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Judgment
P.R. Gokulakrishnan, C.J.—The appellant herein was the defendant in Regular Civil Suit No. 62 of 1984. The said suit was for granting
mandatory injunction requiring the appellant herein to remove the construction he has put in before filing of the suit and for perpetual injunction
restraining the appellant from putting any further construction and also restraining the appellant from obstructing the respondent herein from putting
construction on the suit plan.
It is the case of the respondent herein that the plot on which the appellant has put in construction was allotted to him by the Taluka Development
Officer, Dhandhuka and that inspite of that the appellant herein had. constructed a wall in that plot. By application Exh. 5 in that said suit the
respondent herein applied for temporary injunction restraining the appellant herein from putting any construction and also restraining him from
obstructing the respondent herein in putting construction over the suit plot. On that Exh. 5, the learned trial Judge granted an interim temporary
injunction. By virtue of the said injunction granted, the respondent has pulled down the wall put up by the appellant herein. Ultimately the Regular
Suit No. 62 of 1984 came to be dismissed by the learned trial Judge. As against the judgment and decree of the learned trial Judge the respondent
herein who was the plaintiff in the original suit, filed Regular Civil Appeal No. 132 of 1985 on the file of District Court at Narol. Along with the
appeal the respondent herein applied for temporary injunction praying the very same relief he has prayed for in Exh. 5 before trial Court. The
Appellate Court granted the interim injunction and as a result of the said injunction the respondent herein put up further construction on the suit land
and has constructed a house up to roof level. Ultimately the District Judge allowed the Regular Civil Appeal No. 132 of 1985 by decreeing the suit
as prayed for by the respondent herein. As against the judgment and decree of the learned Appellate Court, the appellant herein, who is the
defendant in the suit, has filed the Second Appeal No. 186 of 1987 before this Court. The appellant herein has also filed Civil Application No.
1928 of 1987 in the said Second Appeal praying for the stay of the execution and operation of the decree passed by the Lower Appellate Court.
The High Court admitted the Second Appeal and had granted ad interim relief maintaining the status quo order on the Civil Application No. 1928
of 1987. The respondent herein filed Civil Application No. 2040 of 1987 in the Second Appeal and wanted to vacate the status quo order passed
in Civil Application No. 1928 of 1987 with a further prayer that the respondent herein should be permitted to put up the roof over the house
constructed by him on the suit plot. The said Civil Application No. 2040 of 1987 came up for hearing on 24-12-1987 and the Hon''ble Single
Judge of this Court has passed an order stating ''No order on this C.A. at this stage''. Subsequent to this order the respondent herein put in a
second application-C.A. No. 115 of 1988 praying the very same relief he has prayed in Civil Application No. 2040 of 1987. The said Civil
Application was beard by the learned single Judge of this Court and he passed an order on 14th March, 1988 granting the relief prayed for by the
respondent herein by permitting the respondent to complete the construction and put up the roof over the walls already constructed. Except to this
limited extent, the learned single Judge stayed the rest of the construction given in the judgment and decree of the learned Appellate Court.
Aggrieved by the said order of the learned single Judge the present Letters Patent Appeal has been filed by the original defendant who is the
appellant in the Second Appeal.
Without going into the merits of the case we wanted Mr. Nagin N. Gandhi, the learned Counsel appearing for the appellant to satisfy us as to
the maintainability of the Letters Patent Appeal under Clause 15 of the Letters Patent. Mr. Gandhi, learned Counsel appearing for the appellant
submitted that Civil Application No. 1928 of 1987 was filed for the stay of the judgment and decree granted by the Lower Appellate Court
wherein the Lower Appellate Court granted the mandatory injunction prayed for by the respondent herein requiring the appellant herein to remove
the construction that he had put up and also for perpetual injunction restraining the appellant herein from putting up further construction and also for
restraining the appellant herein from obstructing the respondent herein in putting up construction on the suit plot. Thus, in effect, the appellant herein
prayed for the stay of the injunction order granted by the Lower Appellate Court. This prayer, according to Mr. Gandhi, is in the nature of granting
injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code. If an order is passed in a petition filed under this provision of the Civil
Procedure Code, according to Mr. Gandhi, an appeal is available as per Order 43 of the Civil Procedure Code. Mr. Gandhi, learned Counsel
appearing for the appellant, reading Section 104 of the CPC with Order 43 Rule l(r) contends that an appeal under Clause 15 is maintainable. Mr.
Gandhi further submits that as per Section 100A of the Civil Procedure Code, it is only the decision by a single Judge of the High Court finally
given in any appeal from an appellate decree or order, no LPA is maintainable and not in respect of interlocutory order of this nature from which
an appeal has been preferred now.
Section 100A of the CPC reads as follows:
100A. Notwithstanding anything contained in any other instrument having the force of law or in any other law for the time being in force, where any
appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment,
decision or order of such single Judge in such appeal or from any decree passed in such appeal.
Section 104 of the CPC reads as follows:
(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the
time being in force, from no other orders:
(a) to (f) (Omitted by Arbitration Act, 1940)
(ff) an order u/s 35A,
[(ffa) an order u/s 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;]
(g) an order u/s 95;
(h) an order under any of the provisions of this Code imposing a tine or directing the arrest or detention in the Civil Prison of any person except
where such arrest or detention is in execution of a decree;
(i) any order made under Rules from which an appeal is expressly allowed by Rules; Provided that no appeal shall lie against any order specified in
Clause (ff) save on the ground that no order, or an order for the payment of a less amount ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.
Order 43-1(r) reads as follows:
An appeal shall lie from the following orders under the provisions of Section 104, namely,
XXX XXX XXX XXX XXX
XXX XXX XXX XXX XXX
XXX XXX XXX XXX XXX
(r) an order under Rule 1, Rule 2, (Rule 2A) Rule 4 or Rule 10 of Order X-XIX.
Clause 15 of the Letters Patent reads as follows:
And we do further order in that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a 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 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 or one Judge of any Division Court, pursuant to Section 108 of the
Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of
one 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
judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments 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.
It is clear from the above said provisions of law that Letters Patent under Clause 15 will lie to the High Court of Judicature provided it is not a
judgment passed in the exercise of an 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. As far as the facts of the present case are concerned, the order passed is, in the
pending Second Appeal. Section 100A of the CPC clearly states that, where any appeal from an appellate decree or order is heard and decided
by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of single Judge in such appeal or from any
decree passed in such appeal. Conjoint reading of Clause 15 of the Letters Patent and Section 100A, it is clear that judgment, decision or order
passed by a single Judge of the High Court in Second Appeal cannot be agitated by way of Letters Patent Appeal in the same Court. The words
''in such appeal'' occurring in Section 100A of the CPC will cover any interlocutory order passed in the pending Second Appeal. In the case of
Jayant Vrajlal Ajmera v. Jayantkumar Motichand Doshi reported in 1985 (2) GLR 710 a Bench of this High Court had an occasion to consider
whether an appeal under Letters Patent will lie against an order passed by a single Judge in the exercise of a revisional jurisdiction. In that case,
pending a Civil Revision Petition, a single Judge of this High Court granted an interim order. The parties who were aggrieved by the said order,
filed a review application on the said interim order without success. Then they sought permission to file a Letters Patent Appeal against the interim
order passed by the learned single Judge in the Civil Revision Petition. In those circumstances, the Bench of this High Court held (at page 713 of
GLR):
The crux of the problem, in order to determine the nature of the power which the learned single Judge was exercising, is that could he have made
this order de hors the exercise of the revisional jurisdiction in a substantive proceeding which might have been moved before him independent of
the revisional proceeding of which he was seized. If the answer is in the negative, the inference must be that the Judge was exercising revision
jurisdiction.
Continuing, the Bench held:
Even assuming that this is an order made in exercise of original jurisdiction, all orders made in exercise of the original jurisdiction are not appealable
and inasmuch as the CPC does not provide for an appeal from an order of the nature as the one with which we are concerned in the present
proceedings Letters Patent Appeal would not be competent. If a specific enactment makes an order of the learned single Judge not capable of
being appealed against, the appeal provided by Letters Patent will not prevail.
In that view, the Bench of this High Court refused to grant the leave prayed for. While deciding so the Bench of this High Court relied upon the
decision reported in South Asia Industries Private Ltd. Vs. S.B. Sarup Singh and Others, also. Thus, the above said decision in all force applies to
the facts of the present case also.
In the case of Madhusudan Vegetable Products Co. Ltd. Vs. Rupa Chemicals, Vapi and Others, a Bench of this High Court has clearly held
that (at page 108 of GLR):
Once a single Judge decides an appeal from an appellate decree or order, his decision will not attract the applicability of Clause 15 of the Letters
Patent as such appeal would be expressly barred in view of the aforesaid legislative provision. It is obvious that from decisions in all appeals from
appellate decree, that is Second Appeals, no further appeals under Clause 15 would be maintainable. Similarly, the decision rendered by single
Judges of the High Court in appeals from orders also cannot be challenged in further appeals in view of the express bar u/s 100A.
Proceeding further the Bench held that (at page 107 of GLR):
Consequently it must be held that both Section 104 of the CPC and Clause 15 of the Letters Patent can harmoniously co-exist as finally ruled by
the Supreme Court in the aforesaid decision. If that is so Section 104, Sub-section (2) will have to be given its true effect. Once that is done, the
appeal riled under Clause 15 of the Letters Patent on the facts of this case would not be maintainable as it is barred by Sub-section (2) of Section
104 of the Code of Civil Procedure.
In the case of Shah Babulal Khimji v. Jayaben reported in AIR 1981 SC 1786, the Supreme Court considered the case arising from the original
side jurisdiction of the High Court and held that the said order passed in that case is a judgment and as such the Letters Patent will lie to the
Division Bench of the High Court. We do not think that this case can have any relevance to the facts of the present case.
In the case of P. Ranga Redy and Others Vs. Golla Sambasivarao and Others, , the Andhra Pradesh High Court considered the right to file an
appeal under Clause 15 of the Letters Patent in respect of an order passed by the single Judge of the High Court in an appeal filed against an
appellate order of remand. In that case it observed:
From the point of bar of further appeals Section 100A, CPC does not make any distinction between appeals from appellate decrees and appeals
from appellate orders in the sense that judgments by single Judge of a High Court from both categories of appeals are rendered statutorily non-
appealable. Terminologically, the distinction maintained by the existing law between Second Appeals u/s 100 and Civil Miscellaneous Appeals u/s
104 read with Order 43. Rule 1, C.P.C. is sought to be done away with by the Parliament for the purpose of giving effect to the bar of further
appeals.
Except for the principles laid down, we do not think that the facts of this case are similar to the one on hand.
The decision rendered in the case of Fr. Abraham Mathews and Another Vs. Illani Pillai and Others, by the Full Bench has also evolved the
same principles as laid down in the case of P. Ranga Redy and Others Vs. Golla Sambasivarao and Others, .
A Bench of this High Court, consisting of myself and my learned Brother dealing with a Letters Patent Appeal which rose out of a
Miscellaneous Civil Application filed in Civil Revision Application came to the conclusion that the said M.C.A. is in nature of a review petition and
that the facts in the M.C.A. would not justify that it is an independent application de hors the proceedings in C.R.A. No. 1223 of 1984. With that
observation we hold that the Letters Patent Appeal is not maintainable. We further hold that the argument of the learned Counsel in that petition, if
accepted on the facts and circumstances of the case, will lead to dangerous consequences and that anyone aggrived by any interim direction
passed in a Civil Revision Application may as well file on M.C.A. of that nature and will invoke the jurisdiction of the High Court under Clause 15
of the Letters Patent. It was further held and observed as follows:
When it is very clear that no Letters Patent Appeal is entertainable in respect of the final order in a C.R.A., a fortiori there cannot be any Letters
Patent Appeal either with regard to some interlocutory orders or directions given in the said C.R.A. or in respect of orders passed in a petition
which is in the nature of a review petition for the purpose of reviewing the orders passed in such C.R.A.
As far as the present case is concerned Civil Application was filed in the pending Second Appeal for the relief which we have already
extracted in paragraph supra. Aggrieved by the order passed in that Civil Application filed in the Second Appeal the appellant herein wants this
Letters Patent Appeal to be admitted. The facts and the principles decided in the Letters Patent Appeal No. 254 of 1986 given by us as early as
2nd September, 1986 will apply in all force to the facts of this case also.
From the foregoing discussion it is clearly that the present appeal sought to be filed is an appeal from the second appellate stage and hence the
Letters Patent Appeal is not maintainable. For all these reasons this Letters Patent Appeal is dismissed.