Krishna Yeshwant Shirodkar vs Subhash Krishna Patil and others

R.A. Jahagirdar, J

[After narrating the facts in Para 1 to 10, the Judgment proceeds.]

Mr. Gumaste, the learned Advocate appears for the appellant and Mr. Abhyankar appears for the contesting respondents. The order impugned in this appeal is an order passed in a civil application which itself had been preferred by the appellant in an Appeal from Order which lies to the High Court from the orders of the City Civil Court under Order 43 Rule 1 read with Section 104 of the Code of Civil Procedure, hereinafter referred to as "the Code". Mr. Abhyankar contended that in view of the judgment of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, , no appeal lies from any order passed in exercise of the jurisdiction of an appellate Court u/s 104 of the Code. Prior to the aforesaid judgment of the Supreme Court, undoubtedly, at least in this Court, Letters Patent appeals used to be filed against the orders passed disposing of the Appeals from Orders u/s 104 of the Code. This was because it was thought, and it has been so held in some judgments of this Court, that Clause 15 of the Letters Patent was independent of Section 104 of the Code and despite the ban contained in Section 104(2) of the Code an appeal could lie under Clause 15 of the Letters Patent. That position is no longer valid after the decision of, the Supreme Court in Shah Babulal''s case. It has been held that sub-section (2) of Section 104 of the Code would restrict the scope or the number of appeals permissible under Clause 15 of the Letters Patent. If this is so and if it is shown that the order passed by Mehta, J. is an order in an appeal u/s 104 of the Code, then by virtue of the language contained in Section 104(2) of the Code, this Letters Patent appeal would naturally be barred. This is the sum and substance of Mr. Abhyankar''s argument

In support of this contention Mr. Abhyankar has invited our attention to a judgment of the Kerala High Court in Chellappan vs. K. P. Varughese, AIR 1964 Kerala 23, wherein a learned Single Judge has held that an appeal to the High Court against an interlocutory order passed by a District Judge in an appeal u/s 104 read with Order 43 of the Code was incompetent and therefore, liable to be dismissed in limine. Mr. Abhyankar also relied upon a judgment of the Allahabad High Court in Mt. Umatur Robab Vs. Mahadeo Prasad and Others, , in support of his submission. In C. Kalahasti Vs. P.C. Munuswami Chetti, , Natarajan J. as he then was, sitting as a Single Judge ,held that an order passed by an appellate Court under Order 39 Rule 1 of the Code cannot be construed as an order passed by a Court in exercise of its original jurisdiction. Reference was made to the relevant provisions of the Code and it was noticed that a Court must pass orders either in exercise of its original jurisdiction or in exercise of its appellate jurisdiction. If an appeal from an order is Preferred to an appellate Court and during the course of the proceedings of that appeal from order any order is passed by the appellate Court, the latter order will necessarily be an order passed in appeal because it is an order passed in exercise of the appellate. jurisdiction. If this is so, then, by virtue of the provision contained in sub-section (2) of Section 104 of the Code, further appeal from that order will be barred.

Mr. Gumaste concedes the position that if an appeal which he insists is maintainable under Clause 15 of the Letters Patent will not be maintainable if there is a specific bar against the same in any of the provisions of the Code or any other law. That this is the position is now clear from the judgment of the Supreme Court in Shah Bubulal''s case. Mr. Gumaste insists that under the first part of Clause 15 of the Letters Patent an appeal from a judgment given by a learned Single Judge of the High Court is maintainable. He has contended that the order passed by Mehta J. in the instant case amounts to a judgment and from the clear language of Clause 15 of the Letters Patent an appeal against the said judgment is maintainable, though it is passed by Mehta J. in exercise of his appellate jurisdiction. Mehta J. has passed this order in an appeal from an order of a trial Court. He wanted to persuade us to hold that the order of Mehta J. amounts to a judgment. We have, however, not thought it necessary to go into that question in great details because we are of the opinion that Mr. Gumaste must necessarily fail on the maintainability of this Letters Patent appeal. Mr. Gumaste is perfectly justified in saying, and we agree with him in that regard, that if a right of appeal is given by one provision of law, it cannot be taken away except by an explicit provision: of a law or by necessary implication. With the object of showing that the right of appeal which is available to him under the first part of Clause 15 of the Letters Patent has not been taken away by any other provision in the Code, Mr. Gumaste has taken us through several provisions of the Code. It is not necessary for us to refer to the same because if we find that the order passed by Mehta J. is an order passed in an appeal preferred u/s 104 of the Code, the bar contained in sub-section (2) of that Section will immediately come into operation. It is the contention of Mr. Gumaste that the order passed by Mehta J. is not an order passed in an appeal u/s 104 of the Code, but it is passed independent of the appeal. According to Mr. Gumaste, the order contemplated in sub-section (2) of Section 104 of the Code is an order finally disposing of an appeal and not an order which is passed during the course of the hearing of the appeal or before the disposal thereof. It is definitely not an order passed in an application for interim reliefs.

It is not possible for us to accept this interpretation of sub-section (2) of Section 104 of the Code sought to be put by Mr., Gumaste. The words of the said provision are clear. They are to the effect "any order passed in appeal under this Section". Sub-section (2) of Section 104 does not say "an order disposing of an appeal passed under this Section". We do not see how we can re-write sub-section (2) of Section 104 of the Code in the manner suggested by Mr. Gumaste. If anything, the language of the other Sections in the Code also suggests that when the legislature used the words "any order passed in appeal under this Section", it did not restrict the meaning of the word "order" to "an order finally disposing of an appeal". See, for example, the language of Section 105 of the Code. It deals with orders made by a Court in exercise of its original or appellate jurisdiction and mentions that any such order is not the subject-matter of an appeal except as otherwise provided, but the validity of the order can be challenged in any appeal preferred from the decree finally passed. If the legislature wanted to restrict the ban imposed by Section 104(2) of the Code to only an order finally disposing of an appeal, it would have, naturally, used an appropriate language and not a term which is much wider than what is being suggested by Mr. Gumaste.

We are proceeding on the assumption, which assumption is fully justified, that an appellate Court in exercise of its jurisdiction u/s 104 of the Code has jurisdiction to pass orders of the nature contemplated by Order 43 Rule 1 of the Code. The appellate Court thus will be having power to pass orders under Order 39 or Order 40 of the Code. Nevertheless, such orders will be orders passed in exercise of its appellate jurisdiction. The appellate jurisdiction which is exercised in the instant case is the one u/s 104 of the Code. It is necessarily an order passed in an appeal, though on an application for interim relief. We do not see how it is possible to say that the order passed by Mehta J. in the instant case is not an order in an appeal u/s 104 of the Code. If this is so, then the bar contained in sub-section (2) of Section 104 of the Code will necessarily operate, as has been pointed out by the Supreme Court n Shah Babulal''s case. We are, therefore, satisfied that this Letters Patent appeal is not maintainable. Naturally, no relief can be given to the appellant, who is the petitioner in 3ivil Application No. 6571 of 1987.

Rule in Civil Application No. 6571 of 1987 is discharged with no order as to costs. Letters Patent Appeal No. 129 of 1987 is dismissed as not being maintainable.

After hearing Mr. Gumaste and Mr. Abhyankar, we are inclined to continue the status quo as ordered by the Supreme Court for some further time. Accordingly it is directed that status quo as ordered by the Supreme Court in SLP No. 15857 of 1987 shall continue till 30th March, 1988.