Sivaji Sahai v. Shah Md. Farid And Anr.

Factual and Procedural Background

The respondents (plaintiffs) filed Title Suit No. 184/2001 seeking ejectment of the appellant (tenant) on the grounds set out in the plaint. The appellant appeared, filed a written statement and contested the suit. Both parties led evidence. At the hearing, after arguments by the plaintiffs-respondents were completed and the appellant's arguments had commenced, the appellant's counsel relied on a statement made by P.W.1 (plaintiff No. 2) in cross-examination that certain cheques handed over by the appellant “were not encashed.” The plaintiffs filed an application under Section 153 CPC read with Section 151 CPC seeking recording of the words “satya no-hoi” which were omitted to be recorded and which they said they had come to know of on June 6, 2003. The appellant filed an application under Order 19, Rule 2 CPC read with Section 151 CPC to be allowed to cross-examine P.W.1 on that point. An objection was filed against the appellant's application. The trial court, by order dated August 10, 2004 (Annexure 11), directed re-examination of P.W.1 and gave the appellant liberty to cross-examine her. The appellant challenged that order in W.P.(C) No. 7235/04 under Article 227 of the Constitution. A learned Single Judge, by order dated 11.10.2004, upheld the trial court's order for re-examination of P.W.1 with liberty to cross-examine limited to the point raised. The appellant then filed the present appeal against the Single Judge's order.

Legal Issues Presented

1. Whether a letters-patent appeal lies against an order passed by a Single Judge of the High Court disposing of a writ petition filed under Article 227 of the Constitution of India.
2. Whether the trial court acted within its powers in ordering re-examination of P.W.1 and granting the appellant liberty to cross-examine her on the omitted statement.

Arguments of the Parties

Appellant's Arguments

• The learned Single Judge erred in dismissing the writ petition and in upholding the trial court's order permitting re-examination of P.W.1 with liberty to cross-examine; the learned court below could not pass such an order.
• Reliance was placed on several authorities, listed in the opinion as: Jeet Mohinder Singh v. Harminder Singh, (2004) 6 SCC 26; Smut. Surinder Kaur v. Karambir Singh, AIR 2004 P & H 337; Balakrishna Sivappa Shetty v. Mahesh Nenshy Bhakta, AIR 2003 Bombay 293; and Shri Rudreswar Dihingia…Defendant- v. Shri Pundu Mura…Opposite Party., AIR (1989) (Gau) 118 NOC.
• At the hearing before the Division Bench, the appellant's counsel stated the appeal was filed under the Gauhati High Court Rules (a bald statement without specifying a statutory provision was made).

Plaintiffs-Respondents' Position (as reflected in the record)

• The plaintiffs filed an application under Section 153 CPC read with Section 151 CPC seeking that the words “satya no-hoi” (omitted during recording) be recorded; they stated they became aware of this omission on June 6, 2003. (The opinion does not set out further detailed legal argument by the plaintiffs-respondents.)

Table of Precedents Cited

Court's Reasoning and Analysis

The Division Bench first addressed a procedural deficiency: the appeal had been presented without specifying the statutory provision under which it was filed. The Court asked under what provision the appeal was brought; counsel for the appellant made only a bald statement that it was filed under the Gauhati High Court Rules. The Court analyzed the Gauhati High Court Rules (Chapter VIII) and their reference to Clause 15 of the Letters Patent (quoted in the opinion) concerning appeals.

On the central procedural question whether a letters patent appeal lies against an order passed by a Judge disposing of a writ petition under Article 227, the Court relied on precedent. It noted that in Sukhendu Bikash Barua v. Harekrishna De (AIR 1953 Calcutta 636, Para 11) a Division Bench of the Calcutta High Court held that no letters patent appeal lies against an order passed under Article 227. The Court further cited two Supreme Court decisions—RDCCB v. Dinkar and Susila Bai v. Nihalchand (1993 Supp (1) SCC 9 and 11)—as taking a similar view. Applying these authorities, the Court concluded that no letters patent appeal lies against the judgment passed by the learned Single Judge under Article 227 of the Constitution.

Separately, on the merits, the Court observed that the appellant had approached the High Court under Article 227 invoking its supervisory jurisdiction over the learned Civil Judge. The Court stated that the limitation of that supervisory power is well-known, and concluded that the learned Civil Judge was within his limits in exercising inherent powers to pass the order for re-examination of P.W.1. The Court described that order as having its root in necessity and found no injustice to the appellant.

Holding and Implications

Holding: The appeal is dismissed. The Division Bench held that no letters patent appeal lies against a judgment passed by a Single Judge disposing of a writ petition under Article 227 of the Constitution of India, and, on the merits, that the trial court acted within its inherent powers in ordering re-examination of P.W.1 with liberty to the appellant to cross-examine limited to the point raised. The Court dismissed the appeal "but without costs."

Implications: As a direct effect, the order of the learned Single Judge dated 11.10.2004 (upholding the trial court's order dated August 10, 2004) is sustained; the appellant's challenge fails and the appellant is not awarded costs. The opinion applies and records existing authority that no letters patent appeal lies from judgments under Article 227; it does not purport to create a new legal principle beyond affirming that position.