Andhra HC (Pre-Telangana)
M. Srinivas vs Jawaharlal Nehru Technological ... on 23 August, 1990
Equivalent citations: 1991(3)ALT1
Bench: Chief Justice, M. Jagannadha Rao
JUDGMENT
Yogeshwar Dayal, C.J., M. Jagannadha Rao and Upendralal Waghray, JJ.
1. This reference to the Full Bench has been made by Jeevan Reddi, J. (as he then was) and Syed Shah Mohd. Quadri, J. doubting the correctness of an earlier Full Bench decision in Sattemma v. Vislmumurthy, . (F.B.) in view of the decision of the Supreme Court in Shah Babulal Khimji v. Jaber, . The question is whether a Letters Patent Appeal lies to a Division Bench under Clause 15 of the Letters Patent (Madras) as applicable to Andhra Pradesh High Court, against an order of a learned single Judge refusing to review under Order 47 Rule 4(1), CPC and whether Order 47, Rule 7 (1) is a bar to the maintainability of such an appeal. The Division Bench thought that what the Supreme Court, they thought, stated in the above case in the context of the bar created in Section 104(2) C.P.C. to the maintainability of Letters Patent Appeals, equally applied to a similar bar created in Order 47, Rule 7(1), C.P.C. They also thought that the Full Bench in Sattemma's case (I supra) had wrongly quoted what the Supreme Court had actually decided in another case in Union of India v. Mohinder Supply Co., . The Division Bench further observed that the decision rendered in Amruthappa v. Abdul Sasool, 1987 (2) A.P.L.J. 27 by one of us (Jagannadha Rao, J.), which was approved by a Division Bench in G. Seshamma v. G. Rajaratnam, 1989 (1) A.L.T. 122, holding that no Letters Patent Appeals lay in view of Section 104(2), C.P.C. against orders passed by learned single Judges of this Court in appeals against orders under Section 104(1) read with Order 43 Rule 1, C.P.C. was correct. If a Letters Patent Appeal lies, the further question will be whether an order refusing to review an order dismissing a Writ Petition is a 'judgment' for purposes of Clause 15 of the Letters Patent.
2. Before going into the questions raised in the reference, it will be appropriate to state the facts. The writ petitioner passed the common entrance examination in 1988 conducted for admission to the B.E. course and claimed selection as a candidate belonging to Scheduled Tribe, Konda Kapu. He was selected and given a seat in B, E. (Electronics) subject to verification of his social status as a member of the Scheduled Tribe by the Director of Social Welfare. There was some litigation thereafter but the ultimate position was that the petitioner was given a show-cause notice by the said Director, the petitioner submitted his explanation and documentary evidence. Thereafter the Director passed an order dated 11-11-1988 holding that the petitioner does not belong to Scheduled Tribe. Even before that order was passed, the present writ petition was filed seeking admission to B.E. course and later on, the relief was amended in WPMP No. 22781/88 for quashing the said order of the Director dated 11-11-1988. The writ petition was dismissed on 3-8-1989 on merits. Then the petitioner filed a review petition Rev. WPMP No. 15100 of 1989 and the same was dismissed on merits by orders dated 17-9-89. It is against the said order that the present writ appeal is filed under Clause 15 of the Letters Patent when the objection as to its maintainability was taken by the 1st respondent, invoking Order 47, Rule 7, CPC. Then the present reference was made.
3. Learned counsel for the appellant Sri Duba Mohan Rao contended that the decision of the Full Bench in Sattemma's case (1 supra) was correct, and that the right conferred by Clause 15 of the Letters Patent was an independent right and was in no way affected either by the bar created in Order 47, Rule 7, CPC or even the bar created in Section 104 (2) CPC. According to him the propositions of law ultimately listed by the Supreme Court in Shah Babulal Khimjt's case (2 supra) should be treated as the law laid down therein and viewed in that light, both Amruthappa v. Abdul Rasool(4 supra) and G. Seshamma v. G. Rajarainam (5 supra) were wrongly decided. He also relied upon the decision of the Supreme Court in State of U. P. v. Vijay Anand, for holding that an order refusing to review an earlier order is a 'judgment' for purposes of Clause 15 of the Letters Patent. On the other hand, it is contended by the learned counsel for the 1st respondent, Sri Y. Suryanarayana and Sri Naik, the learned Government Pleader, that the above contentions cannot be accepted.
4. The following points, therefore, arise for consideration;
(1) Whether the order passed by the learned single Judge in a review petition refusing to review an order of dismissal of a writ petition is a 'judgment' for purposes of Clause 15 of the Letters Patent ?
(2) Whether a Letters Patent Appeal filed against order of a learned Single Judge refusing to review an order of dismissal of a writ petition is barred by Order 47, Rule 7(1) CPC on the analogy of the provisions in Section 104(2) CPC, as construed by the Supreme Court in Shah Babulal Khimji's Case (2 supra)?
5. Point No. 1:- It is not disputed that the writ jurisdiction under Article 226 of the Constitution of India is the extraordinary original jurisdiction of this Court and that after the dismissal of the writ petition, the petitioner could file a review petition under Order 47, Rule 1, CPC in view of the provisions of Rule 24 of the Writ Rules (framed under Article 226 of the Constitution of India) permitting such a course. That rule states:
"All other rules relating to causes and matters coming before the Original Side and Appellate side of the High Court and the provisions of the Code of Civil Procedure, 1908 will apply to the writ petitions and the writ appeals in so far as they are not inconsistent with these rules."
6. The review petition in the present case has been filed under Order 47, Rule 1, CPC because of the above referred Rule 24 in the writ rules. The review petition has been dismissed under Order 47, Rule 4(1), CPC. The question is whether the said order amounts to a 'judgment' under Clause 15 of the Letters Patent.
7. It is necessary to refer to Clause 15 of the Letters Patent (Madras) 1862 which is applicable to this Court. It reads as follows :
Clause 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 Jin the exercise 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 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 of the said High. Court or one Judge of the Division Court, pursuant to Section 108 of the Government of India Act, made (on or after the first day of February, 1929) 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 cause is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or such Division Court shall be to us, our heirs or successors in our or Their Privy Council, as hereinafter provided."
The above provision in Clause 15 generally shows that against a 'judgment' passed by a learned Single Judge of the High Court, in the original jurisdiction or first appellate jurisdiction, a Letters Patent Appeal lies to a Division Bench. If the 'judgment' is passed in second appellate jurisdiction, a Letters Patent Appeal would lie only if the said Judge certified the case to be a fit one for such further appeal. So far as the letter provision regarding appeals against second appeals is concerned, the same has been taken away by Section 100-A introduced by the Central Act 104/76.
8 The question whether an order refusing to review an earlier order amounts to a 'judgment' for purposes of Clause 15 of the Letters Patent fell for consideration before the Supreme Court in State of U.P. v. Vijayanand (6 supra). That was, no doubt, the case of an order refusing to review but was passed not under Order 47, Rule 4(1), C.P.C. but under the provisions of Section 11 of the U.P. Act 14 of 1956 amending the U.P. Agricultural Income Tax Act, 1948 (Act 3/49). The provisions of Section 11 of the said Act permitted the filing of a review petition before any Court or authority if the said Court or authority had set aside any order of assessment by an Additional Collector or Additional Assistant Collector on the ground that the said authorities had no jurisdiction to make an assessment. In the case before the Supreme Court, the position was that a learned Single Judge of the High Court had allowed the writ petition filed by the respondent on the ground that the Additional Collector had no jurisdiction to make the assessment. This was on 22-11-1955. On 9-2-1956, the U.P. Ordinance (which was later replaced by U.P. Act 14/1956) was passed validating the earlier assessments made by the Additional Collector and the Assistant Collector and also permitting the tax authorities to apply for review as stated above. The review application so filed by the State before the learned Single Judge was dismissed on the ground that the provisions of Section 11 did not enable a review application to be filed in proceedings disposed of under Article 226 of the Constitution of India. When the State preferred an appeal to a Division Bench against the said order dismissing the review petition, it was dismissed as not maintainable. On further appeal, the Supreme Court held that the impugned order dismissing the review petition was a 'judgment' for purposes of Clause 10 of the Letters Patent (Allahabad) which is similar to Clause 15 of the Letters Patent of Calcutta Madras and Bombay. The Supreme Court however dismissed the Appeal on other grounds. It held that the provisions of Section 11 of the U.P. Act did not permit an application for review where the High Court had set aside the assessments under Article 226 of the Constitution. It observed that the jurisdiction under Article 226 was original jursidiction as opposed to appellate or revisional jurisdiction and that Section 11 did not apply to cases disposed of under the Original Jurisdiction of the High Court. The Supreme Court held that the application filed under Section 11 in the High Court was not maintainable and also that, it could not, after long lapse of time, be treated as an application filed under Order 47, Rule 1, C.P.C. in the High Court. Subba Rao, J. (as he then was) observed : (see para 7) :
"The decision of Mehrotra, J. dismissing the application was certainly a decision denying the right of the appellants alleged to have been conferred under the Amending Act. We, therefore, hold that the order of Mehrotra, J. dismissing the application filed for review, of his earlier order, on the ground that Section 11 of the Act did not confer any such right on the appellants was a 'judgment' within the meaning of Clause 10 of the Letters Patent."
This decision, therefore, to a large extent, supports the appellant that an order refusing to review, if it denied the particular right claimed, would be a judgment. The Supreme Court, no doubt, observed (see para 12) that they were not treating the order of the Single Judge as an order under Order 47, C.P.C. and further stated, they were not deciding whether an order under Order 47 could be appealed against before a Division Bench.
9. The above said decision has been reaffirmed by the Supreme Court in Shah Babulal Khimji's case (2 supra) (See para 103) and the Court went on further to observe that even an order dismissing a review application under Order 47, Rule 4(1), C.P.C will be a 'judgment'. This is because, an order allowing a review petition is made appealable under Order 43, Rule 1(W) and therefore an order dismissing a review petition is also appealable on that analogy. The Supreme Court observed :
"We might mention here that under Clause (W) of Order 43, Rule1 an order granting an application for review is appealable. On a parity of reasoning therefore, an order dismissing an application for review would also be appealable under the Letters Patent being a judgment though it is not made appealable under Order 43 Rule 1.
Of course, the order refusing to review must be a 'judgment' as per the tests referred to in Shah Babulal Khimiji's case, (2 supra). In the present case, the order refusing to review is an order which refuses to accept the petitioner's case that be belongs to a Schedule Tribe and, in purview, there can be no doubt that it is a 'judgment' as per the above tests. We accordingly hold infavour of the appellant that the order impugned in the Letters Patent Appeal is a 'judgment'. Point No. 1 is decided accordingly infavour of (he appellant.
10. Point No. 2 :-The order dismissing the writ petition was passed by the learned Single Judge under the original jurisdiction of the Court in Article 226 of the Constitution of India. The order thereafter passed refusing to review is passed by the learned Single Judge under Order 47, Rule 4(1) read with Rule 24 of the Writ Rules. The question is whether Order 47, Rule 7(1), C.P.C. is a bar to the maintainability of a Letters Patent Appeal. Order 47, Rule 7(1), C.P.C. reads as follows:-
Order 47, Rule 7 (1) : -An order of the Court rejecting the application shall not be appealable.........."
The argument for the respondent is that the prohibition contained in Order 47, Rule 7(1), C.P.C. applies not only in regard to appeals which could otherwise have been preferred under the Code of Civil Procedure but also to appeals under Clause 15 of the Letters Patent. Reliance for this purpose is placed on Shah BabulaI Khimji's case (2 supra) and it is argued that Order 47, Rule 7(1) C.P.C. is similar to Section 104 (2), C.P.C. We shall therefore deal with Shah Babulal Khimji's case (2 supra).
11. There, the suit was filed on the original side of the High Court and pending suit, the plaintiff applied for appointment of a Receiver and for an injunction restraining the defendant from alienating the property. The said application was rejected by the learned Single Judge of the High Court. The plaintiff preferred an appeal under Clause 15 of the Letters Patent and at that stage, the respondent raised an objection as to its main-taxability. The learned Single Judge held that, in as much as the order was not a 'judgment' as it did not decide any rights of the parties no appeal lay to a Division Bench. It was then argued that an appeal lay under Section 104(1) read with Order 43, Rule 1, C.P.C. as an appeal was maintainable against an order refusing to appoint a receiver or to grant an injunction. The latter contention was rejected by both the majority and minority of the Judges in Shah Babulal Khimji's case (2 supra) holding that Section 104 (1), read with Order 43, Rule 1, C.P.C. was an additional right conferred on the litigant and in case an order was not appealable under Clause 15 of the Letters Patent, an appeal could still be preferred under Section 104(1) read with Order 43, Rule1, C.P.C. It was also held that in cases where the order was a 'judgment', it was not further necessary that the order should belong to one of the enumerated categories in Section 104 (1) or Order 43, Rule 1, C.P.C. It was sufficient that the order was a 'judgment' within the meaning of the said word in Clause 15 of the Letters Patent and it did not matter whether it was one of the items enumerated in Section 104 (1) and Order 43, Rule 1, C.P.C. or not. It was, in fact, observed that almost all the categories of cases enumerated in Order 43, Rule 1, C.P.C. were 'judgments' and could be appealed against under Clause 15 of the Letters Patent (see para 55 in Shah Babulal Khimji's case (2 supra). The foundation for the above view of the Supreme Court is the decision of the Privy Council in Hurrish Chunder Chowdary v. Kali Sundari Debia, (1882) 10 I.A. 4 = I.L.R. 9 Cal. 482 (PC) wherein the Privy Council observed as follows:
"It only remains to observe that their Lordships do not think that Section 588 of the Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the Full Court."
12. It is, therefore, clear that the provisions of Order 43, Rule 1, C.P.C. are in addition to the provisions of Clause 15 of the Letters Patent and for the purpose of appealability to a Division Bench, the condition is that the order of the Single Judge must be a 'judgment'.
13. It is, however, argued for the respondent that the Supreme Court observed in certain paragraphs of the judgment in Shah Babulal Khimji's case (2 supra) referred to above, that Section 104 (2) was a bar to the maintainability of appeals against orders passed by learned Single Judges while exercising appellate jurisdiction under Section 104 (1) read with Order 43, Rule 1, CPC and that Order 47, Rule 7 (1), CPC is similar to Section 104 (2). We may say that the passages relied upon are those in paras 39, 41 and 43. In fact, these very passages have been relied upon in Amrutappa v. Abdul Rasool (4 supra) which has been approved in G. Sheshamma v. G. Rajaratnam (5 supra). It has been held in these two cases that the Supreme Court has held that no further appeal lies against an order passed by a learned Single Judge of the High Court while exercising first appellate jurisdiction under Section 104 (1) read with O 43, Rule 1, CPC. and that Section 104 (2) barred not only appeals under the Code but also appeals under Clause 15 of the Letters patent. It is, in fact, on the basis of these decisions that the Division Bench has made this reference.
14. We have examined the majority judgment of the Supreme Court in Shah Babulal Khimji's case (2 supra) closely. The judgment broadly accepts that if a Single Judge, in exercise of original jurisdiction, passes an interlocutory order in a suit, a Letters Patent Appeal lies therefrom if it is a 'judgment' and "that in cases where it is not a 'judgment', an appeal to a Division Bench can also lie under Section 104(1) read with Order 43, Rule 1, CPC. They further held (Para 65) that in such cases, there is no question of Section 104(2) coming into play because the Letters Patent does not say that there will be a further appeal to the Full Court against the appellate order of the Division Bench in the Letters Patent Appeal. The question of applying or not applying Section 104 (2) arises only when the Single Judge has passed orders in exercise of first appellate jurisdiction under Section 104 (1) read with Order 43, Rule 1, CPC. The question, however, is whether in the latter class of cases Section 104 (2) barred appeals under the Code as also Letters Patent Appeals.
15. No doubt, the passages in paras 39, 41 and 43 of the judgment in Shah Babulal Khimji's case (2 supra) lend colour to the view that the Supreme Court held that no Letters Patent Appeal lay against orders passed by learned Single Judges in their first appellate jurisdiction under Section 104 (1) read with Order 43, Rule 1, CPC. But, there are equally several other passages in the same judgment, including several extracts from cases which are approved by the Supreme Court, which do support the opposite contention that Section 104 (2) did not bar Letters Patent Appeals but merely barred further appeals under the Code. These latter passages and extracts to which we shall presently refer, read along with the 'final conclusions' set out in para 79 of the judgment, in our view lend strong support to the view that Letters Patent Appeals are not barred under Section 104 (2) even in respect of orders passed by learned Single Judges under Section 104(1) read with Order 43, Rule 1, CPC. These other passages and the final conclusions in the judgment of the Supreme Court have not been referred to either in Amruthappa v. Abdul Rasool (4 supra) or in G. Seshamma v. G. Rajaratnam (5 supra).
16. Read in the light of these passages and final conclusions suggesting that a Letters Patent Appeal is not barred under Section 104 (2) for filing appeals (against orders of learned Single Judges passed under Section 104 (1) read with Order 43, Rule 1, CPC), it can, in our view, be said that the Supreme Court merely held, in paras 39, 41 and 43, that no further appeal lay if the said orders of Single Judges under Section 104 (1) read with Order 43, Rule 1, CPC, are mere 'orders' and did not, on facts, amount to 'judgments' as understood in Clause 15 of the Letters Patent. We shall now refer to these other passeges and final conclusions of the Supreme Court.
17. Firstly, the Supreme Court pointed out that the High Courts of Calcutta, Bombay and Madras top treated Section 588, CPC of the 1877 Code as providing appeals in addition to Clause 15 of the Letters Patent and that it was not as if Letters Patent Appeals lay only in respect of the restricted categories enumerated in Section 588, CPC. These are: Toolsee Money Dassee v. Sudevi Dassee, (1899) I.L.R. 26 Cal. 363; Secretary of State v. Jehangir, (1902) I.L.R. 4 Bom. 342; Chappan v. Moidin Kutti, (1899) I.L.R. 22 Mad. 68. It was held that (see para 19):
"those orders of the Trial Judge which fell beyond Section 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of Clause 15 of the Letters Patent. Therefore, the view taken by the Calcutta, Bombay and Madras High Courts, referred to above, were undoubtedly correct."
It was observed that under the new CPC of 1908, Section 104 (1) contained words saving the maintainability of appeals otherwise expressly allowed by the Code or by any other law for the time being in force and that this was done in acceptance of the views of the above said three High Courts as against the earlier Allahabad view in Banno Bibi v. Mehdi Hussain, (1889) I.L.R. 11 All. 375, Muhammad Naimtullah Khan v. Insanullah Khan, (1892) I.L.R. 14 All. 226 and these Allahabad decisions were not correct.
18. Secondly, in para 37, the Supreme Court (which has earlier approved the Calcutta, Bombay and Madras views as against the Allahabad views) approved the correctness of the decision of the Lahore High Court in Ruldu Singh v. Sanwal Singh, A.I.R. 1922 Lah. 380 where Sir Shadi Lal, C. J. observed as follows :
"Now, Section 588 of the old Code, which has now been replaced by Section 104 and Order XLIII, Rule 1 of the new Code, enacted that an appeal lay from the orders specified in that section and from no other orders'; and it was consequently decided by a Full Bench of that Court in Muhammad Naimtullah Khan v. lnsanullah Khan (12 supra) that Clause 10 of the Letters Patent was controlled in its operation by Section 588, and that no appeal lay under the Letters Patent from an order made under the Code if it was not on.; of the orders enumerated in that section, Section 104 of the new Code, however, expressly saves the right of appeal otherwise provided by 'any law for the time being in force'.................... It seems to us that the object of the Legislature in enacting Sub-section (2) was to make it clear that there was no second appeal under the Code from the orders specified in Sub-section (1) of Section 104, and that Sub-section (2) was not intended to override the express provisions of the Letters Patent."
19. It will be necessary to note that the Supreme Court approved the words which we have underlined in the above passage, in the judgment of the Lahore High Court. It will be convenient to notice the facts in the Lahore case. That was not a case of an internal appeal arising within the High Court (say) on the original side. The lower appellate Court had then remanded the suit for fresh disposal and the order of remand was confirmed by the learned Single Judge. In other words, the order of the learned Single Judge was an order confirming the order of remand passed by the lower appellate Court. The aggrieved party was held entitled to file a Letters Patent appeal under Clause 15 and that Section 104 was not a bar. The following passage from the judgment of Shadi Lal, C. J. as extracted by the Supreme Court, is clear enough ;
"It seems to us that . . .. .. .. Sub-section (2) (of Section 104) was not intended to override the express provisions of the Letters Patent."
20. Thirdly, the Madras High Court's view in Chappan v. Moidin Kutti (10 supra) was approved and the Supreme Court again referred to that case in para 44 and paras 74 to 77. It will be useful to refer to the facts of that case also. There the High Court was dealing with a revision under Section 622 of the Code (corresponding to the present Section 115, CPC) and the revision arose out of an order seeking refund of sale consideration paid in a court in the execution proceedings. A revision was preferred as the order was not an appealable order. The question arose whether the order of the Single Judge passed in the revision could be further appealed against under Clause 15 of the Letters Patent treating revisional jurisdiction as part and parcel of appellate jurisdiction. It was held by the majority of the six Judges Full Bench that a Letters Patent Appeal lay. (The Letters Patent was amended in March, 1919 providing that no appeal would be against orders made in the revisional jursidiction). We are mentioning the facts of the Madras case only to show that was not a case arising out of the original jurisdiction of the High Court but was a case arising under revisional jurisdiction which was treated as appellate jurisdiction. It was held that Letters Patent Appeal under Clause 15 lay if the order in the revision amounted to a judgment. Shephard J. observed (para 80) that an appeal lay under Clause 15 of Letters Patent, and that he agreed with Subrahmanya Ayyar, J. that the said right of appeal was not taken away by Section 588 of 1877 (corresponding to Section 104). Subrahmanya Ayyar, J. clarified (Para 84) as follows :
"If I am right in the view that appellate jurisdiction includes revisional powers, it follows that against an order passed under Section 622 an appeal lies if the particular order amounts to a judgment within the meaning of Clause 15 of the Letters Patent ; unless the said clause has, as contended before us, been modified by Section 588 of the Code of Civil Procedure. This contention is, however, opposed to the ruling of the Judicial Committee in Hurrish Chunder Chowdary v. Kabi Sundari Debia (7 supra) in which their Lordships laid down that that section does not apply to a case such as the present where the appeal is from one of the Judges of the Court to the Full Court. I am unable to persuade my self, as I have already stated on a previous occasion, that the observations of the Committee on the point are mere obiter dicta. The contention that Section 588 modified Clause 15 was not only distinctly raised but was also strongly pressed by Counsel in the argument. Their Lordships had, therefore, to give a decision upon the soundness or unsoundness of the contention. That, it appears to me, they did in unmistakable terms."
Boddam, J. (see page 92-93) agreed with this view that if the order of the Single Judge amounted to a 'judgment', a further appeal lay. Moore, J. observed (para 97).
"It appears to me to be very difficult to understand why if the Legislature intended Sections 588, 591 and 629 to take away the right of appeal from decisions of Single Judges of the High Court granted by Section 15 of the Letters Patent, this very important change in the law was not made by clear and distinct enactment.. .. If it was intended that the right of appeal given by Section 15 of the Letters Patent from all judgments of a Single Judge should be taken away, it is only reasonable to presume that the Code would have gone further and provided......"
The above passages from the Full Bench of the Madras High Court in Chappan's case (10 supra) must, in our view, be taken to have been accepted by the Supreme Court when it affirmed the correctness of the said Full Bench in several paragraphs of its judgment referred to earlier. In fact, these views of the Madras Full Bench, are similar to the observations extracted from the judgment of the Lahore High Court in Ruldu Singh's case (13 supra).
21. Further in para 55 of the Judgment the majority of the Supreme Court accepted the contention of the appellant that most of the orders (including orders under Order 40, Rule 1) in Order 43, Rule 1, CPC amount to 'judgments' and could be appealed against under Clause 15 as such. We may add that if these orders could be 'judgments' if passed by the trial Judge in an original suit, there is no reason as to why similar orders passed in first appellate jurisdiction should not be appealable. For that matter all 'judgments' are appealable under Clause 15 irrespective of Section 104.
22. If, therefore, the view of the Madras High Court in Chappan's case (10 supra) and of the Lahore High Court in Ruldu Singh's case (13 supra) have been approved by the Supreme Court, can it be said that the majority of the Supreme Court in Shah Babulal Khimji's case (2 supra) held that because of Section 104 (2), no Letters Patent Appeal lay against first appellate orders passed by Learned Single Judges under Section 104 (1) read with Order 43, Rule 1, C.P.C.?
23. In our view, the matter has to be considered in the light of the ultimate conclusions of the majority which are set out in para 79 of the judgment, as follows:
"(1) That there is no inconsistency between Section 104 read with Order 43, Rule 1 and the appeals under the Letters Patent and there is nothing to show that the Letters Patent in any way excludes or overrides the application of Section 104 read with Order 43, Rule 1 or to show that these provisions would not apply to internal appeals within the High Court.
(2) That even if it be assumed that Order 43, Rule 1 does not apply to Letters Patent appeals, the principles governing these provisions apply by process of analogy.
(3) That having regard to the nature of the orders contemplated in the various clauses of Order 43, Rule 1, there can be no doubt that those orders purport to decide valuable rights of the parties in ancillary proceedings even though the suit is kept alive and that those orders do possess the attributes or character of finality so as to be judgments within the meaning of Clause 15 of the Letters Patent and hence, appealable to a larger Bench.
(4) The concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position."
24. From the above passages and final conclusions, it appears to us that the Supreme Court in Shah Babulal Khimji's case (2 supra) stated that the bar in Section 104 (2) CPC only means that there will be no further appeals against 'orders' passed by learned Single Judges under Section 104 (1) CPC read with Order 43, Rule 1 CPC, if the orders so passed did not have the character of 'judgments' within the meaning of the said words in Clause 15 of the Letters Patent. If Clause 15 of the Letters Patent is an independent source of power conferred on learned Single Judges of the High Court and is not restricted or controlled by Section 104 CPC as held by the Supreme Court (see paras 18, 19, 28, 30, 32, 33, 55, 56) in Shah Babulal Khimji's case (2 supra), the order (say) appointing or refusing to appoint a Receiver or granting or refusing to grant an injunction is a 'judgment' whether passed by the Single Judge of the High Court in exercise of original jurisdiction or in exercise of first appellate jurisdiction under Section 104 (1), CPC read with Order 43, Rule 1, CPC. Therefore, the passages in paras 38, 39, 40, 41 and 43 lending colour to the opposite view can only be understood as stating that under Section 104 (2), CPC what is barred is a further appeal under the Code but not under the Letters Patent if such order passed by the learned Single Judge is a 'judgment'. letters Patent Appeal would be barred only to the extent expressly barred in Clause 15 of the Letters Patent and by any other law such as Section 100-A, CPC.
25. It is argued for the respondents that though the Supreme Court approved the Madras view in Chappan v. Moidin Kutti (10 supra) and the Lahore view in Ruldu Singh v. Sanwal Singh (13 supra), it has clearly disagreed with the judgment of the Allahabad High Court in Ram Sarup v. Kaniz Ummeshani, A.I.R, 1937 All. 165 where the Allahabad High Court held that Letters Patent Appeals lie against orders passed by learned Single Judges exercising jurisdiction under Section 104(1) CPC read with Order 43, Rule 1, CPC (see para 38 of the Supreme Court judgment). It is also pointed out that it was in this context that the Supreme Court approved the earlier Allahabad cases in Muhammad Naimtullah Khan v. Jmanullah Khan (12 supra) and Piari Lal v. Madan Lal, (1917) I.L.R. 19 All. 191 = A.I.R 1917 All. 325 (2) (See paras 41, 42 of the Supreme Court judgment).
26. On the other hand, it is argued for the appellant that the passage from the Allahabad judgment in Ram Sarup v. Kaniz Ummeshani (14 supra) which has been disapproved by the Supreme Court in para 38 of the judgment is almost identical with the passage in the same judgment in para 37 wherein the Lahore judgment in Ruldu Singh v. Sanwal Singh (13 supra) is approved. It is also argued for the appellant that these very earlier Allahabad cases in Muhammad Naimtullah Khan v. Insanullah Khan (12 supra) and an earlier decision in Banno Bibi v. Mehdi Hussain (11 supra) taking the same view, were disapproved in para 19 of the same judgment.
27. On a close examination of these passeges, read along with the other passages approving the Madras Full Bench in Chappan v. Moidin Kutti (10 supra) and the Lahore view in Ruldu Singh v. Sanwal Singh (13 supra) and the final conclusions set out in para 79 of the judgment, we are of the following view:-
28. The proper way of reconciling the several paragraphs in the judgment is to hold that the Supreme Court accepted that Clause 15 of the Letter Patent gave an independent jurisdiction conferring right of Appeal against 'Judgments' of learned Single Judges of the High Court whether passed in original jurisdiction or first appellate jurisdiction under Section 104 (1) read with Order 43, Rule 1, C.P.C. The only condition is that these orders must amount to 'judgments' as understood in Clause 15 of the Letters Patent. Section 104 (2) is intended to bar further appeals under the Code and is not intended to restrict or control the right of appeal conferred by Clause 15 of the Letters Patent against judgments of learned Single Judges whether passed in original or first appellate jurisdiction under Section 104 (1) read with Order 43, Rule 1, C.P.C. If therefore both Section 104(1) and Section 104 (2) are not intended to restrict or control the right of appeal conferred by Clause 15 of the Letters Patent, it cannot, by any parity of reasoning, be held that Order 47, Rule 7(1) has also been intended to bar Letters Patent Appeals against orders of learned Single Judges refusing to review an earlier order, provided the orders amounted to 'Judgments' as understood under Clause 15 of the Letters Patent ; Order 47, Rule 7(1), C.P.C. would bar appeals under the Code of Civil Procedure to the extent where the orders refusing a review did not amount to 'judgments'. The ultimate test is whether the 'order' is a 'judgment' as understood in Clause 15 of Letters Patent. If it is a 'judgment' neither Section 104 (2) nor Order 47, Rule 7 (1) would bar a Letters Patent Appeal. Point No. 2 is decided accordingly.
29. For the aforesaid reasons, we respectfully dissent from the judgment of the Bombay High Court in Obedua Rehman v. Ahmedali Bharucha, and of the Gujarat High Court in Madhusudan Vegetable Products Co. Ltd. v. Rupa Chemicals, wherein the said Courts understood the Supreme Court judgment in Shah Babulal Khimji's case (2 supra) as holding that no Letters Patent Appeal is maintainable against appellate orders of learned Single Judges while disposing of appeals under Section 104 (1) read with Order 43, Rule 1, C.P.C. We also respectfully dissent from the Full Bench decision of the Kerala High Court in Mr. Abraham Mathews v. lllani Pillai, (F.B) rendered with reference to Section 5 (ii) of Kerala High Court Act (5/1959) which took a similar view even before the Supreme Court decided the question. The reasons given by the Bench that if a further appeal is to be held maintainable, there would be further delay in reaching finality, does not appeal to us.
30. Reference is ordered accordingly.