Birat Chandra Dagra v. Taurian Exim Pvt. Ltd. And Anr.

1. Heard further argument on the maintainability of the Letters Patent Appeal as the preliminary issue and the same is decided in the following manner.

2. Before dealing with that point of law, we may indicate that the present appeal under Clause 10 of the Letters Patent has been filed challenging to the judgment delivered by learned Single Judge of this Court in F.A.O. No. 270 of 2003. That was an appeal under Order 43, Rule 1(r) of the Code of Civil Procedure, 1908 (in short 'C.P.C') against the order granting temporary injunction to the plaintiffs-respondents under Order 39, Rules 1 and 2, C.P.C, vide Interim Application No. 12 of 2003 arising in Civil Suit No. 38 of 2003 of the Court of Civil Judge (Sr. Division), Rairangpur. Learned Single Judge in the impugned judgment has confirmed to that order of injunction and in the result dismissed the appeal. As against that judgment, this Letters Patent Appeal has been filed.

3. At the outset, Mr. Indrajit Mohanty, learned Counsel appearing for the Plaintiffs-Respondents raised objection to the maintainability of the appeal and yesterday, prayed to the Court to decide that as the preliminary issue. Mr. R.K. Mohanty, learned Counsel appearing for the appellant consented for hearing on that issue as preliminary issue. Thus, yesterday, we heard the matter in part.

4. In support of their rival contention on the maintainability of the appeal, both the parties rely on the case of P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank Ltd. and Ors. . According to Mr. Indrajit Mohanty, learned Counsel for the respondent after amendment of Section 100-A, C.P.C. by Act 22 of 2002 with effect from 01.07.2002, jurisdiction conferred under Clause 10 of the Letters Patent applicable to Orissa High Court is no more invokable in ah appeal of the present nature and that position of law is clear from the ratio, per majority view, in the case of Sathappan (supra). Mr. R.K. Mohanty, learned Counsel for the appellant on the other hand argues that Section 100-A, C.P.C. has no application to the present appeal and the provision of law in Sections 4 and 104(1), C.P.C. read with Clause 10 of the Letters Patent have remained unchanged by the recent amendment of C.P.C. and that the majority view in the case of Sathappan (supra) having the effect of binding precedent, lays down the law in support of maintainability of Letters Patent Appeal.

5. We have gone through the above noted citation and the provisions of law from the C.P.C. It is noted in paragraph 2 of the cited decision that:

We are aware of the fact that Clause 15 of the Letters Patent applicable to Madras High Court was similar to Clause 10 applicable to Orissa High Court.

Therefore, we accept the ratio in the case M Sathappan (supra) for consideration of maintainability of this Letters Patent Appeal under Clause 10 of Letters Patent applicable to Orissa High Court.

6. F.A.O. No. 270 of 2003 was preferred by the appellant in accordance with the provision in Section 104(1), C.P.C. read with Order 43 Rule 1, C.P.C. and not under Section 96 read with Order 41 Rule 1, C.P.C. Thus, provisions in Section 100 or 100-A, C.P.C. are not applicable to this appeal, Once we find that such is the position of law, then we find from the ratio in the case of Sathappan (supra) that:

22. Thus the unanimous view of all Courts till 1996 was that Section 104(1), C.P.C. specifically saved Letters Patent Appeals and the bar under Section 104(2) did not apply to Letters Patent Appeals. The view has been that a Letters Patent Appeal cannot be ousted by implication but the right of an Appeal under the Letters Patent can be taken away by an express provision in an appropriate Legislation. The express provision need not refer to or use the words 'Letters Patent' but if on a reading of the provision it is clear that all further Appeals are barred then even a Letters Patent Appeal would be barred.

Again, in paragraphs-29, 30, 31 and 32 Their Lordships have held that:

29. Thus, the consensus of judicial opinion has been that Section 104(1) Civil Procedure Code expressly saves a Letters Patent Appeal. At this stage it would be appropriate to analyse Section 104, C.P.C. Sub-section (1) of Section 104, CPC provides for an appeal from the orders enumerated under Sub-section (1) which contemplates an appeal from the orders enumerated therein, as also appeals expressly provided in the body of the Gode or by any law for the time being in force. Sub-section (1) therefore contemplates three types of orders from which appeals are provided namely, (1) order enumerated in Sub-section (1), (2) appeals otherwise expressly provided in the body of the Code and (3) appeals provided by any law for the time being in force. It is not disputed that an appeal provided under the Letters Patent of the High Court is an appeal provided by a law for the time being in force.

30. As such an appeal is expressly saved by Section 104(1), Sub-clause (2) cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading Sub-clause (2) by ignoring the saving clause in Sub-section (1) would lead to a conflict between the two sub-clauses. Read as a whole and on well established principles of interpretation it is clear that Sub-clause (2) can only apply to appeals not saved by Sub-clause (1) of Section 104. The finality provided by Sub-clause (2) only attaches to Orders passed in Appeal under Section 104, i.e., those Orders against which an Appeal under 'any other law for the time being in force' is not permitted. Section 104(2) would not thus bar a Letters Patent Appeal. Effect must also be given to Legislative Intent of introducing Section 4, C.P.C. and the words 'by any law for the time being in force' in Section 104(1). This was done to give effect to the Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. As Appeals under 'any other law for the time being in force' undeniably include to Letters Patent Appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in Sub-clause (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a Letters Patent Appeal. However when Section 104(1) specifically saves a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in 104(2) that a Letters Patent Appeal is also prohibited, xx xx xx.

31. Applying the above principle to the facts of this case, the appeal under Clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law.

32. It was next submitted that Clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a sub-ordinate or subservient piece of law. Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent but then which legislation is not subject to amendment or alteration. CPC is also subject to amendments and alterations. In fact, it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar's case (supra) and Sharda Devi's case a Letters Patent is the Charter of the High Court. As held in Shah Babulal Khimji's case (supra) a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100A.

Ultimately Their Lordships decided that the Letters Patent Appeal under Clause 15 applicable to Madras High Court is maintainable being not expressly barred under Section 104(2), C.P.C.

7. In view of the above ratio, argument of the respondents against maintainability of the L.P.A. is not accepted. In other words, we find that a Letters Patent Appeal is maintainable. The preliminary issue is decided accordingly to admit the appeal.

Since the respondents have already entered appearance, the L.P.A. be listed accordingly.

Misc. Case No. 36 of 2005 20.04.2005Heard.

This application has been filed to temporarily dispense with filing of certified copy of Annexure-7, i.e., the copy of the order-sheets in Interim Application No. 12 of 2003. Petitioner states that certified copy shall be produced at the time of hearing of the appeal.

In view of that undertaking, we dispense with filing of the certified copy at this stage.

The Misc. Case is disposed of accordingly.

Misc. Case No. 35 of 2005 20.04.2005This application under Chapter-VI, Rule 27-A of Orissa High Court Rules has been filed to stay operation of the order of the trial Court impugned in F.A.O. No. 270 of 2003 and the impugned judgment of learned Single Judge in F.A.O. No. 270 of 2003. Since the Respondents-Opposite Parties have already entered appearance, copy of this application is served on learned Counsel for the Respondents.

List this case for orders in the next week. Counter, if any, be filed by the respondents in the meantime.

L.P.A. No. 26 of 2005 10.5.2005 Heard.

Appellant files a memo stating therein that in view of pendency of S.L.P. (Civil) No. 9818 of 2005, appellant wants to withdraw this L.P.A. Respondents have filed a memo today stating that an order has been passed by the Apex Court in S.L.P. No. 9555 of 2005 staying the further proceedings of the L.P.A. When the further proceedings of the L.P.A. has been stayed, the memo for withdrawal of the appeal is kept for consideration without passing any further order and the L.P.A is stayed in accordance with the order of the Apex Court.