Kerala High Court
Balan vs Sivagiri Sree Narayana Dharma Sanghom ... on 8 November, 2005
Equivalent citations: AIR2006KER58, 2006(4)CTC273, [2006(2)JCR94], 2005(4)KLT865
Author: J.B. Koshy
Bench: J.B. Koshy, K.M. Joseph
JUDGMENT J.B. Koshy, J.
1. In these cases, questions of law referred to be decided by the Full Bench are:
(i) Whether an appeal will lie against the order of a single Judge passed under Section 24 of the Code of Civil Procedure;
(ii) When such proceedings are under consideration can the learned single Judge pass interim orders; and
(iii) If interim orders are passed by the single Judge, whether appeals to the Division Bench can be filed from such interim orders.
2. No appeal is specifically provided under the Code of Civil Procedure, 1908 (in short 'CPC') against orders passed under Section 24. There is also no specific prohibition in CPC against filing of an appeal against such an order. Therefore, appeal can be filed if it is provided under any other law as right of appeal is a creature of Statute. Sections 104 and 105 of CPC prohibit filing of appeals except by express provision in the CPC or any other law. Section 5(i) of the Kerala High Court Act, 1958 provides for appeal from the judgment or order of a single Judge in the exercise of original jurisdiction. It need not be a judgment. From the plain terms of the section, if an order is passed by the learned single Judge in original jurisdiction, an appeal will lie. Therefore, at the outset, we have to consider whether an order passed under Section 24 CPC is in exercise of original jurisdiction. We may extract Section 5 of the Kerala High Court Act:
"5. Appeal from judgment or order of Single Judge:--An appeal shall lie to a Bench of two Judges from-
(i) a judgment or order of a Single Judge in the exercise of original jurisdiction; or
(ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a Subordinate Court."
Section 24 (1) of CPC reads as follows:
"24. General power of transfer and withdrawal: - -
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn."
The above section empowers the High Court and District Court to transfer suits or other proceedings from one Subordinate Court to another Subordinate Court competent to try the same or withdraw the same to it and dispose of the same. It can be done at the application of any of the parties. In such cases, due notice and hearing are necessary. It can also be done suo motu. When a suit is transferred or withdrawn suo motu, parties are not entitled to notice.
3. The objection raised regarding maintainability of an appeal from an order passed under Section 24 CPC by a single Judge of this Court is that the above order is not passed in original proceedings and it cannot be considered as a judgment or order affecting rights of parties. It is also contended that such orders are mere supervisory or revisional in nature.
4. In P. Ramnatna Aiyer's Law Lexicon, the following meaning is given for the term 'original jurisdiction':
"Original jurisdiction:--The phrase 'original jurisdiction' means jurisdiction to entertain cases in the first instance, as distinguished from appellate jurisdiction."
The words order in the exercise of original jurisdiction is generally used in contradistinction to the orders passed in exercise of appellate or revisional jurisdiction. The expression 'original jurisdiction' is not defined in the High Court Act. In Black's Law Dictionary, it is given the following meaning:
"Jurisdiction in the first instance; jurisdiction to take cognizance of a cause at its inception, try it, and pass judgment upon the law and facts. Distinguished from appellate jurisdiction."
The order under Section 24 CPC when passed on an application by one of the parties to the suit after hearing the other side, it is an order passed for the first time on the question of transfer or withdrawal and it is not passed in the exercise of appellate or revisional jurisdiction and the Court is not considering correctness or legality of an order passed by the lower court by using appellate or revisional jurisdiction.
5. In Alia Subbareddi v. Lanki Reddi Narayanaswatni Reddi and Ors. (AIR (36) 1,949 Madras 283), the Court held that when an application for transfer of a suit to the High Court is made under Section 24 CPC and notice is ordered, it is in the nature of an original proceedings within the meaning of Section 141 CPC and procedure provided under the Code in regard to suits becomes applicable. The above view that proceedings under Section 24 CPC is an original proceedings is confirmed by a Division Bench of Madras High Court consisting of Rajamannar, C.J., and Viswanatha Sastri, J. in Srirangam Municipality represented by its Executive Authority the Commissioner v. R.V. Palaniswami Pillai . In Ouseph v. Pylee (1957 KLT 1221), a Division Bench of this Court held that no appeal will lie against the order of a single Judge in appointing a Receiver. But, that order was passed in an appeal using appellate jurisdiction. Argument was that it is an order passed by a Court not being an order reviewing an order made by an inferior tribunal, i.e., an order passed in original jurisdiction. P.T. Raman Nayar, J., as he then was, speaking for the Division Bench, observed that since it is an order passed in an appeal, it is an order passed in exercise of the appellate jurisdiction and not in the original jurisdiction. The above decision is not applicable to this case as proceedings under Section 24 CPC is not an appellate proceedings. Next decision relied on is Asrumati Debi v. Kumar Rupendra Deb Raikot and Ors., approving the decision of the Rangoon High Court In re Dayabhai v. Murugappa (AIR 1935 Rang. 267 FB) and Khatizan v. Sonairam (AIR 1920 Cal. 797 (2)). The view expressed by the Apex Court in the above case was consistently followed by the Apex Court and other High Courts in the matter of appeals filed under the Letters Patent. The Apex Court categorically held that an order of transfer of a suit under Clause 13 of Letters Patent is not a judgment within the meaning of Clause 15 and that is not appealable. The Apex Court approved the view that the word 'judgment' used in Clause 15 is very wide and held that even if it is an order determining the right or liability affecting the merits of the controversy between the parties, then it can be treated as a 'judgment' for the purpose of Clause 15 and appeal will lie, (See: Shanti Kumar R. Canji v. Home Insurance Co. of New York . In Smt. Shanta Sabharwal v. Smt. Sushila Sabharwal and Ors., , a Division Bench of the Delhi High Court held that the word 'judgment' used in Section 10 (1) of the Delhi High Court Act need only be accorded a narrower interpretation as modern trend is to reduce the number of appeals and achieve an early termination of appeals (See para 17 (3) at page 157). But, unlike Kerala Act, in the Delhi High Court Act, appeals are maintainable only from a judgment. The decision of a Full Bench of Delhi High Court in University of Delhi and Anr. v. Hafiz Mohd. Said and Ors. has also considered the meaning of the word 'judgment' and held that an appeal will lie only from 'judgment' as defined under the CPC and to become a judgment, order is to be followed by a decree. Section 2(9) CPC defines 'judgment' as follows:
"(9) 'Judgment' means the statement given by the Judge of the grounds of a decree or order;"
The Apex Court in State of Tamilnadu and Ors. v. Section Thangaval and Ors. held that for a judgment under the CPC there should be a decree. Decision of the M.P. High Court in Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati v. Ramji Tripathi and Ors. is also under Clause 10 of Letters Patent (M.P.) Act wherein appeal will lie only against 'judgment' which involves final determination of some right or liability of the parties. In all these cases, the question considered was whether 'order' passed under Section 24 CPC is a judgment under the concerned Letters Patent and not whether such order is passed in original jurisdiction or not.
6. The Bombay High Court in Anand Issardas Motiani and Ors. v. Virji Raisi AIR 1984 Bombay 39, while considering the maintainability of appeal under Letters Patent (Bombay) Act against order passed under Section 24 CPC, held that even though only judgments are appealable and an order passed by the single Judge is not a judgment so as to maintain an appeal as held by the Apex Court in Asrumati Debi's case (supra), when an order decides other issues affecting the rights of parties, such part is appealable. At paragraph 9, it was observed by the Bombay High Court as follows:
"9. After careful consideration of the order under appeal, we think it is a case of that kind. Not only it purports to decide that in the interest of justice the case should be transferred from one Court to another but also in different parts of the judgment decides the matters with regard to the issues, with regard to the record of the evidence and with regard to the conduct of an advocate who participated in the proceeding. If we were to take the view that by reason of the ultimate order which directs the transfer these findings are also rendered non-appealable, the party affected would be put to prejudice and would be without remedy, for there would be a conclusion one way or the other of the rights and entitlements and only by reason of the ultimate order such conclusion would remain final and binding all through the proceedings not only in the trial but even at the later stage. Surely, such a result cannot be conceived. The simple test that appears to our mind germane is the one to test the appealability of each sever able part of the concluded finding. If that part were to be rendered in separate proceedings by an order that would be final and as such appealable then there is no reason why only because that is made the part of the composite order it should not be treated as appeal able as "the judgment" within the meaning of Clause 15, Letters Patent."
7. The Apex Court considered the question whether an order passed under Section 17B of the Industrial Disputes Act in a Writ Petition is appealable under Clause 10 of Letters Patent (Patna) Act wherein an appeal will lie only against judgment in Employer in Relation to Management of Central Mine Planning and Design Institute Ltd. v. Union of India and Ors. . In the above case, the Apex Court followed the judgment in Shah Babulal Khimji v. Jayaben D. Kania and held that the word 'judgment' used in Letters Patent should receive a wider or more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. The Court held as follows:
"10...The following categories of judgment are excluded from the appealable judgments under the first limb of Clause 10 of the Letters Patent:
1) a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a court subject to superintendence of the said High Court in other words no letters patent appeal lies to the High Court from a judgment of one judge of the High Court passed in second appeal;
2) an order made by one judge of the High Court in exercise of revisional jurisdiction; and
3) a sentence or order passed or made in exercise of power under the provisions of Section 107 of Government of India Act, 1935 (now Article 227 of the Constitution of India) or in exercise of criminal jurisdiction.
11. From the above discussion, it is clear that from all judgments except those falling under the excluded categories, an appeal lies to the same High Court."
In Radhy Shyam v. Shyam Behari Singh , the Apex Court held that an order of a single Judge of High Court arising out of proceedings under Order 21, Rule 90 CPC is maintainable under Clause 10 of Letters Patent. In Subal Paul v. Malina Paul and Anr. , the Apex Court held that even though an order passed by a single Judge of the High Court under Section 299 of the Succession Act, 1925 is not strictly a decree, it will come within the scope of judgment under Letters Patent Clause 15. The Apex Court also held that Section 104 of CPC recognises appeals provided under the special statutes. It does not bar any further appeal if the same is provided for under any other Act and appeal will lie in view of Clause 15 of the Letters Patent in the absence of any specific exclusion.
8. In most of the above cases, courts were considering the meaning of the word 'judgment' occurring in the relevant clauses of Letters Patent of various High Courts where appeal was provided only from judgment of the single Judge and not from orders. Even in such cases, Apex Court has taken a liberal view. The Supreme Court in Section A. Industries (P) Ltd. v. Section B. Sarup and Ors. , while dealing with the Delhi Rent Control Act, held 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."
Full Bench in Kochupennu Kochikka v. Kochikka Kunjipennu and Ors. (1961 KLT 275 F.B.) held as follows:
"The enactment of a law to regulate the practice and procedure in the High Court will certainly fall within the residual power of the State Legislature. Prior to the coming into force of the Constitution, the exercise of the jurisdiction and powers of the British Indian High Courts was regulated by the rules framed by the respective High Courts by virtue of the powers granted by the Letters Patent pertaining to such courts. This rule making power of the High Courts was preserved by Section 223 of Government of India Act, 1935. So far as the State High Courts were concerned, the exercise of the jurisdiction and powers of such courts was regulated by the statutes passed by the sovereign legislature of the respective States. Article 225 of the Constitution provided for the continuance of these rules and statutes until other statutory provisions are made by the appropriate legislature."
The Kerala High Court Act, 1958 regulate the business and exercise of powers of the High Court in the State of Kerala and therefore regulate the practice and procedure of the High Court. Section 3 of the Kerala High Court Act states the powers of High Court in relation to certain matters which are to be exercised by a single Judge and Section 5(i) provides for appeals from orders of a single Judge. Hence, we need to consider the words as occurring under Section 5(i) of the Kerala High Court Act and other decisions based on different wordings may not be much relevant.
9. The term 'order' is defined under Section 2(14) CPC as follows:
"(14) 'order' means the formal expression of any decision of a Civil Court which is not a decree;"
In Vidyacharan Shukla v. Khubchand Baghel and Ors. (AIR 1964 SC 1099), the Apex Court has stated that decision taken after adjudication by a court which is not a decree is an order. It is the discussion of the question at issue and reasoning which persuaded with the court to issue an order. When one party to the suit applies for transfer of a suit from one court to another or withdrawal of suit to the High Court under Section 24, the 'lis' to be decided is whether suit can be transferred or withdrawn. That lis is to be decided by the single Judge as per the Kerala High Court Act. Like a judgment in a Writ Petition, an order in a Section 24 petition is passed by the learned single Judge exercising judicial discretion, after notice to the other side and hearing both parties. The 'lis' regarding transfer or withdrawal of suit is decided by the single Judge as a court of first instance. Such an order is passed in the exercise of original jurisdiction also as it is not passed in the appellate or revisional jurisdiction. A lis regarding transfer of a case pending in a District Court or Family Court can be decided only by the High Court. A Division Bench of this Court consisting of T.C. Raghavan, Ag.CJ. and K.K. Mathew, J. in Karakkat Kumaran Roman alias Kavalappara Kottarathil Kunhikuttan Unni alias Mooppil Nair v. Sathyanathan Unni Nair and Ors. (1971 KLJ 421) held that order passed by a single Judge under Article 228 of the Constitution of India for withdrawing a proceeding from a lower court is appealable under Section 5(i) of the Kerala High Court Act. We extract the relevant portion:
"The counsel of the contesting respondents has taken a preliminary objection that an appeal from such an order of a single Judge to a Division Bench is not competent under Section 5 of the Kerala High Court Act. The contention is that a petition under Article 228 of the Constitution to withdraw a suit or appeal pending before a subordinate court is not an original proceeding coming within Section 5 of the High Court Act. The counsel of the appellant has brought to our notice two decisions of the Madras High Court. The first is Alia Subbareddi v. Lankireddi Narayanaswamireddi (AIR (36) 1949 Mad. 283) by Satyanarayana Rao, J., who has held that an application under Section 24 of the Code of Civil Procedure is an original proceeding within the meaning of Section 141 of the Code and consequently the procedure provided under the Code in regard to suits becomes applicable and a receiver can be appointed exparte in such a proceeding. The second decision is again of the Madras High Court, the Division Bench ruling in Srirangam Municipality v. R. V. Palaniswami Pillai by Rajamannar C.J., and Viswanatha Sastri, J. Division Bench was considering against Section 24 of the Code of Civil Procedure; and the Division Bench has opined that a proceeding under Section 24 of the Code is in the nature of an original proceeding though it is not necessary to commence such proceeding on the original side of the High Court. The Division Bench has pointed out that Section 24 of the Code applies not only to the Chartered High Court but to the other High Courts and the District Courts, and applies to the withdrawals of not only original suits but of appeals as well, so that the petition need not be on the original side of the High Court. There is a third decision of this Court by a Division Bench, to which one of us was a party, wherein the question decided was whether a petition under Section 7 of Kerala Act 31 of 1958 filed in an appeal before the High Court was in the nature of an original proceeding so as to attract Section 5 of the High Court Act for the purpose of appeal before a Division Bench. The Division Bench has held that such a petition is an original proceeding and is consequently amenable to appeal under Section 5 of the Act: vide Vasudevan Namboodiri v. Narayanan Nambudiri (ILR 1969 (2) Kerala 387). In the light of the reasoning contained in these three rulings, we are of opinion that a petition under Article 228 of the Constitution for withdrawing a proceeding from a lower court to the file of the High Court is an original proceeding falling within Section 5 of the High Court Act for purposes of appeal to a Division Bench. The preliminary objection is overruled."
We are of the view that the same will apply in this case. Unlike Letters Patent Appeals, an order passed in exercise of original jurisdiction by a single Judge is appealable under Section 5(i) of the High Court Act. In Vasudevan Namboothiri v. Narayanan Namboodiri (1969 KLT 686), the question considered by the Division Bench was whether an order passed by the single Judge under Section 7 of the Agriculturists Debt Relief Act, 1958 (31 of 1958) was appealable and the answer was in the affirmative. In Ramalingeswara Raw and Boiled Rice Mill v. Leelaram Shevaram (India) P. Ltd. (1990 (1) KLT 84), a Division Bench of this Court held that an order under Section 23(3) of CPC is passed under 'original jurisdiction' and hence appealable. In Manual Revenue Inspector (1968 KLT 485), the question considered was regarding the scope of Section 5(ii) of the High Court Act. A Division Bench of this Court held that 'decree or order' mentioned in Section 5 (ii) of the High Court Act would show that it include only an order passed in a suit or civil proceeding and not the order passed in original proceedings. We are concerned only with the scope of Section 5(i) of the High Court Act. In Johnskutty Joseph v. Philip Abraham and Anr. (l995 (2) KLJ 661), it was held that an order passed rejecting an application for amendment of written statement in original petition filed under Section 104 of the Patents Act is appealable under Section 5(i) of the High Court Act.
10. In Narayanaswamy v. Padma (1972 KLT 7) the appeal was dismissed at the inception. An application for transferring a case from one magistrate's court to another magistrate's court was made under Section 526 of the Code of Criminal Procedure, 1898 (Section 407 of Cr.P.C. 1973). It was rejected by the learned single Judge. Appeal was dismissed as not maintainable after noting the judgment in Ouseph v. Pylee (supra). But, in that case, appeal was held to be not maintainable because the order challenged was passed in an appeal in the appellate jurisdiction. Here, the case has no application in the matter of transfer of a case from one court to another on the application by one party and order passed after hearing both sides. The next decision referred to was J. Sreedhara Kamath v. Jawala Prasad Gupta (1970 KLT 941) wherein the question was whether the appeal is maintainable under Section 5(i) of the High Court Act against an order passed in the inherent jurisdiction under Section 561A of Cr.P.C., 1898 (482 of Cr.P.C. 1973). Use of supervisory or inherent power under Section 482 of Cr.P.C. or under Article 227 of the Constitution of India or 151 of CPC is entirely different from an order passed under Section 24 of CPC on an application of one party. After referring to Ouseph's case (supra), appeal was dismissed at inception holding as follows:
"Regarding this decision, though it is not necessary for us to express any opinion, we feel that the above observation might be too wide, because the inherent power of the High Court may consist of original, appellate, revisional or supervisory powers not merely revisional powers, in this connection, we may refer to one passage from the decision of the Supreme Court in Amitava Das Gupta v. Nath Bank Ltd. , wherein the Supreme Court has observed:
'Reliance has been placed on Navivahoo v. Turner (Official Assignee) (1888-89) 16 lnd. App. 156 (PC) in which it was laid down that the ordinary jurisdiction of the High Court embraces all such as exercised in the ordinary course of law and without any special step being necessary to assume it.' This indicates that the jurisdiction of a High Court, by virtue of its being a High Court, might embrace all such jurisdiction as exercised in the ordinary course of law, e.g., original, appellate and revisional. At any rate, as already stated, the correctness or otherwise of the Division Bench ruling second cited need not be considered in this case we are pointing out this only as a caution against the said Division Bench being accepted in that wide form without further consideration. For the purpose of this case, it is enough to hold that the power of the High Court to transfer a case from the file of one Magistrate to the file of another is not a power exercised by the High Court in its original jurisdiction, even if it may be (here also, we do not definitely say it is) a power in the nature of an original power exercised by a High Court in its appellate or revisional jurisdiction."
But, under Section 24, Court is not considering the correctness of a decision made by the inferior court or tribunal. In appellate or revisional jurisdiction, court is considering the correctness or legality of the order passed by the court below. Following the above decision in Narayanaswami 's case another Division Bench dismissed an unnumbered appeal by order dated 24-2-1999. But, in many cases, appeals from the decision of learned single Judge under Section 24 were entertained and disposed of on merits by this Court. One of such reported judgments is Dr. Sini v. B. Suresh Jyothi . But, the question of maintainability of the appeal was not raised in the above case.
11. In Narayana Reddiar v. Rugmini Ammal (2000 (3) KLT 301), a Division Bench of this Court held that an appeal will lie to the Division Bench under Section 5 (i) of the High Court Act against an interim order passed by a single Judge under Section 340 of Cr.P.C. At paragraph 10, it is observed as follows:
"10. After hearing both sides, we are of the view that the contention of the first respondent cannot be accepted. True, Section 341 of the Code of Criminal Procedure does not provide for any appeal from an order passed under Section 340 of the Code of Criminal Procedure by a High Court. But that does not mean that if there is any other provision for appeal from such orders by any other law, such provision is excluded. It is one of the principles of interpretation that unless there is express exclusion of appeal from an order ordinarily, appeal will lie from such orders. Section 5 of the Kerala High Court Act says that nothing in this Code shall exclude the application of the provisions of special or local Act. According to us, merely because Section 341 of the Code of Criminal Procedure does not provide for appeals, it cannot be said that appeal does not lie under Section 5 of the Kerala High Court Act."
In Vmita M. Khanolkar v. Pragna, M. Pai and Ors. , the Apex Court held that in a proceeding under Section 8 of the Specific Relief Act before the learned single Judge, an appeal will lie to Division Bench despite the absence of provisions for appeal in the Specific Relief Act.
12. In Sanganbhat v. Vasudev and Ors. (AIR 1976 Karnataka 229) it was held that order passed under Section 24 CPC when made by a single Judge of the High Court, such order is not appealable under Section 4 of the Karnataka High Court Act. The Court was only considering the question whether it should be considered in the appellate side or original side. Court relied upon the decision of the Madras High Court wherein it was held that even though an application under Section 24 CPC is in the nature of original proceeding, since only appeal is provided against judgment under the Letters Patent and application under Section 24 CPC is to be treated as one to be filed on the appellate side and appeal will not lie. We are concerned with the Kerala High Court Act and rules made thereunder. Application under Section 24 CPC when filed before the High Court, it is a proceeding of this Court in its original jurisdiction. Notice shall be issued and court has to pass orders after giving an opportunity to both sides for hearing. It cannot be stated that none of the rights of the parties are affected. For example, in M.F.A. No. 101 of 2004, according to the petitioner therein, a retired lady teacher aged about 60 years, who is staying in Kannur district sought for a transfer of the case from the family court in Trichur district, more than 200 km. from her native place, to Kannur. She has nobody to accompany her to Trichur. Her application was dismissed. Can anybody say that her rights are not affected by rejecting her application to transfer the case from Thrissur to Kannur. Whether her application is justifiable or not has to be considered when appeal is decided. We are not expressing any view on the merits of that application in this judgment. Hence, when an application is filed under Section 24 by one party to the suit and when the learned Judgs decides the matter in the matter of transfer or withdrawal of the case, it is an adjudicated order in the original jurisdiction. According to us, the wording in Section 5(i) of the High Court Act is clear and gives no room for doubt that such an order passed under Section 24 CPC by a single Judge appeal will lie.
13. Crawford on 'Construction of Statutes' states as follows:
"... statutes pertaining to the right of appeal should be given a liberal construction in favour of the right, since they are remedial. Accordingly, the right will not be restricted or denied unless such a construction is unavoidable. In a few States, however, where the statute pertains to appeals from interlocutory orders, the rule of strict construction has been applied. But, there seems to be no real justification for this departure from the general rule in accord with which a liberal construction would be given by the Court."
(emphasis supplied) In Sutherland's Statutory Construction (3rd Edn., Vol.3, para 6807) it is said in relation to 'statutes allowing appeals':
"Statutes giving the right of appeal are liberally construed in furtherance of justice, and an interpretation which will work a forfeiture of that right is not favoured. Thus provisions limiting the time for bringing an appeal are liberally interpreted so that the party pursuing the remedy of appeal will not be defeated on mere technicalities. Likewise, an interpretation limiting the cases from which an appeal may be brought or the persons who may bring an appeal is not preferred."
In Premavalli v. State of Kerala (1998 (1) KLT 822 FB), a Full Bench of this Court held that even though right of appeal is not automatic, but, statutory, it is an equally well settled proposition of law that if there is a power conferring right of appeal, it should be read in a reasonable practical and liberal manner. In that case. Full Bench held that an appeal will lie against judgment of a single Judge rendered under Section 54 of the Land Acquisition Act in view of the Section 5(ii) of the Kerala High Court Act. The intention of the legislature is primarily to be gathered from the language used in the Statute itself as held by the Apex Court in Gwaliyor Rayons Co. Ltd. v. Custodian of Vested Forests . Merely because the modern trend is to reduce appeals, we cannot ignore the clear provision under Section 5 (i) of the Kerala High Court Act. If appeal is to be transferred as a policy decision specific provision like Section 100A can be incorporated in CPC or suitable amendment can be made to the Kerala High Court Act. The Supreme Court in Commissioner of Sales Tax, Madhya Pradesh v. M/s. Popular Trading Company (AIR 2000 SC 1578) and in State of Jharkandv. Govind Singh held that while interpreting a provision, the Court only interprets the law. It is for the legislature to amend, modify or repeal it. By judicial interpretative process, courts cannot usurp legislative powers. Courts cannot legislate, either creating or taking away substantial rights by stretching or straining a piece of legislation as held by the Apex Court in Sri Ram Saha v. State of West Bengal and Ors.. As observed by Gajendra Gadkar, J. in Kanai Lal Surv. Paramnidhi Sadhukhan 'the words used in the material provisions of the Statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise'. When Section 5(i) clearly provide for appeal from orders, it cannot be stated that no appeal will lie from the adjudicated 'order' under Section 24 CPC, of the single Judge to the Division Bench. Merely because no appeal is provided from the order of District Court under Section 24 CPC, it cannot be stated that right of appeal given under Section 5 (i) should be denied despite the clear wordings used in that section. If the District Court passes an illegal order, parties can approach the High Court under Article 227 of the Constitution of India.
14. In State of Maharashtra and others v. Nanded-Parbhani Z.L.B.M.V. , it is observed by the Apex Court quoting with approval the views of Tindal, C.J., in Sussex Peerage case ((1844) 11 Clause and F 85 at page 53) and Viscount Simonds, I. in Emperor v. Benoarilal Sarma (AIR 1945 PC 48 at page 53) as follows:
"... It is a cardinal principle of rule of construction of statute that when the language of a statute is fairly and reasonably clear, then inconvenience or hardships are no considerations for refusing to give effect to that meaning. It is not the contention of the learned Counsel, appearing for the State nor can it be said that on giving a plain meaning to the words used in Section 207 (1) of the Act, there will be any absurdity or would make the statute offending any provisions of the Constitution. Tindal, C. J. in Sussex Peerage case (1344) 11 Clause and F 85, p. 143, applying the rule has stated--
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver". In Emperor v. Benoarilal Sarma, AIR 1945 PC 48, p. 53, Viscount Simonds held:
"this Board has insisted that in construing unambiguous words, we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used".
The same view was expressed by the Apex Court in State of West Bengal and Ors. v. Scene Screen (Pvt) Ltd. and Anr. (MR 2000 SC 3089), it was observed as follows:
"22... It is a well accepted principle of interpretation of statutory provisions that if the plain language of the section is clear or unambiguous it is not open to a Court to interpret it giving a meaning different from plain grammatical meaning of the provision. The learned single Judge, in view of the plaint and unambiguous language of the provisions of the Act, was in error in introducing the condition of...."
Same view was taken by the Apex Court in a catena of decisions (See: State of Himachal Pradesh v. Pawan Kumar (2005(3) KLT 195 (SC) : 2005 (3) Supreme 321 para 7). The wordings in Section 5(i) of the Kerala High Court Act are very clear and unambiguous. When an application for transfer or withdrawal of a suit from one court is made under Section 24 CPC, the Court has to adjudicate that matter regarding transfer or withdrawal after issuing notice to the parties interested and after giving an opportunity of hearing. Order passed after such an adjudication is certainly appealable under Section 5(i) of the High Court Act. But, if the High Court passes an order of transfer in its own motion, without notice to the parties as provided in the second part of Section 24(l) CPC, there is no adjudged order and no appeal is maintainable as it is an order in the supervisory jurisdiction of the High Court. For example, if a judicial officer requests for transfer of a case from his court to another court because one of the parties is related to him, this Court under Section 24 transfer the case to another court. Because of heavy pendency in one court, cases can be transferred from one court to another without causing much inconvenience to the parties. But, this is not after adjudication or with notice to concerned parties. Such orders are only made in the supervisory jurisdiction of the High Court and under inherent powers.
15. Even though an order passed at the instance of one party to the suit by the single Judge under Section 24 CPC is appealable under Section 5 (i) of the High Court Act a word of caution is also necessary. When an appeal is filed against the order passed under Section 24 by a learned single Judge of the High Court, Division Bench must be reluctant to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave and substantial injustice.
16. The next question to be considered is whether a single Judge can pass an interim order during the pendency of the proceeding under Section 24, in the absence of any prohibition, High Court can pass interim orders in the interest of justice or to prevent injustice interim orders can be passed. The views of the Madras High Court in Alia Subbareddi's case (supra) that when an application for transfer under Section 24 CPC is made and notice is issued, it is in the nature of an original proceeding within the meaning of Section 141 CPC and power to pass interlocutory orders provided under the CPC is not, so far altered by any decision. In that case, court held that an ex parte interlocutory order appointing a receiver can be passed in the interest of justice. But, such orders are to be passed only in the interest of justice or to prevent injustice. Court should satisfy the prima facie case put forward by the parties and should also be satisfied that the refusal of interim order will result in irreparable injury to the parties seeking interim order. Balance of convenience and other materials to be considered by the court in passing an interlocutory order should weigh with the Court. But, when an interim order is issued and the other party appears, unless circumstances compel, court should not go on passing interlocutory orders affecting the rights of parties without disposing of the main application. If both parties appear, court has to decide the question of transfer or withdrawal of the case and leaving the matter to be adjudicated according to law in the proper court.
17. The last question is whether such interim orders are appealable. We have already found that the Bombay High Court in Anand Issardas Motiani 's case (supra) held that even though no appeal is filed mentioned under the Letters Patent to the Division Bench from the order of a single Judge to Division Bench if interim orders are passed affecting the right of parties, appeal is maintainable. As held in Kinhanna Moolya v. Sadasiva Bhatt (ILR 1976 (1) Kerala 384 at para 8) an appeal will lie under Section 5(i) of the Kerala High Court Act from an order passed by the single Judge in exercise of the original jurisdiction since the word 'order' is not qualified by any adjective. We are of the opinion that as per Section 5(i) of the High Court Act regarding maintainability of the appeal from the interim order, the matter is fairly covered by the judgment of the Full Bench (five member Bench) of this Court in K.S. Das v. State of Kerala (1992 (2) KLT 358 FB). The question considered was whether appeal will lie against an interim order passed in a Writ Petition. On behalf of the Full Bench, after considering the entire case law, Mr. Jagannadha Rao, C.J. (as he then was) observed as follows:
"Conclusion: (1) The word 'order' in Section 5 (i) of the Kerala High Court Act, 1958 includes, apart from other orders, orders passed by the High Court in Miscellaneous Petitions filed in the Writ Petitions provided the orders are to be in force pending the Writ Petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties. The nature of the 'order' appealable belongs to the category of 'intermediate orders' referred to by the Supreme Court in Madhu Limaye's case, . The word 'order' is not confined to 'final order' which disposes of the Writ Petition. The 'orders' should not, however, be ad-interim orders in force pending the Miscellaneous Petition or orders merely of a procedural nature.
(2) But this does not mean that the Division Bench hearing the appeal against such 'orders' will have to admit the appeal or have to modify the impugned order or set it aside the same in every case. There is difference between the question whether an appeal lies to a Division Bench and as to the scope of interference. Normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or are perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. The idea is to provide an internal remedy in such cases without compelling the parties to go all the way to the Supreme Court under Article 136 of the Constitution of India or increase the burden of that court unnecessarily.
(3) It will, however, be incumbent upon the appellant to serve the counsel who has appeared before the single Judge for the opposite party (unless of course the counsel's authority has been revoked or he is dead) and when such appeals against orders come up in appeal for admission before the Division Bench, it will be open to the Bench to treat such service as mentioned above as sufficient service on the parties (unless the court, in the circumstances of the case, thinks otherwise) and to dispose of the appeal either at the stage of admission or soon thereafter, after considering the facts of the case or subsequent events. This would generally obviate admission of the Writ Appeals, issue of notice and the passing of interim orders pending Writ Appeals."
We are of the opinion that same is applicable in the matter of interim order passed in a petition under Section 24 of CPC also.
18. In Tr. Appeal No. l of 2005 filed against the interim order passed Tr.P.(C) No. 66 of 2005, both sides agree that appeal can be closed with a direction to dispose of the main petition itself by the learned single Judge. Both sides agreed that they are ready to argue the main matter. Without expressing any opinion regarding the merit of the above case, Transfer Appeal No. 1 of 2005 is disposed of directing the single Judge with appropriate jurisdiction to decide the case on merits. Post Tr.P.(C)No. 66 of 2005 before the appropriate single Judge for hearing on 17-11-2005.
M.F.A. No. 101 of 2004 was admitted by a Division Bench of this Court. It is also submitted that there is likelihood of settling the entire matter. This may be listed accordingly before the appropriate court hearing appeals from family court matters.
M.F.A. No. 6 of 2005 also is a family court matter. It be posted in the appropriate court for admission.