Gujarat High Court
Govind Mavji Gorasiya & 2 vs Velbai Naran Varsani D/O Natha Harji ... on 13 April, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/122/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 122 of 2017
In Appeal from Order NO. 8 of 2012
With
CIVIL APPLICATION NO. 1560 of 2017
In
LETTERS PATENT APPEAL NO. 122 of 2017
==========================================================
GOVIND MAVJI GORASIYA & 2....Appellant(s) Versus VELBAI NARAN VARSANI D/O NATHA HARJI HALAI &
11....Respondent(s) ========================================================== Appearance:
MR MEHULSHARAD SHAH, ADVOCATE for the Appellant(s) No. 1
- 3 MR AR THACKER, ADVOCATE for the Respondent(s) No. 1 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 12 MR YH MOTIRAMANI, ADVOCATE for the Respondent(s) No. 3 -5
MS KARUNA V RAHEVAR, ADVOCATE for the Respondent(s) No. 6
- 7 , 8.2 , 9 - 10 NOTICE SERVED BY DS for the Respondent(s) No. 2 , 11 UNSERVED-EXPIRED (N) for the Respondent(s) No. 8 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 13/04/2017 CAV ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed under Clause 15 of Letters Patent against the order dated 16.01.2017 passed by the learned Single Judge in Appeal from Order No.8 of 2012 and connected civil applications, whereby the said matters were ordered to be heard along with First Appeal No.863 of 2015 by the Division Bench.Page 1 of 16
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2. The facts in nutshell are as under:
2.1. That the respondent No.1 herein is the original plaintiff and respondent No.2 herein is the original defendant No.1 and also father of the original plaintiff. The respondent No.2 -
Natha Harji Halai had purchased land bearing Survey Nos. 36 and 42 from one Lalji Parbat by registered sale deed dated 12.07.1974. Thereafter, he had also purchased land bearing survey Nos.37 and 40 from Bhimji Parbat by registered sale deed dated 14.03.1980. Thereafter, respondent No.2 executed registered sale deed in favour of the present respondent Nos. 6 and 7 on 17.04.2010. Thereafter, respondent Nos. 6 and 7 herein have executed registered sale deed in favour of the present appellants - original respondent Nos. 10 to 12 on 12.01.2011.
2.2. The respondent No.1 filed Special Civil Suit No.111 of 2011 on 18.07.2011. The original plaintiff also filed an application for temporary injunction vide Exh.5. Learned trial Court by an order dated 04.11.2011 dismissed the application below Exh.5 against which the Appeal from Order No.8 of 2012 was filed by the original plaintiff
- respondent No.1 herein on 19.12.2011 before this Court. It is the say of the appellants herein that the said Appeal from Order was admitted on 25.06.2013. However, no interim Page 2 of 16 HC-NIC Page 2 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER relief was granted. However, thereafter the respondent No.1 - original plaintiff moved Civil Application No.3520 of 2015 in Appeal from Order No.8 of 2012 on 11.03.2015 and Civil Application No.4112 of 2015 on 22.03.2015 after a period of three and half years of filing of the Appeal from Order. Both the civil applications were listed for hearing and thereafter the learned Single Judge of this Court by an order dated 18.06.2015 directed the parties to maintain the status quo with regard to the disputed land.
2.3. As per the case of the appellants, in the meantime, an application under Order VII Rule 11 of the Civil Procedure Code, 1908 (hereinafter referred to as the 'Code' for short) came to be filed before the learned Trial Court and the said application came to be allowed by the learned trial Court by an order dated 09.04.2015 by which the suit filed by the respondent No.1 - original plaintiff is dismissed. Against the said order, the respondent No.1 herein has filed First Appeal No.863 of 2015 along with Civil Application No.5477 of 2015. The Division Bench of this Court admitted the appeal and continued the order of interim relief granted by the trial Court suspending the order of rejection of the suit till final disposal of the appeal by an order dated 04.05.2015.
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2.4. The appellants thereafter filed Civil
Application No.9003 of 2016 in Appeal from Order No.8 of 2012 with a prayer to vacate the interim relief granted by the learned Single Judge by an order dated 06.04.2015. As per the case of the appellants, the learned Single Judge heard the matter at length. However, by an order dated 16.01.2017 did not decide the matter on merits and ordered that the Appeal from Order along with connected civil applications shall be heard along with First Appeal No.863 of 2015, by the Division Bench.
2.5. The appellants are aggrieved by the order of the learned Single Judge, whereby the Appeal from Order No.8 of 2012 along with connected Civil Applications were ordered to be heard along with First Appeal No.863 of 2015 by the Division Bench and therefore the present appeal is filed under Clause 15 of the Letters Patent to the aforesaid extent.
3. Heard learned advocate Mr. Mehul Sharad Shah for the appellants and learned advocate Mr. A. R. Thacker for contesting respondent No.1.
4. Learned advocate Mr. Shah mainly contended that the present appeal is maintainable though prima facie it appears that the said appeal is filed against the order passed by the learned Page 4 of 16 HC-NIC Page 4 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER Single Judge in Appeal from Order. However, the appellants have not challenged the entire order passed by the learned Single Judge in captioned appeal. But, while giving direction to hear the Appeal from Order with the First Appeal by the Division Bench, learned Single Judge has exercised the powers under Article 226 of the Constitution of India and therefore against such powers exercised by the learned Single Judge giving aforesaid direction, Letters Patent Appeal is maintainable and therefore this appeal be heard on its own merits.
5. Learned counsel Mr. Shah further submitted that the order passed by the learned Single Judge is without jurisdiction and against the Gujarat High Court Rules, 1993 (hereinafter referred to as 'the Rules' for short). It is submitted that as per Rule 2(7) of the Rules, it is provided that Appeal from Order under Section 104 and Order 43, Rule 1(r) of the Code, shall be heard by the learned Single Judge and therefore it is not proper on the part of the learned Single Judge to give direction that the said Appeal from Order be heard by the Division Bench. Therefore, the learned Single Judge has exceeded the jurisdiction vested in him.
6. Learned advocate for the appellants would further submit that as per Rule 6 of the Rules, Page 5 of 16 HC-NIC Page 5 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER the Hon'ble the Chief Justice of High Court has power to direct the Registry to place the matter before the Division Bench or Special Bench and such power is not vested with the learned Single Judge. At this stage, it is submitted that the Appeal from Order No.8 of 2012 was specifically assigned to the learned Single Judge. However, without obtaining prior order from the Hon'ble the Chief Justice, the learned Single Judge has given direction that the said Appeal from Order be heard by the Division Bench along with First Appeal. Therefore, the order impugned is required to be set aside and learned Single Judge be directed to decide the Appeal from Order and the civil applications which are pending for vacating the interim relief as well as for confirmation of the interim relief filed by the concerned parties.
7. In support of the aforesaid contentions, learned advocate Mr. Shah has placed reliance upon the decision rendered by the Hon'ble Supreme Court in State of Rajasthan v. Prakash Chand, reported in 1997(2) GLH 1033 and the decision of Division Bench of this Court in Sharad Bansilal Vakil v. Suo Motu, reported in 2006(2) G.L.H. 163.
8. On the other hand learned advocate Mr. Thacker appearing for the respondent No.1 has taken the preliminary objection with regard to Page 6 of 16 HC-NIC Page 6 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER the maintainability of the present Letters Patent Appeal. It is contended that the appellants have challenged the order dated 16.01.2017 passed by the learned Single Judge in Appeal from Order and the said order cannot be termed as a judgment and therefore an appeal under Clause 15 of the Letters Patent is not maintainable.
9. Learned advocate Mr. Thacker would contend that the learned Single Judge has passed the impugned order while deciding Appeal from Order under Order 43 Rule 1(r) read with Section 104 of the Code. Thus, in view of Section 100A of the Code, present appeal is not maintainable before the Division Bench of this Court. At this stage, learned advocate further submitted that while observing that the Appeal from Order along with the connected civil applications be heard along with First Appeal No.863 of 2015, the learned Single Judge has merely exercised powers under Section 151 of the Code. Thus, it cannot be said that learned Single Judge has exercised the powers under Article 226 of the Constitution of India and therefore this appeal is not maintainable. Hence, the same be dismissed.
10. Learned advocate thereafter submitted that the appellants have suppressed material facts about the order dated 03.03.2016 passed by the learned Single Judge in Special Civil Application Page 7 of 16 HC-NIC Page 7 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER No. 5746 of 2014. It is submitted that the said petition came to be filed against the order passed by the trial Court below Exh.52 by which the learned trial Court partly allowed the application of the respondent No.1 - original plaintiff for amendment. The said matter was listed before the learned Single Judge and on 03.03.2016, the learned Single Judge passed an order by observing that, "therefore, it would be appropriate to consider both the First Appeal and this Special Civil Application together where practically Court would be able to look into R & P also. To be heard alongwith First Appeal No.863 of 2015."
11. Thus, it is submitted that the appellants have not challenged the said order by filing Letters Patent Appeal. In the present case also when similar order of hearing of the Appeal from Order with First Appeal No.863 of 2015 is passed by the learned Single Judge, it would not be appropriate for the appellants to challenge the said order by filing the present Letters Patent Appeal and therefore this appeal be dismissed.
12. In support of the aforesaid contentions, learned advocate Mr. Thacker has placed reliance upon the decision rendered by the Hon'ble Supreme Court in Mohd. Saud and Another v. Dr. (Maj.) Shaikh Mahfooz and Others, reported in (2010) 13 Page 8 of 16 HC-NIC Page 8 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER SCC 517 and the decisions of this Court in Rama Fertilizers Pvt. Ltd. & Anr. v. State of Gujarat & Anr., reported in 2001(1) G.L.H. 698; in Jayendrasinh Bhupatsinh Diama v. State of Gujarat through Additional Secretary (Inquiry), reported in 2012(1) G.L.R. 124; in Jaimin J. Desai v. Gujarat Chamber of Commerce & Industry, reported in 2000(2) G.L.H. 22; in Jayantilal Dhanjibhai Patel v. Rohitbhai Dhanjibhai Bin Gokalbhai Patel, reported in 2002(1) G.L.H. 1 and in Archnaben Wife of Naimeshbhai Patel Daughter of Amrutbhai Patel v. Nimeshbhai Harjivandasbhai Patel, reported in 2016(1) G.L.H. 679.
13. Having heard the learned counsel appearing for the parties and having gone through the material produced on record and the decisions relied upon by the learned advocates for the parties, it is revealed that present Letters Patent Appeal is filed under Clause 15 against the order dated 16.01.2017 passed by the learned Single Judge in Appeal from Order No.8 of 2012, whereby the Appeal from Order No.8 of 2012 along with connected Civil Applications were ordered to be heard along with First Appeal No.863 of 2015 by the Division Bench.
14. The preliminary objection has been raised by the contesting respondent that the present appeal is not maintainable under Clause 15 of the Page 9 of 16 HC-NIC Page 9 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER Letters Patent as the learned Single Judge has passed order in Appeal from Order. For considering the said contention, the provision contained in Section 100A of the Code as well as the decisions upon which reliance is placed by the learned counsel for the parties are required to be considered. Section 100A of the Code provides that:
"100A. No further appeal in certain cases: Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."
15. Thus, from the aforesaid provision, it is clear that where any appeal from an original or appellate decree or order is heard and decided by a learned Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such learned Single Judge, notwithstanding anything contained in any Letters Patent for any High Court.
16. In the case of Mohd. Saud & Anr. (supra), the Hon'ble Supreme Court observed in para 7 and 9 as under:
Page 10 of 16HC-NIC Page 10 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER "7. The Full Bench by the impugned judgment has held that after the introduction of Section 100-A with effect from 1.7.2002, no Letters Patent Appeal shall lie against the judgment or order passed by a learned Single Judge in an appeal. The Full Bench has held that the decision of the Division Bench of the High Court in Birat Chandra Dagra v.
Taurian Exim Pvt. Ltd. & Anr. (vide page
5) 2006(11) OLR 344 does not lay down the good law while the decision of Division Bench in V.N.N. Panicker v. Narayan Patil & Anr. 2006(2) OLR 349 lays down the correct law. The Full Bench has further held that after the amendment of Section 100-A w.e.f. 1.7.2002 no LPA shall lie against the order or judgment passed by a learned Single Judge even in an appeal arising out of a proceeding under a Special Act.
xxx xxx xxx
9. The validity of Section 100-A C.P.C. has been upheld by the decision of this Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India AIR 2003 SC
189. The Full Benches of the Andhra Pradesh High Court vide Gandla Pannala Bhulaxmi v. Managing Director, APSRTC & Anr. AIR 2003 AP 458, the Madhya Pradesh High Court in Laxminarayan v. Shivlal Gujar & Ors. AIR 2003 MP 49, and of Kerala High Court in Kesava Pillai Sreedharan Pillai v. State of Kerala & Ors. AIR 2004 Ker 111 have held that after the amendment of Section 100-A in 2002 no litigant can have a substantive right for a further appeal against the judgment or order of the learned Single Judge of the High Court passed in an appeal. We respectfully agree with the aforesaid decisions.".
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17. In the case of Archnaben Wife of Naimeshbhai Patel Daughter of Amrutbhai Patel (supra), the Division Bench of this Court observed in para 3 as under:
"3. xxx xxx xxx Thus, it is clear from the above decisions that an order for transfer of suit is not a judgment within the meaning of Clause 15 of the Letters Patent and therefore the Letters Patent Appeal is not competent in law. The preliminary objection raised by Mr. Vivek Bhamare, learned Advocate for Mr. Y.N.Ravani is well founded and is required to be accepted."
18. In the case of Jayantilal Dhanjibhai Patel (supra), the Division Bench of this Court observed in para 11 and 15 as under:
"11. On the submission made by the learned counsel for the contesting parties and the decisions of this Court relied by them, the main question that falls for decision on the preliminary objection is whether the power exercised by the learned single Judge in the pending Appeal from Order under Order 43, Rule 1 CPC, read with the provisions of Order 39. Rule 2A CPC is exercise of his original power of his appellate power. It is not disputed by the learned counsel for the parties that under Clause 15 of the Letters Patent the order of judgment passed in exercise of appellate jurisdiction is not subject to internal appeal from judgment of the single Judge Page 12 of 16 HC-NIC Page 12 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER to the two Judges of this Court.
xxx xxx xxx
15. Applying the above test and ratio of the Division Bench decisions of this Court, on which reliance has been placed by the respondents, the conclusion is that since the order has been passed by the learned single Judge in exercise of power under Order 39, Rule 2A but in the course of proceedings under Order 43. Rule 1, the learned single Judge was exercising his appellate power and not his original power. The impugned order could not have been passed de hors the appellate proceedings pending before him. Bipartite order of temporary injunction was also passed by the learned single Judge during the pendency of appeal under Order 43, Rule 1 (r). The impugned order came to be passed during the pendency of appeal and regarding breach of bipartite order of injunction passed during the appeal. The order holding the appellants guilty of breach of injunction and directing restoration of possession was an order passed by the learned single Judge in exercise of appellate powers. The powers of original Court can be exercised by the appellate Court by virtue of its appellate powers. It cannot, therefore, be held that as and when appellate Court exercises powers available also to the original Court, the power exercised in appeal is a power exercised in original proceedings so as to hold intra-court appeal under LPA maintainable."
19. Thus, keeping in mind the aforesaid provision of law as well as the decisions rendered by the Page 13 of 16 HC-NIC Page 13 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER Hon'ble Supreme Court as well as this Court, we are of the view that Letters Patent Appeal under Clause 15 against the order passed by the learned Single Judge in Appeal from Order, is not maintainable. However, at this stage, it is required to be observed that learned advocate Mr. Shah for the appellants submitted that learned Single Judge has exercised the powers under Article 226 of the Constitution of India. However, the said submission is misconceived. While observing that the Appeal from Order be heard with First Appeal pending before the Division Bench, it cannot be said that the learned Single Judge has exercised powers under Article 226 of the Constitution of India and therefore the appeal is maintainable.
20. At this stage, it is also required to be noted that the learned Single Judge has ordered that Appeal from Order along with connected Civil Applications be heard along with First Appeal No.863 of 2015 by the Division Bench. The appellants have filed this Letters Patent Appeal to the limited extent with regard to the aforesaid observations made by the learned Single Judge. We are of the view that the aforesaid order cannot be termed as 'Judgment' within the meaning of Clause 15 of the Letters Patent and therefore also the present appeal is not Page 14 of 16 HC-NIC Page 14 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER maintained under Clause 15 of Letters Patent. The Division Bench of this Court in the case of Jaimin J. Desai (supra), has observed as under:
"Merely because a single Judge has passed an order or a judgment in exercise of his appellate jurisdiction, the same cannot be questioned before the Division Bench invoking the aids of Clause 15 of the Letters Patent of Bombay. The parameter which is, specifically, prescribed in Clause 15 is very clear that an appeal against the judgment of a single Judge would lie before the Division Bench of the same High Court under Clause 15 of the Letters Patent provided the impugned judgment is in exercise of the original jurisdiction and not appellate jurisdiction. It cannot be contended that in exercise of the appellate powers, learned single Judge has travelled beyond the scope of his jurisdiction or has exceeded his jurisdiction and therefore, on that ground itself appeal would become competent under Clause 15 of the Letters Patent of Bombay, as contended. It is not the quality, it is not the content, but the exercise of power and the source of power which would determine the applicability of the provisions of Clause
15. So the Court is obliged to consider, while entertaining the Letters Patent Appeal under Clause 15 at the nature of exercise of power and source exercised by the learned single Judge while passing the impugned order."
21. The relinace placed by learned cousnel for the appellants on the decision rendered by the Page 15 of 16 HC-NIC Page 15 of 16 Created On Fri Apr 14 02:48:43 IST 2017 C/LPA/122/2017 CAV ORDER Division Bench of this Court in Sharad Bansilal Vakil (supra) would not render any assistance to him as the facts were different in the said case.
22. In view of the aforesaid discussions, we are of the view that present appeal is not maintainable and therefore without going into further merits of the case, it is dismissed. However, as observed by the learned Single Judge, liberty is reserved to the present appellants to request the Division Bench to hear Civil Application Nos. 3520 of 2015 and 4112 of 2015 expeditiously. Notice discharged. Consequently, civil application also stands disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 16 of 16 HC-NIC Page 16 of 16 Created On Fri Apr 14 02:48:43 IST 2017