M.H.S Ansari, J.:—I had the benefit of reading the judgement of my learned Brother Sinha, J. In agreeing with the conclusions to the effect that the appeal in the instant case is maintainable under clause 15 of the Letters Patent, I wish to state my own reasons thereafter, as under:

2. The matter has been referred to the Special Bench for considering the correctness of the Division Bench judgement of this Court in Merchants of Traders (P) Ltd. v. Sarmon Pvt. Ltd., reported in 1997 (1) CHN at pg. 286. By the said judgement, the Division Bench held that the appeal preferred against an order of a learned Single Judge of this High Court is not maintainable under clause 15 of the Letters Patent. The learned Single Judge by his order under appeal before the said Division Bench had granted conditional leave to defend the suit in terms of Order 37 Rule 5 of the Code of Civil Procedure. In coming to the said conclusion, the Division Bench had followed the ratio of the earlier Division Bench judgements in Hiralal Deb Gupta v. Salil Kumar Paul, reported in AIR 1973 Cal. 320 and Bonwarilal Roy v. Sohanlal Daga, reported in ILR (1955) 1 299. The ratio of those two earlier decisions was that the order was not appealable because by refusing leave to defend or by granting conditional leave to defend under Order 37, it did not necessarily mean that the plaintiff would succeed in the suit. Order 37 as it stood then envisaged a decree being passed subsequently.

3. The latter Division Bench presided over by Ruma Pal, J. (As Her Lordship then was) noticed the amendment to Order 37 by the amendment of the Code of Civil Procedure on 1976 and was of the view that the said two decisions in (1) Hiralal Deb Gupta and (2) Bonwarilal Roy (supra) can no longer said to be applicable to Order 37 as it stands after the amendment. The Division Bench was also of the opinion that by virtue of the decision of the Supreme Court in Shah Babu Lal Khimji v. Jayaben D. Kania, reported in AIR 1981 SC 1786, wherein it was observed as follows:

“Where the trial Judge in a suit under Order 37 of the Code of Civil Procedure refused the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant, it will undoubtedly be treated as a judgement within the meaning of the Letters Patent so as to be appealable to a Larger Bench.”

An order refusing leave to defend or granting conditional leave to defend is appealable under clause 15 of the Letters Patent. Since a contrary view has been taken by the another Division bench in Hiralal Deb Gupta (supra), the matter has been referred to a Larger Bench.

4. The only question for consideration before this Bench, therefore, is as to the correctness of the judgement of the Division Bench in Hiralal Deb Gupta (supra) wherein, it was held that an appeal against an order refusing leave to defend or granting such leave conditionally under Order 37 Rule 5 is not appealable.

5. The answer to the said question posed before us would depend upon the question whether an appeal against an order of a learned Single Judge of this Court is maintainable under clause 15 of the Letters Patent of this High Court, despite there being no appeal provided against such order under Order 43 Rule 1 of the Code of Civil Procedure read with section 104 of the Code.

6. The objection to the maintainability of such appeal is founded on the ground that under section 104 read with Order 43 Rule 1 and the clauses thereunder, no appeal has been provided against an order passed by a learned Single Judge under Order 37 Rule 5. In other words, the contention against maintainability of such appeal is that section 104 of the Code creates a bar to entertaining such appeals. Substance for the said argument is sought from the words “no other orders” appearing in section 104 of the Code.

7. In view of the observations of the Supreme Court in Khimji's case (supra) and more particularly in the light of the passage from that judgement extracted supra, there can be no doubt that such an order is a ‘judgement’ within the meaning of clause 15 of the Letters Patent.

8. We have, therefore, to only consider whether section 104(1) constitutes a bar or otherwise curtails the right of appeal conferred on an aggrieved litigant under clause 15 of the Letters Patent of this High Court.

9. For considering this question, it would be appropriate to refer to the relevant provisions of law.

10. Clause 15 of the Letters Patent of this High Court is as follows:

“Clause 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 Fort William in Bengal from the judgement (not being a judgement passed 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, 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 section 107 of the Government of India Act or in the exercise of Criminal Jurisdiction) of one Judge of the said High Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall like to the said High Court from a judgement of the Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the first day of February, one thousand nine hundred and twenty-nine 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 judgement declares that the case is a fit one for appeal, but that the right of appeal from other judgements of Judges of the said High Court or of such Division Court shall be to us, our heirs or successors in our or their Privy Council as hereinafter provided.”

11. Briefly stated clause 15 of the Letters Patent provides that an appeal shall lie to the High Court from the judgement, not being a judgement passed in the exercise of the appellate jurisdiction and not being an order made in the exercise of revisional jurisdiction. The same clause further provides that in the case of judgements passed 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 High Court, an appeal will lie, if the Judge, who passed the judgement declares that the case is a fit one for appeal. Thus, to my mind, the provisions in clause 15 of the Letters Patent is to the effect that all judgements of a Single Judge of the High Court are appealable, excepting the judgements which are passed in exercise of the appellate jurisdiction against the judgements passed by the sub-ordinate courts in the exercise of second appellate jurisdiction by a Judge of the High Court, appeal will lie under clause 15 only if the said Judge grants a certificate that it is a fit one for appeal.

12. Letters Patent of this High Court are declared by clause 37 to be subject to the legislative power of the Governor General in Council and also the Governor in Council under the Government of India Act, 1915 and may in all respects be amended or altered in exercise of legislative authority [See State Of West Bengal & Ors.… v. R.C Banerjee…, reported in Calcutta Law Times, 1999 (1) H.C 52].

13. The Code of Civil Procedure is an enactment passed by the Indian Legislature admits of no doubt. It is now a settled position that a legislative enactment passed by the Indian Legislature would prevail over the provisions of the Letters Patent. Also, in so far as Letters Patent deal with appeals against orders they must be read subject to the provisions of such enactments.

14. Section 4 of the Code is a saving clause and has been so construed. It provides that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special local law, now in force or any special jurisdiction or power conferred, or any special law of procedures prescribed, by or under any other law for the time being in force.

15. Section 104 of the Code, provides for appeals against certain orders. Under clause (1) thereof, appeal shall lie from the orders specified therein and save as otherwise expressly provided in the body of the Code or by any law for the time being in force and from no other orders. Under the clause [section 104(1)], it is only these orders which are specified therein are appealable under the provisions of that section. If there are orders under other Acts and appealable under such provisions they are to be considered under such provisions. Sub-Section (2) of section 104 contains an express provision that no appeal shall lie from any order passed in appeal under this section 104(1). That, as I understand it, means that if an order is passed in an appeal arising under section 104(1), then there shall not be a further appeal against such order.

16. Clause (1) of section 104(1) provides for an appeal against any order made under rules from which an appeal is expressly allowed by the rules. The said rules are found in the First Schedule to the Code. Order 43 is one such provision. Various clauses under Rule 1 thereof, specify the orders against which an appeal shall lie under the provisions of section 104.

17. In the present enquiry we are not concerned with the provisions contained in Sub-Section (2) of section 104, for the said provision has no application to the case on hand. It is also not in dispute that under the various clauses of Rule 1 of Order 43 no appeal has been provided against an order such as the one with which we are concerned in the instant case passed by a learned Single Judge refusing leave to defend the suit or granting conditional leave under Order 37 Rule 5. The said order has been passed by the learned Single Judge as the first Judge/Court on the Original Side in the Civil Suit before him.

18. I have already referred to section 4. That section is the saving clause in the Code in that it states “in the absence of any specific provision to the contrary.” Section 104(2), is one such specific provision to the contrary within the meaning of section 4. In my considered view, section 104(1) however, is not one such provision to the contrary. There is in section 104(1) a saving clause “or by any law for the time being in force” which would save and/or preserve the provisions of clause 15 of the Letters Patent. Therefore, in my considered opinion an appeal is maintainable under clause 15 of the Letters Patent against an order of a learned Single Judge if the said order is a “judgement” notwithstanding that no appeal has been provided therefor under the provisions of Order 43 Rule 1 of the Code of Civil Procedure. This is not only because of the language used in sections 4 and 104 of the Code and clause 15 of the Letters Patent but also because of the rulings of the Supreme Court to which I will presently refer.

19. I shall, however, refer to only two judgements of the Supreme Court. This is because the earlier judgements have been noticed in the said respective judgements. The later judgements have either followed the respective judgements in their line of cases or explained the same. I do not wish to clutter this judgement by extensive reference to those other judgements. Before, however, I refer to the judgements, I should state that the endeavour would be to show that the Supreme Court has accepted and recognised that the provisions contained in clause 15 of the Letters Patent are a special law within the meaning of sections 4 and 104 of the Code. The right of appeal conferred on the litigant, the power of court to hear appeal under the said special law (clause 15 of the Letters Patent) for the time being in operation is preserved by the Code. Unless, there is a provision to the contrary like Sub-Section (2) of section 104, an appeal would be maintainable under clause 15 of the Letters Patent.

20. The earliest decision on this important aspect of the matter as to the maintainability of an appeal under the Letters Patent was considered by the Supreme Court in Union of India v. Mohinder Supply Com., reported in AIR 1962 SC 256. It must be stated here that the Supreme Court in that case was concerned with regard to the right of second appeal under Letters Patent and Sub-Section (2) of section 104 of the Code was attracted in that case. The question before the Supreme Court was whether a further appeal would lie under clause 10 of the Letters Patent of the Punjab High Court (corresponding to clause 15 of the Letters Patent of this High Court) against an order passed by a learned Single Judge in an appeal under section 39(1) of the Arbitration Act, 1940. Section 39(2) of the Arbitration Act prohibits a second appeal from an order passed in appeal under section 39(1), except an appeal to the Supreme Court.

21. The contention before the Supreme Court was that a Letters Patent appeal would not be treated as a second appeal within the meaning of clause 10 of the Letters Patent. That contention was negatived. The Supreme Court held that the expression ‘second appeal’ used in section 39 of the Arbitration Act did not mean an appeal under section 100 of the Code and it meant only a further appeal from an order passed in an appeal under section 39(1) of the Arbitration Act. Considering the provisions of section 39 of the Arbitration Act, the Supreme Court held that the legislature had plainly expressed itself that the right of appeal against orders passed under Arbitration Act may be exercised only in respect of certain orders and the right of appeal against other orders was expressly taken away. The Supreme Court considered the provisions of section 39 of the Arbitration Act vis-a-vis clause 10 of the Letters Patent of the Punjab High Court and held as follows:

“There is in the Arbitration Act no provision similar to Section 4 of the Code of Civil Procedure which preserves power reserved to Courts under special statutes. There is also nothing in the expression ‘authorised by law to hear appeals from original decrees of the Courts’ contained in section 39(1) of the Arbitration Act which by implication reserves the jurisdiction under the Letters Patent to entertain an appeal against the order passsed in Arbitration proceedings. Therefore, in so far as Letters Patent deal with appeals against orders passed in Arbitration proceedings, they must be read subject to the provisions of sections 39(1) and (2) of the Arbitration Act.

Under the Code of 1908, the right to appeal under the Letters Patent was saved both by section 4 and the clause contained in section 104(1), but by the Arbitration Act of 1940, the jurisdiction of the Court under any other law for the time being in force is not saved, the right of appeal can therefore be exercised against orders in arbitration proceedings only under section 39 and no appeal (except an appeal to this Court) will lie from an appellate order.”

(Emphasis supplied).

22. It is evident from the above passage that the provisions of Section 4 of the Code of Civil Procedure preserves power reserved to Court under Special Statutes. It is also evident that under the provisions of sections 4 and 104(1) of the Code, the right of appeal under the Letters Patent is saved by the said provisions.

23. The Supreme Court in that case traced the history of the provisions of the Arbitration Act and the law with regard to appeals prevailing prior to the enactment of the Arbitration Act, 1940. The Supreme Court stated,

“Prior to 1940, the law relating to a contractual arbitration (except in so far as to was deal with by the Arbitration Act of 1899) was contained in the Code of Civil Procedure and certain orders passed by Courts in the course of arbitration proceedings were made appealable under the Code of 1877 by section 588 and in the Code of 1908 by section 104. In 1940, the legislature enacted Act X of 1940, repealing Schedule 2 and section 104(1) of the Code of Civil Procedure, 1908, and the Arbitration Act of 1899. By section 39 of the Act, a right of appeal was conferred upon litigants in arbitration proceedings only from certain orders and from no others and the right to file appeals from appellate orders was expressly taken away by sub-section (2) and the clause in section 104 of the Code of 1908 which preserved the special jurisdiction under any other law was not incorporated in section 39. The section was enacted in a form which was absolute and not subject to any exceptions. It is true that under the Code of 1908, an appeal did lie under the Letters Patent from an order passed by a Single Judge of a Chartered High Court in arbitration proceedings even if the order was passed in exercise of Appellate Jurisdiction, but that was so, because, the power of the Court to hear appeals under a special law for the time being in operation was expressly preserved.”

(Emphasis supplied).

24. From the above passage, it is evident that the Letters Patent is a special law. It is further evident that the power of the Court to hear appeals under the special law (I understand the same to mean Letters Patent) for the time being in operation is expressly preserved in the Code in the clause in section 104. The right to file appeals from appellate orders, however, was expressly taken away by Sub-Section (2) of section 104 of the Code.

25. The other judgement of the Supreme Court, which is oft quoted is Shah Babulal Khimji v. Jayaben D. Kania, reported in AIR 1981 SC 1786. In that case Fazal Ali, J. traced the history of section 104 read with Order 43 Rule 1 of the Code of Civil Procedure. It must be stated here that though an appeal was maintainable in terms of Order 43, Rule 1 against an order of a learned Single Judge refusing to appoint a Receiver and passing order of injunction, the Division Bench of the Bombay High Court refused to entertain the Letters Patent appeal from that order which was passed by a learned Single Judge of that High Court on the ground that such an order was not a ‘judgement’ within the meaning of clause 15 of the Letters Patent. Before the Supreme Court, the contention put-forth was that such an order is appealable in terms of section 104 and Order 43 Rule 1 of the Code of Civil Procedure.

26. The Supreme Court upon taking into consideration the provision of section 4 and section 104 of the Code of Civil Procedure, inter alia, held as under:

“….Section 4(1) of the Code of 1908 which is a saving provision clearly provides that in the absence of any specific provision to the contrary the provisions of the Code does not limit or affect any special or local law. Thus, the test contained in section 4 is not applicable in the instant case because even if the Letters Patent of the High Court be deemed to be a special law as contemplated by section 4, the provisions of section 104 do not seek to limit or affect the provisions of the Letters Patent.”

27. It is evident from the above that the provisions of section 104 of the Code do not limit or affect the provisions of the Letters Patent. In other words, the right of file appeal and the power of court to entertain the same under clause 15 of the Letters Patent is not curtailed by the provisions of section 104(1) of the Code.

28. This was further clarified when the Supreme Court agreed with the contentions put-forth by Mr. Sorabjee in that case and held as follows:

“We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case section 104 read with Order 43, Rule 1 does not in any way abridge, interfere or curb the powers conferred on the Trial Judge by clause 15 of the Letters Patent. What section 104 read with Order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a Larger Bench. Indeed, if this is the position then the contention of the respondent that section 104 will not apply to internal appeals in the High Courts cannot be countenanced. In fact, the question of application of the Code of Civil Procedure to internal appeals in the High Court does not arise at all because the Code of Civil Procedure merely provides for a forum and if Order 43 Rule 1 applies to a Trial Judge then the forum created by the Code would certainly include a forum within the High Court to which appeals against the judgement of a Trial Judge would lie. It is obvious that when the Code contemplates appeals against orders passed under various clauses of Order 43 Rule 1 by a Trial Judge, such an appeal can lie to Larger Bench of the High Court and not to any Court subordinate to the High Court. Hence, the argument that Order 43 Rule 1 cannot apply to internal appeals in the High Court does not appeal to us although the argument has found favour with some of the High Courts.”

29. It is evident from the above passage that the reference to the forum “such an appeal can lie to a Larger Bench of the High Court….” is to clause 15 of the Letters Patent. By holding that section 104 read with Order 43, Rule 1 applies to proceedings before the Trial Judge of the High Court, it was declared that the same is merely to give an additional remedy by way of appeal from the orders of the Trial Judge to Larger Bench. The statement with regard to additional remedy implies that there was already such a remedy available to the aggrieved litigant. Such remedy or the right of appeal is available to the aggrieved litigant by virtue of clause 15 of the Letters Patent.

30. It is under clause 15 of the Letters Patent that it has been ordained that an appeal shall lie before the same High Court from a judgement of a learned Single Judge to a Larger Bench of that High Court. A different forum is postulated. A different forum in the Same High Court is created for entertaining appeals in the same High Court against a judgement of a learned Single Judge of that High Court to a Larger Bench. Thereby, a right of appeal is also conferred upon the litigant aggrieved, by an order of the learned Single Judge. Clause 15 ordains “….. an appeal shall lie…”.

31. Following passage from the judgement of the Supreme Court in Mohinder Supply Company (supra) was extracted, wherein it was observed:

“The intention of the legislature in enacting sub-section (1) of section 104 is clear; the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by section 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgements (which did not amount to decrees) under the Letters Patent, was therefore not affected by section 104(1) of the Code of Civil Procedure, 1908.”

and the same was explained in the following terms:

“Thus, this Court has clearly held that the right to appeal against judgements under the Letters Patent was not affected by section 104(1) of the Code of 1908 and the decision therefore fully supports the argument of Mr. Sorabjee that there is no inconsistency between the Letters Patent jurisdiction and section 104 read with Order 43, Rule 1 of the Code of 1908….”

32. It was further held that section 104 merely provides an additional or supplemental remedy by way of appeal and, therefore, widens rather than limits of Original Jurisdiction of the High Court.

33. Now, it cannot be contended that where Order 43 Rule 1 read with section 104 of the Code applies the provisions of clause 15 of the Letters Patent become inapplicable. As noticed hereinbefore in the Khimji's case (supra), appeal against the order of learned Single Judge was maintainable in terms of clauses (q), (r) and (s) of Order 43, Rule 1 under provision of section 104 of the Code. The Court then proceeded to consider the further question viz., under what circumstances orders passed by a Trial Judge not covered by Order 43, Rule 1 would be appealable to a Division Bench. It is in that context that the import, definition and the meaning of the word ‘judgement’ appearing in clause 15 of the Letters Patent assumed significance. It was observed:

“The term ‘judgement’ appearing in Letters Patent does not exclude orders not falling under the various clauses of Order 43, Rule 1…..”

34. Noticing that the meaning of the word ‘judgement’ has been subject matter of conflicting decisions of the various High Courts. The Supreme Court proceeded to settle that controversy.

35. A.N Sen, J. in his separate but concurring judgement held as follows:

“……..Section 4 of the Code has been enacted to preserve any special or local law in force. An analysis of the material part of this section clearly indicates that in the absence of any specific provision to the contrary, no provision in the Code shall be deemed to limit or otherwise affect any special or local law in force or special jurisdiction or power conferred or any special form of procedure prescribed by or under any law for the time being in force. The argument that section 104 and Order 43 of the Code affect the special jurisdiction or power conferred on the High Court under clause 15 of the Letters Patent is, to my mind, untenable. Clause 15 of the Letters Patent was enacted to provide for an appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction and the said clause undoubtedly confers power for the hearing of an appeal from a judgement of any Judge on the original side of the High Court. Though clause 15 makes special provisions in relation to appeal from a judgement of a learned single Judge on the original side, yet it cannot be said that the said clause intended to lay down that in no other case an appeal will lie from an order passed by any learned Judge on the original side even if any specific provision is made in any other statute making any of the order appealable. An appeal, it has to be remembered, is a creature of a statute and litigant generally does not have a right of appeal against any decision of a competent Court unless a right of appeal has been specifically conferred on the litigant by law. Clause 15 of the Letters Patent confers on the litigant a right to prefer an appeal against any judgement. Any order which is considered to be a ‘judgement’ will be appealable by virtue of the provisions contained in clause 15 of the Letters Patent. In the same way other statutes may confer on the litigant the right to prefer an appeal against an order; and by virtue of the provisions of the statute such an order shall become appealable. If any other statute confers on the litigant any right to prefer an appeal in respect of any other order, it cannot be said that such a provision creating a right of appeal in any way affects the provisions contained in clause 15 of the Letters Patent. The special power and jurisdiction of the High Court under clause 15 to entertain an appeal from any judgement is in no way affected and is fully retained; and in addition to the said power, a High Court may be competent to entertain other appeals by virtue of specific statutory provisions. Section 4 of the Code cannot, therefore, be said to be in conflict with the provisions contained in clause 15 of the Letters Patent and Section 4 of the Code does not limit or otherwise affect the power and jurisdiction of the High Court under clause 15 of the Letters Patent. On the other hand, the Code contains specific provisions which go to indicate in which case or to which Court the provisions of the Code, may or may not be applicable.”

36. It was further held by A.N Sen, J. as follows:

“This right of appeal under clause 15 of the Letters Patent is in no way curtailed or affected by section 104 of the Code of Civil Procedure and section 104 seeks to confer the right of preferring an appeal in respect of various orders mentioned therein. In other words, by virtue of the provisions contained in section 104(1), a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein, even though such orders may or may not be appealable under clause 15 of the Letters Patent as a judgement and the right of appeal under clause 15 of the Letters Patent remains clearly unimpaired.”

37. Briefly analysed the position that emerges is that the right of appeal against orders which are judgements though not amounting to decrees under the Letters Patent are not affected by section 104(1) of the Code of Civil Procedure. The right of appeal under clause 15 of the Letters Patent is in no way curtailed or affected by section 104 of the Code of Civil Procedure. What section 104 seeks to do is to confer an additional right of appeal in respect of various orders specified under Order 43 Rule 1, even though such orders may or may not be appealable under clause 15 of the Letters Patent as ‘judgement’.

38. The appeal in the instant case, it must, therefore, be held is maintainable under clause 15 of the Letters Patent.

39. The Division Bench which made this reference has dealt with the subject matter of appeal also on merits and referred only a question of law as to the maintainability of the appeal in view of the judgement of the Division Bench in Merchants of Traders (P) Ltd., 1997 (1) CHN 286. In my respectful view, the said judgement in Merchants of Traders (P) Ltd. does not lay down the correct law.

The reference is answered accordingly.

Reference answered accordingly.

PPB