B.S. Adityan vs Fencing Association of India and Others

Faizanuddin, J.

This Letters Patent Appeal under Clause 10 of the Letters Patent of Madhya Pradesh High Court by the defendents has been directed against the orders passed on 29-6-1990 to 11-7-1990 by the learned Single Judge of this Court in Misc Appeal No. 227 of 1990.

The facts in brief giving rise to this appeal may be stated thus. The Indian Olympic Association/Respondent No. 3, herein, is a Society registered under the Societies Registration Act. It consists of various Federations which are affiliated with the Indian Olympic Association. The Management of the Indian Olympic Association (hereinafter referred to as the ''I. O. A.'') is controlled by a duly elected Executive Council in accordance with rules for a term of 4 years A Special General Meeting may be summoned at any time by the President of I. O A. at his discretion or it is convened on a written requisition signed by the Presidents and Secretaries of not less than 15 Member-Units within one months from the date of receipt by the President of the said requisition in accordance with Clause 6 of the Rules and Regulations, with which the I O. A. and various affiliated units are governed.

On 16-5-1990 certain members of the I. O A. gave a notice to Shri Adityan, Appellant No. 1 herein, the President of the I. O. A. to hold meeting at Delhi on 15-6-1990 to consider no confidence motion against the President Shri Adityan. On 27-5-1990 a Special General Meeting of the I.O.A. was called by the President to consider the question of no confidence motion against him and it was decided to hold the meeting at Madras on 15-6 1990. But, in the meanwhile, the requisitionists of the meeting gave a notice on 29-5-1990 to hold the meeting on 15-6-1990 at Delhi and not at Madras to consider the matter of no confidence motion against the Appellant No. 1 Shri Adityan, On 8-6-1990 a Civil Suit was filed in its original side in Delhi High Court by the I O.A. against the 17 requisitionists including the two Plaintiffs/ Respondents No 1 and 2, herein An application was also moved in the suit filed in the Delhi High Court for grant of temporary injunction against the 17 requisitionists and the Plaintiffs/Respondents No. 1 and 2, herein, to restrain them from holding a meeting of the I. O A. at Delhi on 15-6-1990. The application was opposed by the Respondent No. 1 and 2, herein. The Delhi High Court by order dated 8-6-1990 (Annexure-D) restrained the requisitionists and the Respondents No. 1 and 2, herein, from holding a meeting on 15-6-1990 at Delhi on the basis of requisition dated 16 5-1990, but allowed the Special General Meeting to be held at Madras on 15-6-1990 to consider the question of loss of confidence in the present Executive Council of the I. O. A. and at the same time appointed an observer for the said meeting.

Thereafter, on 14-5-1990 Tamil Naidu Association which is one of the members of the Indian Olympic Association, also filed a Civil Suit in Madras High Court in its original side against the Appellants No. 1 and 2, herein, to restrain them from holding the Special General Meeting at Madras on 15-6-1990 or at any day at any place. An application for grant of temperary injunction was also made which was disposed of by the Madras High Court by order dated 14-6-1990 (Annexure E) whereby the injunction sought for was declined, but it was directed that the meeting may be held at Madras in which the voting shall be by secret ballot inasmuch as that those ballot papers issued to the voting persons alone would be valid which are signed by the Secretary of the Association/Respondent No. 2, herein, and the Observer appointed by Delhi High Court and the meeting convened on 15-6-1990 would be presided over by the President, Shri Adityan. Consequently, the Special General Meeting of the I.O A. was held on 15-6-1990 at Madras which according to the report of the Secretary General/Appellant No. 2, herein and that of the Observer, it resulted into a chaos and had to be adjourned vide Annexures F. G, G-1 and H (which are the minutes of the meeting report of the Observer Shri A. B. Rohtagi, a retired Judge of Delhi High Court, affidavit of K. Murugan, General Secretary of Tamil Naidu Association and a report of the Police Commissioner). As against this, the case of the Respondents, herein, is that the Special General Meeting of the I.O A. was held at Madras on 1-6-1990 in which Shri Vidhyacharan Shukla was elected as President of the I. O. A.. The Tamil Naidu Olympic Association, however, moved an application before the Madras High Court u/s 12 of the Contempt of Courts Act to punish Shri Vidhyacharan Shukla for contempt of Court for flouting the directions of that Court given in the Civil Suit. The Madras High Court by an order dated 22-6-1990 (Annexure-I) directed Shri Vidhyacharan Shukla not to act as President of I. O. A. till 26-6-1990 and by another order dated 28-6 1990 (Annexure-J) the Madras High Court after hearing the counsel for the parties, directed the order dated 22 6-1990 referred to above to continue till 2-7-1990. Some what similar order appear to have been passed on 11-7-1990 which was ultimately by a Division Bench of Madras High Court by order dated 14-8-1990 passed in Contempt Appeal No. 5 of 1990 and Letters Patent Appeal No. 123 of 1990, a photo stat copy of which was placed before us during course of arguments.

In the meanwhile, on 27-6-1990 Fencing Association of India and its Secretary General, Respondents No. 1 and 2, herein, filed a Civil Suit (Annexure-K) based on various allegations, before the VIIIth Additional Judge to the Court of District Judge, Jabalpur, against the present four Appellants as well as against one R.L Anand, Secretary General I. O. A , to declare Shri Vidhyacharan Shukla and Shri R. L. Anand as duly elected President and Secretary of the I.O.A. and to restrain Shri B. S. Adityan, Appellant No. 1 herein, from interfering with the working of the newly elected body of the I. O. A. under Presidentship of Shri Vidhyacharan Shukla, besides some other reliefs. An application for injunction under Order 39, Rules 1 and 2 of the CPC was also made for grant of ad-interim injunction to restrain the Defendants No. 1 to 3 of that suit, the Appellants No. 1 to 3 herein, from interfering with the Office of Chairman Shri Vidhyacharan Shukla and the Secretary General Shri R. L. Anand, pending disposal of the suit. The trial Court (VIIIth Additional District Judge, Jabalpur) declined to grant ex-parte ad-interim injunction and issued notice of that application to the Defendants/Appellants by order dated 27-6-1990 (Annexure-M). Against this order of the trial Court, the Plaintiffs of the Jabalpur Suit that is the Respondents No. 1 and 2 herein, filed Misc. Appeal in the High Court u/s 104 read with Order 43, Rule 1 of the Code of CPC with the grievance that on the facts and circumstances narrated in the plaint and the application, the trial Court ought to have granted ex-parte temporary injunction. An application being I. A. No 4175 of 1990 was also made in the High Court in the said Misc. Appeal by the Plaintiff/Respondents No. 1 and 2 for grant of injunction. The learned Single Judge of this Court before whom the Misc. Appeal was listed for orders, relying on the affidavits and the documents filed in the appeal, took the view that a prima facie case appears to have been made out for maintaining the status quo in respect of election of Shri Vidyacharan Shukla as President of I. O. A. in the meeting held on 15-6-1990 at Madras and, therefore, the learned single Judge passed the impugned ex-parte order dated 29-6-1990 (Annexure M-1) to maintain the status quo until further orders. The Defendants/Appellants No. 1 to 3 entered appearance in the Misc. Appeal before the learned single Judge of this Court through counsel and made an application (I. A. No. 4340 of 1990) for vacating the order of stay dated 29 6-1990 referred to above. The learned single Judge, however, by yet another impugned order dated 5-7-1990 directed that the appeal be listed for final hearing, though the Defendants No. 4 and 5, the President and Secretary General of I. O. A. Shri Vidyacharan Shukla and Shri R. L. Anand, were not served stating that the question of non-service shall be considered at the time of hearing. The learned single Judge heard the appeal partly on 10-7-1990 and adjourned the appeal for further arguments on next day. On 11-7-1990 an objection was raised by the counsel for the Respondents/Plaintiffs No. 1 and 2 that as notices to Shri Vidyacharan Shukla and Shri R. L. Anand were not served, the appeal could not be heard finally and if it is so heard, it will entail the consequences of the Order 41, Rule 21 of the Code of Civil Procedure. The counsel for the Appellants/Defendants insisted that either the arguments be concluded finally or the ex-parte order of stay passed on 29-6-1990 be vacated. But the learned single Judge by order dated 11-7-1990 took the view that the appeal cannot be heard finally unless the two Defendants were served and no order on application for vacating stay was passed. This letters Patent Appeal has, thus, been directed against all the aforesaid orders dated 29-6-1990, 5-7-1990, 10 7-1990 and 11-7-1990 which are collectively marked as Annexure M-1, passed by the learned single Judge of this Court in Misc. Appeal No. 227 of 1990.

Shri N.L. Jaiswal, learned Counsel appearing for the Defendants/ Appellants, challenged the impugned orders by contending that the Jabalpur suit instituted by the Plaintiffs/Respondents No. 1 and 2 herein, for the benefit of the third party the application for grant of ad interim injuction was not maintainable as the Plaintiffs were not, in any manner, going to be affected if no order of injunction was passed and that too particularly when no irreparable injury is likely to ensue to the Plaintiffs. He vehemently urged that the order dated 17-9-1990 passed by the learned trial Judge (VII Ith Additional District Judge, Jabalpur) declincing to grant ad-interim ex parte temporary injuction is not an appealable order and the Plaintiffs/Respondents No. 1 and 2 had obtained the ex-parte order of injunction by suppression of material facts from the learned single Judge of this Court on 29-6-1990 in Misc. Appeal No. 227 of 1990, directing the parties to maintain status quo until further orders. Learned Counsel for the Appellants, therefore, submitted that in these circumstances the learned single Judge of this Court ought not to have granted exparte injunction and in any case, should have vacated the same.

Before we proceed to examine the various contentions advanced by the learned Counsel for the Appellants in assailing the impugned orders, we may point out that the learned Counsel appearing for the Respondents raised preliminary objection as to the competence of this Letters Patent Appeal under Clause 10 of the Letters Patent of Madhya Pradesh High Court in view of the bar contained in sub.section (2) of Section 104 read with Order 43, Rule 1 of the CPC (hereinafter referred to as the ''Code''). Learned Counsel for the Appellants, however, tried to repal this contention by submitting that the provisions of Section 104 of the Code are not attracted to the letters patent appeal. Since this preliminary objection is a basic question which goes to the root of the case, it would be appropriate to examine the same first before embarking upon the contentions advanced by the learned Counsel for the Appellants.

Here, for the purpose of proper appreciation of the preliminary objection, we propose to reproduce the relevant parts of Section 104 of the Code which run as under:

S. 104. Order from which appeal lies.-(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) xxx xxx xxx

(ff) an order u/s 35-A ;

(ffa) xxx xxx xxx

(g) xxx xxx xxx

(h) xxx xxx xxx

(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.

Before embarking upon a critical examination of the provision of Section 104 of the Code, we may state that it is settled law that the right of appeal is not a natural and inherent right of a person is respect of any litigation, but the same is a creature of statute. Any person having a grievance of a civil nature has a right to institute a suit in Court, independently of any statute in that behalf, unless the cognizance of the suit is expressly or implied barred under the provision of any law. But a right of appeal does not exist and cannot be assumed unless expressly conferred by statute or the rules having the force of statute. In this context, it may be pointed out that Section 96 of the Code deals with the appeals from decrees passed by any Court exercising original jurisdiction to the Court authorised to hear appeals, while Section 104 deals with appeals from orders specified in Sub-section (1) thereof. There is an apparent and a fine distinction between a decree and an order in-as muchas, the adjudication which is a decree within the meaning of Clause (2) of Section 2 of the Code, there is, invariably, a provision for appeal and further a second appeal u/s 100 of the Code only if the case involves a substantial question of law. But no appeal would be competent against an order unless it is expressly provided and falls within the ambit of Section 104 and in any case, no second appeal would be competent due to the embargo contained in Sub-section (2) of Section 1C4 of the Code which specifically provides that "no appeal shall lie from any order passed in appeal under this section". In other words, no second appeal would be maintainable against an order in appeal u/s 104 due to the bar contained in Sub-section (2) of Section 104 of the Code. A Letters Patent Appeal is nothing but a second appeal before a Division Bench of the same High Court against an order of a single Judge of that Court. A reading of Section 104 of the Code, as a whole reproduced above will go to show that the proviso to Sub-section (1) restricts the right of appeal against an order specified in Clause (ff) thereof, while Sub-section (2) of Section 104 of the Code further restricts the right of a party to only one appeal. Thus, Section 104 of the Code bars an appeal under the Letters Patent if the order appealed against is unappealable under Sub-section (2) of Section 104 read with Order 43, Rule 1 of the Code, because there is no saving clause in Sub-section (2) of Section 104 as has been inserted in Sub-section (1) of Section 104 of the Code.

In South Asia Industries Private Ltd. Vs. S.B. Sarup Singh and Others, their Lordships had an occasion to examine the maintainability of the Letters Patent Appeal, in view of the provisions contained in Sections 39 and 43 of Delhi Rent Control Act. The facts in brief were that the Respondents of that case had leased out a plot to the Appellants of that case. The Respondents filed an application for eviction of Appellant before the Controller, Delhi and the Controller allowed the eviction petition. The Appellant filed an appeal against that order which was dismissed by the Rent Control Tribunal, Delhi. Against the appellate order, an appeal was filed in the High Court of Punjab u/s 39 of the Act which was also dismissed by a learned single Judge of that Court. The Appellant then filed an appeal against the judgment of the learned single Judge to the Division Bench of the said High Court under Clause 10 of the Letters Patent. The question arose for consideration whether in view of Sections 39 and 43 of Delhi Rent Control Act, appeal before the Division Bench was maintainable under Clause 10 of Letters Patent against a judgment passed by the learned single Judge in Second Appeal. While interpreting the bar contained in Sub-section (2) of Section 39 and the provisions of Section 43 of the Delhi Rent Control Act, their Lordships took the view that the expression "final" prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it. Since, the section imposes a total bar, their Lordships took the view that appeal to the Division Bench against judgment of a single Judge was not maintainable.

The submission of the learned Counsel for the Appellants that the provisions of Section 104 of the Code cannot be applied to letters patent appeal, cannot be accepted in view of the pronouncement of their Lordships of the Supreme Court in the case of Shah Babulal Khimji Vs. Jayaben D. Kania and Another, wherein it has been pointed out in paragraph No. 60 of the report that although the Letters Patent is a special law certain provisions of the Code of CPC in the matter of procedure do apply to appeals against the decision of a Trial Judge to a larger Bench, that is, to internal appeals. We may point out that it cannot be disputed that Letters Patent is an internal appeal in the sense it is an appeal to a Division Bench of the High Court against the order of a single Judge of that Court In the same report, their Lordships observed in paragraphs 26. 28, 79 and 123, that a combined reading of the provisions of Sections 4, 5, 104 and Order 49, Rule 3 of the Code lead to the irresistible conclusion that Section 104 read with Order 43, Rule 1 clearly applies to the proceedings before the Trial Judge of the High Court and there is no inconsistency between Section 104 read with Order 43 & Rule 1 of the Code and the appeal under the Letters Patent and there is nothing to show that the Letters Patent, in any way, excludes or overrides the application of Section 104 read with Order 43, Rule 1 or to show that these provisions would not apply to internal appeals within the High Court. Thus, the contention of the learned Counsel for the Appellants that the provisions of Section 104 of the Code are not attracted to Letters Patent Appeal, cannot be accepted.

The Supreme Court decision in Shah Babulal Khimji (supra), alto deals with the question of maintainability of letters patent appeal against the order of learned single Judge of the High Court passed in appeal under Order 43, Rule 1 of the Code. After examining a catena of decisions of various High Courts on the subject and on critical examination of provisions of Section 104 read with Order 43, Rule 1 of the Code, their Lordships observed in paragraph 41 of the report that "a further second appeal lying to a Division Bench from an appellate order of the trial Judge passed under Order 43, Rule 1 is wholly foreign to the scope and spirit of the Letters Patent. Again, in Case of Madan Naik (Dead) by Legal Representatives and Others Vs. Hansubala Devi and Others, , it has been observed in paragraph 11 of the report that frankly speaking, no appeal would lie under Letters Patent against a decision rendered by the High Court in an appeal from order under Order 43, Rule 1 of the Code. The Court further observed that this one good ground to quash the decision of the High Court in Letters Patent Appeal. But this is hot all. This Court and various other High Court too had an occasion to consider the question of competence of a Letters Patent Appeal from an order of a learned single Judge of the High Court passed in appeal under Order 43, Rule 1 read with Section 104 Sub-section (2) of the Code which shall be discussed by us in paragraphs hereinafter.

A Division Bench of this Court of which one of us (Faizan Uddin, J.) was a member in Firm Chhunilal Laxman Prasad Vs. Agarwal and Co. and Others, relying on the decision rendered in the case of Shah Babulal Khimji (supra), took the view that the order is passed by single Judge of the High Court in exercise of Appellant jurisdiction u/s 104 read with Order 43, Rule 1 of the Code. Letters Patent Appeal will not lie against such order passed in appeal. This view was followed by another Division Bench of this Court in M/s. Ram Chandra Badri Prasad Gour v. Shri R. K. Sharma and Ors. Letters Patent Appeal No. 66 of 1987 decided on 25-11-1987 as well as in Surendra Kuar and Anr. v. Kailash Transport and Ors. Letters Patent Appeal No. 17 of 1988 decided on 7-10-1988.

A Division Bench of Bombay High Court in Obedur Rhaman v. Ahmed Ali Bharucha AIR 1985 Bom. 120 , also examined the provisions of Section 104 (2) of the Code in respect of the applicability of the provisions and competence of Letters Patent Appeal It may be pointed out that Clause 15 of Letters Patent for Bombay High Court is in pari materia to Clause 10 of Letters Patent for Madhya Pradesh High Court. In the decision referred to above, Bombay High Court took the view that the appeal filed before the learned single Judge against the order refusing to grant interim injunction was governed by the provisions of Section 104 read with Order 43, Rule 1 of the Code, consequently the order of the learned single Judge dismissing the appeal constituted an order passed in appeal u/s 104 and Letters Patent Appeal against such an order was not maintainable in view of the bar contained in in Section 104 (2) of the Code. Similar view was reiterated by a Division Bench of Bombay High Court in the case of The charity commissioner, Maharashtra State, Bombay Vs. Rahandrasigh Anandrao Jadhao and Another, In Madhusudan Vegetable Products Co. Ltd. Vs. Rupa Chemicals, Vapi and Others, a Division Bench took the view that the appeal filed under Clause 15 of the Letters Patent from an order of learned single Judge of High Court in an appeal under Order 43, Rule 1 would not be maintainable as it is barred by Sub-section (2) of Section 104 of the Code. In a very recent decision rendered by the Division Bench of Andhra Pradesh High Court in Ghantasala Seshamma and others Vs. Gollapalli Rajaratnam and another, also took the view that Letters Patent Appeal against appellate order of single Judge in appeal under Order 43, Rule 1 read with Section 104 (1) of the Code, is not maintainable in view of bar contained in Sub-section (2) of Section 104 of the Code.

Thus, after a careful examination of the relevant provisions of the Code of CPC as discussed above and the decisions of various High Courts and the Supreme Court leave no doubt that the Letters Patent Appeal from order of the learned single Judge of this High Court passed in appeal under Order 43, Rule 1 is incompetent on account of the bar contained in Sub-section (2) of Section 104 of the Code. That being so, it would be needless for us to go into the merits of the case or to examine other contentions advanced by the learned Counsel for the Appellants. Despite the decisions discussed above, the learned Counsel for the Appellants sought to substantiate his arguments that the Letters Patent Appeal would be maintainable against the appellate order of the learned single Judge by relying on the decisions in Ganpati Wadgoo v. Pilaji 1956 NLJ 179 , Shrichand Vs. Tejinder Singh and Others, and Raghvendra Singh v. Smt. Seema Bai 1988 JLT 495: 1988 M.P.J.R.1 . As regards, the decision of the Division Bench in the case of Ganpati Wadgoo (supra) it is clearly contrary to the decision of the Supreme Court in the case of Shah Babulal Khimji (supra) and hence it cannot be accepted as good law. As regards the decision in the case of Shrichand and Raghvendra Singh (supra), the competence of letters patent appeal on account of the bar contained in Sub-section (2) of Section 104 read with Order 43, Rule 1 of the Code was neither raised nor decided in any of these two decisions. Similarly, the decision in Umaji Keshao Meshram and Others Vs. Radhikabai and Another, also does not help the Appellants.

In view of the aforesaid discussions, we are of the firm opinion that this Letters Patent Appeal is not competent in view of the bar contained in Sub-section (2) of Section 104 read with Order 43, Rule 1 of the Code. Consequently, the appeal fails and is hereby dismissed. We make no order as to costs.