Madhya Pradesh High Court
Dr. Mahesh Chandra Choubey vs M.M. Dubey And Ors. on 21 April, 1994
Equivalent citations: AIR1994MP151, 1994(0)MPLJ657, AIR 1994 MADHYA PRADESH 151, 1994 (3) RRR 177, (1995) JAB LJ 141, (1994) MPLJ 657, (1994) 2 LJR 713
Author: P.P. Naolekar
Bench: Chief Justice, P.P. Naolekar
JUDGMENT P.P. Naolekar, J.
1. Order in this appeal shall also govern disposal of L.P.A. No. 2 of 1993 (Dinesh Kumar Dubey v. Krishna Kumar Das and two others), as the point for consideration is analogous.
2. The brief facts necessary as to how the question arose and the matter was referred to the Full Bench, are as follows: The respondent No. 4 Pankaj Kumar Chatterjee filed a suit for declaration and parmanent injunction in the court of the District Judge, Jabalpur, which was registered as Civil Suit No. 98A of 1991. The reliefs sought in the suit are:
(a) That the defendant No. I (appellant), President of the Society, be restrained from functioning as President of the Society;
(b) That the defendant No. 2 (respondent No. 1) Shri M.M. Dubey, be restrained from functioning as Principal of the N.E.S. Law College and from intefering with the working of the college; and
(c) That the defendant No. 3 (respondent No. 2) Shri S.K. Tiwari, be restrained from functioning as Principal of the Naveen Vidhya Bhiwan, Gorakhpur, Jabalpur.
The reliefs sought were based upon two paramount allegations, namely, (i) that the elections were held to the managing committee of the New Education Society (respondent No. 3) after a lapse of nine years on 23-7-1989 in which the appellant was elected as the President and in an inquiry held by the Registrar of Firms vide his name dated 19-6-1990 informed that the election procedure adopted was illegal and thus the appellant herein has no authority or power to perform the duties and to exercise the powers of the President of the New Education Society and any act done by him is per se illegal and without the authority of law; and (ii) the resignation of Shri M. M. Dubey, Principal of the N, E. S, College was submitted and considered in a meeting held on 9-8-1991 and was accepted; thereafter an order was passed by the appellant on 10-10-1991, purported to be in exercise of the powers as President, that the resignation dated 9-8-1991 could not be given effect to, as it was not put up before the managing committee nor it was accepted by a competent body, is illegal and that after the acceptance of the resignation of Shri M.M. Doubey, it was beyond the competence of the President to appoint him as Principal and to permit him to withdraw his resignation, which was already accepted by the Managing Committee.
3. Along with the suit, an application for temporary injunction under Order 39, Rules 1 and 2, C.P.C. claiming the following reliefs, was also filed:
(a) That the defendant No. 1, i.e. appellant be restrained from functioning as President of the Society;
(b) That the defendant No. 2, i.e. respondent No. 1 be restrained from functioning as Principal of the N.E.S. College; and
(c) That the defendant No.3, i.e. respondent No. 2, be restrained from functioning as Principal of Naveen Vidhya Bhawan, Gorakhpur, Jabalpur.
The appellant, Dr. Choubey, and other contesting defendants filed their reply to the application under Order 39, Rules 1 and 2, C.P.C.
4. After hearing the parties, the District judge dismissed the application on grant of temporary injunction by his order dated 16-12-1991. Aggrieved by the said order of the District Judge, the plaintiff (respondent No. 4) preferred an appeal in this Court under Order 43, Rule l(r) of the Code of Civil Procedure, which was registered as M.A. No. 643 of 1991. A learned single Judge of this Court heard the matter on 26-3-1992 and delivered judgment on 7-4-1992 restraining the appellant from functioning as President of the New Education Society, Jabalpur during the pendency of the matter. As regards the Principal of the College, an order of injunction was issued on the condition that if he secures permision within two months of the order of the Court from the University that the University has no objection to his continuing as Principal, but in the absence of no objection certificate from the University, he was restrained from discharging the duties of the Principal of the M.E.S. College.
5. Aggrived by the said order of the learned single Judge dated 7-4-1992, the appellant has filed the present L.P.A. under Clause 10 of the Letters Patent which was registered as L.P. A. No. 11 of 1992. The Division Bench heard the counsel for the appellant and felt that there was divergence of view in the Division Bench decisions of this Court in the cases of Shrichand Komalchand Jain v. Sardar Tejinder Singh, 1979 MPLJ 170: AIR 1979 MP 76 and Raghvendra Singh Choudhary v. Seemabai, 1988 MPLJ 450 on the one hand and Chhunilal Laxaman Prasad (Firm) v. Agarwal & Co., AIR 1987 MPLJ 172 : 1987 MPLJ 165, B. S. Adityan v. Fencing Association of India, Jabalpur, AIR 1991 MP 316: 1991 MPLJ 418 and the order in (Tarun Mahotra v. Surendranath), L.P.A. No. 48 of 1990 dated 6-2-1991. On the other, all these decisions, except Shrichand Komalchand Jain's case (supra), in their turn seem to have relied upon the decision of the Supreme Court in case of Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786 and another decision of the Supreme Court in case of Madan Naik v. Mst. Hansubala Devi, AIR 1983 SC 676. Therefore, in order to have an authoritative and fianl pronouncement with regard to the correct law in this regard with regard to the maintainability of the L.P.A. under Clause 10 of the Letters Patent, the matter was referred to a larger Bench for decision and that is how this Full Bench has been constituted.
6. The question which requires consideration and deision by this Bench is whether this appeal under Clause 10 of the Letters Patent is maintainable against the order of the single Judge of this Court passed in an appeal preferred under Order 43, Rule 1 of the Code of Civil Procedure, in view of Section 104 of the Code of Civil Procedure.
7. For a proper appreciation of the question involved in this appeal, we propose to reproduced the relevant part of Section 104 of the Code of Civil Procedure which is as under:
104(1) an appeal shall lie from the following orders, and save an otherwise expressly provided in the body of this Code of by any law for the time being in force, from no other orders:-
*** *** *** *** *** (ff) an order under Section 35A;
(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 of Section 92, as the case may be;
(g) an order under Section 95;
(h) *** *** *** *** ***
(i) any order made under rules from which as appeal is expressly allowed by rules;
Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.
Clause 10 of the Letters Patent constituting a High Court of Judicature at Nagpur reads as under:
10. Appeal to the High Court from Judges of the Courts.- And we do further order in that an appeal shall lie to the said High Court of Judicature at Nagpur 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 the 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 powers of superintendence under the provisions of Section one hundred and seven 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 Bench Court pursuant to section one hundred and eight 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 of the said High Court or one Judge of any Division Court, pursuant to section one hundred and eight of the Government of India Act, 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 judgment of Judge of the said High Court or of such Division Court shall be to us. Our Heirs and Successors in Our or Their Privy Council, as hereinafter provided.
8. By force of Section 104, C.P.C., the appeals as indicated in various clauses of Order 43, Rule 1, C.P.C. would lie to the appellate Court. Section 105, C.P.C. provides that no appeal shall lie from any order of a Court made in exercise of its original appellate jurisdiction, except according to the procedure laid down by the Code. Subsection (2) of Section 104, C.P.C. expressly prohibits further appeal from an order passed in an appeal under 43, Rule 1, C.P.C. A perusal of the Letters Patent would clearly reveal that an appeal lies against an order passed by a single Judge to a larger bench of the same High Court, if it is not, the judgment passed in the exercise of appellate jurisdiction in respect of decree of order made by the court below, unless the Judge who passed the judgment declares that the case is a fit one for appeal. Therefore, there is nothing in the Letters Patent to that if under Order 43, Rule 1 applies to internal appeal in the High Court, that further appeal would lie against the appellate order of the single Judge to a Division Bench.
9. It is contended by the counsel for the appellant that the Letters Patent is a special law,, which over-rides the provisions of the Code of Civil Procedure and the provisions of Section 104 read with Order 43, Rule 1, C.P.C. are not inconsistent with clause 10 of the Letters Patent; Section 104, C.P.C. merely provides additional remedy and confers a new jurisdiction on the High Court without at all interfering with the provisions of Clause 10 of the Letters, Patent and, therefor:, an order passed by a single Judge can be challenged in a Letters Patent Appeal.
10. In Shrichand Komalchand Jain v. Sardar Tajinder Singh, 1979 MPLJ 170 : AIR 1979 MP 76, an ex parte decree was passed by the trial Court and the defendant moved an application for setting aside the ex parte decree under Order 9, Rule 13, C.P.C., which was rejected by the trial Court. Therefore, the defendant preferred an appeal against the rejection of his application under Order 9, Rule 13, C.P.C. under Order 43, Rule 1 (d) of C.P.C. The said appeal was allowed by a single Judge of the High Court. The decision of the learned single Judge was challenged before a Division Bench in an L.P.A.. The Division Bench relying on a decision in Ganpati v. Pilaji, AIR 1956 Nag 211, held that an appeal under Clause 10 of the Letters Patent is maintainable. No specific reasoning has been given in holding that an appeal under Clause 10 of the Letters Patent is maintainable, except that the Court has relied on a decision in Ganpati's case (supra). The decision was prior to the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8 : AIR 1981 SC 1786.
11. In another case Raghvendra Singh v. Seema Bai, 1988 MPLJ 450, petition was filed under Section 13 of the Hindu Marriage Act for divorce and a decree of divorce was granted by the trial Court, against which an appeal was preferred which was registered as First Appeal No. 31 of 1983. During the pendency of the appeal, an application for maintenance was filed under Section 24 of the Hindu Marriage Act. A single Judge granted interim maintenance against which a Letters Patent Appeal was filed. The Court held that the order passed by the learned single Judge granting maintenance is a judgment and, therefore, an appeal lies to the Division Bench under Clause 10 of the Letter Patent. The provisions of Section 104(2), C.P.C. were neither relied on nor considered nor decided in that case. In the case the Court had not considered the question of maintainability of a Letters Patent Appeal against a final judgment delivered in an appeal preferred under Order 43, Rule I, C.P.C. The appeal was preferred against the original order passed by the High Court in an application moved before the High Court and not in exercise of the appellate jurisdiction. In fact, it is the first appeal from the order passed by a single Judge of the High Court and not second appeal which is expressly barred under Section 104(2), C.P.C.. This case is not an authority for the proposition that the Letters Patent Appeal in maintainable against the judgment delivered by a single Judge of the High Court in an appeal under Order 43, Rule 1, C.P.C.
12. In Chhunilal Laxman Prasad (Firm) v. Agarwal & Co., 1987 MPLJ 165 : AIR 1987 MP 172, a Division Bench of this Court has taken a view that if the order is passed by a single Judge of the High Court in exercise of appellate jurisdiction under Section 104 read with Order 43, Rule 1, C.P.C., Letters Patent Appeal will not lie against such order passed in appeal. If an order however is passed by a single Judge of the High Court either appointing a receiver of granting or refusing injunction in some original proceeding, Letters Patent Appeal would lie against that order treating it to be a judgment. The ratio decidendi in this case is that an L.P.A. is maintainable, if the order is passed by asingle Judge of the High Court exercing the powers of a first Court and not as an appellate Court. The same view was taken by a Division Bench of this Court in B. S. Adityan v. Fencing Association of India, Jabalpur, 1991 MPLJ 418; AIR 1991 MP 316
13. In our opinion, the matter is squarely covered by the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, (198I) 4 S.C.C. 8: AIR 1981 SC 1786, where the Supreme Court has held that Section 104 of the C.P.C. provides an additional or supplementary remedy by way of appeal and it widens the original jurisdiction of the High Court and not limits it. A perusal of Clause 10 of the Letters Patent discloses nothing to show that Letters Patent ever contemplated that even after one appeal from the subordinate Court to the single Judge, a secod appeal would again He to the Division Bench of the High Court. All that Letters Patent provides for is that where the trial Judge passes an order, an appeal against that judgment of the trial Judge would lie in to the Division Bench. A further second appeal would not lie to the Division Bench from the appellate order of the trial Judge passed under Order 43, Rule 1, C.P.C.. Thus, if a single Judge has passed an order in an appeal against the order passed by a District Judge under Order 43, Rule 1, C.P.C. a further appeal under the Letters Patent would not be maintainable and this view is fully supported by the express language used in Clause 10 of the Letters Patent. In Hadan Waik v. Hansu-bala Devi, AIR 1983 SC 676, the Supreme Court has observed as follows :
Frankly speaking, no appeal would lie under Letters Patent against a decision rendered by the High Court in an appeal from order under Order 43, Rule 1.
In view of the pronouncement of the Supreme Court, we need not go into the other decisions referred to by the Counsel for the appellant of the other High Courts. We are bound by the decision of the Supreme Court.
14. Accordingly we hold that the appeal filed by the appellant under Clause 10 of the Letters Patent is not maintainable against the order passed by the single Judge of the High Court exercising powers under Section 104 read with Order 43, Rule 1, C.P.C.. Therefore, the appeal is dismissed as not maintainable.