Gauhati High Court
Mahadeolal Jalan vs Hardeodas Iswardas on 18 July, 1991
Equivalent citations: AIR1992GAU78, AIR 1992 GAUHATI 78, (1992) 1 GAU LR 120 (1991) 3 CURCC 214, (1991) 3 CURCC 214
JUDGMENT Manisana, J.
1. In this appeal, the question which arises for consideration is whether the appeal is maintainable under Clause 15 of the Letters Patent.
2. Facts, -- A single Judge of this Court dismissed Civil-Revision No. 128 of 1984 on 27-11-90 on merits though the petitioner in the revision was absent. The petitioner filed before the single Judge two applications, one under Order 47, Rule 1, C.P.C. for review of the order of dismissal and the other under Section 151, C.P.C. for restoration of the revision. Both the applications were rejected on 4-1-91 by a composite order in Review Application No. 1 of 1991. Hence this appeal.
3. Clause 15 of the Letters Patent has two parts. We are concerned with the first part. The first part, in so far as civil matter is concerned, provides:
"And we do further ordain that an appeal shall lie to the said High Court.............from the judgment (not being a judgment passed in 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 revisional jurisdiction..........) of one Judge of the said High Court.........."
By this clause, a right to appeal from the judgment of one of the Judges of the High Court to a Division Bench, except in cases of second appeal and revision, is expressly granted. But, under Clause 44 of the Letters Patent all the provisions of the Letters Patent are subject to the legislative power of the competent authorities. Under Section 104 read with Order 43, Rule 1(w), C.P.C. an order rejecting an application for review as well as an order under Section 151, C.P.C. are non-appellable.
4. The question which, therefore, arises is whether a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted by Section 104(1) read with Order 43, Rule l C.P.C. Section 104(1), C.P.C. provides that an appeal shall lie from the orders specified therein and save as otherwise expressly provided in the body of the Code of 1908 of by any law for the time being in force, from no other orders. Under Section 104(1) the right to appeal conferred by any other law for the time being in force is expressly preserved and, therefore, the right to appeal under Letters Patent against an order if it amounts to a judgment within the meaning of Clause 15 of the Letters Patent is not affected by Section 104(1).
5. In Shah Babulal v. Jayaben, AIR 1981 SC 1786 : (1981) 4 SCC 8, the Supreme Court has held that Order 43, Rule 1 does not affect nor is it inconsistent with the provisions of the Letters Patent. In other words, there is no inconsistency between the Letters Patent and Section 104(1) read with Order 43, Rule 1, C.P.C., and Section 104 merely provides an additional and supplemental remedy by way of appeal. The Supreme Court has also observed that Order 43, Rule 1 applies to the original proceedings. But Order 47, Rule 7, C.P.C. provides that an order of a Court rejecting an application for review shall not be appellable. However, Section 4(1), C.P.C., provides:
"In the absence of any specific provisions to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or. local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."
There are three components under Section 4(1). First, the Code generally governs matters covered by it. Secondly, if a special or local law exists covering the same area or field, the special or local law will be saved and will prevail. Thirdly, if there is any specific provision to the contrary in the Code itself then that will override the special or local law.
6. The question then is, -- whether the provision under Order 47, Rule 7, C.P.C. is "a specific provision to the contrary"? It has already been stated that if a special or local law exists covering the same area or field, the special or local law will be saved and will prevail unless there is a specific provision to the contrary. The expression "a specific provision to the contrary" means that there must be a particular provision in the Code clearly indicating in itself and not merely by implication, in order to affect the special law or local law.
7. Section 104 and Order 43, Rule 1, C.P.C. are general provisions and provide that no appeal shall lie from any order made by a Court unless it is expressly provided under Section 104 or Order 43, Rule 1, C.P.C. It has already been concluded that right of appeal conferred by law, that is to say, --- the Letters Patent in this case, is expressly perserved under Section 104(1) and right to appeal under the Letters Patent against an order, if it amounts to a judgment within the meaing of Letters Patent, is not affected. Therefore, if there is no specific provision to the contrary, the right to appeal under the Letters Patent has been saved by Section 4 and provisions of Section 104(1), C.P.C. But Order 47, Rule 7(1) clearly provides that an order of the Court rejecting an application for review shall not be appellable. The words under Order 47, Rule 7(1) are plain and explicit and they must be given full effect. Therefore, it is a specific provision to the contrary in the Code itself clearly indicating to affect Clause 15 of the Letters Patent. Under Section 117, C.P.C, the provisions of the Code shall apply to the High Courts save as otherwise provided in Parts IX and X of the Code. Therefore, no appeal shall lie under Clause 15 of the Letters Patent from an order rejecting an application for review.
8. The view taken by us finds support from the decision of the Supreme Court in Union of India v. Mohindra Supply Co., AIR 1962 SC 256 : (1962 All LJ 1). In that case the Supreme Court was dealing with Section 39 of the Indian Arbitration Act. Under Section 39(1) of the Arbitration Act an appeal shall lie from the orders specified thereunder passed under the Arbitration Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order. Sub-Section (2) of Section 39 provides that no second appeal shall lie from an order passed in appeal under Section 39(1), but nothing in that section shall affect or take away any right to appeal to the Supreme Court. The Supreme Court has observed that the words of statute are plain and explicit and they must be given full effect and must be interpreted in their natural meaning. Section 39 has been enacted with a view to restrict the right of appeal within the strict limits defined by Section 39 and to take away the right conferred by the other statute. Thereafter, the Supreme Court has held that no appeal shall lie under the Letters Patent in view of Section 39.
9. In Shah Babulal's case (supra) a single Judge of the High Court of Bombay, as a trial Judge, rejected an application for appointment of receiver as also for grant of injunction. The present is a case of rejecting an application for review. In that case the Supreme Court did not consider the effect of Order 47, Rule 7(1), C.P.C. In Shah Babulal's case, the Supreme Court also relied on Union of India v. Mobendra Supply Company, AIR 1962 SC 256 : (1962 All LJ 1) (supra). Therefore, the decision in Shah Babulal's case does not sqarely apply to the present case.
10. Mr. Bhati, learned counsel for the appellant, has referred to us to a decision of the Full Court of the Andhra Pradesh High Court reported as Sattemma v. Vishnu Murthy, AIR 1964 AP 162. In that case it was held that the Letters Patent is not affected either by Order 47, Rule 7, C.P.C. or by Order 43, Rule 1, C.P.C. or any other provisions of the C.P.C. which restrict the right of appeal. That case was in connection with an order rejecting an application for review of an order dismissing the petition for leave to appeal in forma pauperis. With due respect we are unable to agree with the decision in view of our discussions and conclusion above.
11. With regard to the rejection of the application for restriction made under Section 151, C.P.C. even assuming appeal lies under Clause 15 of the Letters Patent, we decline to admit the appeal for the reason that the revision was rightly or wrongly dismissed on merits and not for default.
12. For the foregoing reasons, the appeal is dismissed. The interim order stands vacated. The appellant is given six(6) weeks time as a grace to vacate the suit premises, but the appellant shall pay the sum which he paid as rent. No costs.
I.M. Sarma, J.
13. I agree.