Gauhati High Court
Sivaji Saha vs Shah Md. Farid And Anr. on 28 February, 2005
Equivalent citations: (2005)2GLR435
Author: D. Biswas
Bench: D. Biswas
JUDGMENT B.K. Roy, C.J.
1. The appellant is tenant for whose ejectment the respondents filed Title Suit No. 184/2001 on the grounds set forth in the plaint (copy appended as Annexure 1). The appellant appeared in the suit, filed written statement (copy appended as Annexure 2) and contested the suit. The parties lead evidence In support of their respective cases. The suit was fixed for argument. On behalf of the plaintiffs-respondents arguments were completed. The appellant's argument commenced. During the argument, the appellant's counsel placed reliance on statement made by PW 1 (plaintiff No. 2) in her cross-examination which was to the effect that the cheques, which were handed over by the appellant, were not encashed. The plaintiff filed an application under Section 153 CPC read with Section 151 CPC praying that the words "satya no-hoi" which were omitted to be recorded by the Court, which was stated by the PW 1 during her cross-examination, about which the plaintiffs came to know only on yesterday, (i.e., June 6, 2003).The appellant filed an application under order 19, Rule 2, CPC read with Section 151 CPC to allow him to cross-examine the plaintiff No. 2 to bring out the true facts for effective adjudication of the Issues involved. An objection was filed against this application under order 19, Rule 2. The trial court by order dated August 10, 2004 (copy appended as Annexure 11) decided to re-examine PW 1 giving liberty to the appellant to cross-examine PW 1. The appellant assailed the validity of this order in W.P.(C) No. 7235/04 under Article 227 of the Constitution of India. A learned Single Judge of this Court vide order dated 11.10.2004, which is under challenge in this appeal, held the order dated August 10, 2003 to be a proper order for re-examination of PW 1 with liberty to cross-examine her, limited to the point raised.
2. Mr. S.P. Roy, learned counsel appearing for the appellant, strenuously tried to convince us that the learned Judge has committed errors In dismissing the writ petition in not appreciating that the learned court below could not pass such an order. Learned counsel also relied upon the following decisions -
1. Jeet Mohinder Singh v. Harminder Singh, (2004) 6 SCC 26 ;
2. Smut. Surinder Kaur v. Karambir Singh, AIR 2004 P&H 337 ;
3. Balakrishna Sivappa Shetty v. Mahesh Nenshy Bhakta, AIR 2003 Bombay 293 ; and
4. Rudreswar Dihingia v. Pundu Mura, AIR (1989) (Gau) 118 NOC.
3. We asked a question to Mr. Roy that an appeal being creature of statute, how this appeal has been filed without stating the provision under which it is filed against the order passed by learned Single Judge in the writ petition under Article 227 of the Constitution of India.
3.1 Mr. Roy just made a bald statement that this appeal has been filed under Gauhati High Court Rules.
3.2 Chapter VIII of the Gauhati High Court Rules states the applicability of Chapters IV and V, as far as may be, In regard to appeal under Clause 15 of the Letters Patent. This Clause 15 has obvious reference to Clause 15 of the Letters Patent of the Calcutta High Court, which reads as under:-
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, Bombay, Fort William in Bengal 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 a provisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 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 hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge or the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act (on or after the first 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 or successors in Our or Their Privy Council, as herein after provided.
3.3 In Sukhendu Bikash Barua v. Harekrishna De, AIR 1953 Calcutta 636 (Para 11), it was held by a Division Bench of the Calcutta High Court that no letters patent appeal lies against an order passed by a Judge under Article 227 of the Constitution of India. Similar is the view taken by the Supreme Court in RDCCB v. Dinkar, (1993) Suppl. 1 SCC 9 and Susila Bai v. Nihalchand, (1993) Suppl. 1 SCC 11.
3.4 We thus hold that no letters patent appeal lies against the judgment passed by the learned Single Judge of this Court under Article 227 of the Constitution of India.
4. Even otherwise also we do not find any merit in the submissions. The appellant had approached this Court under Article 227 of the Constitution of India invoking its judicial powers of superintendence over the learned Civil Judge, the limitation of which is well-known. In our view the learned Civil Judge was well within his limits in exercising inherent powers in passing his order, which has its root in necessity.
We do not feel that injustice has been done to the appellant.
5. Resultantly, we dismiss this appeal, but without costs.