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Ghantasala Seshamma And Others v. Gollapalli Rajaratnam And Another
Judgment Summary — Jayachandra Reddy, J.
Factual and Procedural Background
This is an application in a Letters Patent Appeal (L.P.A.) filed before admission. The central procedural question presented to the court was whether a Letters Patent Appeal lies to a Division Bench against an appellate order of a single Judge in an appeal under Order 43, Rule 1, C.P.C., read with Section 104(1), C.P.C., and whether Section 104(2), C.P.C., operated as a bar to the maintainability of such a Letters Patent Appeal under Clause 15 of the Letters Patent. The court noted prior consideration of this question in other authorities and previous institutional orders (including an earlier L.P.A. No. 14/88 and order dated 16-2-1988).
Legal Issues Presented
- Whether a Letters Patent Appeal lies to a Division Bench against an appellate order of a single Judge in an appeal under Order 43, Rule 1, C.P.C., read with Section 104(1), C.P.C.
- Whether Section 104(2), C.P.C., is a bar to the maintainability of a Letters Patent Appeal under Clause 15 of the Letters Patent in the circumstances described above.
Arguments of the Parties
Appellant's Arguments
- The learned counsel for the appellants submitted that the Supreme Court (in Shah Babulal Khimji v. Jayaben) did not explicitly lay down that a Letters Patent Appeal does not lie under the present circumstances and pointed to certain observations in that decision indicating that an L.P.A. might be maintainable.
- The appellants relied on the Madras High Court decision in Rukmani v. H.N. Thirumalai Chettiar (AIR 1985 Mad 283), which, following V.S. Boopathy Chettiar v. Radha Rukmani (1984 TLNJ 92), held that an L.P.A. is maintainable against an order passed by a single Judge under Section 104(1), C.P.C., pending an appeal.
The opinion does not contain a detailed account of any contrary arguments by respondents or further party pleadings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Amruthappa… v. Abdul Rasool…. (1987) 2 APLJ (HC) 27 : AIR 1988 Andh Pra 215 | Consideration of the question whether an L.P.A. lies in the circumstances under discussion; Jagannadha Rao, J. reviewed various High Court decisions and Shah Babulal Khimji. | The court noted Jagannadha Rao, J.'s conclusion that such an L.P.A. does not lie and recorded that this court agreed with that view (including in L.P.A No. 14/88 by order dated 16-2-1988). |
| Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786 | Primary Supreme Court decision considered on whether Letters Patent Appeal lies; interpreted to mean that an L.P.A. does not lie in view of the bar in Section 104(2), C.P.C. (although some passages were observed to indicate otherwise in a different factual context). | The court relied on the ratio and ultimate conclusion of Shah Babulal Khimji to hold that an L.P.A. does not lie in the present circumstances; it treated contrary passages as addressing a different question (single Judge in original jurisdiction). |
| Obedur Rehman v. Ahmedali Bharucha, AIR 1983 Bom 120 | Bombay High Court Division Bench holding that an L.P.A. against an order of a learned single Judge dismissing an appeal filed under Section 104, C.P.C. (against refusal to grant temporary injunction) is not maintainable. | The court noted this decision as categorical and observed it placed reliance on Shah Babulal Khimji; the Bombay decision supports the conclusion reached in the present matter. |
| Rukmani v. H.N Thirumalai Chettiar, AIR 1985 Mad 283 | Madras High Court Division Bench holding that an L.P.A. is maintainable against an order passed by a single Judge under Section 104(1), C.P.C., pending an appeal, following V.S. Boopathy Chettiar v. Radha Rukmani. | The present court recorded the Madras decision but disagreed with it, noting that the Madras Division Bench did not refer to Shah Babulal Khimji which had exhaustively dealt with the matter. |
| V.S Boopathy Chettiar v. Radha Rukmani, 1984 TLNJ 92 | Authority followed by the Madras Division Bench in Rukmani to support maintainability of L.P.A. in the described circumstances. | The present court noted that Rukmani followed this authority but stated its inability to agree with the Madras view that relied on it without reference to Shah Babulal Khimji. |
Court's Reasoning and Analysis
The court undertook a focused review of precedent, in particular the Supreme Court's judgment in Shah Babulal Khimji v. Jayaben and the subsequent treatment of the issue in state High Court decisions. The analysis proceeded in these steps:
- The court considered the prior decision of Jagannadha Rao, J. (Amruthappa… v. Abdul Rasool….), which had examined various High Court authorities and relied on Shah Babulal Khimji to conclude that the Letters Patent Appeal does not lie in the circumstances in question. This court had previously agreed with that view in an earlier L.P.A. (No. 14/88).
- On reading Shah Babulal Khimji in full, the court observed that although some passages might superficially suggest that an L.P.A. could be maintainable, those passages were to be read in context: they addressed a distinct question (whether an appeal lies against an order by a single Judge exercising original jurisdiction), whereas the present question concerns appellate orders under Order 43, Rule 1 read with Section 104(1), C.P.C. The court emphasized the Supreme Court's ultimate conclusion that an L.P.A. does not lie in view of the bar in Section 104(2), C.P.C.
- The court noted corroborative authority in the Bombay High Court decision in Obedur Rehman v. Ahmedali Bharucha, which categorically held that such an L.P.A. is not maintainable and had relied on Shah Babulal Khimji.
- The court addressed the contrary view taken by the Madras High Court in Rukmani v. H.N. Thirumalai Chettiar (which followed V.S. Boopathy Chettiar v. Radha Rukmani) but observed that the Madras Division Bench did not consider Shah Babulal Khimji; accordingly, this court expressed its inability to agree with that view.
- On this basis, and without further elaboration on other decisions, the court concluded that the bar in Section 104(2), C.P.C. prevents the maintainability of a Letters Patent Appeal in the circumstances before it.
Holding and Implications
Holding: The Letters Patent Appeal fails and is dismissed. (Appeal dismissed.)
Implications:
- Direct effect: The appellants' L.P.A. is dismissed and no costs are awarded.
- The court followed and applied the Supreme Court's ratio in Shah Babulal Khimji and subsequent authoritative treatment (as noted in Jagannadha Rao, J. and the Bombay decision) to hold that Section 104(2), C.P.C. operates as a bar to the maintainability of a Letters Patent Appeal in the circumstances before the court.
- The court expressly disagreed with the Madras High Court view in Rukmani v. H.N. Thirumalai Chettiar, noting that that decision did not engage with Shah Babulal Khimji.
Source: Opinion excerpt delivered by Jayachandra Reddy, J., as provided. No additional materials or external facts were used in producing this summary.
Jayachandra Reddy, J.:— A very important question is again canvassed before us in this L.P.A before admission. The question is: Whether a Letters Patent Appeal lay to a Division Bench against an appellate order of a single Judge in an appeal under Order 43, Rule 1, C.P.C read with Section 104(1), CPC and whether Sec. 104(2), CPC was a bar to the maintainability of a Letters Patent Appeal under Clause 15 of the Letters Patent?
2. In Amruthappa… v. Abdul Rasool…., (1987) 2 APLJ (HC) 27 : (AIR 1988 Andh Pra 215), Jagannadha Rao, J. considered this question and he referred the judgments of various High Courts including the Bombay and Allahabad High Courts. One very important decision referred to by the learned Judge is Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786. The matter was argued before the learned Judge by a senior counsel and looks as though it is argued thoroughly and the learned Judge, after considering all the decisions and particularly relying on the ratio laid down in the Shah Babulal Khimji's case (supra), held that such a L.P.A does not lie. In L.P.A No. 14 88 a similar question was considered by us and by our order dated 16-2-1988. We agreed with the view taken by Jagannatha Rao, J.
3. In the present L.P.A the learned counsel for the appellants submits that the Supreme Court did not in so many words lay down that a L.P.A does not lie under those circumstances; but on the other hand there are observations to the effect that a L.P.A under those circumstances is maintainable. His submission again made us to go through the whole gamut of the reasoning given by the Supreme Court in Shah Babulal Khimji's case (supra). In that case the main judgment was delivered by Fazal Ali, J. (for himself and on behalf of A. Varadarajan, J.) and all the decisions rendered earlier by the Madras and Allahabad High Courts were also referred to and a careful reading of the judgment does not leave any doubt. However as contended by the learned counsel for the appellants, in certain passages there are indications that an appeal under Letters Patent Act lies. But these observations have to be understood in the background of the question that was considered by their Lordships viz., whether an appeal lie against an order by a single Judge of the High Court exercising original diction. But the question before us is different. So far this question is concerned, the ultimate conclusion of their Lordships is that a L.P.A does not lie in view of the bar of S. 104(2), C.P.C
4. It may not be necessary for us to deal further or deal with the various decisions referred to by the Supreme Court and Jagannadha Rao, J.
5. We may also add that a Division Bench of the Bombay High Court in Obedur Rehman v. Ahmedali Bharucha, AIR 1983 Bom 120, has categorically laid down that a L.P.A against an order of a learned single Judge dismissing appeal filed under S. 104, C.P.C against order refusing to grant temporary injunction, is not maintainable. In arriving at such a conclusion the Division Bench has placed reliance on the judgment of the Supreme Court in Shah Babulal Khimji's case (AIR 1981 SC 1786) (supra).
6. The learned counsel for the appellants however relies on a judgment of Madras High Court in Rukmani v. H.N Thirumalai Chettiar, AIR 1985 Mad 283. The Division Bench of Madras High Court following a judgment reported in V.S Boopathy Chettiar v. Radha Rukmani, 1984 TLNJ 92, however held that against an order passed by a single Judge under S. 104(1). C.P.C pending an appeal, L.P.A is maintainable. The Madras High Court has not referred to the decision of the Supreme Court in Shah Babulal Khimji (supra) which has exhaustively dealt with this aspect. We are unable to agree with the view taken by the Division Bench of Madras.
7. In the result the LPA fails and it is accordingly dismissed. No costs.
Appeal dismissed.
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