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Case Number

L.P.A No. 17 of 1988

Attorney(S)

Madhukar Soochak
A.V Savant with Saeed Akhtar

Judges

C. Mookerjee, C.J
C.S Dharmadhikari, J.

Acts

Section 104(1) read with Order XLIII, Rule 1 of the Code of Civil Procedure.
Order XLIII, Rule 1 and section 104 of the Code of Civil Procedure.3.
section 104 read with Order XLIII, Rule 1 of the Code.
section 104(1) of the Code of Civil Procedure, 1908,
sub-sections (1) and (2) of section 104 of the Code
section 104(2) of the Code of Civil Procedure
sub-section (2) of section 104 of the Code.
section 39(2) of the Arbitration Act, 1940.
section 104 read with Order XLIII, Rule 1
SECTION 104 CIVIL PROCEDURE CODE
provisions of section 104 of the Code
Order XXXIX, Rules 1 and 2 of the Code
Order IX, Rule 13 of the Code.
section 104(1) of the Code.4.
section 104(2) of the Code
section 104(1) of the Code
section 4 of the Code.
Order XLIII Rule 1

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Smart Summary

Structured Summary of the Opinion (Mookerjee, C.J.)

Factual and Procedural Background

This appeal was preferred against an order dated 9 March 1988 of Daud, J., which had allowed an appeal under section 104(1) of the Code of Civil Procedure, 1908, filed by the original Defendants Nos. 8 and 9 (Respondents Nos. 8 and 9). The order under appeal had itself been passed under Order XXXIX, Rules 1 and 2 of the Code by a learned Judge of the City Civil Court, Bombay, on the Plaintiffs'-Appellants' Notice of Motion. A preliminary objection to the maintainability of the Letters Patent Appeal was raised on behalf of the Respondents by Mr. Savant.

Legal Issues Presented

Whether a Letters Patent Appeal (Clause 15) lies against an order of a single Judge in an appeal governed by section 104(1) of the Code of Civil Procedure read with Order XLIII, Rule 1, or whether such an appeal is barred by section 104(2) of the Code.
Whether the question of maintainability of such Letters Patent Appeals (Clause 15) requires reference to a larger Bench in view of differing High Court decisions and earlier Supreme Court authority.

Arguments of the Parties

Respondents' Arguments (as presented in the opinion)

A preliminary objection was raised as to the maintainability of the present Letters Patent Appeal: the Respondents contended that the appeal is barred by section 104(2) of the Code of Civil Procedure (i.e., no appeal lies from an order passed in appeal under section 104).
The Respondents relied upon Division Bench decisions of this Court (Obedur Rehman v. Ahmedali Bharucha and Krishna Yeshwant Shirodkar v. Subhash Krishna Patil) holding that such appeals are barred and therefore the present appeal should fail on maintainability grounds without entering into merits.

Appellants' Arguments (as presented in the opinion)

The learned counsel for the Appellants submitted that, in view of Supreme Court decisions (Union of India v. Mohindra Supply Co. and Gulab Bai v. Puniya), the Court ought to refer the question of maintainability under Clause 15 of the Letters Patent to a larger Bench.
The Appellants relied on several other High Court decisions and submitted that, notwithstanding the bar under section 104(2), the right to prefer an appeal under Clause 15 had been preserved under section 4 of the Code (i.e., that Letters Patent appeals remain available).
The Appellants also relied upon a Division Bench of the Madras High Court (V.S. Boopathi Vijayaraghavan Chettiar v. C.S.B.B. Radha Rukmani Ammal) and a later Madras decision (Rukmani v. H.N. Thirumalai Chettiar) which had upheld, or preferred, the maintainability of certain Letters Patent Appeals.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Obedur Rehman v. Ahmedali Bharucha (1982 Mh.L.J 283; AIR 1983 Bombay 120)	Held that Clause 15 of the Letters Patent is subject to the provisions of section 104 of the Code and that section 104(2) bars appeals from orders passed in appeal under section 104.	The Division Bench decision was followed; the Court held it is bound by this view and applied it to conclude the present Letters Patent Appeal is barred under section 104(2).
Krishna Yeshwant Shirodkar v. Subhash Krishna Patil (Letters Patent Appeal No.129 of 1987; 1988 Mh.L.J 327)	Expressed a similar view that Letters Patent Appeals are not maintainable against orders of a single Judge in appeals governed by section 104(1), relying on the prohibitory scope of section 104(2).	The Court relied on this recent Division Bench judgment as further binding authority supporting dismissal for want of maintainability.
Union of India v. Mohindra Supply Co. (AIR 1962 SC 256)	Supreme Court decision relied upon by Appellants; in the Mohindra case the Court held an appeal under Clause 15 against an order of a single Judge in arbitration proceedings was barred under section 39(2) of the Arbitration Act, 1940. Reference was also made to the language of section 104 CPC.	The present Court observed that Mohindra Supply Co. did not make any pronouncement specifically on the maintainability of an appeal under section 104(1) of the Code; therefore it did not alter the conclusion that section 104(2) bars the present Letters Patent Appeal.
Gulab Bai v. Puniya (AIR 1966 SC 637)	Supreme Court decision concerning the scope and effect of sections 47 and 48 of the Rajasthan High Court Ordinance vis-à-vis appeals under the Guardians and Wards Act.	The Court noted that Gulab Bai did not address the scope and effect of sub-sections (1) and (2) of section 104 of the Code, and therefore it did not alter the present conclusion on maintainability under section 104.
Shah Babulal Khimji v. Jayaben ((1981) 4 SCC 8; AIR 1981 SC 1786)	Supreme Court considered earlier authorities (including Mohindra) and held there was no inconsistency between section 104 read with Order XLIII, Rule 1 and appeals under the Letters Patent; Letters Patent do not exclude or override application of section 104; Order XLIII, Rule 1 could apply by analogy.	The Court treated Shah Babulal Khimji as directly on point and binding. It relied on its reasoning to hold that a Letters Patent Appeal is not maintainable against an order of a single Judge in an appeal governed by section 104(1).
Charity Commissioner, Maharashtra State v. Rajendra Singh (1984 Mh.L.J 806)	Applied the view in Obedur Rehman that no Letters Patent Appeal lies against an order of a single Judge dismissing an appeal preferred under Order XLIII, Rule 1 and section 104 CPC.	The Court noted that Qazi and Vaze, JJ. had followed Obedur Rehman, supporting the conclusion that Letters Patent Appeals are barred in such circumstances.
V.S. Boopathi Vijayaraghavan Chettiar v. C.S.B.B. Radha Rukmani Ammal (Madras Letters Patent Appeal No. 6 of 1983; dated 19 Jan 1984)	Madras Division Bench upheld the maintainability of an appeal under Clause 15 of the Letters Patent against an order of a single Judge passed in an appeal arising from a subordinate court decision under Order IX, Rule 13.	The present Court recorded this decision but declined to follow it, noting the contrary and consistent view taken by this Court and that Shah Babulal Khimji had been declined to be followed by that Madras Bench.
Rukmani v. H.N. Thirumalai Chettiar (AIR 1985 Madras 283)	Madras decision that preferred the earlier Madras decision regarding maintainability of Letters Patent Appeals, reportedly without giving independent reasons.	The present Court noted the decision but was unable to follow it for reasons including binding authority to the contrary and absence of conflict between the relevant Supreme Court decisions.
Sattemma v. Vishnu Murthy (AIR 1964 A.P. 162)	Full Bench of Andhra Pradesh High Court decision, rendered before Shah Babulal Khimji, on questions including whether an order refusing review was a "judgment" within Clause 15; subject-matter involved Order XLVII.	The Court held this Full Bench decision was of no assistance to the present appeal because it pre-dated Shah Babulal Khimji and concerned a different provision (Order XLVII) and factual matrix.

Court's Reasoning and Analysis

The Court's legal analysis proceeded by examining the binding precedent and the statutory text before it:

The Court treated Shah Babulal Khimji (Supreme Court, 1981) as directly relevant and binding. That decision had examined earlier authorities, including Mohindra Supply Co., and concluded there was no inconsistency between section 104 read with Order XLIII, Rule 1 and appeals under the Letters Patent; it rejected the notion that Letters Patent exclude the application of section 104.
The Division Bench decisions of this High Court (Obedur Rehman and Krishna Yeshwant Shirodkar) were held to be binding on the present Court. Those decisions interpreted section 104(2) as materially prohibiting any further appeal from an order passed in appeal under section 104: the language of section 104(2) was read as prohibitive and to be strictly construed.
Applying these authorities, the Court reasoned that the order complained of was an order passed by a single Judge in an appeal governed by section 104 of the Code; accordingly, a Letters Patent Appeal against that order is barred under section 104(2).
The Appellants' reliance on Mohindra Supply Co. and Gulab Bai was analyzed. The Court observed that Mohindra concerned arbitration and section 39(2) of the Arbitration Act and made no pronouncement on a section 104(1) appeal; Gulab Bai did not determine the scope of sub-sections (1) and (2) of section 104. Therefore, those Supreme Court decisions did not advance the Appellants' argument for a right of appeal under Clause 15 in the present factual and statutory context.
The Court considered conflicting High Court decisions (Madras and Andhra Pradesh) but declined to follow the Madras Division Bench decisions which upheld maintainability, reiterating that there was no true conflict between the Supreme Court authorities and that this Court's prior Division Bench decisions were consistent with Shah Babulal Khimji.
On that basis, the Court accepted the Respondents' preliminary objection and concluded that the appeal must be dismissed for want of maintainability under section 104(2), without entering into the merits of the underlying order.

Holding and Implications

APPEAL DISMISSED.

Direct consequences (as stated in the opinion):

The preliminary objection to maintainability was upheld and the Letters Patent Appeal was dismissed on the ground that section 104(2) of the Code of Civil Procedure bars an appeal from an order passed in appeal under section 104.
There will be no order as to costs.
The Court refused the prayer for a certificate under Article 133 read with Article 134-A of the Constitution of India.

The decision follows existing Division Bench and Supreme Court authority (as discussed in the opinion) and applies those precedents to the facts; the opinion does not purport to establish a new, contrary precedent.

End of summary — prepared strictly from the text of the provided opinion.

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Pandey-Mishra & Company v. Anil Upendra Pitale And Others

Mookerjee, C.J:— Mr. Savant appearing on behalf of the Respondents has raised a preliminary objection as regards the maintainability of this Appeal preferred against the order dated 9th March 1988 of Daud, J. allowing the Appeal under section 104(1) of the Code of Civil Procedure, 1908, preferred by the original Defendants Nos. 8 and 9-Respondents Nos. 8 and 9 against the order under Order XXXIX, Rules 1 and 2 of the Code passed by the learned Judge, City Civil Court Bombay, upon the Plaintiffs'-Appellants' Notice of Motion. In view of the Division Bench decision of this Court in Obedur Rehman v. Ahmedali Bharucha, 1982 Mh.L.J 283 : AIR 1983 Bombay 120 and the recent Division Bench judgment in the case of Krishna Yeshwant Shirodkar v. Subhash Krishna Patil (Letters Patent Appeal No. 129 of 1987 disposed of on 10th Feburary 1988, reported in 1988 Mh.L.J 327) sitting in appeal, we are bound to take the same view that the present Appeal is barred under section 104(2) of the Code of Civil Procedure and therefore, the Appeal is liable to fail without entering into the merits of the order passed by the learned single Judge. The learned Counsel appearing for the Plaintiffs-Appellants has submitted that in view of the decisions of the Supreme Court in the case of Union Of India v. Mohindra Supply Co. , AIR 1962 SC 256 and Gulab Bai v. Puniya, AIR 1966 SC 637, we ought to refer to a larger Bench the determination of the question as regards maintainability under Clause 15 of the Letters Patent of Appeals against orders passed by a learned single Judge in appeals provided under section 104 read with Order XLIII, Rule 1 of the Code. He has also relied upon several other decisions of other High Courts in support of the submission that notwithstanding the bar under sub-section (2) of section 104 of the Code, right to prefer such an appeal under Clause 15 has been preserved under section 4 of the Code. In spite of very persuasive submissions made on behalf of the Appellants, we are unable to accept the contention of the learned Counsel for the Appellants that the Supreme Court decision in the case of Shah Babulal Khimji v. Jayaben, (1981) 4 SCC 8 : AIR 1981 SC 1786, was contrary to the earlier Supreme Court decision in the cases of Union Of India v. Mohindra Supply Co. (AIR 1962 SC 256) and Gulab Bai v. Puntya (AIR 1966 SC 637). In the present case before us, it is unnecessary for us to consider a situation in which the High Court is called upon to decide whether it ought to follow the later Supreme Court decision rendered by smaller number of Judges or the earlier Supreme Court decision given by a larger Bench, because the Supreme Court in the case of Shah Babulal Khimji v. Jayaben ((1981) 4 SCC 8 : AIR 1981 SC 1786) among a very large number of cases had considered its earlier decision in Union Of India v. Mohindra Supply Co. (AIR 1962 SC 256). Fazal Ali, J., who delivered the judgment, upon consideration of the judicial precedents and the various provisions of law at page 1807 of the report had recorded the conclusions of the Court. He inter alia held that there was no inconsistency between section 104 read with Order XLIII, Rule 1 and the appeals under the Letters Patent and there was nothing to show that the Letters Patent in any way excluded or overrode the application of section 104 read with Order XLIII,, Rule 1 or to show that these provisions would not apply to internal appeals within the High Court. Alternatively, by process of analogy, Order XLIII Rule 1 was held applicable to such appeals. Their Lordships further held mat the concept of the Letters Patent governing only the internal appeals in the High Court and the Code of Civil Procedure having no application to such appeals was based on a serious misconception of the legal position.

2. So far as this Court is concerned, the point as to whether the ratio of the Supreme Court decision in Shah Babulal Khimji v. Jayaben ((1981) 4 SCC 8 : AIR 1981 SC 1786) would apply to appeals preferred to the Division Bench against orders passed by a single Judge in appeals taken under section 104(1) of the Code is no longer res Integra. Not only because they are binding upon us but also because we agree with the reasonings given by the Division Bench judgment of this Court, vide Obedur Rehman v. Ahmedali Bharucha (supra), and the recent Division Bench judgment in the case of Krishna Yeshwant Shirodkar v. Subhash Krishna Patil (supra) we hold that this Letters Patent Appeal is not maintainable against the order of the learned single Judge upon an appeal preferred under Section 104(1) read with Order XLIII, Rule 1 of the Code of Civil Procedure. In the case of Obedur Rehman v. Ahmedali Bharucha (supra), it was clearly held that so far as Clause 15 of the Letters Patent was concerned, the provisions of section 104 of the Code were attracted and were applicable to Letters Patent Appeals also because Letters Patent Appeals could not be said to be exceptions to the overriding provisions of the Code of Civil Procedure. Relying upon the case of Shah Babulal Khimji v. Jayaben ((1981) 4 SCC 8 : AIR 1981 SC 1786), the Division Bench in paragraph 8 of their judgment had observed that the plain reading of section 104(2) of the Code would show mat no appeal shall lie from any order passed in appeal under the said section. The section was prohibitive and the provisions of the said section under the general principles of interpretation of statute must be construed strictly. The order complained of in the Letters Patent Appeal was an order passed by the single Judge in appeal governed by section 104 of the code and, therefore, the Letters Patent Appeal was certainly prohibited under sub-section (2) of section 104 of the Code. Similar view was taken by Jahagirdar and Sugla, JJ. in the case of Krishna Yeshwant Shirodkar v. Subhash Krishna Patil (supra). Qazi and Vaze, JJ. in Charity Commissioner, Maharashtra State v. Rajendra singh, 1984 Mh.L.J 806, had followed the decision in Obedur Rehman v. Ahmedali Bharucha, (supra), and had held that no Letters Patent Appeal lies against an order of the single Judge dismissing appeal preferred under Order XLIII, Rule 1 and section 104 of the code of Civil Procedure.

3. The learned Counsel appearing on behalf of the Appellants has relied upon the decicion of a Division Bench of the Madras High Court in the case of V.S Boopathi Vijayaraghavan Chettiar v. C.S.B.B Radha Rukmani Ammal (Letters Patent Appeal No. 6 of 1983 dated 19th January 1984), which had upheld the maintainability of an appeal under Clause 15 of the Letters Patent preferred against an order of the single Judge passed in an appeal arising from the decision of the subordinate Court under Order IX, Rule 13 of the Code. The Division Bench of the Madras High Court had declined to follow the Supreme Court decision in the case of Shah Babulal Khimji v. Jayaben ((1981) 4 SCC 8 : AIR 1981 SC 1786), corresponding to (1981) 4 SCC 8 upon the view that the earlier Supreme Court decision in the case of Union Of India v. Mohindra Supply Co. (AIR 1962 SC 256) being by a larger Bench ought to be preferred. A later decision of the Madras High Court in the case of Rukmani v. H.N Thirumalai Chettiar, AIR 1985 Madras 283, without practically giving any independent reasons had preferred to follow the earlier decision of the Madras High Court in the Letters Patent Appeal mentioned hereinabove. With respect, we are unable to follow the aforesaid two decisions of the Madras High Court not only because of the contrary view consistently taken by this Court on the question of maintainability of appeals under Clause 15 of the Letters Patent against orders passed in appeals under section 104(1) of the Code but also because there is really no conflict of views between the earlier and the later Supreme Court decisions. We have already mentioned that the Supreme Court in the case of Shah Babulal Khimji v. Jayaben ((1981) 4 SCC 8 : AIR 1981 SC 1786) had noticed and considered the decision in the case of Union Of India v. Mohindra Supply Co. (AIR 1062 SC 256). In the case of Union Of India v. Mohindra Supply Co. (AIR 1962 SC 256) the Supreme Court held that an appeal under Clause 15 against an order of a single Judge in arbitration proceedings was barred under section 39(2) of the Arbitration Act, 1940. In Mohindra Supply Co.'s case, no doubt reference had been made to the language of section 104 of the Civil Procedure Code, but in the said case of Union Of India v. Mohindra Supply Co. (AIR 1962 SC 256) no pronouncement was made as regards the maintainability or otherwise of ah appeal against an order made under section 104(1) of the Code.

4. In the case of Gulab Bai v. Puniya (AIR 1966 SC 637) the Supreme Court again had considered the scope and effect of sections 47 and 48 of Rajasthan High Court Ordinance vis a vis an appeal under the Guardians and Wards Act. Therefore, the scope and effect of sub-sections (1) and (2) of section 104 of the Code did not come up for determination in the case of Gulab Bai v. Puniya (AIR 1966 SC 637) and as has been stated, the Supreme Court in the case of Shah Babulal Khimji v. Jayaben ((1981) 4 SCC 8 : AIR 1981 SC 1786) had directly considered the point and had answered the same against the Appellant

5. The Full Bench decision of the Andhra Pradesh High Court in the case of Sattemma v. Vishnu Murthy, AIR 1964 A.P 162, which was relied upon by the learned Counsel for the Appellants, with respect, is of no assistance to us in deciding the point at issue in this Appeal The Full Bench had rendered their decision at a point of time when the Supreme Court had not yet delivered their judgment in (1981) 4 SCC 8 : AIR 1981 SC 1786 explaining the scope and effect of their earlier decision in the case of Union Of India v. Mohindra Supply Co. (AIR 1962 SC 256). Secondly, the subject-matter of the appeal under Clause 15 of the Letters Patent before the Full Bench of the Andhra Pradesh High Court was an order passed under Order XLVII of the Code. Therefore, it is unnecessary for us to consider whether the Full Bench of the Andhra Pradesh High Court had correctly held that a decision refusing to review an order is a judgment within the meaning of Clause 15 of the Letters Patent.

6. For the foregoing reasons, we uphold the preliminary objection raised on behalf of the Respondents and dismiss this Appeal. There will be no order as to costs.

7. Prayer for a certificate under Article 133 read with Article 134-A of the Constitution of India is made and we refuse the same.

Appeal dismissed.

Pandey-Mishra & Company v. Anil Upendra Pitale And Others

Structured Summary of the Opinion (Mookerjee, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' Arguments (as presented in the opinion)

Appellants' Arguments (as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Pandey-Mishra & Company v. Anil Upendra Pitale And Others

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