Calcutta High Court
Murari Kumar Saraf vs Sri Jagannath Shaw on 25 November, 1993
Equivalent citations: AIR1994CAL205, AIR 1994 CALCUTTA 205
ORDER
1. With the consent of Shri Sudipta Moitra the Ld. Advocate appearing for the petitioner the instant revisional application had been heard on a preliminary objection taken by the Ld. Advocate Mr. Gopal Chandra Mukherjee appearing for the O.P. against the impugned order that no revisional application lies under Section 115 of the Code of Civil Procedure and that as such only appeal lies. The revisional application has not been heard on merits. So the main point for consideration is whether the impugned order is an appealable order or it is revisable under Section 115 C.P.C.
2. The instant revisional application has been preferred against Order No. 1 dated 21-12-1992 passed by the Ld. District Judge, Howrah rejecting the prayer for ad interim order of injunction in Misc. Appeal No. 287/ 92 preferred by the plaintiff petitioner against the Order No. 45, dated 17-12-1992 passed by the Ld. Munsif, 4th Court, Howrah in T.S. 62/ 90 rejecting his prayer for ad interim order of injunction. It would be helpful to note that in the Trial Court the petition filed by the plaintiff petitioner for temporary injunction under Order 39, Rules I and 2 of the C.P.C. in the aforesaid T.S. 62/90 is still pending. So pending is the Misc. Appeal preferred against the said order in the Court of the Ld. District Judge, Howrah along with the application for temporary injunction. In the said Misc. Appeal the plaintiff petitioner filed a petition under Order 39, Rules 1 and 2 read with Section 151 C.P.C. for an order of interim injunction which was refused by the Ld. District Judge by his impugned order and the Ld. District Judge issued only notice upon the respondent O.P. to show cause.
3. The Ld. Advocate appearing for the O.P. has submitted that the impugned order is an appealable order and no revision lies against the same. In support of his contention Shri Mukerjee has referred to a Single Bench decision of this High Court reported in 1988 (1) C.L.J. at page 3S9. It has been held in the said decision that Section 104(2) C.P.C. bars only second appeal and not a first appeal under Section 104(1) C.P.C. read with Order 43, Rule 1 C.P.C. against orders mentioned therein and passed either by the Trial Court or by the Court of appeal in exercise of powers under Section 107(2) C.P.C. It has been further held there that when Appellate Court passes an order which is in the nature of original order that order is an appellable one. It can be appealed against in the High Court. It would be helpful to quote the relevant passages from the reported judgment delivered by Mr. Samir Kumar Mukherjee, J. as follows:--
"Order passed under Rules 1 and 2 or rule 4 of Order 39 of the Code are subject to an appeal in terms of Order 43, Rule l(r) read with the provisions of Section 104 sub-section (1) clause (i). Then follows sub-section (2) which provides that 'No appeal shall lie from any order passed in appeal under this section, the connected Miscellaneous Appeal, which is pending before the lower Appellate Court, is undoubtedly an appeal under the provisions of Section 104(1) of the Code of Civil Procedure, read with Order 43, rule 1 or vice versa. Such an appeal would obviously be barred if the view taken in the decision cited by Mr. Dey be accepted. I am, however, unable to accept the said decision as correct in view of the unreported Bench decision of this Court in F.M.A.T. No. 28 of 1976 (2) Mrs. ' Anjali Sengupta v. A. K. Das, decided by H. N. Sen and B. C. Ray, JJ. on 30-3-1976. That decision clearly holds that an order passed by the lower Appellate Court under Order 39 of the Code is appeallable. It true that in the said Bench decision there is no reference to Section 104(2) of the Code of Civil Procedure but even then, sitting singly I am bound by the said decision and if I had felt inclined to differ from it, the only course open to me would have been to refer the matter to a Division Bench for examining the propriety and correctness of the said decision. I feel, however, that the said decision is correct on principle notwithstanding non-mention of Section 104(2) of the Code which in my view, bars only a Second Appeal and, not a First Appeal under Section 104(1) read with Order 43, Rule 1 of the Code against the orders mentioned therein and passed either by the trial court or by the court of appeal in the exercise of its powers under Section 107(2) of the Code, which expressly provides for the exercise by the Appeal Court of powers conferred on courts of Original Jurisdiction. Exercise of such powers by the Appellate Court would result in original order as distinguished from appellate orders which postulate the existence of original orders passed by a subordinate court and the bar of Section 104(1) applies only to appeals against such appellate order. That bar was never intended to apply to original orders whether passed by the trial court or by the Appellate Court in the exercise of powers under Section 107(2) of the Code of Civil Procedure on the matters mentioned or included in Order 43, Rule 1 and expressly made appellable under that provision read with Section 104(1) as in that event, a conflict would immediately arise between the two sub-sections (sub-sections (1) and (2)) of Section 104 and in construing Section 104(2) this aspect should not be overlooked."
The Ld. Advocate of the O.P. has also referred to a decision of this High Court reported in I.L.R. 26 Cai 275 and of the Allahabad High Court reported in I.L.R. 25 at page 174. Both these cases have been discussed in the judgment reported in 1988 (1) C.L.J 389. The Ld. Advocate Mr. Moitra appearing for the petitioner has contended that this reported decision in a judgement per incuriam and that as such should not be taken note of. He has referred to a decision of the Supreme Court . In the said case the Supreme Court has held as follows :-
"Certainty of the law, consistency of rulings and comity of courts -- all flowering from the same principle -- converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obstrusive omission."
He has also referred to a recent decision of the Supreme Court . In the said case the Supreme Court has identified the decisions which are per incuriam. Supreme Court has held that "per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong." The Supreme Court has firmly and tersely held that it is the settled rule that if the decision has been given per incuriam the court can ignore it.
4. The Ld. Advocate appearing for the petitioner has referred to a number of decisions of our High Court and other High Courts in support of his contention that the impugned order is not an appealable order but an order revisable under Section 115 of the Civil Procedure Code. According to him the impugned order was passed by the 1st Appellate Court in course of hearing of the Misc. Appeal, which is still pending there and that as such it is attracted by provision of Section 104 sub-clause (2) C.P.C. that states that no appeal shall lie from any order passed in appeal under the said section. According to him Section 115 C.P.C. is attracted in respect of any order passed in any case by any Court subordinate to the High Court for which there is no provision of appeal. He has specifically referred to the decisions , , , , AIR 1975 Goa 15 and 44 C.W.N. 1034.
5. Before coming to a decision on the point raised by Mr. Moitra appearing for the petitioner that the judgment reported in 1988(1) C.L.J. 389 of this High Court is a judgment per incuriam, it would be better and proper to appreciate the position of law in this regard as propounded by this High Court and other High Courts in the reported decisions referred to by the Ld. Advocate for the petitioner. It may be worth while to mention that in the said reported judgment 1988 (1) C.L.J. 389 Justice S. K. Mukherjee considered the decisions reported in AIR 1975 Calcutta 15, and and differred from the same, mainly on the ground that he was bound by an unreported Division Bench Judgment of this High Court in F.M.A.T No. 28/76 dated 30-3-1976. Besides that his Lordship has given his own reasonings to come to the conclusion that sub-section (2) of Section 104 bars only a second appeal and has no application to a First Appeal. His Lordship has observed as follows:--
"1. In the context of sub-section (1) and reading the two sub-sections together the words 'any order passed in appeal under this section, may well be held to refer to any order passed in appeal upon the trial courts order or in other words, the final order of the Appellate Court deciding or disposing of the appeal before it and it would be doing no violence to the language to hold that what the section, read as a whole, contemplates is that, in relation to the order, appeal from under sub-section (1), the order (any order) of the Appellate Court would, under sub-section (2), be final and not opened to any appeal, giving to the word 'any' a restricted meaning.
2. The list of orders mentioned in Order 43, Rule 1 includes orders on many important matters, for example, attachment under Order 38 injunction and its violation under Order 39. Receiver under Order 40 etc. and it could not have been the intention of the legislature to prohibit even one appeal from such important orders."
I would like to note that the unreported decision relied upon by his Lordship however, has not been produced before me. In the case reported in 73 C.W.N. 228, it has been held by this High Court that interim injunction granted by the lower Appellate Court is an order passed in appeal and, therefore, not appealable, Section 104(2) of the Code of the Civil Procedure contemplating one appeal only not two. It has been observed in that case as follows:--
"Thus, it is plain to be seen that only one appeal is contemplated not two and the order of the lower Appellate Court, though interim, is an order passed in appeal. So, the appeal appears to be incompetent."
It is pertinent to note that this judgment was not cited before or considered by the Ld. Judge while deciding the case reported in 1988 (1) C.L.J. 389. In the case reported in 44 C.W.N. 1034, it has been held by this Court that by reason of the provision of S. 104(2) of the Civil Procedure Code no second appeal would lie from the order passed in such an appeal. The case reported in 36 C.W.N. as cited by the Ld. Advocate appearing for the Petitioner has no direct application to the present matter as such I do not think it necessary to refer to the decision taken therein. Now I come to the decision of the Madras High Court . This decision is in respect of a case similar to the one in the present case. In this case it has been decided as follows:--
"All that Section 107(2), Civil P.C. provides for is that subject to the serveral modes of disposal of an appeal, enumerated in subsection (1), the appellate court shall have the same powers and shall perform, as nearly as may be, the same duties as are conferred and imposed by the Code on courts of original jurisdiction in respect of suits instituted therein. This provision will not alter the nature and character of an order passed by an appellate court under Order XXXIX, Rule 1, Civil P.C. or any other order of a like nature, into an order passed by a court of original jurisdiction from an order passed by a court of appellate jurisdiction. As a matter of fact, Section 107(2) does not have the effect of rendering an appellate court a court of original jurisdiction when exercising its powers to pass incidental orders."
"Before proceeding to consider the provisions of Section 104 and Order XLIII, Rule 1, Civil P.C., it is apposite to remember that, while under Section 96 of the Code, every decree is appealable save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, every order is not necessarily appealable and, as a matter of fact, no other order except those specified in Section 104(1) or exempted thereunder is appealable. Section 104, which is the relevant provision in the Code which makes provision for appeals from orders, provides inter alia that any order made under rules, from which an appeal is expressly allowed by rules, is appealable. Order XLIII, Rule 1, Civil P.C. which enumerates the orders from which an appeal can be preferred is referable to this provision in Section 104 and consequently, Order XLIII, Rule 1, Civil P.C. cannot confer greater rights than what is conferred by Section 104. As a matter of fact, Order XLIII, Rule 1, Civil P.C. itself reads as follows -- "An appeal shall lie from the following orders under the provisions of Section 104". (underlining mine). Inasmuch as reference is made to Section 104 in Order XLIII, Rule 1, Civil P.C. it necessarily follows that Section 104 has to be considered in its entire conspectus to decide the question whether an order referred to in Order XLIII, Rule 1 is an appealable order when it has been passed by an appellate court, As Section 104(2) clearly lays down that no appeal would lie from any order passed in appeal, it necessarily follows that the right of appeal given against the orders enumerated in Order XLIII, Rule 1 will be subject to the stipulation contained in Section 104(2), Civil P.C. Moreover, Section 105 also makes it clear that unless otherwise expressly provided, no appeal shall lie from an order made by a Court in the exercise of its original or appellate jurisdiction. The use of the words 'original or appellate jurisdiction' in Section 105 makes abundantly clear that the court can only exercise either original or appellate jurisdiction, but cannot exercise both at one and the same time."
It has been further observed in support of the reasonings quoted above that the legislature would not have intended to confer the advantage of a second appeal in respect of orders passed under the Code when even appeals from appellate decrees are required to satisfy the conditions laid down in Section 100 of the Civil Procedure Code. The Madras High Court while giving this decision relied upon a decision of the Kerala High Court . It has been observed there as follows:--
"The power given to an appellate Court under Section 107, C.P.C. is only part of its appellate jurisdiction. It cannot be characterised as an original jurisdiction in an appellate court. It confers power on the appellate Judge not only to dispose of the appeal on its merits, but also to pass any interlocutory or incidental orders deemed necessary in the circumstances of the case to maintain the status quo, or to preserve the subject-matter of the appeal till the disposal of the appeal as an original court is empowered to do in the case of suits before it. The incidental orders passed by an appellate court in interlocutory application moved in an appeal before it are 'orders passed in appeal' within the scope of Section 104(2), C.P.C. and cannot, therefore, be appealed against."
In the above reported case an application for temporary injunction was moved in the suit before the Subordinate Judge and against the disposal of that application an appeal was preferred before the District Judge. In the said appeal the second application for temporary injunction was filed by the appellants which was dismissed. Against the said dismissal appeal was preferred before the Kerala High Court. It was held there that the appeal to the High Court against an interlocutory order passed by the Distict Judge in an appeal under Section 104 read with Order 43, C.P.C. was incompetent and, therefore, liable to be dismissed in limine. The Ld. Advocate appearing for the petitioner as I have already noted has also referred to a decision of this High Court reprorted in AIR 1975 at page 377. In my opinion that decision has no bearing to the present case, as that case deals with a matter where the Ld. Munsif passed an order of injunction under Section 94(c) and (e)read with Section 151, C.P.C. pending the disposal of an application for restoration of the suit under Order 9, Rule 9 of the C.P.C. Now I come to the decision of the Goa High Court reported in 1975 at page 15. In that case the Goa High Court has held that an order of ad interim injunction passed by the Appellate Court during the pendency of appeal against dismissal of application for temporary injunction by Trial Court is not an original order but it is "an order passed in appeal" within the meaning of Section 104(2) and hence no second appeal lies against it. In this case the Goa High Court followed the decision of the Kerala High Court which I have already mentioned.
6. Now I shall refer to the relevant provisions of the Civil Procedure Code consideration of which would be necessary to appreciate the position of law and to decide the matter.
7. In this context it would be helpful to start with the point that in the Trial Court a petition for temporary injunction was filed under Order 39, Rules 1 and 2 in T.S. 62/90. The provisions of Order 39, Rules 1 and 2 are exercised in the suit only. It is not disputed that the said Title Suit is still pending before the Trial Court. Against the order of the Ld. Munsif rejecting the prayer for issuing an interim order, a Miscellaneous Appeal was preferred. The said Miscellaneous Appeal cannot be treated as a continuation of the suit which was pending before the Trial Court. Section 107 of the Civil Procedure Code lays down as follows:-
"(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power -
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to make additional evidence or to require such evidence to be taken;
It has also been provided in Section 108 that the provisions of part 7 which contains Section 107 relating to appeals from original decrees shall, so far as may be, apply to appeals -
(a) from appellate decrees, and
(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.
The provisions for appeals from orders have been made under Section 104, C.P.C. which should be read with Order 43, Rule 1, C.P.C. Section 104(2) specifically states that no appeal shall lie from any order passed in appeal under this section. Section 94 of the Civil Procedure Code contains provisions for certain actions which may be taken by the court in order to prevent the ends of justice from being defeated if it is so prescribed including granting a temporary injunction etc. Section 115 provides for revision of an Order against which no appeal lies. It has been specifically barred under Section 115(2) that the High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. Keeping in mind the above provisions of law as provided in the Code of Civil Procedure the point raised before this Court is to be decided. By the impugned order the Ld. District Judge rejected the plaintiffs-petitioner's application under Order 39, Rules I and 2, C.P.C. By this order the miscellaneous appeal was not finally disposed of. It was definitely an interlocutory order. Now the question is whether this interlocutory order can be treated as original order so as not to be hit by the provisions of Section 104(2) of the C.P.C. I have quoted above from the relevant judgments given by this High Court, Madras High Court, Kerala High Court and Goa High Court. In the Judgment delivered by the Madras High Court the relevant provisions of the Civil Procedure Code have been elaborately discussed. In all these decisions the clear finding is that no appeal would lie from any order passed in appeal under Section 104(2), C.P.C. just because a petition under Order 39, Rules 1 and 2 was filed before the 1st Appellate Court during the pendency of a miscellaneous appeal that does not and cannot mean that by this the 1st Appellate Court became a Court of Original Jurisdiction and the order passed by it became an Original Order. Furthermore, the final order passed in such miscellaneous appeal is not an appealable order. In that position it becomes difficult to accept the proposition that an interlocutory order passed before the final disposal of such miscellaneous appeal by the 1st Appellate Court would become an original order and as such would not be hit by Section 104(2), C.P.C. I, therefore, agree with the reasonings given by this High Court in the case reported in 73 C.W.N. at page 228, Madras High Court, Kerala High Court and Goa High Court. In the reported cases as referred to above that an order of the Appellate Court passed during the pendency of the appeal against an order of refusal of granting ad interim order by the Trial Court is not an Original Order but is "an order passed in appeal" within the meaning of Section 104(2), C.P.C.
8. Now the question is whether the judgment of this High Court referred to by the Ld. Advocate appearing for the O.P. reported in 1988 CLJ at page 389 is a judgment per incuriam or not. With due respect to the findings and observation made by his Lordship in the aforesaid judgment I must say most respectfully that in view of the decisions of the Supreme Court and in which I have already quoted it cannot but be held that the above reported judgment is a judgment per incuriam. In the aforesaid judgment his Lorship has relied upon an unreported Division Bench judgment of this High Court which has held that an order passed by the lower Appellate Court under Order 39 of the Code is an appealable order. His Lordship has further noted that in the said judgment there was no reference to Section 104(2) of the Code of Civil Procedure. I have already pointed out that in his judgment reported in 1988( 1) CDJ at page 389, S. K. Mukherjee, J. has not at all referred to the earlier decision of this High Court reported in 73 CWN page 228 which is quite specific on this point. It ii to be borne in mind that the interpretation of Section 104(2) is the most important point to decide whether an order passed by the Appellate Court during the pendency of a miscellaneous appeal under Order 39, Rules 1 and 2 is an appealable order or an order to be challenged in revision under Section 115, CPC. It has been held by the Supreme Court that if a decision has been given per incuriam the court can ignore it. So following the consistent view of this High Court and other High Courts which 1 have discussed in details in the foregoing paragraphs, 1 must hold with due respect that the judgment reported in 1988 (1) CLJ at page 389 is a judgment per incuriam and there are reasons to ignore it in terms of the reported decision of the Supreme Court.
9. Accordingly in view of the above facts and circumstances and on due consideration of the ratio of decisions of our High Court and other High Courts as discussed above I am of opinion that the preliminary objection taken by the Ld. Advocate appearing for the O.P. that the impugned order is an appealable order and that no revision lies against the said order under Section 115, C.P.C. is not tenable in law. The preliminary objection is over ruled. I hold that the impguned order is not an appealable order and as such the revisional application filed against the said order is quite competent and this Court has jurisdiction to entertain the application under Section 115, C. P.C. The main revisional application which has not been heard on merits will come up for hearing after two weeks.
10. Order accordingly.