kasaragod. C. M. P. No. 1372 of 1975 is under Section 5 of the Limitation Act for condoning the delay in filing the above appeal Though C. M. P. No. 1372 of 1975 alone was posted for hearing today, as a preliminary objection was raised in regard to the maintainability of the appeal itself by Shri K. P. V. B, Ejman, the counsel for the respondents, by agreement of the parties the appeal also was taken up for hearing and disposal along with it.
2. Regarding facts leading to the filing of the appeal and the petition for condoning the delay the submission of Shri N. N. Sugunapalan, the counsel for the appellant, could be briefly stated as follows: Under the impugned order, the Vacation Judge of this Court had appointed a Receiver for the properties described in the schedule to the petition. The order was passed ex parte, though the appellant, as defendant in the suit, had entered appearance in the Court of the Munsiff of Kasaragod as early as on 5th February, 1975, and he came to know about it only when the Receiver went to the place for taking possession of the properties. He made an application in this Court for the grant of certified copy of the order; but did not succeed in getting it as he was told that the records had by then been despatched to the Munsiff's Court. He made an application in the Court of the Munsiff, but then also he did not succeed as he was informed that Court could not grant the copy of an order passed by this Court. It is thereafter he filed the appeal along with two petitions (1) C. M. P. No. 1372 of 1975 for condoning the delay in filing the appeal, under Section 5 of the Limitation Act, and (2) C. M. P. No. 1373 of 1975 for a direction to the Munsiff of Kasaragod to grant him a certified copy of the order on C. M. P. No. 6361 of 1975 passed by this Court on 29th April 1975, under Section 151, C. P. C. In the meanwhile on memo No. ] of 1975 filed by the Receiver, the learned Munsiff passed the following order:
"Appointment of a Receiver is already done by the High Court. It is not open for the defendant to challenge the order in this Court. Hence memo allowed. Receiver is directed to sell the rights by public auction."
3. Formulating his objections to the maintainability, Shri Ejman submitted: (1) By and under Section 4 (2) (a) of the Kerala High Court Act, decrees and orders coming under Section 3 of the said Act are excluded from the powers of a Bench of two Judges, and therefore, an order passed by a Single Judge in exercise of the powers under Section 3 (11) of the said Act is not appealable to a Bench of two Judges, and (2) appeal, if any, should be only to the Subordinate Judge of Kasaragod as provided in Section 13 of the Civil Courts Act, inasmuch as the power exercised by the Vacation Judge is that of the Civil Court.
4. Let us now notice the relevant provisions in regard to appeals in the Code of Civil Procedure, Kerala Civil Courts Act, and the Kerala High Court Act. Appeals from original decrees and orders of the Civil Courts are governed by the provisions of Sections 96 to 112, falling within Part VII, Order XLI, and Order XLIII C. P. C. Right to appeal against an original decree, and an order, passed by a Civil Court is as conferred on the parties under the provisions of Section 96 and Section 104, C. P. C. respectively. The Courts to which such appeals would lie are as provided in Section 13. falling within Part III dealing with jurisdiction of the Kerala Civil Courts Act. Rights to appeal from judgments and orders of a Single Judge of the High Court is as provided in Section 5 of the Kerala High Court Act.
5. Sri Ejman's arguments that because of the provisions contained in Section 4 (2) (a) of the Kerala High Court Act, the appellant in the present case is without a right to appeal, appears to proceed from a misconception of the legal position. For one thing, right to appeal against judgments and jorders of a Single Judge is conferred on the party aggrieved, by Section 5, not by Section 4 of the Act. Right to appeal, in other words, has to be traced to the provisions of Section 5 of the Act. Sections 3 land 4 of the Act, respectively, are to regulate the powers of Single Judges and Benches of two Judges of the High Court. We are not in agreement with the argument of Sri Ejman that the reference to the word "those" after the words "except" occurring in Section 4 (2) (a) of the Kerala High Court Act is to "decree or order of a civil Court" occurring earlier in the same clause. The exclusion of the power of the Bench of two Judges, in our opinion, relates to "appeals" coming under Section 3 of the Act. Acceptance of Sri Ejinan's argument would lead to absurd consequences, as in that case a Bench of two Judges of this court will not have power to hear appeals from any judgment or order passed by a Single Judge in exercise of the power under Section 3 of the Kerala High Court Act, for instance, from judgments passed in exercise of the original jurisdiction under any law for the time being in force as provided in Section 3 (3) of the said Act. The use of the plural term "those" also indicates that the reference is to "appeals" as otherwise the singular term "that" would . have been aptly used if the reference was to the singular term "decree" or "order" occurring in the earlier part of the clause. We also find no force in the contention of the counsel that the appeal would not lie without a certificate from the Judge who passed the order, as that question would arise only in cases of appeals from a judgment passed by a Single Judge in exercise of the appellate power, and the position is clearly beyond doubt from the provisions contained in Section 5 (3) of the Kerala High Court Act.
6. We will now pass on to the second point urged by Sri Ejman, according to whom, if at all, the appeal would lie only to the Civil Court as provided in Section 13 of the Kerala Civil Courts Act, (Act 1 of 1957), In support of his argument he has referred us to the following observation of Madhavan Nair, J., in Appu v. Muthuvelu, 1982 Ker LT 344.
"It is evident that the Vacation Judge exercising jurisdiction under Section 19 (2) of the Civil Courts Act, 1957, is really exercising the powers of the Civil Courts to the extent indicated in the section."
It may, however, be noted that the passing of a final order is beyond the jurisdiction of the Vacation Judge in exercise of the powers under Section 19 (2) of the Civil Courts Act. The position is clear from the wording of the section; and Madhavan Nair, J., in Kolavan v. Allu Acha Menon, 1961 Ker LT 498, has clarified the position as follows:--
"Under the latter provision the Vacation Judge is empowered only to make provisional orders in urgent matters in suits, appeals or other proceedings which normally lie in Subordinate Courts and it is expressly provided therein that such provisional orders are to remain in force only until the matters have been heard and decided by the Subor-dinate Courts concerned. It is clear therefrom that, such provisional orders are of ad interim nature and the final orders thereon are not to be made by the Vacation Judge."
In the present case what happened was that the learned Munsiff, who found that the Vacation Judge had already passed an order which was not in the nature of a provisional --ad interim -- order, declined to consider the matter on merits obviously for the reason that the order did not fall within the ambit of Section 19 (2) of the Kerala Civil Courts Act, and therefore, beyond his power to hear and decide. If this Court, on the other hand, holds that, though not a provisional order as contemplated by Section 19 (2) of the said Act, this Court would not entertain an appeal, there would virtually be a stalemate rendering the party feeling aggrieved, without a remedy by way of right to appeal. The position has to be viewed in this context, and in doing so, we come to the conclusion that a Bench of two Judges of this Court would be justified in entertaining the appeal treating the order under challenge as one passed by the Vacation Judge in exercise of original jurisdiction of this Court.
7. There is no right of appeal against the order or judgment of a Court of competent jurisdiction unless expressly provided for by statute. In Kuriakose v. Regional Transport Authority, 1967 Ker LT 375 --1967 Ker LJ 433, M. S. Menon, C. J., on behalf of a Full Bench of this Court said:
"It is settled law that a right of appeal is not a natural or inherent right, and that it does not exist unless expressly granted by a statute of rules having the force of a statute. The maximum that can be said in favour of an appellant is that in cases of doubt arising from the wording of a grant, he should be entitled to the benefit of that doubt."
On an anxious consideration of the question before us we are of the view that the appellant before us should, at any rate, "be entitled to the benefit of doubt arising from the wording of the grant", if it be that be could not appeal by virtue of an express or explicit grant in that behalf.
8. Section 5 (1) of the Kerala High Court Act, 1958 reads:
"5. Appeal from judgment or order of Single Judge.-- An appeal shall lie to a Bench of two Judges from--
(1) A judgment or order of a Single Judge in the exercise of original jurisdiction;
Therefore, an appeal shall lie from any judgment or order of a Single Judge if the same has been rendered in exercise of original jurisdiction. Note that the word 'order' is not in any way qualified. On comparing that provision with Section 109 of the Code of Civil Procedure, 1908, which confers right of appeal to the Supreme Court it would be clear that the legislature has taken care to qualify the word 'order1 occurring in all the clauses in the latter provision viz., Clauses (a), (b) and (c) of Section 109 with the adjective: 'final'. We cannot assume that the State Legislature was not aware of Section 109 of the Code when it enacted Section 5 (1) of the High Court Act, 1958, without, on the face of it, limiting the right of appeal to 'final orders' and conferring right of appeal from any order, be it final, provisional or otherwise. It appears to us that the change of language was intended to enlarge the scope of appeals from orders passed by a Single Judge of the High Court in exercise of his original jurisdiction; at any rate applying the doctrine of 'benefit of doubt' enunciated by the learned Chief Justice in the Full Bench case mentioned above we should hold that an appeal would lie from any order passed by a learned Single Judge of this court in exercise of his original jurisdiction.
We hasten to caution, that entertainabi-lity of an appeal is one thing and refusal to interfere with an order for the reason that the aggrieved party can seek his remedy at a later stage before the same court or before another court, since the order has not become final is an entirely different matter, but we wish to emphasise that right of appeal being a creature of statute, if the statute grants such right we cannot refuse to entertain the same. And, to see whether such a right is conferred or not what is to be examined is the language of the provision conferring that right, and that alone. For instance despite prohibition of further appeals, it has been held that a further appeal would lie to the Privy Council. In Tekait Krishna Prasad Singh v. Moti Chand, (1913) 40 Ind App 140. (PC), Lord Meulten on behalf of Board said (at p. 149) that 'the provision at the end of Section 588 (of the Code of Civil Procedure, 1892) providing that orders passed in appeal under that section shall be final cannot restrict the provision that appeals may be brought to the King in Council from them'. Again in Ramlal v. Kishan Chan-dra, AIR 1924 PC 95, Lord Parmoor referring to Section 104 (2) of the Code of Civil Procedure, 1908, said that there was nothing in that section 'to take away the general right of appealing to the Crown given by Section 109 of the Code. (See at pp. 100-101).
9. The further question, therefore, to be considered is as to whether the order was passed by the learned Single Judge in exercise of original jurisdiction. Certainly the jurisdiction exercised was neither appellate, nor revisional, nor even supervisory. Thus the jurisdiction exercised can only be original jurisdiction.
10. It could not also be said that there is no precedents of an appeal against an order purported to have been passed by the Vacation Judge, in exercise of the powers under Section 19 (2) of the Kerala Civil Courts Act, 1957, having been entertained and decided by a Division Bench of this court, for instance, A. S No. 128 of 1975, though occasions for filing such appeals might be far and few. The preliminary objection relating to the maintainability of the appeal raised by Sri Ejman is therefore ruled out.
11. The appellant, it is averred, came to know about the passing of the ex parte order appointing the Receiver only when the Receiver went to the place for taking possession of the property. Thereafter without delay he took steps to obtain a certified copy of the order, by filing petitions in this court and the Mun-siff's Court; yet he could not obtain one. The delay in filing the appeal having been satisfactorily explained, we allow C.M.P. No. 1372 of 1975 for condoning the delay filed by the appellant.
12. In disposing of the appeal all that we need do in the circumstances of the case is to direct the Munsiff of Kasa-ragod to bear and decide the matter on its merits treating the impugned order passed by the Vacation Judge as a provisional order falling within the ambit of Section 19 (2) of the Kerala Civil Courts Act; and we do so. In order that the order on Receiver's Memo No. 1 of 1975 passed by the learned Munsiff might not stand as a technical defect in the wav of implementation of our direction, in exercise of our revisional power, we set aside the said order passed by the learned Munsiff and direct him to pass appropriate orders on merits in the light of the observations in this judgment.
13. The appeal and the petition are disposed of as above. No costs.