Gauhati High Court
Kajal Chandra Deb vs State Of Tripura And Ors. on 17 November, 1998
Equivalent citations: AIR1999GAU72, AIR 1999 GAUHATI 72, (1999) 2 GAU LR 377
JUDGMENT Phukan, J.
1. The appellant filed an appeal petition under Order 43 Rule l(t) of C. P. C. against the order dated 13-7-1988 passed by the learned single Judge in Civil Misc. Case No. 17 of 1998 refusing under Order 41 R. 19, C. P. C. to readmit the Second Appeal No. 1 of 1992 which was dismissed for default under Order 41 R. 17 on 18-2-1998.
2. Although the appeal petition was filed as far back as 12-8-98, it was not registered and numbered till this Court by an order dated 5-11-98 directed:
"The Civil Misc. case filed on 12-8-98 is converted to a L. P. Appeal and be numbered accordingly.
The question of limitation and maintainability of the L, P. Appeal, however, is left open to be decided by the appropriate Division Bench."
3. As a matter of fact, there was no question of converting any civil miscellaneous case into a Letters Patent appeal, for no civil misc. case was ever registered and numbered except that the title page and the first page of the order sheet of the case record bore rubber stamp impression "Civil Misc. (SA)" without any registration number.
4. Be that as it may, pursuant to this Court's order dated 5-11 -98, the said appeal petition has been registered and numbered as Letters Patent Appeal No. 8 of 1998, and we have heard Mr. S. Deb, learned counsel for the appellant, and Mr. U.B. Saha, learned government Advocate appearing for the respondents on the question of limitation and maintainability.
5. In view of what is stated in the preceding paragraph, in case this appeal petition is found maintainable, it shall have to be held that this appeal was filed within time on 12-8-98 against the impugned order dated 13-7-98.
6. On the question of maintainability, Mr., Saha, learned Govt. Advocate appearing for the respondents, submits that even assuming that the learned single Judge could not have dismissed the appeal on merit in absence of the appellant's learned counsel in view of the explanation to Order 41 Rule 17, C. P. C. and even assuming that the learned Single Judge by the impugned order could not have dismissed the petition for re-admission of second Appeal No. 1 of 1992 without deciding whether the appellant was prevented by sufficient cause from appearing and only on the ground that the appeal was dismissed on merit, the remedy lay in an SLP under Article 136 of the Constitution and not in an appeal under Letters Patent. For, such an appeal, being an appeal against an appellate order passed by the learned Single Judge exercising second appellate jurisdiction in the second appeal, is barred by section 100A, C. P. C. notwithstanding anything contained in any Letters Patent. Mr. Saha contends that in view of Section 100A, C. P. C. Section 104, C, P. C. can be invoked only in an appeal against an appellate order passed by a single Judge exercising first appellate jurisdiction in a first appeal. Mr. Saha, in support of his contention, refers to decisions reported in AIR 1987 MP 172,AIR 1981 Kcr I29,AIR 1986 Guj 156, AIR 1995 MP 128, AIR 1977 Cal 285, AIR 1962 SC 256, 1998 (1) GLT 289 and AIR 1997 SC 978.
7. Mr. Deb, learned counsel for the appellant, however, strenuously argues that the impugned order is not an appellate order passed in a second appeal but is an original order passed in an independent proceeding under Section 104 read with Order 43, Rule 1 (t), C. P. C., and hence the instant appeal against such an order is not hit by Section 100A, C. P. C. and is maintainable under Sectjpn 104 read with Order 43, Rule l(t) of C. P. C. In support of his argument, Mr. Deb refers to the decisions in AIR 1981 SC 1786, AIR 1963 SC 1279, AIR 1987 MP 172, 1986 (1) GLR 289, and 1998(1) SCC 500 : (AIR 1998 SC 424). On careful perusal, these decisions are found to be clearly distinguishable. Having given our anxious consideration to the arguments advanced by learned counsel Mr. Deb, we could not persuade ourselves to agree with him. We are in agreement with the view (different from the one advanced by Mr. Deb) taken by the Madhya Pradesh High Court in Bhanu Prakash Agarwal v. Roop Chand, reported in AIR 1990 Madhya Pradesh 198, the relevant portions of which read as under :
"18. The respondent No. 1's learned counsel has relied on 'Ratanlal v. Gajadhar', AIR 1949 Nagpur 188, a decision given in a Letters Patent appeal. The facts leading to the appeal was as follows. A single Judge to the High Court passed an ex parte decree in a second appeal. The respondent made an application under Order 41, Rule 21 read with Order 42 CPC for a rehearing of the second appeal. This application was rejected by another single Judge before whom it had been listed. Without leave from the single Judge, the maker of the application, filed the Letters Patent appeal in question.
19. The Division Bench held in Ratanlal's case, AIR 1949 Nagpur 188, that in entertaining and deciding application under Order 41, Rule 21 read with Order 42, the single Judge had exercised the second appellate jurisdiction under which the second appeal had been heard and decided ex parte, and therefore, the Letters Patent Appeal was non-maintainable for want of leave of the single Judge under Clause 10 of the Letters Patent.
23. At paragraphs? and 8 of the judgment, the Division Bench in Ratanlal's case, AIR 1949 Nagpur 188, have set out the reasons for their conclusion in the following terms:
(7) Now there can be doubt that Pollock, J..., passed the order under appeal before us in the exercise of appellate jurisdiction further that the jurisdiction, he was exercising was second appellate jurisdiction, that is to say a jurisdiction "in respect of a decree........ made in the exercise of appellate jurisdiction." He obtained seisin of the case as a Second Appellate Court. Without the decree of the, Lower Appellate Court which came up to this Court in second appeal the order which Pollock J., made could not have been passed. The jurisdiction he was exercising was accordingly second appellate jurisdiction.
(8) Now a Court can only have one class of jurisdiction in any given matter. In the exercise of that jurisdiction (second appellate here) it can and must do many things; it can exercise many powers. It can hear counsel. It can fix dates for hearing. It can grant adjournments. It can impose adjournment costs. It can even hear witnesses and admit to evidence additional documents. It does all this in the exercise of second appellate jurisdiction. It does not jump from jurisdiction to jurisdiction such successive stage, nor alter its status according to the power it exercises in the given matters. It is not a Court of second appeal where it hears an argument and a Court of original jurisdiction when it grants an adjournment or impose a penalty such as adjournment costs, or receives additional evidence. It is true that the Judge has many of the powers of an original Court and can do many of the things which an original Court does, but it does those things in the exercise of appellate, or second appellate jurisdiction, as the case may be, and not as an original Court. Section 107 (2), Civil P.C., expressly recognises this and enacts that subject to the provisions of Sub-section (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 this code on Courts of original jurisdiction in respect of suits instituted therein."
It is to be observed that the appellate Court is invested with the same "Powers" and not with the same "jurisdiction". The jurisdiction remains appellate whatever the nature of the Court may happen to exercise."
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42. It then follows that Section 100A, CPC comes into play as a bar to the maintainability of the present Letters Patent appeal under clause 10 of the Letters Patent. In Umaji Keshao Meshram v. Smt. Radhikabai 1986 Cur Civ LJ (SC) 393; AIR 1986 SC 1272, it was observed at paragraph 8 as follows :, "8. It may be pointed out that the provision in Clause 1.5 providing for an appeal from a judgment in a second appeal decided by a Judge of the High Court if such Judge declares that the case is fit one for appeal has now become inoperative in view of Section 100A of the Code of Civil Procedure, 1908, which was inserted in the Code by the Code of Civil Procedure (Amendment) Act, 1976, under which no further appeal is to He against the judgment of single Judge of the High Court in a second appeal."
8. In the above case, it was held that in entertaining and deciding the application under Order 41, Rule 21 CPC to rehear the appeal heard ex parte, the learned Single Judge of the High Court had exercised the second appellate jurisdiction and therefore the appeal was not maintainable. Similarly, in the instant case, in entertaining and deciding the application under Order 41, Rule 19 CPC to readmit the appeal dismissed for default, the learned single Judge of this Court had exercised the second appellate jurisdiction. We are therefore, of the clear opinion that the impugned order dated 13-7-98 passed by the learned single Judge refusing under Order 41, Rule 19 CPC to readmit the Second Appeal No. 1 of 1992 dismissed for default is an appellate order exercising second appellate jurisdiction and hence the instant appeal against the said order is barred by section 100A CPC "notwithstanding anything contained in any Letters Patent" (Section 100A CPC starts with this non-obstante clause). This appeal is, therefore, not maintainable.
9. In the result, the appeal fails and is dismissed.