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Anumanchi Ramanayya ... v. Thubati Kotayya And ...
Structured Summary of the Opinion
Factual and Procedural Background
This appeal was filed purportedly under Clause (15) of the Letters Patent against an order in which a single Judge of the High Court refused leave to appeal from a judgment he had passed in a second appeal. A preliminary objection was raised by counsel for the respondent that no appeal lies from an order refusing leave to appeal. Clause (15) of the Letters Patent had been amended (on 3 November 1927 and 12 December 1928) with effect from 1 February 1929 to provide that no appeal shall lie to the High Court from judgments in certain second appeals by a single Judge unless the Judge declares the case fit for appeal. The second appeal in question was heard after 1 February 1929 and the Judge declined to grant leave to appeal. The appellant then preferred the present Letters Patent appeal against that refusal. The core procedural question before the Court was whether such an appeal is maintainable.
Legal Issues Presented
- Whether, under the amended Clause (15) of the Letters Patent (effective 1 February 1929), an appeal to the High Court lies from a single Judge's refusal to grant leave to appeal in a second appeal.
- Whether an order refusing leave to appeal by a single Judge can be treated as a "judgment" within the meaning of Clause (15) such that an appeal would lie.
Arguments of the Parties
Respondent's Position (as raised by respondent's counsel)
- A preliminary objection was taken that no appeal lies from an order refusing leave to appeal (i.e., such a refusal is not appealable).
Appellant's Arguments
- The appellant's counsel argued that Clause (15) prohibits appeals only from the merits of a second appeal decided by a single Judge, but does not prohibit an appeal from the Judge's refusal to declare the case fit for appeal. In other words, there is a right to challenge the refusal to grant leave and the Appellate Bench should be able to consider whether the refusal was correct — which might require examining the merits to the extent necessary.
- The appellant further argued that the question concerns a judgment of the High Court itself (rather than a decree or order of a subordinate court subject to the High Court's superintendence), and therefore the restrictions in Clause (15) would not apply to such a judgment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Minakshi Naidu v. Subramanya Sastri (1887) L.R. 14 I.A. 100 | Appeal rights must be given by enacted law or equivalent authority; no assumed right of appeal. | Quoted to support the general proposition that an appeal does not lie unless expressly provided by statute or equivalent instrument (applied to Clause (15)). |
| Mayor, etc., of Montreal v. Brown and Springle (1870) 2 A.C. 168 | Same general principle that appeals do not lie except by express legislative grant. | Used to reinforce the principle that statutory or express authority is required to confer appeal rights. |
| Lane v. Esdaile (1891) A.C. 210 | No appeal lies from a refusal of the Court of Appeal to grant special leave to appeal; such refusals are not orders within the meaning of the Appellate Jurisdiction Act for purposes of appeal. | Cited and relied on heavily to show that refusal of leave to appeal is final and unappealable unless an appeal is expressly given. |
| Kay v. Briggs (1889) 22 Q.B.D. 343 | The Court of Appeal has no jurisdiction to hear an appeal from a Divisional Court's refusal of special leave to appeal under Section 45 Judicature Act 1873. | Invoked to demonstrate English authority that refusals of leave to appeal are not subject to further appeal and that the power to grant or refuse leave is confined to the authority given that power. |
| Ex parte Stevenson (1892) 1 Q.B.D. 609 | Where a judge refused leave under a statutory provision, the Divisional Court held that no appeal lay to them from his decision; Court of Appeal agreed. | Quoted for the proposition that wherever power is given to an authority to grant or refuse leave to appeal, that decision is final and unappealable unless an appeal is expressly provided. |
| Tuljram Row v. Alagappa Chettiar (1910) I.L.R. 35 M. 1 | Indian authority on questions of whether certain orders are 'judgments' for Letters Patent purposes (as cited to the Court). | Relied upon by counsel but the Court observed that, in light of Lane v. Esdaile, it is doubtful whether a refusal to grant leave is a 'judgment' for Clause (15) purposes; nonetheless the Court read Clause (15) as making the single Judge's decision final unless he grants leave. |
| Sonachalam Pillai v. Kumaravelu Chettiar (1923) I.L.R. 47 M. 316 | Indian decision cited in relation to whether orders refusing leave are 'judgments'. | Cited to show prior practice/decisions on characterization of such orders; Court noted their doubtful application given English authority but treated Clause (15) as intending finality. |
| Official Assignee of Madras v. Ramalingappa (1925) I.L.R. 49 M. 539 | Decision referenced on the point of whether an order refusing leave is a 'judgment' for Letters Patent purposes. | Cited by counsel; Court observed doubt but nonetheless held Clause (15) shows legislative intention that the single Judge's decision in second appeal is final unless he grants leave. |
| Maharajah of Pittapuram v. Rama Rao (1927) I.L.R. 50 M. 770 | Another decision cited concerning characterization of orders and Letters Patent interpretation. | Referenced but not treated as displacing the Court's conclusion that Clause (15) makes the single Judge's decision final; the Court emphasised the amended Clause's wording. |
| Madhava Aiyar v. Muthia Chettiar (1916) 5 L.W. 168 | Decision of this Court supporting the view that no appeal lies from certain refusals to grant leave to appeal. | The Court noted this decision supports their view (and observed the grounds for decision in the present appeal were stronger than in that case). |
Court's Reasoning and Analysis
The Court structured its analysis around the legal proposition that an appeal exists only where it is conferred by statute or equivalent instrument. Applying that principle, the Court examined the text and effect of the amended Clause (15) of the Letters Patent (amended in 1927–28 and effective 1 February 1929). The clause, as read by the Court, declares that no appeal shall lie to the High Court from judgments passed by a single Judge in second appeals after 1 February 1929, except where the Judge who passed the judgment declares the case fit for appeal.
The Court emphasised that where a statutory right of appeal is made subject to a condition (for example, leave being granted by the Judge), that condition must be strictly complied with before an appeal can be taken. The Court quoted Maxwell's Interpretation of Statutes to the effect that neglect of statutory requisites is fatal to the appeal.
Turning to the appellant's submissions, the Court rejected two strands of argument advanced by the appellant:
- The submission that Clause (15) only bars appeals from the merits but permits appeals from the refusal to grant leave — the Court held this was untenable. It relied on established English authority that where power is given to an authority to grant or refuse leave to appeal, the decision of that authority (to grant or refuse) is, by its nature, final and not subject to appeal unless an appeal is expressly provided.
- The submission that the restrictions in Clause (15) do not apply because the judgment was one of the High Court itself — the Court read Clause (15) as covering a judgment passed by a single Judge in second appeal and concluded that the legislative intention was to make such decisions final unless the Judge himself grants leave. The Court also pointed out that even if the order refusing leave were regarded as not being a 'judgment', the clause's requirement that the Judge who heard the second appeal grant leave could not be satisfied by leave granted by a Division Court.
The Court surveyed and relied upon several English authorities (Kay v. Briggs; Lane v. Esdaile; Ex parte Stevenson) which held that refusals of leave to appeal are final and unappealable unless an express right of further appeal exists. It applied those principles directly to the amended Clause (15). The Court also noted supportive Indian authorities (including Madhava Aiyar v. Muthia Chettiar) but regarded the amended Clause (15) itself as decisive.
Because the Judge who heard the second appeal declined to grant leave, and because Clause (15) makes the single Judge's declaration the precondition for any further appeal, the Court concluded that no appeal lay from that refusal. The Court therefore found the appeal not maintainable.
Holding and Implications
HOLDING: The Court held that no appeal lies from the refusal of leave to appeal by a single Judge in a second appeal decided after 1 February 1929 under the amended Clause (15) of the Letters Patent. The Court dismissed the appeal and ordered that costs be paid to the 1st respondent (plaintiff).
Implications: The direct effect is that the appellant's Letters Patent appeal is dismissed and the refusal of the single Judge to grant leave to appeal is final for the purposes of Clause (15). The decision applies the established principle — supported by English and Indian authorities cited in the opinion — that a statutory or rule-based power to grant or refuse leave to appeal is final and not itself subject to appeal unless an express right of appeal is given. The opinion does not discuss broader changes to precedent beyond applying those authorities to the amended Clause (15); accordingly, the immediate consequence is the dismissal of the present appeal and the confirmation that, under the Clause as amended and as interpreted in this opinion, a Judge's refusal to grant leave in a second appeal is not open to further appeal.
Costs: Appeal dismissed with costs in favour of the 1st respondent (plaintiff).
1. This is an appeal purporting to have l?een preferred under Section 15 of the Letters Patent against the refusal by a learned Judge of this Court of leave to appeal from the judgment passed by him in a Second Appeal.
2. A preliminary objection is taken by Mr. Venkataramana Rao, the learned Advocate who appeared for the respondent, that no appeal lies from such orders of refusal of leave to appeal.
3. Clause (1.5) of the Letters Patent of this High Court was recently amended on 3rd November, 1927 and on 12th December, 1928. The effect of these amendments is to declare that no appeal shall lie to the High Court from the judgment 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 (and not being an order made in the exercise of a revisional jurisdiction or in the exercise of criminal jurisdiction) of one Judge of the High Court, or of one Judge of any Division Court pursuant to Section 108 of the Government of India Act, made on or after 1st February, 1929, unless the judge who passed the judgment declares that the case is a fit one for appeal. The second appeal in question was heard by the learned Judge after 1st February, 1929, and the learned Judge when moved by the present appellant has declined to grant leave to appeal under Clause (15) of the Letters Patent. The appellant has preferred this appeal against the said refusal by the learned Judge to grant leave to appeal. The question is whether this appeal is maintainable.
4. As remarked by the Privy Council in Minakshi Naidu v. Subramanya Sastri (1887) L.R. 14 I.A. 100: I.L.R. 11 M. 26 (P.C.), "it is not to be assumed that there is a right of appeal in every matter which comes under the consideration of a judge; such right must be given by the enacted law or equivalent authority". The Privy Council made a similar observation in the case reported in Mayor, etc., of Montreal v. Brown and Springle (1870) 2 A.C. 168 at 184. "The rule of law in this country is that an appeal does not lie unless given by express legislative enactment." See also Lane v. Esdaile (1891) A.C. 210 at 211 per Lord Halsbury, L.C. That being so, the appellant must point out the provision of law under which he claims this right of appeal. The rule would apply with equal, if not with greater force, when it is sought to prefer appeal against the decision of one learned Judge of a Court to a Division Court of that Court. Under Section 108 of the Government of India Act, the Chief Justice shall determine what Judge in each case is to sit alone and what judges of the Court are to constitute the several Division Courts. The decision passed by such Judge or Division Court would be final unless a right of appeal be specifically given. Clause (15) of the Letters Patent is the only provision which has been brought to our notice, and it is under that clause that the present Letters Patent Appeal has been preferred. On a reading of Clause (15) as amended, it is clear to us that no appeal would lie to the High Court from a judgment passed by one Judge of the High Court in second appeal after 1st February, 1929. No further appeal to the High Court is available except where the Judge who passed the judgment declares that the case is a fit one for appeal.
5. When a right of appeal is given subject to any condition, it is clear that the said condition should be strictly complied with before the right of appeal could be taken advantage of. As stated in Maxwell's Interpretation of Statutes, Ch. XII, Section 3,
"Where it was provided that no appeal should be entertained unless certain rules were complied with, the neglect of the statutory requisites would obviously be fatal".
6. Mr. Raghava Rao, the learned Advocate for the appellant, argues, however, that what Clause (15) prohibits is only an appeal from the judgment of one learned Judge on the merits of a second appeal, and that the clause does not prohibit a right of appeal from the refusal of one learned Judge to declare that, the case is a fit one for appeal; in the case of such refusal, he argues, there is right of appeal, and if the Appellate Bench also agrees with the learned Judge on the question that the case is not a lit one for appeal, then only is there an end of right of appeal. In other words, if we understood his contention correctly, he argues that while there is no right of appeal against the judgment passed on the merits in the second appeal, there is a right of appeal from the refusal in such a case to grant leave and the Appellate Bench should decide, as best as it could, whether the refusal to grant leave to appeal was right or not. He did not hide from us the fact that the Appellate Bench may have for this purpose to go into the merits of the case itself to such, extent as it thought necessary.
7. He also argued that the question now is not 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, but that it is with reference to a judgment passed by the High Court itself, and that the restrictions referred to in Clause (15) do not apply to a judgment of the High Court.
8. We are clear that the arguments of the learned Advocate for the appellant are untenable and that the present appeal is not maintainable.
9. The practice of providing a right of appeal subject to conditions, though comparatively new to India, has been prevailing for a long time in England; sometimes leave of the Judge who decided the case or of the Court is made the condition precedent for the entertainment of an appeal; in other cases leave of either a Judge or the Court on the one hand or of the Court of Appeal on the other is made a condition precedent. An instance of the former is furnished by Section 45 of the Judicature Act of 1873, and an instance of the latter is furnished by the Judi-cature Act of 1894, Section 1(5). In India we have got an instance furnished by Section 75, Clause (3) of the Provincial Insolvency Act where a right of appeal to the High Court is given on obtaining leave of the District Court or of the High Court in respect of certain orders mentioned therein.
10. English Courts had to consider the very question raised in this appeal before us, namely, whether there is any right of appeal from the refusal of a Judge to grant leave to appeal.
11. In Kay v. Briggs (1889) 22 Q.B.D. 343 the Court of Appeal held:
Where a Divisional Court has refused special leave to appeal, under Section 45 of the Judicature Act, 1873, from their decision given in an appeal from a County Court, the Court of Appeal has no jurisdiction to hear an appeal from such refusal.
12. The following passage occurs in the judgment of Lord Esher, M.R.:
if this Court could overrule the discretion given by that section to Divisional Courts, the practical effect would be to allow an appeal here in every case, because the facts of each case would be brought before us in order to enable us to decide whether or not we ought to overrule that discretion. I think that the real meaning of Section 45 is to confine the power to give leave to appeal absolutely to the Divisional Courts. I am of opinion, therefore, that we have no jurisdiction to interfere with the exercise of their discretion.
13. Fry, L.J., observes as follows in the same case:
If an appeal from the refusal of the Divisional Court to grant leave to appeal could be brought to this Court, our order would not satisfy the only contingency upon which the section provides that the decision of the Divisional Court shall not be final, because special leave to appeal would be given, not by the Divisional Court, but by this Court. The decision of the Divisional Court would cease to be final, although the contingency remained unsatisfied.
14. In Lane v. Esdaile (1891) A.C. 210 the House of Lords decided that No appeal lies to this House from a refusal of the Court of Appeal to grant special leave to appeal from a judgment of the High Court.... Such a refusal is not an order or judgment of the Court of Appeal within the meaning of Section 3 of the Appellate Jurisdiction Act, 1876.
15. At page 215 Lord Herschell observed as follows:
If the contention of the appellants were well founded 1 think it would follow that under this Section 45 (of the Judicature Act of 1873) there could be an appeal to the Court of Appeal from a refusal by the Divisional Court, and an appeal again from the Court of Appeal to this House; so that every County Court case might be brought up to this House upon the question whether an appeal should be allowed or not.
16. Lord Field remarked at page 216:
It seems to me that, if your Lordships were to say now 'We will give leave (1887) L.R. 14 I.A. 100: I.L.R. 11 M. 26 (P.C.) and the Court of Appeal must enforce that, it would be imposing upon them the duty of giving a leave, as their leave, which they in their own judgment' think ought not to be given.
17. We may refer to one more case, Ex parte Stevenson (1892) 1 Q.13.D. 609 where A Judge at Chambers having refused to grant leave under Sch, II, Clause (20)(a) of the Housing of the Working Classes Act, 1890, the Divisional Court held that no appeal lay to them from his decision. The Court of Appeal held that no appeal lay.
18. Lord Esher, M.R., at page 611 laid down the law in the following words:
I am, on principle and on consideration of (he authorities that have been cited, prepared to lay down the proposition that, wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given.. The very nature of the thing really concludes the question; for, if, where a legal authority has power to decide whether leave to appeal shall be given or refused, there can be an appeal from that decision, the result is an absurdity, and the provision is made of no effect. If the contention for the claimant be correct, it would follow that the case might he taken from one Court to another till it reached the House of Lords on the question whether there should be leave to appeal. That cannot be so. For these reasons, I think the appeal must be dismissed.
19. Fry, L.J., gives some other reasons in support of the same position at page 612:
Is the order granting or refusing leave to appeal, subject to appeal? In my opinion it is not. I do not come to that conclusion on the ground that the word 'order' is not properly applicable to it; but from the nature of the thing and the object of the legislature in imposing this fetter on appeals. The object clearly was to prevent frivolous and needless. appeals. If, from an order refusing leave to appeal, there may be an appeal, (he result will be that, in attempting to prevent needless and frivolous appeals, the legislature will have introduced a new series of appeals with regard to the leave to appeal.... It appears to me that that would be an absurd result in the case of a provision the object of which is to prevent frivolous and needless appeals. Therefore, from the very nature of the thing the decision of the Court which has the power of giving leave to appeal is, in my opinion, final.
20. It is perhaps useful to quote one or two sentences from the judgment of Lopes, L.J., at page 612:
Where an appeal is given that is made subject to the leave of the Court or a Judge, or any other legal authority, I think that the granting or refusal of leave by such Court, or Judge, or other legal authority, is final and unappealable. The object of making appeals subject to leave is to prevent unnecessary and frivolous appeals. If an appeal were allowed from the granting or refusal of leave to appeal, the result would be that, instead of checking appeals, they might he multiplied to a most mischievous extent; for an appeal from the granting or refusal of leave might be carried from the Divisional Court to this Court, and from this Court to the House of Lords. For these reasons 1 think that the preliminary objection must prevail.
21. It was argued that the order passed by the learned Judge refusing leave to appeal in this case should be taken to be a judgment within the meaning of the Letters Patent, and in support of that position certain decisions of this Court were cited to us (Tuljram Row v. Alagappa Chettiar (1910) I.L.R. 35 M. 1 : 21 M.L.J. 1(F.B.) Sonachalam Pillai v. Kumaravelu Chettiar (1923) I.L.R. 47 M. 316: 46 M.L.J. 138., The Official Assignee of Madras v. Ramalingappa (1925) I.L.R. 49 M. 539: 50 M.L.J 361 and Maharajah of Pittapuram v. Rama Rao (1927) I.L.R. 50 M. 770: 53 M.LJ. 329). Having regard to the decision of the House of Lords in Lane v. Esdaile already referred to, it is to say the least, very doubtful whether such an order refusing leave could be said to be a 'judgment' for the purpose now under consideration, within the meaning of Clause (15) of the Letters Patent. But we are clear, reading Clause (15) as a whole, that the intention of the Legislature is that a judgment passed by a single Judge in a second appeal after 1st February, 1920, is final and not appealable, and that an appeal could be entertained against the said judgment only if the Judge who decided the second appeal granted leave to appeal. This, to our mind, is clear from the provisions of Clause (15) of the Letters Patent. The learned Judge having in this case declined to grant leave to appeal, the judgment in second appeal is final. Whether the order refusing leave to appeal be a 'judgment' or not, it is clear that no leave to appeal that might be granted by a Division Court would satisfy the requirements of the clause which provides that an appeal would lie only when the Judge who heard the second appeal grants leave to appeal. The English cases fully support the above position.
22. A. decision of this Court reported in Madhava Aiyar v. Muthia Chettiar (1916) 5 L.W. 168., referred to by the learned Advocate for the respondents, supports this view, though we think that the grounds for holding that no appeal lies in the present case are probably stronger than the grounds mentioned in the case in Madhava Aiyar v. Muthia Chettiar (1916) 5 L.W. 168.
23. For the above reasons we are clear that no appeal lies from the refusal of leave to appeal by a learned Judge from a judgment passed by him in a second appeal after 1st February, 1929, under the amended Clause (15) of the Letters Patent, and we dismiss the appeal with costs of the 1st respondent (plaintiff).
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