K.M.S. Kumarappa Chettiar vs The Official Receiver

Krishnaswami Nayudu, J.—This is an appeal against the refusal of leave to file a Letters Patent Appeal against the judgment of a single

Judge in second appeal. The appellant was the respondent in C. M. S. A. No. 31 of 1946 which was board by Satyanarayana Rao J. The appeal

was allowed and on the motion of the counsel who appeared for the appellant herein for leave to file a Letters Patent Appeal against his judgment

leave was refused. As against the refusal, this appeal is now filed. Notice of this appeal was ordered to the respondent and to the President of the

Madras Advocates Association probably, for the reason that this involves a matter of interest to the legal profession and the litigant public. An

objection is taken that no appeal lies against the refusal of leave by the second appellate Judge. The learned counsel for the appellant argues that he

is entitled to file an appeal as this is an appeal against the judgment of a single Judge under Clause 15, Letters Patent and the order refusing leave is

not part of the judgment itself in second appeal and is independent of it and that therefore the appeal lies. It is an accepted principle of law and also

laid down by the Privy Council that a right of appeal in every matter must be given by the enacted law or equivalent authority and does not lie

unless given by any express legislative enactment. We have had to consider whether the appellant is entitled to file an appeal under any legislative

enactment and the only provision relied upon by the appellant is Clause 15, Letters Patent. It Was further argued that so far as the granting or

refusing of leave was concerned the Judge should use independent discretion and such discretion must be exercised judicially and that in this case

there was no such exercise of that independent discretion and therefore the appellant was entitled to have the question examined whether the

learned Judge was right in refusing to grant leave to file a Letters Patent Appeal. Mr. K. Bhashyam on behalf of the Advocates Association argued

that the order granting or refusing leave is not a judgment or part of 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 said High Court and only judgment

that are passed in the exercise of the 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 are appeasable; and that the order declaring that the case is not a fit one for appeal is not

part of that judgment and in any event not a judgment passed in respect of a decree or order made in the exercise of appellate jurisdiction by a

Court subordinate to the superintendence of the said High Court and as such the order refusing or granting leave in so far as it is concerned is a

judgment by itself of a single Judge against which there is a right of appeal under Clause 15 of the Letters Patent. The second contention of Mr.

Bhashyam is that this restriction as regards the right of appeal as against the judgment of a single Judge in a second appeal was introduced by an

amendment of 3rd November 1927 and of 12th December 1928 and since being an amendment restricting the right of appeal which existed prior

to the amendment, Courts should view with favour the right of the appellants to file an appeal since the original right has been restricted by way of

an amendment.

As regards the first contention, the learned counsel pointed out that there are two Bench decisions against the maintainability of the appeal,

namely, the cases in A. Ramanayya v. T. Kotayya, 57 M.L.J. 398: AIR 1930 Mad. 75 and in the matter of In Re: Magalam Govinda Rao, . Apart

from this, we are unable, to agree with the contention of the learned advocate that the order granting or refusing leave, that is, the order declaring

whether the case is a fit one or not for appeal 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 said High Court or is independent of the judgment passed in a second appeal.

The judgment in a second appeal is passed in the exercise of the appellate jurisdiction of the High Court and it is 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 the question whether the

judgment passed by the High Court in a second appeal against the appellate judgment of a subordinate Court is one which is fit to be taken up for

appeal or not cannot but form part of the judgment itself. The High Court in a second appeal has to consider whether the decree or judgment

passed by the Subordinate Court in the exercise of its appellate jurisdiction is correct or not and whether in its view the judgment so passed is one

which can be conclusive or one which can be taken up by way of further Letters Patent Appeal. The order refusing or granting of leave cannot be

independent of the judgment itself in so far as that order could only be passed on the merits of the appeal itself and as such it is not independent of

the judgment but only a part of it for in coming to a conclusion whether it is a fit case for granting leave the second appellate Judge has only again

to go into the merits of the appeal which appeal itself is in respect of the merits of the case and the case being in respect of a decree or order

passed by a subordinate Court in the exercise of its appellate jurisdiction. This aspect was considered by a Bench of the Bombay High Court in

Balu Harshet Shetye Vs. Shrikishna Govind Kulkarni, and we are in agreement with the observations of Murphy J. The following are his

observations:

It is clear that the intention of the amendments was to make such judgments final, where the condition for a further appeal does not exist, and that

to allow an appeal from a refusal to make the declaration would defeat its object, for the ground of such an appeal against a refusal could only be

something to be found in the judgment appealed against. But I think the clause itself contains the prohibition. Matters mentioned within ''the

brackets already referred to are excepted from the positive provisions of the clause, and if a refusal to make required declaration amounts to a

judgment or order, it is a judgment or order made 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. I am not overlooking the fact that it is the refusal to make the

declaration after the single Judge''s judgment has been recorded which Is sought to be appealed against, but the declaration required is that the

''case is a fit one for appeal'' which is In effect a part of the judgment on the merits of the case passed in second appeal.

We are, therefore, of the opinion that the order refusing leave in this case is a part of the judgment itself against which there is no appeal under

Clause 15 of the Letters Patent. This question was considered in Anumanchi Ramanayya v. Thubati Kotayya and Anr., 67 M. L. J. 398: A. I. R.

1930 Mad. 75, where it was held that no appeal lies under Clause 15, Letters Patent against the refusal of a single Judge of the High Court to

grant leave to appeal from the judgment passed by him in a second appeal. In In Re: Magalam Govinda Rao, , their Lordships held that the order

of a single Judge of the High Court refusing to grant leave to appeal even if could be regarded as a judgment under the first part of Clause 16,

Letters Patent an order to a different effect by a Division Bench on appeal therefrom would not suffice to give the applicant a right of appeal

against the second appellate decree because under the second part of Clause 15, the second appellate decree will be appeasable only on a

certificate granted by the Judge who heard the second appeal. In that case the second appeal was dismissed and after the dismissal of the second

appeal the petitioner applied to the same learned Judge by an independent petition for leave to file an appeal under the Letters Patent. He

dismissed it. Another petition was filed asking for review which was also dismissed and the petition before the Bench was that the petitioner may

be granted leave to appeal against the judgment of the Judge who heard the second appeal despite His Lordship''s refusal to grant leave. In the

circumstances it was held that the certificate being a condition precedent to the filing of the appeal the appeal was not maintainable. There was a

similar provision in the Supreme Court of Judicature Act of 1873 and u/s 45 of the said Act it is provided that the determination of such appeals

respectively by such Divisional Courts shall be final unless special leave to appeal from the same to the Court of appeal shall be given by the

Divisional Court by which any such appeal from an inferior Court shall have been heard. Though the language of Clause 15, Letters Patent and

Section 45, Supreme Court of Judicature Act, 1873 is not identical the principle that unless the Judge who hears the appeal certifies or declares it

as a fit one to be taken -up in appeal no appeal would lie is common to both the enactments. In Kay v. Briggs, (1889) 22 Q. B. D. 343: 58 L. J.

Q. B. 182, the Court of Appeal held that:

Where a Divisional Court has refused special leave to appeal u/s 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.

and Lord Esher, Master of Rolls observed that the practical effect of overruling the discretion would be to allow an appeal in every case because

the facts of each case would be brought before the Bench in order to enable them to decide whether or not the discretion exercised by the Judge

who heard the appeal should be over ruled and that the real meaning of Section 45 was to confine the power to give leave to appeal absolutely to

the Judge who heard the appeal. Similar would be the effect if the contention of the appellant is to be upheld. It would be impossible for the Bench

to consider whether the exercise of the discretion by the Judge who refused the grant was judicial without going into the merits of the appeal itself

and that would amount to hearing the second appeal and passing its own judgment against the judgment of the second appellate Judge which

should be final by virtue of the provision in clause 15, Letters Patent. The learned counsel for the respondent referred to the similar principle that

has been adopted in appeals u/s 205, Government of India Act. AIR 1938 1 (Federal Court) and K. L. Gauba v. Honourable Chief Justice and

Judges of the High Court, Lahore, 1941 F. C. R. 64: A. I. R. 1942 P. C. 1: Cri. L. J. 311, were the authorities relied upon where it was held that

a certificate u/s 205, Government of India Act was a necessary condition precedent to all appeals to the Federal Court and if a High Court refuses

to grant a certificate it is not for the Federal Court to enquire into the reasons for refusal against which no appeal lies to the Federal Court, and that

the Federal Court cannot question the refusal of a High Court to grant a certificate or investigate the reasons which promted the refusal. The

language of Clause 15 of the Letters Patent is clear and unambiguous inasmuch as it states that :

An appeal shall lie to the said High Court from the judgment of one Judge of the said High Court made 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 only

where the judge who passed the judgment declares that the case is a fit one for appeal.

The declaration by the learned Judge that the case is a fit one for appeal is a condition precedent to the maintainability of the appeal and that

condition being absent in this case no appeal would lie.

The other contention of Mr. Bhashyam that this condition was introduced by way of an amendment to what was originally an unrestricted right

of appeal does not appeal to us since His Majesty thought it fit to introduce the amendment with a view to alter the then existing law and this

argument far from being in favour of the appellant would support the respondent''s contention that the intention is clear that the existing law was to

be altered and the unrestricted right of appeal must be restrained by a certain condition, the condition being a declaration by the Judge that the case

is a fit one for appeal. Obviously, the object of this amendment is to prevent unnecessary appeals after the case was heard by two subordinate

Courts and a Judge of the High Court has applied his mind as to the correctness or otherwise of the judgment of the Courts below. The language

of the amendment is clear and if it was the intention of the framers of the amendment provision similar to that contained in Section 75(3), Provincial

Insolvency Act, would have been introduced where the power to grant leave is conferred both on the original Court and on the appellate Court. In

Ex parte Stevenson, 1892 1 Q. B. 609: 61 L. J. Q. B. 492, which was a case under the Housing of the Working Glasses Act 1890, the Judge at

Chambers refused to grant leave under Schedule II, Clause 26 (a) of the said Act, it was held by the Court of Appeal that in the absence of the

leave no appeal lay. We are in agreement with the following observations of Fry L. J. in that case:

The object clearly was to prevent frivolous and needless appeals. If, from an order refusing leave to appeal, there may be an appeal, the 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.

In the absence of any such provision, we see no reason to infer something which is not contained in the language of the statute. We will be

frustrating the object of the amendment if we are to concede the argument on behalf of the appellant. In the result, we hold that this appeal is not

maintainable and is dismissed. The appellant will pay the costs of the party respondent.