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Hemlata Panda And Others v. Sukuri Dibya And Others
Factual and Procedural Background
The respondent instituted a suit seeking a declaration of title and confirmation of possession, or in the alternative, recovery of possession. The Munsiff's Court dismissed the suit on 12-12-1977. The respondent’s first appeal was dismissed in default on 09-05-1980 by the Subordinate Judge owing to non-appearance of counsel. An application for restoration under Order 14 Rule 19 of the Code of Civil Procedure, 1908 (CPC) was dismissed on 14-04-1981. A further appeal under Order 43 Rule 1 read with Section 104 CPC was dismissed on 01-02-1983 by a Single Judge of the High Court. The respondent then filed a Letters Patent Appeal (LPA); the Division Bench held the LPA maintainable, set aside all previous orders, and restored the original first appeal. The present matter concerns the challenge to that Division Bench decision.
Legal Issues Presented
- Whether a Letters Patent Appeal lies against an order of a Single Judge passed while exercising appellate jurisdiction under Section 104(1) CPC in view of the bar contained in Section 104(2) CPC.
Arguments of the Parties
Respondent's Arguments
- The judgment of this Court in New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation (1997) 3 SCC 462, which held that such LPAs are not maintainable, does not state the correct law and should be reconsidered by a larger Bench.
- Reliance was placed on Shah Babulal Khimji v. Jayaben D. Kania (1981) 4 SCC 8; (1982) 1 SCR 187, where an LPA was held maintainable, to support the proposition that the present LPA should also be entertained.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corpn., (1997) 3 SCC 462 | Holds that a Letters Patent Appeal is not maintainable against an order of a Single Judge acting under Section 104(1) CPC because Section 104(2) bars a further appeal. | The Court followed this precedent, treating it as binding authority to declare the impugned LPA non-maintainable and to set aside the Division Bench judgment. |
| Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8; (1982) 1 SCR 187 | Permits a Letters Patent Appeal against certain orders of a Single Judge of the High Court on its original side when Section 104(1) does not expressly provide an appeal. | The Court distinguished this case, explaining that it concerned original-side jurisdiction of the High Court, not an appellate order under Section 104(1), and therefore did not apply. |
Court's Reasoning and Analysis
The Supreme Court noted that the Single Judge who dismissed the respondent’s appeal on 01-02-1983 was acting under Section 104(1) CPC. Section 104(2) CPC categorically prohibits any further appeal from an order passed in appeal under Section 104. Consequently, an LPA cannot lie in such circumstances. The Court reaffirmed its earlier ruling in New Kenilworth Hotel, rejecting the respondent’s request to refer the matter to a larger Bench, as no cogent reason was shown to doubt that precedent.
The respondent’s reliance on Shah Babulal Khimji was held misplaced because that decision dealt with orders of the High Court on its original side, where Section 104(1) did not provide an appeal, thereby allowing recourse to the Letters Patent. In contrast, the present case arose from an appellate order where Section 104(1) expressly applied and Section 104(2) barred any further appeal.
Holding and Implications
APPEAL ALLOWED; DIVISION BENCH JUDGMENT SET ASIDE.
By declaring the Letters Patent Appeal non-maintainable, the Supreme Court restored the legal position established in New Kenilworth Hotel. The immediate effect is that the respondent’s first appeal remains dismissed, and the Division Bench’s restoration order is nullified. The decision reinforces the bar under Section 104(2) CPC and does not create new precedent beyond affirming existing law.
Order
1. The respondent had filed a suit for declaration of title and confirmation of possession and in the alternative for recovery of possession. The suit was dismissed by the Munsiff's Court on 12-12-1977.
2. The appeal filed against the said suit, thereafter, was dismissed in default on 9-5-1980 by the Subordinate Judge due to non-appearance of the counsel for the respondent. The respondent then moved an application under Order 14 Rule 19 of the Code of Civil Procedure for restoration of the appeal but the same was dismissed on 14-4-1981.
3. The respondent then filed an appeal under Order 43 Rule 1 CPC read with Section 104 challenging the correctness of the order dated 14-4-1981. This appeal was dismissed vide judgment dated 1-2-1983. A letters patent appeal was filed whereby the order of 1-2-1983 of the learned Single Judge was sought to be challenged. An objection was raised with regard to the maintainability of the said letters patent appeal but the Division Bench came to the conclusion that the letters patent appeal was maintainable and, on merits, it set aside the order of the courts below and restored the appeal of the respondent before the Subordinate Judge.
4. We find that the judgment under appeal has been expressly overruled by this Court in New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corpn. (1997) 3 SCC 462 Notwithstanding this the learned counsel for the respondent submitted that the said judgment does not lay down the correct law and that we should refer the case to a larger Bench.
5. We are not convinced with the aforesaid submission and find that there is no merit in this contention of the learned counsel. The Single Judge was exercising jurisdiction as an appellate court under Section 104(1) CPC. Sub-section (2) of Section 104 clearly states that no appeal shall lie from any order passed in appeal under this section. Therefore when the Single Judge hears an appeal in exercise of his jurisdiction under Section 104(1) no further appeal by virtue of Section 104(2) is maintainable. Learned counsel for the respondent sought to place reliance on a decision entitled Shah Babulal Khimji v. Jayaben D. Kania (1981) 4 SCC 8, (1982) 1 SCR 187. This decision is not applicable. This was a case where a Single Judge of the High Court sitting on the original side passed an order against which a letters patent appeal was filed. This Court held that the letters patent appeal was maintainable. The reason for this is that an appeal from the order of the subordinate court can be entertained in those circumstances provided by Section 104(1). Where the original order is not passed by the subordinate court but is passed by the High Court exercising original jurisdiction, then, if appeal under Section 104(1) is not provided the letters patent may enable such a type of order to be appealable. This is exactly what was held in Shah Babulal Khimji case (1981) 4 SCC 8, (1982) 1 SCR 187 and this is the reason why in New Kenilworth Hotel (P) Ltd. case (1997) 3 SCC 462 the said decision of Shah Babulal Khimji (1981) 4 SCC 8, (1982) 1 SCR 187 was distinguished.
6. Following the decision of this Court in New Kenilworth Hotel (P) Ltd. case (1997) 3 SCC 462 we are of the opinion that the letters patent appeal against the order dated 1-2-1983 of the Single Bench was not maintainable and on this ground alone the judgment of the Division Bench of the High Court has to be set aside. Ordered accordingly. The appeal is allowed. No costs.
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