Employees' State Insurance Corporation And Others v. Shanmugha Theatres, Coimbatore, And Others, Madras High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
(1997) 3 SCC 462 : A.I.R. 1997 S.C. 978 (New Kenilworth Hotel v. Orissa State Finance Corporation)	The Court treated this decision as an instance where the Supreme Court held a Letters Patent Appeal was not maintainable because the Single Judge had exercised appellate jurisdiction under S.104(1) CPC and S.104(2) barred further appeal.	The Court distinguished this decision on the ground that it dealt with S.104(2) CPC curtailing further appeals; used it to show there is no conflict with Shah Babulal Khimji (1981) because New Kenilworth was a S.104(2) case.
1997 (1) C.T.C. 210 (M. Lakshmi Narayanan v. Chairman, O.N.G.C.)	The opinion lists this case among those cited by counsel supporting maintainability; no specific rule is extracted in the provided text beyond its citation.	Cited by the Additional Solicitor-General in support of the proposition that a Letters Patent Appeal under Clause 15 may be competent; the Court recorded the citation as part of submissions in favour of maintainability.
L.P.A. No. 112 of 1995 (decision dated 6.4.1995)	The opinion lists this authority as cited; no specific principle is described in the provided text.	Referred to in the list of decisions aligning with the view that certain LPA maintainability questions have been addressed by Division Benches of the High Court.
(1996) 4 SCC 411 : A.I.R. 1996 S.C. 2131 (State of Maharashtra v. Mahboob S. Allibhoy)	Holds that no appeal is maintainable against an order dropping proceedings for contempt or refusing to initiate contempt proceedings (interpretation of S.19 Contempt of Courts Act).	Used to illustrate that in the contempt jurisdiction context, appeals may be barred; Court treated it as supporting the non-applicability of LPA in contempt-related orders of that nature.
1996 (2) L.W. 117 (T. Marappan v. Executive Engineer)	Listed among decisions where Division Benches took the view that certain Letters Patent Appeals were not maintainable (context: contempt/other special proceedings); no detailed rule extracted in the provided text.	Cited by the Court as authority where the Division Bench dismissed a Letters Patent Appeal as not maintainable; used as contextual support for exceptions.
(1996) 1 SCC 49 (Resham Singh Pyara Singh v. Abdul Sattar)	Holds that no appeal shall lie from any order passed in appeal under S.104(2) CPC; i.e., a statute can bar a further appeal by express provision.	Relied upon by respondent counsel to contend that where a statute expressly bars further appeal, LPA cannot be invoked; the Court accepted that this principle applies in S.104(2) situations and distinguished that from S.82 ESI Act.
1993 (2) L.W. 225 (R. Rajagopal v. M.P. Chellamuthu)	Decision discussing maintainability of LPA in contempt-related proceedings; the opinion recounts the Division Bench's approach to maintainability in that contempt context.	Used as context for the line of authorities on the question whether LPA lies in contempt matters; the Court noted the different outcomes depending on statutory wording.
1991 (2) L.W. 295 (Vidya Charan Shukla v. Tamil Nadu Olympic Association)	Listed as one of the Division Bench decisions taking the view that certain LPA appeals (in contempt/other special proceedings) were not maintainable; no detailed principle in the provided text.	Cited to show that three other Division Benches had taken a similar negative view in certain contexts; used for comparative purposes.
1991 Crl L.J. 3026 (Shantha V. Pai v. Vasanth Builders)	Held that the trial Court's order refusing to commit for contempt is not appealable as of right under Clause 15; i.e., contempt refusal may not be a "judgment" within Clause 15.	Relied upon by respondent counsel to support the proposition that contempt jurisdiction orders refusing committal are not appealable under Clause 15; Court treated it as authority relevant to contempt exceptions.
1990 A.C.J. 550 (Patna High Court decision)	Interpreted Clause 10 of Patna Letters Patent (pari materia with Clause 15 elsewhere) and held that where statute confers appellate jurisdiction to the High Court without finality, the appeal decided in terms of the statute becomes a "judgment" within the meaning of the Letters Patent; the right of internal appeal cannot be curtailed unless excluded by charter or statute.	The Court relied on this decision to show that, absent an express or necessary implication to the contrary, a right of intra-court appeal provided in the Letters Patent is not cut down by a statute merely conferring an appellate jurisdiction to the High Court.
(1988) 4 SCC 402 : A.I.R. 1988 S.C. 2010 (Vijay Prakash and Jawahar v. Collector of Customs (Preventive), Bombay)	Explains that statutory right of appeal can be made conditional (example: Customs Act requires deposit as condition); a statutory appellate right can be circumscribed by conditions in the statute.	Cited by respondents to illustrate that a statutory right of appeal may be conditional and that conditions in the grant may affect the availability of the right; Court acknowledged the principle but considered its inapplicability to S.82 which does not impose such a condition.
(1988) 2 SCC 1 : A.I.R. 1988 S.C. 915 (Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhandarsinhji Solanki)	Held that Clause 15 of the Letters Patent could not be extended to appeals arising under a special statutory scheme (election petitions under Representation of the People Act) because the statute conferred a special jurisdiction and limited appeals accordingly.	The Court noted this authority to show that when a statute creates a special jurisdiction and limits appeals, Clause 15 cannot be extended; it used the case to distinguish contexts where statutory limitations operate (e.g., election petitions) from the present S.82 context.
1986 Supp SCC 401 : A.I.R. 1986 S.C. 1272 (Umaji Keshao Meshram v. Radhikabai)	Considered whether a Clause 15 appeal lies from a Single Judge's decision on petitions under Articles 226/227; clarified the separate nature of Arts.226/227 and the circumstances in which Clause 15 applies.	Relied upon to explain the scope of intra-court appeals from writ proceedings; Court referenced it while discussing Article 226/227 jurisprudence and the limited fields where Clause 15 may or may not apply.
A.I.R. 1984 Bom. 478 (Charity Commissioner, Bombay v. Rajendra Singh)	Bombay High Court decision consistent with the position that certain appellate bars (e.g., S.104(2)-type bars) can affect maintainability of further intra-court appeals.	Referred to by respondent counsel as one of the authorities supportive of restrictions on LPA in particular statutory contexts.
A.I.R. 1983 Bom. 120 (Obedur Rehman v. Ahmedali Bharucha)	Held that S.104(2) applies to Letters Patent Appeals as well and therefore such LPA against a Single Judge's appellate order under S.104 are not maintainable.	Cited by respondents to support the proposition that S.104(2) can bar LPA; the Court discussed this line of reasoning and distinguished cases where S.104(2) was relevant.
(1981) 4 SCC 8 : A.I.R. 1981 S.C. 1786 (Shah Babulal Khimji v. Jayaben D. Kania)	Holds that when a Single Judge decides a controversy affecting valuable rights or matters of moment, such an order is a "judgment" within the meaning of Clause 15 and is appealable via Letters Patent; interlocutory orders may be "judgments" if they affect vital rights.	Relied upon heavily by the Court as foundational authority supporting the proposition that many interlocutory orders (e.g., refusal to grant injunction or receiver) can be "judgments" and therefore fall within Clause 15 intra-court appeal scope.
(1974) 2 SCC 492 : A.I.R. 1974 S.C. 2048	Listed in the opinion among cited authorities (specific principle not extracted in the provided text).	Included in the list of authorities; the provided text does not record a detailed application beyond citation.
A.I.R. 1971 P & H. 13 (Shanti Devi v. General Manager, Haryana Roadways)	Punjab & Haryana High Court held that a Letters Patent Appeal will be maintainable from a Single Judge's judgment under Clause 10/15 in that High Court's Letters Patent context.	Used as another instance where intra-court LPA was held maintainable; Court cited it to demonstrate consensus among High Courts on the principle absent statutory exclusion.
(1969) 1 SCC 233 : A.I.R. 1970 S.C. 891 (Tarapore & Co. / Tractoro Export cases)	Supreme Court considered appeals from interlocutory orders and recognized circumstances where interim orders may attract Supreme Court intervention where substantial legal principles are involved.	Referred to as historical Supreme Court authority showing that interlocutory orders (including interlocutory injunctions) have been subject to appellate scrutiny and, in exceptional circumstances, to Supreme Court intervention; used to support the longstanding practice of LPA from interlocutory orders.
A.I.R. 1970 Del. 37 (Municipal Corporation of Delhi v. Kuldip Lal Bhandari)	Held that an appeal lies to a Division Bench under the Letters Patent from a Single Judge's judgment made under statutory provision (Motor Vehicles Act S.110-D), characterizing the High Court as acting as a Court (not a Tribunal) in such appeals.	Used to illustrate that where a statute provides an appeal to the High Court, the High Court's ordinary appellate character may permit intra-court appeals unless the statute curtails them.
(1969) 82 L.W. 361 (V/O Tractoro Export, Moscow v. Tarapore and Company)	Illustrates High Court practice of entertaining appeals from interlocutory orders under Clause 15 for many decades.	Invoked to demonstrate long-standing practice in the Madras High Court of permitting LPA against interlocutory orders.
A.I.R. 1968 S.C. 384 (Collector, Varanasi v. Gauri Shanker)	Constitution Bench decision on nature of High Court functioning as a Court while acting under certain statutory appeals; cited in context with other authorities.	Cited as part of a cluster of Supreme Court precedents supporting the proposition that a High Court is to be treated as a Court in such appellate contexts; used for comparative purposes in the reasoning.
A.I.R. 1965 S.C. 1442 (S.A. Industries (P) Ltd. v. Sarup Singh)	Holds that where a statute gives a right of appeal to the High Court without limitation, the appeal to the High Court will be regulated by the High Court's practice and procedure; the High Court's rules (and Letters Patent) apply unless the statute takes away such rights expressly or by necessary implication.	The Court explicitly relied on this authority to support its conclusion that S.82's grant of appeal to the High Court does not by itself preclude the operation of Clause 15 unless S.82 expressly or by necessary implication excludes it.
A.I.R. 1965 Pat. 472 (Asho Devi v. Dukhi Sao)	Full Bench of Patna H.C. opined LPA from first appellate judgment of Single Judge is controlled by S.100 CPC; later reversed by the Supreme Court (1974) — the opinion references it in discussion of appellate control.	Referred to in the historical survey of conflicting approaches; Court noted the subsequent Supreme Court reversal of the Full Bench view.
A.I.R. 1962 S.C. 256 (Union of India v. Mohindra Supply Co.)	Supreme Court decision disapproving a Full Bench of Madras that had allowed Clause 15 appeals in certain arbitration contexts; used in the discussion about arbitrations and appeals.	Cited in connection with the interaction between statutory appeal bars (e.g., in Arbitration Act) and Clause 15; the Court recited the history and that Supreme Court disapproved some Full Bench positions.
A.I.R. 1962 Mad. 52 (Penugonda Radhakrishnamurthy v. Ethirajulu Chetry / Kevelchand Daga v. Girdhardoss)	Full Bench Madras decisions concerning whether Clause 15 appeals lie from orders under the Arbitration Act; used to demonstrate evolving positions.	Referred to in the discussion of conflicting Full Bench decisions and subsequent Supreme Court authority; the Court recounted how later Supreme Court authority displaced some Full Bench conclusions.
A.I.R. 1958 S.C. 947 (Hanskumar Kishan Chand v. Union of India)	One of the Supreme Court authorities cited in the historical survey of cases concerning whether High Court acts as a Court (and the applicability of Letters Patent appeals) in statutory appeals.	Cited as part of the jurisprudential background; Court noted this decision and its relation to later conflicting decisions.
A.I.R. 1953 S.C. 357 (National Sewing Thread Co. Ltd. v. James Chadwick Brothers Ltd.)	Three-Judge Bench holding that when a statute vests an appeal in the High Court, the appeal must be regulated by the practice and procedure of the High Court and that a Single Judge's judgment, when exercising the appellate jurisdiction conferred by statute, becomes subject to intra-court appeal under the Letters Patent unless the statute provides otherwise.	Crucial authority relied upon by the Court and by the Additional Solicitor-General to support the proposition that S.82 appeals to the High Court should be governed by the High Court's practice and are amenable to Clause 15 intra-court appeal unless expressly excluded by statute.
A.I.R. 1953 S.C. 198 (Asrumati Debi v. Rupendra Deb)	Held that an order for transfer of a suit under Clause 13 of Letters Patent is not a "judgment" within Clause 15 and is not appealable.	Referred to by respondents to show categories of interlocutory orders that are not "judgments" within Clause 15; Court acknowledged this precedent in delineating the contours of "judgment."
A.I.R. 1949 Mad. 481 (S.M. Nathaniel, In re)	Full Bench observations (Madras) discussing maintainability objections to appeals based on legislative validity and noting long practice of appeals being entertained without objection.	Cited by the Court to underline historical practice and the propriety (or impropriety) of belatedly raising maintainability objections after long practice.
A.I.R. 1948 P.C. 12 (Adaikappa Chettiar v. Chandresekhara Thevar)	Privy Council authority stating that where ordinary courts are seized of a legal right dispute, ordinary procedural incidents and appeals attach even if the rights arise under a special statute.	Cited by the Court (through counsel's submissions) to support the broad proposition that statutory appeals to High Court are ordinarily regulated by ordinary High Court practice and that Letters Patent appeals may follow unless excluded.
A.I.R. 1947 Cal. 49 (India Electric Works Ltd. v. Registrar of Trade Marks)	Referenced in the National Sewing Thread discussion; the opinion records that older precedents were overruled by later decisions (context: treatment of S.108 / Letters Patent references).	Mentioned in the chain of authorities exploring the effect of statutes conferring appellate jurisdiction and the continued relevance of Letters Patent appeal incidentality.
A.I.R. 1945 Mad. 184 (Penugonda Radhakrishnamurthy v. Ethirajulu Chetry)	Madras Division Bench decision concerning appeals under the Arbitration Act; cited in the historical survey.	Referenced as part of the jurisprudential history on the interaction between statutory appeal limitations and Clause 15; used for comparative purposes.
A.I.R. 1936 P.C. 93 (Hem Singh v. Shiromani Gurudwara Parbandhak Committee)	Privy Council observations cited to support the view that ordinary procedural incidents (including appeals) attach when ordinary courts are seized with disputes, even if arising under special statutes.	Cited in counsel submissions and in the Court's survey of authorities supporting the general proposition favouring applicability of Clause 15 where statute does not clearly oust it.
A.I.R. 1916 P.C. 21 (Secretary of State for India v. Chellikam Rama Rao)	Privy Council decision holding that when proceedings reach ordinary courts, ordinary Civil Procedure rules and incidents (including appeals) apply; used to show historical acceptance of intra-court appeal incidentality.	Invoked by the Court (via counsel) as foundational historical authority supporting the principle that Letters Patent appeals attach when a statute gives an appeal to a High Court.
(1913) A.C. 546 (National Telephone Company, Ltd. v. His Majesty's Postmaster-General)	Lord Haldane's statement that referring matters to an established Court "without more" imports the attachment of ordinary incidents of procedure, including general rights of appeal.	Cited to fortify the proposition that a bare statutory referral to an established court typically brings with it the court's ordinary procedural incidents and appeal rights.
(1912) I.L.R. 35 Mad. 1 (T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar — Full Bench)	Full Bench definition of "judgment" within Clause 15: a decision whose effect is to put an end to the suit or proceeding before the Court making it (or to do so if uncomplied with); interlocutory judgments may be included but not mere interlocutory orders.	Adopted by the Court as the accepted test for whether an adjudication is a "judgment" under Clause 15; used as a principal yardstick in concluding that many orders in S.82 appeals qualify as "judgments" amenable to Clause 15 appeals.
(1888) I.L.R. 11 Mad. 309 (Katnaraju v. Secretary of State for India)	Full Bench Madras decision to the effect that an appeal lies to High Court from decision of District Court under Forest Act; supports the presumption against taking away substantive appellate rights by implication.	Cited as historical support for the proposition that a presumption exists against depriving parties of appellate rights by mere implication; the Court used it in the survey of historical authorities.

Cases referred: Paras. 1. (1997) 3 SCC 462 : A.I.R 1997 S.C 978 31, 32 and 49 2. 1997 (1) C.T.C 210 13 and 22 3. L.P.A NO. 112 of 1995, decided on 6.4.1995 22 4. (1996) 4 SCC 411 : A.I.R 1996 S.C 2131 27 5. 1996 (2) L.W 117 22 6. (1996) 1 SCC 49 28 and 31 7. 1993 (2) L.W 225 26 8. 1991 (2) L.W 295 22 9. 1991 Crl L.J 3026 25 10. 1990 A.C.J 550 13, 18 and 21 11. (1988) 4 SCC 402 : A.I.R 1988 S.C 2010 24 12. (1988) 2 SCC 1 : A.I.R 1988 S.C 915 13 and 17 13. 1986 Supp SCC 401 : A.I.R 1986 S.C 1272 33 14. A.I.R 1984 Bom. 478 29 15. A.I.R 1983 Bom. 120 34 16. (1981) 4 SCC 8 : A.I.R 1981 S.C 1786 13, 16, 17, 31, 32 and 49 17. (1974) 2 SCC 492 : A.I.R 1974 S.C 2048 51 18. A.I.R 1971 P & H. 13 20 19. (1969) 1 SCC 233 : A.I.R 1970 S.C 891 48 20. A.I.R 1970 Del. 37 19 21. (1969) 82 L.W 361 47 22. A.I.R 1968 S.C 384 41 23. A.I.R 1965 S.C 1442 50 24. A.I.R 1965 Pat. 472 51 25. A.I.R 1962 S.C 256 42 and 43 26. A.I.R 1962 Mad. 52 42 and 43 27. A.I.R 1958 S.C 947 41 28. A.I.R 1953 S.C 357 13. 14, 40, 41 and 50 29. A.I.R 1953 S.C 198 30 30. A.I.R 1949 Mad 481 11 31. A.I.R 1948 P.C 12 39 32. A.I.R 1947 Cal. 49 15 33. A.I.R 1945 Mad. 184 42 34. A.I.R 1936 P.C 93 38 35. A.I.R 1916 P.C 21 37, 38 and 41 36. (1913) A.C 546 36 37. (1912) I.L.R 35 Mad. 1 32, 45, 47 and 49 38. (1888) I.L.R 11 Mad. 309 35 and 37

For Appellant.— Sri G. Masilamani, Additional Solicitor-General for Southern States, Ms Radha Srinivasan and Sri Josophath.

For Respondents.— Sri S.R Sundaram, Sri Ibrahim Kalifullah, Sri A. Krishnan Rao, Sri S. Gopalarathnam and Sri G. Subramaniam.

The Judgment of the Court was delivered by

Lakshmanan, J.:— Letters Patent Appeal No. 53 of 1993 was filed by the Employees' State Insurance Corporation (hereinafter referred to as the Corporation) against the judgment and decree of a learned Single Judge of this Court, dated 16 December 1991, in C.M.A No. 554 of 1985 dismissing the appeal filed by the Corporation against the order of the Principal District Judge, Coimbatore, in E.S.I.O.P No. 283 of 1983.

2. L.P.A No. 179 of 1993 was filed by the Proprietor of Madras Type Foundry against the judgment and decree of a learned Single Judge of this Court, dated 24 October 1991, in C.M.A No. 469 of 1984 dismissing the appeal filed against the order of the First Additional District Judge, City Civil Court, Madras, in E.S.I.O.P No. 26 of 1983.

3. L.P.A No. 148 of 1995 was filed by the Corporation against the judgment and decree of a learned Single Judge of this Court, dated 7 September 1994, in C.M.A No. 933 of 1986 dismissing the appeal filed against the order of the First Additional Judge, City Civil Court, Madras, in E.S.I.O.P No. 59 of 1983.

4. L.P.A No. 257 of 1995 was filed by the Corporation against the judgment and decree of a learned Single Judge of this Court, dated 3 April 1995, in C.M.A No. 908 of 1986 allowing the appeal filed by Devi Designers and Decorators, Madras 41, against the order of the First Additional Judge, City Civil Court, Madras, in E.S.I.O.P No. 14 of 1985.

5. When these appeals were taken up for hearing, Sri S.R Sundaram, learned counsel appearing for the respondent, in L.P.A No. 53 of 1993, raised a preliminary objection to the maintainability of the Letters Patent Appeals under Cl. 15 of the Letters Patent.

6. On 18 February 1997, when L.P.As Nos. 148 and 257 of 1995 came up for hearing before us, we passed the following order:

“Both the Letters Patent Appeals were filed by the Employees' State Insurance Corporation by its Regional Director against that order in C.M.A No. 933 of 1986, dated 7 September 1994 and C.M.A No. 908 of 1986, dated 3 April 1995. When the appeals were listed for hearing, learned counsel for the respondent in both the appeals filed a memo raising an objection about the maintainability of the Letters Patent Appeals under Cl. 15 of the Letters Patent and that the learned counsel for the respondent intends to raise the above issue as a preliminary issue by virtue of S. 82 of the Employees' State Insurance Act. In the memo filed in L.PA No. 257 of 1986, apart from raising the plea of maintainability under Cl. 15 of the Letters Patent, another objection has also been raised by the counsel for the respondent stating that the appellant/Employees' State Insurance Corporation has not obtained leave to prefer the above appeal from the learned Single Judge in pursuance of rule 28 of the Appellate Side Rules. Since it is a question of law of public importance, we issue notice to the Additional-Solicitor-General, Southern Region, Madras, Sri G. Masilamani, and also to the Presidents of the Madras Bar Association, the Madras High Court Advocate Association requesting them to assist the Court in deciding the question of maintainability of the Letters Patent appeal under Cl. 15 of the Letters Patent against the order passed by the learned Single Judge of this Court in an appeal filed under S. 82 of the Employees' State Insurance Act. We also request the learned senior counsel who are willing, to assist the Court.

Post the appeals on 27 February 1997.”

7. The Employees' State Insurance Act, 1948 (Act 34 of 1948) (hereinafter referred to as the Act), was enacted by the Dominion Legislature and was assented to by the Governor-General of India on 19 April 1948. Under S. 1(3) of the Act, that Act was brought into force by notification in the Official Gazette. From Vol. 18 of the Civil Court Manual published by the Madras Law Journal, it found that Chaps. 1, 2, 3 and 8 of the Act came into force on 1 September 1948 in all the provinces in India and Ss. 77 to 79 and 81 of Chap. 6 came into force in the whole of India except Jammu and Kashmir on 1 September 1952. It is, however, not possible to ascertain when S. 82 of the Act was brought into force:

8. In this case, we are concerned with S. 82 of the Act and Cl. 15 of the Letters Patent. Section 82 of the Act reads thus:

“82. Appeal.— (1) Save as expressly provided in this section, no appeal shall he from an order of an Employees' Insurance Court.

(2) An appeal shall lie to the High Court from an order of an Employees' Court if it involves a substantial question of law.

(3) The period pf limitation for an appeal under this section shall be sixty days.

(4) The provisions of Ss. 5 and 12 of the Limitation Act, 1963 (36 of 1963), shall apply to appeals under this section.”

9. Clause 15 of the Letters Patent reads thus:

“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, from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellant 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 the exercise of the power of superintendence under the provisions of S. 17 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 S. 108 of the Government of India Act, and that notwithstanding anything herein before 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 any Division Court, pursuant to S. 108 of the Government of India Act made (on or after the 1st day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made 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 case is a fit one for appeal, but that the right of appeal from other judgment of Judges of the said High Court or of such Division Court shall be to us. Our heirs of successors in our or their Privy Council, as hereinafter provided.”

10. Under S. 82 of the Act, an appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves a substantial question of law. The period of limitation shall be sixty days for an appeal. Section 82(2) of the Act has been operative in this country almost for the last more than forty years. Numerous appeals under this provision have come before this Court during this period of nearly more than forty years and the appeals therefrom under Cl. 15 of the Letters Patent have been filed by both the employers and the Corporation alike and have been heard and disposed of without any objection taken to their maintainability.

11. In this connection, we are remained of the observations made by P.V Rajamannar, C. J., when presiding over a Full Bench of this Court on 12 November 1948. That judgment is reported in S.M Nathaniel, In re [A.I.R 1949 Mad. 481]. Says the learned Chief Justice as under:

“It was a matter for surprise that the objection to the maintainability of the appeal based on an attack on the validity of Act XXVI of 1943 should have been taken on behalf of the Government S. 411-A had been inserted by that Act and has remained in force for nearly five years, without any objection being taken to its validity. Several appeals including appeals by the Madras Government have been preferred and disposed of on the footing that the new section had been validly inserted in the code. There was no apparent reason why after the lapse of such a long period the Provincial Government should have suddenly raised this objection. Apart, however, from the lapse of time, there is one circumstance which calls for particular comment. Before the passing of the Act, the Provincial Government was consulted, and it was also at the desire and with the content of this Provincial Government among other Government that the impugned legislation was undertaken by the Central Legislature. Having practically invited the Central Legislature to pass the Act in question, it was not proper on their part to have now raised this objection. Presumably the provisional Government was aware of what had taken place before the passing of the Act. But the learned Advocate-General was unable to explain why in spite of that, the Government now insisted on taking this objection to the maintainability of the appeals. He did not say that in the opinion of the Provincial Government such a right of appeal as has been conferred by S. 411-A should not have been conferred. If that were not so, I fail to see why this objection was taken.”

12. The novelty of a point is no reason to refuse to consider it and render our decision on it. We, therefore, decided to hear the views of the members of the Bar on this important question of law raised by the learned counsel for the employer and the respondent in one of the appeals filed by the Corporation. We requested Sri G. Subramaniam, learned senior counsel, who happened to be present in the Court Hall at that time, to assist us to decide the above question. We directed the Registry to notify Sri G. Masilamani, Additional-Solicitor-General, Southern Region, the Madras Bar Association, the Madras High Court Advocate Association and the Women Lawyers Association to be present at the hearing and address arguments. We have heard submissions from the learned counsel who have entered appearance in these batch of appeals, as also from Sri G. Masilamani, learned Additional Solicitor-General, Southern Region. Sri G. Subramaniam. learned senior counsel, Sri S. Gopalaratnam, learned senior counsel on behalf or the Madras Bar Association and Sri A. Krishna Rao.

13. Sri G. Masilamani, learned Additional Solicitor-General, Southern Region, submitted that an appeal under Cl. 15 of the Letters Patent was competent in the instant case. He drew our attention to the following decisions in support of his argument. They are reported in National Sewing Thread Company, Ltd. v. James Chadwick Brothers, Ltd. [A.I.R 1953 S.C 357], Shah Babulal Khimji v. Jayaben D. Kania [(1981) 4 SCC 8 : A.I.R 1981 S.C 1786]; Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhandarsinhji Solanki [(1988) 2 SCC 1 : A.I.R 1988 S.C 915], General Manager Hazaribath Area of Central Coalfields, Ltd. v. Anjan Banerjee [1990 A.C.J 550] and M. Lakshmi Narayanan v. Chairman, Oil and Natural Gas Commission [1997 (1) C.T.C 210].

14. The judgment in A.I.R 1953 S.C 357 (vide supra), was rendered by three Judges of the Supreme Court of India. That was an appeal from the judgment of the High Court of Judicature at Bombay, in Appeal No. 95 of 1950 arising from the order, dated 28 August 1950, of the said High Court exercising its ordinary original civil jurisdiction in Miscellaneous No. 2 of 1950. The Bench reversed the judgment of S.C Shah, J., in Civil Miscellaneous No. 2 of 1950 and restored the order of the Registrar of Trade Marks refusing to register the appellants trade mark. The two questions that were canvassed before the Supreme Court and that fell for determination were:

(i) whether the judgment of Shah, J., was subject to appeal under Cl. 15 of the Letters Patent of the Bombay High Court; and

(ii) whether Shah, J., was right in interfering with the discretion exercised by the Registrar in refusing registration of the appellant's trade mark. In the instant case, we are concerned with question No. 1 alone.

15. Section 76 of the Trade Marks Act confers aright of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by S. 76, it has to exercise that-jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under Cl. 15 of the Letters Patent (Bombay), there being nothing contrary in the Trade Marks Act. The Supreme Court while considering the question as to whether the judgment of a Single Judge disposing of the appeal under S. 76 of the Trade Marks Act is subject to further appeal under Cl. 15 of the Letters Patent (Bombay), held as follows:

“The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of an appeal (under S. 76 of the Act against the decision of the Registrar) in the High Court, indeed S. 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal has reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court… Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by S. 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under Cl. 15 of the Letters Patent (Bombay), there being nothing to the contrary in the Trade Marks Act. Section 108 of the Government of India Act, 1915, conferred power on the High Court which that Court could exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915, or whether conferred on it by any subsequent legislation. The power to make rules given by S. 108 of the Government of India Act, 1915, still subsists and it has not been affected in any manner whatever either by the Government of India Act, 1935, or by the Constitution of India, 1950. The reference in Cl. 15 of the Letters Patent to S. 108 should be read as a reference to the corresponding provisions of the Government of India Act (S. 223) and the Constitution of India, 1950 (Art. 225), India Electric Works Ltd.…Petitioners, v. The Registrar Of Trade Marks….* [A.I.R 1947 Cal. 49], overruled.”

16. The appeal in (1981) 4 SCC 8 : A.I.R 1981 S.C 1786 (vide supra), was directed against the order of a Division Bench of the Bombay High Court, by which the appeal filed by the appellant against the order of the trial Judge was dismissed on the ground that the appeal was not maintainable as the order impugned was not a judgment within the meaning of Cl. 15 of the Letters Patent of the High Court of Bombay. In that case, the appellant/plaintiff had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver of the suit property and injuncting the defendant from disposing of the suit property during the pendency of the suit. The learned Single Judge after hearing the notice of motion dismissed the application for appointment of receiver as also for interim injunction. Thereafter, the plaintiff filed an appeal before the Bombay High Court which dismissed the appeal as being non-maintainable on the ground the order of the learned Single Judge impugned was not a judgment as contemplated by Cl. 15 of the Letters Patent of the High Court. Hence the above appeal by special leave. The Supreme Court observed as follows:

“Whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned … An order of the trial Judge refusing to appoint a receiver or to grant an ad interim injunction is undoubtedly a judgment within the meaning of the Letters Patent both because Order 43, rule 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of Cl. 15 of the Letters Patent.”

17. In (1988) 2 SCC 1 : A.I.R 1988 S.C 915 (vide supra), the question that arose for consideration before the Supreme Court was, whether a Letters Patent Appeal lies to a Division Bench of the High Court of Gujarat from an interlocutory order passed by a Single Judge of that High Court in the course of the trial of an election petition filed under the provisions of the Representation of the People Act, 1951, or not. The Supreme Court held as follows:

“Clause 15 of the Letters Patent of the High Court of Gujarat (omitting the unnecessary portions) reads as follows:

‘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 ….from the judgment (not being a judgment passed in the exercise of appellate jurisdiction….) of one Judge of the said High Court or one Judge of any Division Court pursuant to S. 108 of the Government of India Act…’

The relevant part of Cl. 15 of the Letters Patent which is referred to above provides for an appeal against a judgment passed by a Single Judge of a High Court to the same High Court and the scope of the said appellate power has been explained by this Court in Shah Babulal Khimji v. Jayaben D. Kama [(1981) 4 SCC 8 : A.I.R 1981 S.C 1786] (vide supra). An appeal no doubt lies under that clause from an order of a Single Judge of the High Court exercising original jurisdiction to the High Court exercising original jurisdiction to the High Court itself irrespective of the fact that the judgment is preliminary or final or that it is one passed at an interlocutory stage provided it satisfies the conditions set out in the above decision but, the said provision cannot be extended to an election petition filed under the Act. Conferment of the power to try an election petition filed under the Act does not amount to enlargement of the existing jurisdiction of the High Court. The jurisdiction exercisable by the Single Judge under the Act is a special jurisdiction conferred on the High Court by virtue of Art. 329(b) of the Constitution. Having regard to the history of the legislation and the limited nature of the appeal expressly provided in S. 116-A of the Act it should be held that any other right of appeal (excluding that under the Constitution) is taken away by necessary implication. We, therefore, find it difficult to subscribe to the view that when once the jurisdiction to try an election petition is conferred on the High Court all other powers incidental to the ordinary original jurisdiction exercised by a Single Judge of a High Court would become applicable to an election petition filed under the Act.”

18. In 1990 A.C.J 550 (vide supra), the question raised is as to whether a Letter Patent Appeals lies to the High Court in terms of Cl. 10 of the Letters Patent of the Patna High Court before a Division Bench from the decision of a learned Single Judge of that Court when the same arises out of a decision of a Tribunal or Court constituted under a self-contained code. It is to be noticed that the provision in Cl. 10 of the Letters Patent of the Patna High Court ispari materia with Cl. 15 of the Letters Patent of the Bombay High Court and similar provisions of the Letters Patent of different High Courts. From a bare perusal of the aforementioned provisions, it is clear that an appeal lies before a Division Bench of the Patna High Court from a judgment of a Single Judge, if an order has been passed in terms of S. 108 of the Government of India Act, 1915. It is not in dispute that in that case, the exception provided for in Cl. 10 of the Letters Patent of the Patna High Court is not applicable.

19. In the case of Municipal Corporation of Delhi v. Kuldip Lal Bhandari [A.I.R 1970 Del. 37], it was held that an appeal lies to a Division Bench in terms of Cl. 10 of the Letters Patent from a judgment of a Single Judge passed under S. 110-D of the Motor Vehicles Act, as the same comes within the purview of the word “judgment” within the meaning of Cl. 10 of its Letters Patent. It was held in that case that while hearing an appeal, the High Court acts as a Court and not as a Tribunal.

20. Similarly, the Punjab and Haryana High Court in the case of Shanti Devi v. General Manager, Haryana Roadways [A.I.R 1971 P. & H. 13], held that a Letters Patent Appeal will be maintainable before the Division Bench against the judgment passed by learned Single Judge of the High Court passed in terms of Cl. 10 of its Letters Patent.

21. In 1990 A.C.J 550 (vide supra), the Patna High Court has held as follows:

“Section 108 of the Government of India Act reads as follows:

‘Each High Court may by its rules provide as it thinks fit for the exercise, by one or more Judges, or by Division Courts, constituted by two or more Judges of the High Court, of the original and appellate jurisdiction vested in the Court.’

It is well known that the said provision is saved by reason of S. 8 of the General Clauses Act as also in terms of the provisions of the Interpretation Act and Rules of the High Court can now be framed in terms of the provisions of Art. 225 of the Constitution of India … It is, therefore, clear from the aforementioned authoritative pronouncements of the Supreme Court that a right of appeal provided for under Cl. 10 of the Letters Patent cannot be curtailed, unless the same is excluded either by a charter or by statutory provisions …. There is no doubt that a right of appeal provided for under S. 110-D of the Act is restricted, but while an appeal is maintainable and is decided in terms of S. 110-D of the said Act, there can be no doubt that the same becomes a judgment within the meaning of Cl. 10 of the Letters Patent.”

In this view of the matter, the Division Bench of the Patna High Court held that the appeal decided in terms of S. 110-D of the Act becomes a judgment within the meaning of Cl. 10 of the Letters Patent and, therefore, a right of appeal provided under Cl. 10 of the Letters Patent cannot be curtailed inasmuch as the same is excluded either by a charter or by statutory provisions. The Bench has also held that in terms of S. 110-D of the Act, neither a finality has been given to an appellate order nor the right of further appeal has been curtailed in any manner.

22. In 1997 (1) C.T.C 210, a Letters Patent Appeal was filed under Cl. 15 of the Letters Patent against an order dismissing the contempt application. The Letters Patent Appeal was dismissed by our Bench (AR. Lakshmanan and A. Raman, JJ.), by observing as follows:

“The question for consideration is, as to whether the appeal is maintainable under Cl. 15 of the Letters Patent. The proceeding in question is one arising out of Contempt of Courts Act. In these proceedings there is no other matter decided or dealt with which can be said to fall outside the purview of the Contempt of Courts Act. We have, therefore, no hesitation to hold that the present appeal is not maintainable. Three other Division Benches of this Court have also taken the same view, and they are reported in Vidya Charan Shukla v. Tamil Nadu Olympic Association [1991 (2) L.W 295]; K. Karthikeyan v. State Bank of Mysore [L.P.A No. 112 of 1995, dated 6 April 1995]; and T. Marappan v. Executive Engineer [1996 (2) L.W 117], in the last cited decision, one of us (AR. Lakshmanan, J.) was a party to the Division Bench.

For the foregoing reasons, the Letters Patent Appeal is dismissed as not maintainable.”

23. Sri G. Subramaniam, learned senior counsel took up the position that an appeal under Cl. 15 of the Letters Patent was not competent in the instant case. He drew our attention to the following points, which he formulated before making his submissions:

(a) The appellate Court has to decide if the remedy of appeal is available in a given case;

(b) no appeal is available against the orders made under Cl. 13 of the Letters Patent or S. 24 of the Code of Civil Procedure;

(c) a remedy by way of appeal is a creature of statute;

(d) a special law will override a general law; and

(e) in the instant case, S. 82 of the Act has provided for only one appeal and after one appeal, the right gets exhausted.

In support of his above contention, he cited some decisions, which we will deal with in the paragraphs infra.

24. The decision reported in Vijay Prakash and Jawahar v. Collector of Customs (Preventive), Bombay [(1988) 4 SCC 402 : A.I.R 1988 S.C 2010], was cited by Sri G. Subramaniam learned senior counsel for the proposition that the right of appeal contemplated under Ss. 129-A and 129-E of the Customs Act, 1962, is a conditional one and the Legislature in its wisdom has imposed that condition of depositing duty demanded or penalty levied. Although S. 129-E does not expressly provide for rejection of the appeal for non-deposit of duty of penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal. The proviso, however, gives power to the appellate authority to dispense with such conditions in cases of undue hardships. It is a matter of judicial discretion of the appellate authority. That discretion must be exercised on relevant materials, honestly, bona fide and objectively. Once that position is established it cannot be contended that there was any improper exercise of the jurisdiction by the appellate authority. Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of natural justice would be violative of any right-conditional or statutory without any right of appeal, as much. If the statute give a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant.

25. In the decision reported, in Shantha V. Pai… v. Vasanth Builders, Madras…., Madras [1991 Crl.L.J 3026], a Division Bench of this Court dismissed an appeal under S. 19(1) of Contempt of Courts Act, 1971, filed against an order of the trial Court refusing to commit the contemner for alleged Contempt of Court. The Division Bench consisted of Dr. AS. Anand, C.J, and Nainarsundaram, J. (as they then were), held that the order of the trial Court refusing to commit the contemner is not appelable as of right. The Bench observed as follows:

“Except to the extent of the filed occupied by S 19(1) of the Act, an appeal would be competent under Cl. 15 of the Letters Patent, provided it satisfies the conditions prescribed in Cl. 15 of the Letters Patent itself. A Letters Patent Appeal under Cl. 15 would not lie against any order passed in exercise of the contempt jurisdiction by the High Court where the trial Judge refuses to take cognizance of an application seeking to punish the opposite party for contempt of Court where it rejects the application after being satisfied that its order has not been flouted and was of the opinion that no vindication of its order was called for by committing the alleged contemner for contempt of Court. Since in the instant case, the Court after a detailed discussion, came to the conclusion that his order has not been violated or flouted by the respondent and in exercise of his proper judicial discretion, refused to commit the respondent for the alleged contempt of Court, such an order of refusal is not a ‘judgment’ within the meaning of Cl. 15 of the Letters Patent and as such, is not appealable under Cl. 15.”

26. In the decision reported in R. Rajagopal v. M.P. Chellamuthu [1993 (2) L.W 225], the Letters Patent Appeal was filed against the order made in a contempt application filed by the first respondent directing respondents 2 to 4 to permit the first respondent to quarry sand in Amaravathi River and a preliminary objection was raised by the first respondent with regard to the maintainability of the Letters Patent appeal contending that inasmuch as by the order under appeal, respondents 2 to 4 had been discharged and nobody was punished under the provisions of the Act, the appeal filed against such an order was not maintainable under S. 19(1) of the Contempt of Courts Act. It was further contended that if an appeal against the order made in contempt application would not lie under S. 19(1) of the Act, it does not follow that Cl. 15 of the Letters Patent could be invoked and, therefore, the present appeal filed under Cl. 15 of the Letters Patent is also not maintainable. The said Division Bench consisted of K.A Swami, C.J and T. Somasundaram, J., held as follows:

“In as much as by the order under appeal, the learned Single Judge has declared that the first respondent is entitled to quarry sand in the area in question for a period of 3 ½ months and directed respondents 2 to 4 to permit the first respondent, to quarry sand for a period of 3 ½ months from 1 May 1993, such an order is a ‘judgment’ for the purpose of Cl. 15 of the Letters Patent and that the order under appeal satisfies the conditions prescribed in Cl. 15 of the Letters Patent. ‘In these circumstances, we have no hesitation in holding that the present appeal is maintainable under Cl. 15 of the Letters Patent.’”

27. In the decision reported in State of Maharashtra v. Mahboob S. Allibhoy [(1996) 4 SCC 411 : A.I.R 1996 S.C 2131](vide supra), the Supreme Court has held that no appeal is maintainable against an order dropping proceedings for contempt or refusing to initiate a proceeding for contempt is apparent not only from Sub-sec. (1) of S. 19 but also from Sub-sec. (2) of S. 19 indicates that the reliefs provided under Cls. (a) to (c) can be claimed at the instance of the person who has been proceeded against for contempt of Court.

28. Rehman Singh Payara Singh v. Abdul Sattar [(1996) 1 SCC 49], was cited by Sri G. Subramaniam, learned senior counsel. In that case, the Supreme Court held that no appeal shall lie from any order passed in appeal under S. 104(2) CPC. This decision was cited for the proposition that when an appeal was filed against the order of the City Civil Court. Bombay, to the learned Single Judge under Order 43, rule 1 (r) as provided in Sub-sec. (1) of S. 194 by operation of Sub-sec. (2) of S. 104, no further appeal shall lie from any order passed in appeal under this section.

29. To the same effect is the judgment of a Division Bench of the Bombay High Court reported in Charity Commissioner, Bombay v. Rajendra singh [A.I.R 1984 Bom. 478].

30. In the decision reported in Asrumati Debi v. Rupendra Deb [1953 S.C 198], the Supreme Court held that an order for transfer of a suit made under Cl. 13 of Letters Patent, is not a judgment within the meaning of Cl. 15 and therefore, is not appealable. The order neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any around. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground.

31. Sri G. Subramaniam, learned senior counsel also relied on the decision reported in New Kenilworth Hotel (Private), Ltd. v. Orissa State Finance Corporation [(1997) 3 SCC 462 : A.I.R 1997 S.C 978], in order to say that the judgment in (1981) 4 SCC 8 : A.I.R 1981 S.C 1786 was distinguished by the Supreme Court in this judgment. We have already referred to the judgment reported in (1981) 4 SCC 8 : A.I.R 1981 S.C 1786. (vide supra). In the present case cited (1997) 3 SCC 462 : A.I.R 1997 S.C 978 (vide supra), the plaintiff filed the suit for declaration that the steps taken by the respondents under S. 29 of the State Financial Corporation Act were illegal and sought permanent injunction restraining them from disturbing its possession. Pending suit, they sought ad interim injunction not to dispossess them from the hotel. The trial Court by order, dated July 12, 1994, granted status quo whereby the appellant remained in possession of the suit premises. On appeal filed by the respondents, the learned Single Judge vacated the status quo order by order, dated May 18, 1995. Aggrieved, the appellant filed Letters Patent Appeal and the Division Bench held that the appeals are not maintainable. The plaintiff preferred a further appeal by special leave. Learned counsel for the appellant/plaintiff contended that under Cl. 10 of the Letters Patent an appeal would lie against the judgment of the learned Single Judge to the Division Bench. It is further contended that though the order granting status quo by the Trial Court was vacated by the High Court, it is a judgment within the meaning of S. 2(9) of the CPC. Therefore, the bar under S. 104(2) of CPC, is not attracted by operation of S 4(1) of the Code. In support of the said contention the counsel for the appellant relied on some judgments. The Supreme Court held as follows:

“It is settled legal position that right of appeal is a creature of the statute. Against an interlocutory order, an appeal has been provided under S. 104(1) of the Code read with Order XLIII rule 1. In respect of interim injunction, it is covered by Order XLIII rule 1 (r). In this case, the order of status quo was passed in an application filed under Order XXXIX, rule 1 of the Code. Therefore, it is not in dispute that it is an order passed by the civil Court under Order XLIII rule 1 appealable under Order XXXIX rule 1(r) of the Code. Sub-section (2) of S. 104 specifically prohibits second appeal against such an order postulating that “No appeal shall lie from any order passed in appeal under this section” In Resham Singh Pyara Singh v. Abdul Sattar [(1996) 1 SCC 49] (vide supra), a Bench of this Court consisting of K. Ramaswamy and B.L Hansaria, JJ., has held that against an appellate order of a learned Single Judge of a High Court passed by the civil Court, a Letters Patent Appeal would not lie by reason of the bar created by Sub-sec. (2) of S. 104 of the Code”

The Supreme Court also construed Cl. 10 of the Letters Patent which reads as under:

“An appeal shall lie …. from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of the appellate jurisdiction by a Court subject to the superintendence of High Court …. and not being an order made in exercise of revisional jurisdiction. …) of one Judge of the said High Court…. and in exercise of appellate jurisdiction in respect of a decree or order made in 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 case is a fit one for appeal…”

By construing Cl. 10 of the Letters Patent as above, the Supreme Court observed that the main part of Cl. 10 clearly indicates that an appeal would lie from the judgment not being a judgment passed in exercise of the appellate jurisdiction. Thereby the jurisdiction from an appellate jurisdiction stands excluded under the first part of Cl. 10 of the Letters Patent itself. Therefore, the Supreme Court held that the Division Bench of the High Court was right in holding that the Letters Patent appeal would not lie against an order of the learned Single Judge.

32. The above decision of the Supreme Court was rendered on 20 January 1997 dealing with an order made by a Single Judge of the Orissa High Court in the exercise of appellate jurisdiction under S. 104(1) read with Order XLIII of the CPC. As it was not an original order under S. 104(2) of the Code, any further appeal is not made available, It was only this position and this provision of law, in which the learned Judges of the Supreme Court had to draw the attention of the Additional Solicitor-General of India. It has to be noted that the order of the Single Judge will not be a judgment within the meaning of I.L.R 35 Mad. 1 and as an order made in exercise of powers under the CPC., any further appeal stood barred under S. 104(2). In our opinion there is no conflict between the two decisions of the Supreme Court reported in (1981) 4 SCC 8 : A.I.R 1981 S.C 1786 (vide supra), and the one reported in (1997) 3 SCC 462 : A.I.R 1997 S.C 978 (vide supra), as contended by Sri G. Subramaniam.

33. Sri Krishna Rao, learned counsel for the respondents in one of the appeals submitted that the Letters Patent Appeal is not maintainable., He cited the decision reported in Umaji Keshao Meshram v. Radhikabai [1986 Supp SCC 401 : A.I.R 1986 S.C 1272], wherein the question fell for determination in the appeal before the Supreme Court was, “whether an appeal lies under Cl. 15 of the Letters Patent of the Bombay High Court to a Division Bench of two Judges of that High Court from the judgment of a Single Judge of that High Court in a petition filed under Art. 226 or Art. 227 of the Constitution of India?.” The Letters Patent Appeal was dismissed as being not maintainable by reason of the judgment given by the Full Bench of the Bombay High Court which was challenged before the Supreme Court. The Supreme Court held thus:

“We are afraid, the Full Bench has misunderstood this scope and effect of the powers conferred by these (Arts. 226 and 227). These two articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their sources and origin are different and the models upon which they are patterned are also different. Under Art. 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Art. 227 every High Court has the power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Art. 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law. The orders, directions and writs under Art. 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Art. 227 is in addition to that conferred upon the High Courts by Art. 226. Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Art. 227. The powers conferred by Arts. 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at tunes be achieved by two different processes does not mean that these two processes are the same.”

It was further held as follows:

“Consequently, where a petition filed under Art 226 of the Constitution is according to the rules of a particular High Court heard by a Single Judge, an intra Court appeal will lie from that the judgment if such a right of appeal is provided in the charter of that High Court, whether such charter of Letters Patent or a statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-Court appeal and, therefore, the decision of a Single Judge of that High Court given in a petition under Art. 226 would be appealable to a Division Bench of that High Court. It is equally well-settled law that a proceeding under Art. 227 is not an original proceeding.”

34. In the decision reported in Obedur Rehman v. Ahmedali Bharucha [A.I.R 1983 Bom. 120], a Division Bench of the Bombay High Court held that S. 104(2) applies also to Letters Patent Appeals and therefore, Letters Patent Appeal against order of Single Judge dismissing appeal filed under S. 104 against order refusing to grant temporary injunction was liable to be dismissed as not maintainable under S. 104(2).

35. In the course of his submissions, Sri Gopalaratnam drew our attention to the decision rendered by a Full Bench of four learned Judges of our High Court, consisting of Justice Sri Keman, Justice Sri Muthusami Ayyar, Justice Sri Parker and Justice Sn Wilkinson, reported in Katnaraju v. Secretary of State for India ILR XI Mad. 309. He pointed out that in that case which arose under the Madras Forest Act, 1882, the appellant having filed a second appeal, S.A No. 786 of 1885, against the decision of the District Court, Madurai, in an appeal filed before it under the terms of S. 10 or the Forest Act, the State (respondent) took a preliminary objection, that the appeal did not lie. On 15 September 1886, the Bench, Collins, C. J., and Keman, J., referred the case to the Full Bench for deciding, among others, the following question “Is there an appeal?” At page 312 the learned Judges of the Full Bench have observed as follows:

“The decision of the District Court passed an appeal from the decisions of the Forest Settlement Officer is clearly a decree within the meaning of the CPC, and the second appeal is not taken away by express enactment. It remains to consider whether the second appeal has been taken away by necessary implication on the pan of the Legislature. The presumption is against the taking away of a substantive right of a very valuable nature by mere implication, and it may be fairly contended that had the Legislature so intended, it would have expressly said so.”

After an elaborate discussion on that question, the Full Bench returned the answer to the question, at page 314 as follows:

“On the first question referred to us, we would, therefore, reply to the Division Bench that a second appeal does lie to the High Court from a decision of the District Court under S. 10 of the Forest Act.”

36. Sri Gopalaratnam next cited the judgment reported in National Telephone Company, Ltd. v. His Majesty's Postmaster-General [1915 A.C 546] and invited our attention to the passage in Lord Haldane's speech at page 552 which reads thus;

“When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.”

(emphasis supplied)

37. Learned senior counsel Sri Gopalaratnam next read to us the decision of the Privy Council reported in Secretary of State for India v. Chellikam Rama Rao [A.I.R 1916 P.C 21], and relied on Lord Shaw's observations contained in page 23 reading.

“What happened in the present case was that the claim was rejected. An appeal by the respondents was thereupon made to the District Court, and a decision was pronounced. It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded, by the terms of the statute just quoted. In “then Lordships” opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts or the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply. This is in full accord with the decision of the Full Bench, Kamaraju v. Secretary of State of India in Council [(1888) I.L.R 11 Mad. 309], a decision which was given in 1888 and has been acted on in Madras ever since.”

38. The next case cited to us was the decision reported in Hem Singh v. Shiromani Gurudwara Parbandhak Committee [A.I.R 1936 P.C 93], and he drew our attention to the observation of Sri George Rankin at page 95 Col. 2, where the observations, in A.I.R 1916 PC. 21 are quoted and relied on.

39. The case next cited was the decision of the judicial committee reported in Adaikappa Chettiar v. Chandresekhara Thevar [A.I.R 1948 P.C 12], wherein it has been held:

“The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.”

40. Learned senior counsel next relied on the decision of the Apex Court reported in A.I.R 1953 S.C 357. The said decision was also cited by the learned Additional Solicitor-General to which we have already made reference in the paragraphs supra. That was a decision of the Apex Court in a case which arose under the Trade Marks Act, 1940. He drew our attention to the following passage at page No. 362 of the report which is as follows:

“The rights created by the Trade Marks Act are civil rights of the protection of persons carrying on trade under marks which have acquired reputation. The statute creates the Registrar, a Tribunal for safeguarding these rights and for giving effect to the rights created by the Act, and the High Court as such without more has been given appellate jurisdiction over the decisions of this Tribunal. It is not easy to understand on what grounds, it can be said that the High Court while exercising this appellate jurisdiction has to exercise it in a manner different from its other appellate jurisdiction. It seems to us that this is merely an addition of a new subject-matter of appeal to the appellate jurisdiction already exercised by the High Court.”

41. Sri Gopalaratnam, learned senior counsel invited us to apply the above passage to the case presently under discussion. He next drew our attention to the new Act, Act 43 of 1958, having by S. 108(3), expressly recognising an appeal under Cl. 15 or the Letters Patent, in contrast to the terms of S. 76(1) of the Trade Marks Act, 1940, which was, that came up for consideration before the Supreme Court in [A.I.R 1953 S.C 357], in case referred to above. Our attention was drawn to two other decisions of the Supreme Court in Hanskumar Kishan Chand v. Union of India [A.I.R 1958 S.C 947] and Collector, Varanasi v. Gauri Shanker [A.I.R 1968 S.C 384] of which A.I.R 1958 S.C 947 was decided by three Judges and A.I.R 1968 S.C 384 was decided by a Constitution Bench of 5 Judges. A.I.R 1958 S.C 947 decision was dissented by the decision made in A.I.R 1968 S.C 384. The Supreme Court held that the High Court functions as a Court while acting under S. 19(1)(f) and not as designated person. AIR. 1916 P.C 21 was relied on by the Supreme Court. The Supreme Court stated that their conclusion in this regard receives support from the decision of the Judicial Committee in A.I.R 1916 P.C 21 referred to earlier.

42. The decisions reported in Penugonda Radhakrishnamurthy v. Ethirajulu Chetry [A.I.R 1945 Mad. 184], Kevelchand Daga v. Girdhardoss [A.I.R 1962 Mad. 52] and Union Of India v. Mohindra Supply Co. [A.I.R 1962 S.C 256], were also cited which arose under the Indian Arbitration Act, Act 10 of 1940, by way of contrast, holding that an appeal under Cl. 15 of Letters Patent did not he under certain circumstances. The decision in A.I.R 1945 Mad. 184 (vide supra), was by a Division Bench consisted of Sri Alfred Henry Lionel Leach, Chief Justice, and Justice Sri Shahabuddin. That was an appeal from the judgment of Kuppusami Ayyar, J., setting aside the order of the Principal Judge of the City Civil Court under the provisions of S. 39 of the Indian Arbitration Act, 1940. Two applications had been filed in the City Civil Court for an order extending the time allowed to the umpire for the passing of his award. The umpire awarded the first respondent a sum of Rs. 600, but the award was not made within the time allowed by law. The City Civil Court refused the applications on the ground that by granting them the opposite party would lose valuable rights. The first respondent then appealed to the High Court. Learned Single Judge considered that application for extension of time should have been granted and allowed the appeal. Accordingly, he sent the case back to the City Civil Court to decide the other points raised in the proceedings. A preliminary objection has been taken before the Division Bench and it was contended that the Letters Patent Appeal does not lie by reason of Sub-sec. (2) of S. 39 which says that no second appeal shall lie from an order passed in an appeal under the section, although nothing in the section shall affect or take away the right to appeal to His Majesty in Council. The Bench accepted the said contention as sound. The Bench observed as follows.

“It is true that Cl. 15 of the Letters Patent, if it stood alone, would allow the appeal; but Cl. 4.4 of the Letters Patent says that the provisions are subject inter alia to the legislative powers of the Governor-General in Legislative Council. The Indian Arbitration Act is an Act of the Central Legislature and the provisions of S. 39 must prevail. The appeal is dismissed with costs.”

43. This judgment of the Division Bench was overruled in the decision reported in A.I.R 1962 Mad. 52 (vide supra), above referred to, rendered by a Full Bench of our High Court consisted of Sri P.V Rajamannar, Chief Justice, Justice Sri Veeraswami and Justice Sri Venkatadri, wherein it was held thus.

“An appeal under Cl. 15 of the Letters Patent (Madras) would normally lie from an order of a Single Judge of the High Court provided the order is a judgment within the meaning of that clause. Clause 44 of the Letters Patent is in general terms and provides that the provisions of the Letters Patent are subject to the Legislative powers of the Governor-General. It only provides that in the exercise of such Legislative powers all the provisions of the Letters Patent may in all respects be amended an altered. It is no doubt true that the term “second appeal” in S. 39(2) of the Arbitration Act is not used in the narrow and technical sense of a second appeal under S. 100 of the Civil Procedure Code but means a further appeal, that is numerically a second appeal. But the further appeal contemplated is to the Court of a Higher grade. Hence an appeal under Cl. 15 of the Letters Patent from one Judge of the High Court to two or more Judges of the High Court to two or more Judges of the same High Court cannot fall within the category of “second appeal” mentioned in S. 39(2) of the Arbitration Act There is thus nothing in S. 39(2) of the Arbitration Act, either in express terms or by necessary implication, which amends or alters Cl. 15 of the Letters Patent restricting the right of appeal conferred thereunder. Hence an appeal under Cl. 15 of the Letters Patent would lie from the judgment of a Single Judge of the High Court setting aside an order of the City Civil Court under the provisions of S. 39 of the Arbitration Act. Section 39(2) of the Arbitration Act read with Cl. 44 of the Letters Patent does not have the effect of barring such appeal.”

The above Full Bench judgment was disapproved by the Supreme Court in A.I.R 1962 S.C 256, referred to above.

44. Learned senior counsel Sri Gopalaratnam also brought to our notice pages 28 and 29 of journal portion of 1991 I L.W (sic), where the provisions of Cl. 15 of the Letters Patent as it stood on various dates is given.

45. For consideration of any question as the present, we have to start with the Full Bench decision of our High Court reported in T.V Tuljaram Row v. M.K.R.V Alagappa Chetttar I.L.R 35 Mad. 1. wherein an objection has been taken that no appeal lies against the order of a Judge on the original side declining to frame additional issue for which one of the parties asked. The Full Bench held that an order of a Single Judge refusing to frame an additional issue not appealable as a judgment. It was held by the Full Bench as follows:

“An order of a Single Judge on the original side, refusing to frame an issue asked for by one of the parties is not a judgment within Cl. 15 of the Letters Patent and is not appealable. Per Chief Justice: — (Sri Arnold White) An adjudication is a judgment within the meaning of the clause if its effect, whatever its form may be and whatever may be the nature of the application in which it is made, it to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its effect, if not complied with, is to put an end to the suit or proceeding. It is not necessary that the decision must affect the merits by determining some right or liability. An adjudication based on a refusal to exercise discretion, is appealable if the effect of the adjudication is to dispose of the suit so far as the Court making the adjudication is concerned.

Per V. Krishnaswami Ayyar, J.:— The word ‘judgment’ in Cl. 15 must be so construed as to include the various kinds of judgments dealt with in other clauses of the Letters Patent. It must be understood as including preliminary or interlocutory judgments but not preliminary or interlocutory orders.”

The same has stood the test all these days and has received universal acceptance, when it gives us the answer to the question what is the meaning of the word, ‘judgment,’ found in Cl. 15 of the Letters Patent. To put it shortly, a judgment is that adjudication, whatever its form may be and whatever may be the nature of the application in which it is made, if its effect be to put an end to the suit or proceeding so far as the Court before which such suit or proceeding is pending is concerned.

46. It had been the practice all along to file Letters Patent Appeals, against orders on the original side appointing a receiver or issuing a temporary injunction and the like. There always used to be an under current of protest that no right of either party has been finally adjudicated, when a Court takes the property in custodia legis, by appointing a receiver or is putting a party to the action under a temporary restraint.”

47. In the decision reported in V/O Tractoro Export, Moscow v. Tarapore and Company [(1969) 82 L.W 361], it has been held by a Division Bench of our High Court thus:

“For more than half a century our High Court, under Cl. 15 of Letters Patent, has been entertaining appeals from orders, made on applications for injunction or for appointment of receiver pendente lite in the exercise of original and appellate jurisdiction-and we are having scores of appeals from interlocutory orders granting or refusing injunction by Single Judge of the Court in the exercise of the special original jurisdiction of the Court under Art. 226 of the Constitution. In Palaniappa v. Krishnamurthy, this Court recently followed the decision in T.V Tuljaram Row v. M.K.R.V Alagappa Chettiar. The preliminary objection to the maintainability of the appeal is, therefore, not sustainable.”

48. In the decision reported in Tarapore and Company v. Tractoro Export, Moscow [(1969) 1 SCC 233 : A.I.R 1970 S.C 891], the Supreme Court granted special leave to one of the parties after excusing the delay. The civil appeal by Tractoro Export, Moscow, and the civil appeal filed by Tarapore and Company, Madras who had lost before a Division Bench of this Court were heard by the Supreme Court and the Supreme Court on 26 November 1968 allowed the appeal filed by the Tractoro Export, Moscow, and dismissed those of the plaintiff. The Supreme Court held thus:

“Ordinarily Supreme Court does not interfere with interim orders. But where legal principles of great importance affecting international trade are involved and the orders of Court, if allowed to stand are bound to have their repercussion on our international trade, the Supreme Court will interfere the interim orders of Court below.”

In the result, the Supreme Court allowed C.A No. 2305 and 2306 of 1988 filed by Tractoro Export, Moscow, and set aside the temporary injunction granted by the trial Judge. The other appeals filed by Tarapore and Company were also dismissed.

49. As already noticed, the Supreme Court in the decision reported in (1981) 4 SCC 8 : A.I.R 1981 S.C 1786 cited supra, has been pleased to hold that in addition to appeals which will strictly come within the scope of the decision reported in I.L.R 35 Mad. 1 (vide supra), under Cl. 15 of the Letters Patent, appeals against orders, which are provided for under S. 104(1) of C.P.C, read with order 43 are also available to a party. In other words, the stringent requirements of I.L.R 35 Mad. 1 (vide supra), are waived so far as regards appeals from orders are concerned. Here one must not lose sight of the definition of the terms, “decree.” “judgment” and “order,” contained in S. 2 of Civil Procedure Code. We have already dealt with a latest decision of the Supreme Court reported in A.I.R 1977 S.C 978 (vide supra), which dealt with an order made by a Single Judge of the Orissa High Court in the exercise of appellate jurisdiction under S. 104(1) read with Order 43 of the Code. In our opinion there is no conflict between the two decisions of the Supreme Court, as contended by Sri G. Subramaniam, learned senior counsel, viz., (1981) 4 SCC 8 : A.I.R 1981 S.C 1786 and (1997) 3 SCC 462 : A.I.R 1997 S.C 978.

50. Before concluding we would like to make a reference to the decision of the Supreme Court reported in S.A Industries (Private), Ltd. v. Sarup Singh [A.I.R 1965 S.C 1442], which will make a very instructive reading. That case arose under the Delhi Rent Control Act. Section 43 of that Act, made the judgment of a Single Judge of the High Court, hearing an appeal under S. 39 of the Rent Control Act, final. The learned Judge after making reference to the decision reported in A.I.R 1953 S.C 357 (vide supra), as also the other cases decided by the judicial committee, to which we have made reference earlier, says in Para. 11 as follows:

“A statute may give a right of appeal from an order of a Tribunal or a Court to the High Court without any limitation thereon. The appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. Under the rules made by the High Court in exercise of the powers conferred on it under S. 108 of the Government of India Act, 1915, an appeal under S. 39 of the Act will be heard by a Single Judge. Any judgment made by the Single Judge in the said appeal will under Cl. 10 of the Letters Patent, be subject to an appeal to that Court. If the order made by a Single Judge is a judgment and if the appropriate Legislature has, expressly or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a Single Judge under Cl. 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent Appeal, an appeal shall certainly lie from the judgment of the Single Judge to the High Court”

It is our considered view that our present case is the fittest illustration. It will have to be noticed that under our Act 34 of 1948, there is no provision similar in wording as was found by the Supreme Court in the above judgment in S. 43 of Delhi Rent Control Act, whereunder the Supreme Court held that Letters Patent Appeal will not be available.

51. In the decision reported in Asho Devi v. Dukhi Sao [A.I.R 1965 Pat. 472], a Full Bench of the Patna High Court opined that the Letters Patent Appeal from the first appellate judgment of a learned Single Judge is controlled by the provisions of S. 100 of Civil Procedure Code. The said decision of the Full Bench was reversed by the Supreme Court in the decision reported in (1974) 2 SCC 492 : A.I.R 1974 S.C 2048.

52. For all the foregoing reasons, we are of the view that the appeal under Cl. 15 of the Letters Patent of the High Court is competent against the judgment of a learned Single Judge of the High Court rendered under S. 82 of the Employees' State Insurance Act, 1948 (Art 34 1948). We, therefore, hold that all these Letters Patent Appeals are maintainable in law and the preliminary objections raised by the respondents are overruled. Post all these Letters Patent Appeals for final disposal before a Division Bench of the Court to dispose of the same on merits. We place on record our deep appreciation for the valuable assistance rendered by Sri G. Masilamani, Additional-Solicitor-General for Southern States, Sri S. Gopalaratnam, learned senior counsel and Sri G. Subramaniam, learned senior counsel in disposing of the above appeals on the issue raised therein.

Letters Patent Appeals Nos. 53 and 179 of 1993, 148 and 257 of 1995

Employees' State Insurance Corporation And Others v. Shanmugha Theatres, Coimbatore, And Others

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Employees' State Insurance Corporation / For Maintainability)

Respondents' Arguments (Opposing Maintainability)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Employees' State Insurance Corporation And Others v. Shanmugha Theatres, Coimbatore, And Others

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