Manmohan Nath vs Sucha Singh Anand

R.S. Pathak, C.J.—This Letters Patent appeal is directed against the order of our brother Mehta dismissing an appeal arising out of an injunction application in a suit for a declaration that an eviction order passed by the Rent Controller, Simla, is a nullity and for a permanent injunction.

The Appellant filed a suit in the Court of the learned Senior Subordinate Judge, Simla, alleging that an order of ejectment made against him by the Rent Controller, Simla, in proceedings under the Himachal Pradesh Rent Control Act, 1971, was a nullity, and consequently praying for a declaration and a permanent injunction. He also applied for the grant of an interim injunction restraining the Respondent from executing the eviction order. On September 19, 1968, the learned Senior Subordinate Judge made an ex parte order granting an interim injunction, and subsequently on December 16, 1968, the grant of injunction was affirmed in the presence of the parties. The Respondent appealed, and the learned District Judge, Simla, on being informed that the parties desired to compromise, recorded their statements and on June 21, 1969, made an order allowing the appeal in terms of the compromise and setting aside the injunction granted by the learned Senior Subordinate Judge. The terms of the compromise were set out in the order.

Against the order of the District Judge the Appellant preferred an appeal, which he described as a First Appeal from Order. It purported to have been filed under Clause (m) of Rule 1 of Order 43 of the Code of Civil Procedure. The appeal was dismissed by our brother Mehta on August 13, 1976. He held, inter alia, that the order of the learned District Judge could not be described as an order under Rule 3 of Order 23 of the Code of Civil Procedure, and that the appeal was incompetent and that relief on the appeal was barred by estoppel.

The Appellant then filed the present Letters Patent appeal under clause 10 of the Letters Patent against the judgment of our learned brother.

Before anything more, the question before us is whether this appeal is maintainable. Clause 10 of the Letters Patent for the High Court of Lahore, which apply in this Court, declares:

And we do further ordain that an appeal shall lie to the said High Court...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...) of one Judge of the said High 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...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, where the Judge who passed the judgment declares that the case is a fit one for appeal ;....

The Appellant contends that the present Letters Patent appeal must be considered as an appeal from an order of a learned single Judge of this Court in the exercise of "first appellate jurisdiction", that is to say, in the exercise of jurisdiction while disposing of a first appeal. The Respondent, on the contrary, urges that the Letters Patent appeal must be considered as an appeal against an order of the learned single Judge passed in the exercise of appellate jurisdiction in respect of an order made in the exercise of appellate jurisdiction by a court subject to the superintendence of this Court, and that in order to sustain the Letters Patent appeal the Appellant should have obtained a declaration from the learned single Judge that the case was a fit one for appeal; such a certificate not having been obtained the Letters Patent appeal, it is said, is not maintainable. After hearing learned Counsel for the parties, it seems to me that the Respondent is right.

The learned District Judge disposed of an appeal against an order of the learned Senior Subordinate Judge. It was an appeal filed under Clause (r) of Rule 1 of Order 43 of the Code of Civil Procedure. The learned District Judge made an order recording a compromise said to have been reached between the parties and on the basis of the compromise he allowed the appeal. When the Appellant filed an appeal against that order in this Court, he described it as an appeal under Clause (m) of Rule 1 of Order 43 of the Code. That provision contemplates an appeal against an order under Rule 3 of Order 23 recording a compromise. The case of the Appellant is that his appeal was directed against the order of the learned District Judge recording the compromise, and inasmuch as the compromise was an original proceeding before the learned District Judge an appeal against that order must be regarded as a First Appeal from Order. When the learned single Judge disposed of that appeal, it is urged, he exercised ''''first appellate jurisdiction", and consequently a Letters Patent appeal lay against his order, and there was no need for a declaration that the case was a fit one for appeal. It is said that the appeal was registered in this Court as a First Appeal from Order, that it was entertained as such and was also disposed of by the learned single Judge as such, and that therefore the present Letters Patent appeal was maintainable.

Now, the order of the learned District Judge challenged by the Appellant before the learned single Judge in this Court was an order disposing of a first appeal from an order granting an injunction. The order of the learned District Judge recording the compromise and the order disposing of the appeal in accordance with the compromise may be treated as two distinct orders, and it may be assumed for the purpose of deciding the point before us that the appeal filed in this Court against those orders was maintainable and that it could be considered as an appeal directed against the order of the learned District Judge recording the compromise and separately as an appeal against the order by him disposing of the appeal in accordance with the compromise. But the order recording the compromise cannot be considered as an order passed by the learned District Judge in the exercise of his original jurisdiction. It was an order made by him in the exercise of his appellate jurisdiction. An appeal was pending before him, and the orders made by him in that appeal must be ascribed to the exercise of his appellate jurisdiction. The order may be an order disposing of the appeal, or an order disposing of an interlocutory application in that appeal, or an order incidental to the disposal of the appeal or interlocutory application made therein. When an appellate Court exercises the powers of an original Court, it does so because it is specially empowered in that behalf by virtue of Section 107 of the Code. Besides the specific powers enumerated in Sub-section (1) of that section, Sub-section (2) provides:

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

Therefore, when the learned District Judge recorded the compromise, it was in virtue of the appellate power conferred by Sub-section (2) of Section 107 which embraces within itself the power of the trial court to record a compromise under Rule 3 of Order 23. At all times, the learned District Judge exercised an appellate power; at no point of time can it be said that he exercised original jurisdiction. It is difficult to conceive that in the same cause a court should exercise an original jurisdiction in respect of certain matters and an appellate jurisdiction in respect of others. The entire envelope of jurisdiction bears a single character, original or appellate, and not a composite character. I am fortified in this view by Chellappan s/o Pathiramannel Krishnan v. K.P. Varughese AIR 964 Kerala 23, Therefore, the order made by the learned District Judge recording the compromise was an order made in the exercise of his appellate jurisdiction, and consequently the appeal filed in this Court against that order must be regarded as an appeal against an appellate order. Without entering into the question at this stage whether that appeal was maintainable, it was clearly an appeal against an order made in the exercise of appellate jurisdiction by a court subject to the superintendence of this Court. The order of our learned brother was an order in the exercise of appellate jurisdiction in respect of such an order. Accordingly, before the Appellant could invoke clause 10 of the Letters Patent and maintain an appeal against the order of our learned brother it was necessary that our learned brother should have granted a declaration that the case was a fit one for appeal.

It is then urged by the Appellant that the Respondent omitted to take an objection before the learned single Judge that the appeal before him was not maintainable as a First Appeal from Order, and that therefore he cannot be permitted now to contend that it was not a first appeal. Had the Respondent taken the objection, it is said, the Appellant would have pressed the learned single Judge to consider the proceeding as a revision petition instead. We are not entering into the question whether the appeal before the learned single Judge was maintainable. We are assuming that it was, for the purpose of deciding the question whether the present Letters Patent Appeal lies. In any event, the want of objection by the Respondent before the learned single Judge cannot affect the jurisdiction of this Bench. It is an infirmity which goes to the root of our jurisdiction, and the conduct of the Respondent before the learned single Judge cannot confer jurisdiction on us if none exists at all.

C.M.P. No. 2079 of 1976 has been filed today by the Appellant. He prays for permission to raise the point that the Letters Patent Appeal having been admitted in this Court without the certificate of the learned single Judge, the Court should bar the Respondent from contending that the appeal is not maintainable ,for want of such certificate. Now, an appeal under Clause 10 of the Letters Patent lies to a Division Bench from the judgment of a single Judge of the High Court 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 only where the learned single Judge who rendered the judgment declares that the case is a fit one for appeal. The grant of a certificate by the learned single Judge is a condition precedent to the maintainability of the appeal, and no want of objection or acquiescence by the Respondent can give validity to the appeal in the absence of such a certificate. The objection is without force and is accordingly overruled.

As the appeal is not maintainable, it is rejected. There is no order as to costs.