Jai Pal Singh vs Madho Singh

Dr. Anand, J.

(1) An interesting question of law has been raised by way of a preliminary objection to the maintainability of the present Letters Patent Appeal.

(2) The plaintiff filed a suit for declaration with a consequential relief of injunction. The learned Single Judge of this court, to whom the suit was

assigned, found that the plaintiff had not paid advalorem court fee and that the court fee paid was inadequate. The learned Single Judge allowed

three weeks time to the Plaintiff to make up the deficiency in the court fee failing which, it was directed that 'Plaint shall stand rejected without

further reference to the court.' The plaintiff did not make up the deficiency in the court fee and instead filed a L P A, against the order of the

learned Single Judge, vide which rejection of the plaint on failure to make up the deficiency of court fee had been directed.

(3) Mr. K. N. Raina, learned counsel for the defendantrespondent, has raised a preliminary objection to the maintainability of the letters Patent

Appeal. It is urged that the impugned order of the learned Single Judge is a decree as it is an order passed under Order 7 Rule 11 C. P, C. and the

plaintiff should have filed a regular first appeal against the decree, after paying proper court fee, and that a Letters Patent Appeal is not Competent

against an order under Order 7 Rule 11 C. P. C.

(4) Mr. P. L. Kaul, learned counsel for the plaintiffappellant has on the other hand submitted that against an order of a Single Judge of the High

court which is not a court 'subordinate' to a Division Bench, an appeal lies only under clause 12 of the Letters Patent and under no other law.

(5) For the reasons which we shall presently state we are of the opinion, that the preliminary objection has force and must succeed.

(6) Admittedly the learned Single Judge of this Court passed the impugned order in exercise of his ordinary Original Civil Jurisdiction. It is not

disputed that the impugned order in the present case i. e. the order rejecting the plaint for failure to make up the deficiency of court fee is an order

under Order 7 Rule 11 CPC. The nature of this order is determined according to the provisions of the Code of Civil Procedure. Section 2(2) CPC

defines a 'decree' and provides that the rejection of a plaint shall be deemed to be a decree. Thus, it follows that the impugned order in the present

case amounts to a 'decree' within the meaning of Section 2(2) C. P. C. Can a Letters Patent Appeal lie against such a decree is the first question

which we are required to answer?

(7) Clause 12 of the Letters Patent provides:

12: And we do further ordain that an appeal shall lie to the said High Court of Judicature 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) of one Judge of the said High Court or one Judge of any Division Court 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, consistently with the provision of the Civil Procedure Code, made in the exercise of appellate jurisdiction in

respect of a decree or order made in the exercise of a 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 the Judges of the said High Court or of such Division Court

shall be to Us, Our Heris or successors and be heard by Our Board of Judicial Advisers for report to Us.

A bare perusal of this clause shows that a LPA would be competent under certain specified conditions only against a ""judgment"". No appeal

against a 'decree' is envisaged under this clause. Clause 12 of L. P. is, therefore, clearly inapplicable to the facts and circumstances of the case.

(8) The next question that arises for determination is whether an appeal under the Code of Civil Procedure or under any other law, is competent

against a decree passed by a Single Judge of the High Court in exercise of the original jurisdiction. Section 96 CPC provides for the filing of an

appeal and lays down:

96: (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from

every decree passed by any court exercising original jurisdiction to the Court authorised to hear appeal, from the decisions of such Court.

(2) An appeal may lie from an original decree passed exparte.

(3) No appeal shall lie from a decree passed by the court with the consent of parties.

From a bare reading of this section it is apparent that an appeal lies from every decree passed by any court exercising original jurisdiction to the

court authorised to hear appeals from the decision of such court. The expression ""an appeal shall lie from every decree passed by any court

exercising original jurisdiction"" unmistakably shows that the Code has made a distinction between appeals from decrees passed by subordinate

courts or those passed by the High court in exercise of the original jurisdiction. The word any court would include the High Court also. An appeal

lies from the decree passed by any court exercising original jurisdiction to such court which is authorised to hear appeals from such a court Has any

court been authorised to hear appeals from the decree passed by a single Judge of the High Court in exercise of the original jurisdiction.? The

answer is in the affirmative and is provided by the J and K Constitution Act, 1996. The authority to hear an appeal from an original decree passed

by a Single Judge of the High Court was granted under S. 60(2) of the J and K Constitution Act 1996, That section for facility of reference, is

reproduced hereunder:

60: (1) Except as otherwise provided by any enactment for the time being in force and subject to any rules made in this behalf, the jurisdiction of

the High Court of Judicature may be exercised by a Single Judge of the Court or by a bench of two or more Judges of the Court.

(2) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree or from any order against which

an appeal is permitted by any law for the time being in force passed or made by a single Judge of the High Court shall lie to a Bench consisting of

two other Judges of the High Court,

(9) Thus, the authority has. been vested in a Bench of two judges to hear an appeal from any original decree passed or made by a Single Judge of

the High Court by virtue of Section 60 (2) of the J and K Constitution Act, 1996 Though, the J and K Constitution Act, 1996 has been repealed

by the Jammu and Kashmir Constitution, 1956, yet, the existing jurisdiction of the High Court has been specifically saved.

Section 102 of the J and K Constitution, 1956 provides:

102 Saving of existing Jurisdiction of the High Court:

Subject to the provisions of this Constitution and to the provisions of any law for the time being in force, the jurisdiction of and the law

administered in the High Court and the respective powers of the Judges thereof in relation to the administration of justice in the court, including any

power to make rules of Court and to regulate the sittings of the Court and of members thereof, sitting alone or in Division Courts, shall be the same

as immediately before the commencement of this Constitution.

Thus, Section 102 of the J and K Constitution, 1956 saver the jurisdiction of and the law administered by the High Court, as well as the respective

power of the Judges thereof in relation to the administration of justice, which were existing prior the commencement of the J and K Constitution,

1956. The provisions of S. 60 of the J and K Constitution Act 1996 have thus specifically been saved and as such a Bench comprising of Judges

of the High Court, has been authorised to hear an appeal from the decree passed by a Single Judge of the High Court in exercise of the original

jurisdiction,

(10) It, therefore, follow that an appeal under Section 96 CPC shall lie from a decree passed by a Single Judge of the High Court in exercise of the

original jurisdiction to a Bench of two other Judges of the same High Court. This view also finds support from Article 156A of the Limitation Act,

1995 which provides the period of limitation of 90 days for filing an appeal against a 'decree' or order of the High Court of Judicature passed in

exercise of its original jurisdiction. The period of limitation prescribed for filing an appeal against a 'judgment' of a Single Judge under the Letters

Patent is 6U days. A harmonious construction of the provisions of Article 156A of the Limitation Act and of the L. P. would be that the period of

limitation prescribed for filing an appeal against a 'decree' passed by a Single Judge of the High Court in exercise of the original jurisdiction would

be governed by the limitation Act though the period for filing an appeal against a 'judgment' of a Single Judge falling under Clause 12 of the Letters

Patent would be governed by the limitation prescribed under the Letters Patent If the Letters Patent were to apply to an appeal against the decree

of a Single Judge then no separate period of limitation was required to be prescribed by the Limitation Act. From this also it follows that clause 12

of Letters Patent has no application to an appeal against a decree passed by a Single Judge of the High Court in exercise of the original jurisdiction.

(11) 'In view of the aforesaid discussion, we are of the view that an appeal against an original decree of a learned Single Judge of the High Court

lies under Section 96 CPC to a Bench of two other Judges of the High Court (vide Section 69 (2) of J and K Constitution Act, 1996) that an

appeal against such a decree is not maintainable under the Letters Patent. The preliminary objection is, therefore, sustained and it is held that the L.

P. A. against a 'decree' passed by a Single Judge of the High Court in exercise of original jurisdiction is not maintainable.

(12) Faced with this situation, Mr. P. L. Koul, learned counsel for the plaintiffappellant, seeks time to pay the deficient court fee on the appeal and

to make the necessary application under Section 149 CPC as well as to amend the Memorandum of Appeal. Two weeks time, as prayed for by

the learned counsel is granted. The amendment which may be made in the Memorandum of Appeal will, of course, be subject to all just

exceptions.