Kerala High Court
Kannachett Venugopalan vs The Malappuram District Co-Operative ... on 11 July, 1995
Equivalent citations: AIR1995KER369, AIR 1995 KERALA 369, ILR(KER) 1995 (3) KER 328, (1995) 2 KER LJ 170, (1996) 1 ICC 412, (1995) 2 KER LT 200, (1996) 2 RRR 79, (1996) 3 CURCC 137
JUDGMENT Pareed Pillay, C.J.
1. The Registry raised objection to the appeal on the ground that it has been filed without formulating substantial question of law. The question that arises for consideration is whether it is necessary to formulate substantial question of law as provided under Section 100, C.P.C. in appeals against first appeals of the single Judge before Division Bench.
2. In Shankari Amma v. State of Kerala (1991 (2) KLT 184) a Division Bench of this Court held that in appeal filed under Section 5(ii) of the Kerala High Court Act (hereinafter referred to as the Act) it is incumbent upon the appellant to formulate substantial question of law. In the said decision it was held that the principles embodied in Section 100, C.P.C. proclaims the policy of the Legislature in the matter of entertaining second appeals and as the said provision is based on public policy they are in substance applicable to Section 5(ii) of the Act which is a kindred provision. Another Division Bench took a different view and referred the matter to a Full Bench for decision. The matter has thus come before us.
3. Learned Counsel for the appellant submitted that the decision in 1991 (2) KLT 184 requires reconsideration. In the said decision the Division Bench of this Court held thus :
"In our view, the principles embodied in Section 100, C.P.C. proclaims the policy of the Legislature in the matter of entertaining second appeals. The said provision is based on public policy. We have held that the provisions of Section 100, C.P.C. are in substance applicable to Section 5(ii) of the Kerala High Court Act, which is a kindred provision."
4. Contention of the appellant is that the right of appeal being a substantive right it can be impaired only by specific provisions and as Section 5(ii) has nothing to do with Section 100, C.P.C. it can never be held that in appeal against first appeal substantial question of law has to be formulated.
5. In Asho Devi v. Dhukhi Sao (AIR 1965 Patna 472) Patna High Court held that under Clause 10 of Letters Patent appeal includes all classes of appeals and there cannot be any distinction whether appeal is from single Judge's judgment in First Appeaj or in the Second Appeal. The Court further held that jurisdiction is regulated by Sections 100 and 101, C.P.C. This decision was reversed by the Supreme Court in AIR 1974 SC 2048 : (1975) 1 SCR 611. The Supreme Court held thus :
"The power of a Division Bench hearing a Letters Patent appeal under Clause 10 from the judgement of a single Judge in first appeal is not limited only to a question of law under Section 100, Civil P.C. but it has the same power which the single Judge has ,as a first Appellate Court in respect of both question of fact and of law. The limitations on the power of the Court imposed by Sections 100 and 101, Civil P.C. cannot be made applicable to an Appellate Court hearing a Letters Patent appeal for the simple reason that single Judge of the High Court is not a Court subordinate to the High Court."
In the above decision an earlier judgment of five Judges Bench of the Supreme Court in Alapati Kasi Viswanthan v. A. Sivarama Krishnayya (C.A. No. 232 of 1961) was referred to, Wanchoo, J. speaking for the Court observed :
"The first contention urged before us on behalf of the appellant is that the Letters Patent Bench was not authorised in law to reverse the concurrent findings of fact of the Subordinate Judge and the learned single Judge of the High Court. It is submitted that a Letters Patent appeal stands on the same fobting as a second appeal and it was therefore not open to the Letters Patent Bench to reverse the concurrent findings of fact of the two Courts below. We are of opinion that this contention is not correct. A Letters Patent appeal from the judgment of a learned single Judge in a first appeal to the High Court is not exactly equivalent to a Second appeal under Section 100 of the Code of Civil Procedure, and therefore it cannot be held that a Letters Patent appeal of this kind can only lie on a question of law and not otherwise. The matter would have been different if the Letters Patent appeal was from a decision of a learned single Judge in a second appeal to the High Court. In these circumstances it will be open to the High Court to review even findings of fact in a Letters Patent appeal from a first appeal heard by a learned single Judge, though generally speaking the Letters Patent Bench would be slow to disturb concurrent findings of fact of the two Courts below. But there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact. The contention of the appellant therefore that the letters Patent Bench was not in law entitled in reverse the concurrent findings of fact must be negatived."
6. Section 5 of the Act reads :
"Appeals from judgment or order of single Judge -- An appeal shall lie to a bench oi 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 apeallate jurisdiction in respect of a- decree or order made in the exercise of original jurisdiction by a subordinate Court."
Section 3 enumerates the powers of the single Judge of the High Court. Section 4 deals with the powers of a Bench of two Judges. Though Section 5(iii) was deleted as per Act 20, 1987 the Legislature did not consider it necessary to add any fetters to the provisions under Section 5(ii) making it linked to Section 100, C.P.C. Section 5(ii) provides that an appeal would lie to a Bench of two Judges from the judgment of a single Judge in the exercise of Appellate Jurisdiction in respect of a decree of order made in the exercise of original jurisdiction by a subordinate Court. A reading of Section 5(ii) would show that the right of appeal under it is not fettered in any manner as provided under Section 100, C.P.C. In view of the Supreme Court decision the legal position is that Division Bench while hearing an appeal from the judgment of a single Judge of the High Court under Section 5(ii) of the Act can very well go into every aspect of the matter in the appeal unfettered by the limitations in Section 100, C.P.C.
7. In view of the specific provision contained in the Kerala High Court Act giving unrestricted right of appeal under Section 5(ii), it is not possible for us to approve the decision in 1991 (2) KLT 184, As unrestricted right of appeal is conferred on the party under Section 5(ii) that cannot be impaired or whittled down by invoking Section 100, C.P.C. whether it be by an analogy or otherwise.
8. When a statute is explicit and admits no doubt the Court cannot read something more which is not there. In a case where the words of a statute are clear, plain or unambiguous, i.e. when they are reasonably susceptible to only one meaning, it is for the Court to give effect to that meaning irrespective of the consequences. As there is no ambiguity in the language of Section 5(ii) there is no question of taking any external aid for interpretation of the sub-section. As the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself the question of interpretation arises only when the language is ambiguous and therefore capable of two interpretations (vide Om Prakash v. Dig Vijendrapal, AIR 1982 SC 1230) : 1982 All LJ 882 (J). As the sub-section offers no scope for ambiguity and as it speaks for itself eloquently there is no need to get the assistance of another statute. As held in Jitender Tyagi v. Delhi Administration (AIR 1990 SC 487 : 1990 Cri LJ 332, para 15) when the language of a statute is plain and simple the question of ascertaining the intention of the legislature does not arise. In CIT Agri. v. Keshab Chandra Mandal (AIR 1950 SC 265) the Supreme Court held that hardship or inconvenience cannot alter the meaning of the language employed by the legislature if such meaning is clear on the face of the statute or the rules. It is also apposite to refer Kanai Lal v. Paramnidhi (AIR 1957 SC 907) where the Supreme Court observed :
"The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. 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 the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achivement of the said policy, then the Courts would prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct."
In Ajay Pradhan v. State of M.P. (AIR 1988 SC 1875) the Supreme Court said :
"A rule must be interpreted by the written text. If the precise words used are plain and unambiguous, the Court is bound to construe them in their ordinary sense and give them full effect. The plea of inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are alternative methods of construction. Where the language is explicit its consequences are for Parliament, and not for the Courts, to consider."
Tindat, C.J. in Sussex Peerage case observed as follows :
"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."
(Sussex Peerage Case (1844) 11 C1 & F85 at 143) As Section 5(ii) is not hedged in by any limitations like Section 100, C.P.C. the curbs or limitations provided under the latter Section cannot be imported into the Kerala High Court Act to read something which is not there.
9. The conclusion which we have arrived at here shall not be interpreted to mean that admission of the appeal under Section 5(ii) is automatic and unfettered and that the Court lacks power to consider the admissibility of appeal under other provisions of C.P.C.
Registry is directed to receive the appeal in the file.