Mahadeo Choudhary and others vs Sm. Parbati Devi and others

Reuben, J.—This petn. for leave to appeal to the F. C, now the Supreme Ct. is directed against an order passed by me, sitting singly, in civ. Revn. No. 891 of 1945. It must be rejected on the preliminary ground that such a petn, is not maintainable.

I reproduce below the relevant provisions of the Civil P. C. & the Letters Patent of the Patna II. C.:

S. 109, C. P. C. - "Subject to such rules as may from time, be made by His Majesty in Council.... & to the provisions hereinafter contained an appeal shall lie to His Majesty in Council -

(a) from any decree or final order passed on appeal by a H. C_

(b) from any decree or final order pasted by a H. C. in the exercise of original civil jurisdiction; &

(c) from any decree or order, when the case, as hereinafter provided, is certified to be a at one for appeal to His Majesty in Council.

S. 110, C. P. C. - "In each of the cases mentioned in Cls. (a) & (b) of S. 109, the amount or value of the subject-matter of the suit in the Ct. of the first instance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council must be the same sum or upwards, or the decree or final order must involve, directly or indirectly some claim or question to or respecting property of like amount or value, and where the decree or final order appealed from affirms the decision of the Ct. immediately below the ct. passing such decree or final order, the appeal must involve some substantial question of law."

S. 111, C. P.. C. - "Notwithstanding anything contained In 3. 109, no appeal shall lie to His Majesty in Council -

(a) from the decree or order of one Judge of a H. C. constituted by His Majesty by Letters Patent or of one Judge of a Division Ct.

S. 112, C. P. C. - "(1) Nothing contained in this Code, shall be deemed -

(a) to bar the lull & unqualified of His Majesty''s pleasure in receiving or rejecting appeals to His Majesty in Council, or otherwise howsoever, or

(b) to interfere with any roles made by the Judicial Committee of the P. C, & for the time being in force, for the presentation of appeals to His Majesty in Council, or their conduct before the said Judicial Committee.

Cl. 10, Letters Patent. - ''And we do further ordain that an appeal shall lie to said the H. C. of Judicature at Patna 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 not being an order made in the exercise of revisicnal jurisdiction, & not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of S. 107, Govt, of India Act, or in the exercise of criminal jurisdiction) of one Judge of the of the said H. C. or one Judge of any Division Ct. pursuant to S. 108, Govt of India Act, & that notwithstanding anything hereinbefore provided an Appeal shall lie to the said H. C. from a judgment of one Judge said H. C. or one Judge of any Division Ct. pursuant to S. 108, Govt, of India Act in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Ct. subject to the superintendence of the said H. C. where the Judge who passed the judgment declares that the ease is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said H. C. or of such Division Ct. shall be to us as hereinafter provided."

Cl. 31, Letters Patent. - " And we do further ordain that any person or persons may appeal to us in any matter not being of criminal jurisdiction, from any final judgment, decree or order of the H. C. of Judicature at Patna made on appeal, & from any final judgment, decree or order made in the exercise of original jurisdiction by Judges of the said H. C. or of any Division Ct. from which an appeal does not lie to the said H. C. under the provisions contained in Cl. 10 of these presents; provided, in either case, that the sum or matter at issue is of the amount or value of not less than 10.000 rupees, or that such judgment, decree or order involves, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of not less than 10,000 rupees; or from any other final judgment, decree or order made either on appeal or otherwise as aforesaid, when the said H. C. declares that the case is a fit one for appeal to US

Cl. 41 Letters Patent-"And we do further ordain & declare that all the provisions of these Our Letters Patent are subject to the Legislative powers of the Governor General in Legislative Council

The right of appeal with special leave is reserved by S. 112 of the Code. Subject to this, it will be observed, S. 111 forbids an appeal from the decision of a single Judge. Mr. Das, appearing for the petnrs. contends that an appeal lies in the present case under the provision contained in the latter portion of Cl. 31, Letters Patent, which, according to him, is not governed by S. 111. It has been held that Cl. 39, Letters Patent of the Presidency H. Cs., which corresponds to Cl. 31 of our Letters Patent, is governed by S. 111, Hanmant Shriniwas v. Shriniwas Lakshmipati, A. I. R. 1931 Bom. 503 : (134 I. C. 1164), Satyanarayana Varaprasada Rao v. Venkata Bhashyakarla Rao, 48 Mad. 958 : (A. I. R. 1924 Mad. 399) and Sadar Ali and Others Vs. Doliluddin Ostagar, , Mr. Das seeks to distinguish these cases on the ground that the Letters of the Presidency Cts. were made Patent before the enactment of the Civil P. C. of 1908, whereas the Letters of this Ct. were made Patent after that date. He argues that cl. 41 of our Letters Patent & the corresponding cl. 44, Letters Patent of the Presidency Cts, make the Letters Patent subject, not to existing Indian legislation, but to Indian legislation enacted subsequent to the date of the Letters Patent. There is a decision of this Ct. against Mr. Das, reported in Parmeshwar Dayal Singh and Others Vs. Brindaban Chandra Sarkar and Others, . This, however, was a case in which leave was asked for to appeal against a decision of a single Judge in second appeal, & the point which Mr. Das urges before us was not raised. Mr. Das points out that in such a case the provisions of cl. 31 itself bar an appeal to His Majesty in Council, because cl. 10, Letters Patent, provides for an appeal to the H. C. against a decision of a single Judge in second appeal, a line of reasoning which was folld. in AIR 1949 96 (Nagpur) . The only reported case in which the point raised by Mr. Das was considered is AIR 1942 169 (Lahore) in which it was answered against Mr. Das but merely obiter, the decision being based on the same line of reasoning as was followed in the Nagpur case.

The contention of Mr. Das is contrary to the settled practice of this Ct. which has always regarded cl. 31, Letters Patent, as governed by S. 110 (111?) of the Code, so that the mere existence of circumstances satisfying the requirements of cl. 31 as regards valuation will not be sufficient for an appeal to His Majesty to lie in a case in which the judgment sought to be appealed against is a judgment of affirmance. I do not think, however, that for the purposes of the present case it is necessary to enter into a discussion of the point raised by Mr. Das for, in my opinion, there is no conflict between S. 111 & cl. 31.

To understand cl. 31, we have to read it with cl. 10. This latter clause is concerned to provide for appeals against decisions of single Judges, exercising under S. 103, Govt, of India Act, 1915, the original or appellate jurisdiction vested in the Ct. The appeal, if any, from such decisions is to lie to the H. C. itself. In making the provision, the clause refers in terms to certain decisions of a final nature which a Judge sitting singly is likely to make, namely, decisions in exercise of revisional jurisdiction, in exercise of the powers of superintendence under the Govt, of India Act & decisions in exercise of criminal jurisdiction. Excluding such decisions, it provides for an appeal against other decisions of a single sitting Judge, imposing in the case of decision in second appeal a condition regarding a certificate of fitness. Then, in the latter portion of the clause, there is a reservation of the right of appeal to His Majesty from "other judgments of Judges... as hereinafter provided." The reference is to cl. 31. The use of the term "other judgment" considered in the light of the specific mention in the body of the clause of the different binds of decisions which a single Judge might give, & the further use of the term "Judges" in contradistinction to the repeated use of the term "ore Judge" in the body of the clause suggest that the provision in cl. 31 is confined to decisions of mora than one Judge.

Coming to cl. 31, we find that the first portion of it is concerned with proposed appeal against decisions in appeals or in the exercise of original jurisdiction, which proposed appeals satisfy certain conditions as regards valuation. The decisions, regarding appeals against which provision is here made, are spoken of in language which is at the first sight somewhat obscure, namely.

any final judgment, decree or order of the H. C. of Judicature at Patna made on appeal, & any final judgment, decree or order made in the exercise of original jurisdiction by Judges of the said H. C., or of any Division Ct.

Under S. 108, Govt, of India Act, 1918, the original & appellate jurisdiction vested in a H. C. may be exercised "by one or more Judges, or by Division Cts. constituted by two or more Judges of the H. C." We have thus decisions of a Judge or of Judges or of a Division Ct. all of which are decisions of the H. C. itself. It seems to me, therefore, that the phrase "of the High Court of Judicature at Patna" governs both the classes of cases described in this portion of the clause, & so also does the phrase "by-Judges of the said H C or of any Division Ct." That is to say, this provision is for appeals against decisions of the H. C. in exercise of original or appellate jurisdiction, where the decision is of Judges of the H. C. or of any Division Ct. thereof. The latter portion of Cl. 31 relates to appeals against "any other final judgment, decree or order made either on appeal or otherwise as aforesaid," which do not satisfy the requirements of the first portion of cl. 31 as regards valuation. The term "as aforesaid" relates back to the first portion of Cl. 31 & avoids a repetition of the description already given thereof the nature of the decisions to which the clause relates, namely, decisions in appeal or in exercise of original jurisdiction by Judges of the H. C. or of any Divi3icn Ct. thereof. The word "otherwise," in my opinion, does not include an order in exercise of revisional jurisdiction. In this view of the clause, it is clear that it does not cover the present case & therefore, an appeal is barred by S- 111.

Our attention has been drawn to Lachmi Narain v. Balmakund, 6 Pat. L. J. 116; (A. I. R. 1921 Pat. 37) in which a certificate was granted for an appeal to His Majesty in Council against an order of the H. C. passed in the exercise of civil revn. That seems to have been an order of a D. B. coining within the provisions of cl. (c) of S. 109, Civil P. C, & therefore, was not governed by S. 111.

On the above grounds, I would dismiss his petn. with costs. The hearing fee will be assessed at one gold mohar.

Jamuar J.

I agree.