Narain Dei vs Civil Judge (Sr.Div.) Malihabad, Lucknow and Others

Devi Prasad Singh, J.—This special appeal under ChapterVIII Rule 5 of the Allahabad High Court Rules, 1952, has been preferred against the judgment and order dated 30.5.2007 passed by Hon''ble Single Judge of this Court in Writ Petition No.1152 (M/S) of 2006.

The question involved in the present special appeal is, whether the special appeal shall be maintainable under Chapter VIII Rule 5 of the Rules of the Court against the judgment of Hon''ble Single Judge deciding a controversy arising from a proceeding in a pending regular suit in the trial Court and what is the scope of Chapter VIII Rule 5 of the Rules of the Court and under what ground a special appeal shall be maintainable?

The preliminary objection has been raised by the respondents counsel that the special appeal is not maintainable since the subject matter in dispute before the Hon''ble Single Judge was an order dated 25.2.2006 pased in Regular Suit No.400 of 2003 filed for permanent injunction in the Court of Civil Judge (Sr.Div.) Malihabad, Lucknow.

The brief facts of the present case are that the plaintiff Ram Jeevan had filed a regular suit (supra) for permanent injunction wherein, an application under Order XXXIX Rule 1 and 2 of CPC was also filed. On the said application, the trial Court by order dated 13.10.2003 had granted temporary injunction against the defendant respondents. An application for vacation of the temporary injunction was moved by the defendant. During pendency of the application for vacation of temporary injunction, the defendants have filed an appeal before the District Judge, Lucknow. An objection was raised against the maintainability of the said appeal. Since the appeal was not maintainable, an application was moved for its conversion into revision. The application was allowed and the learned District Judge had decided the revision by order dated 22.10.2003 directing the parties for maintaining status quo till disposal of the application for vacation of temporary injunction.

It may be noted that in the Writ Petition No.4130 (M/S) of 2003 filed by the plaintiff against the revisional order dated 22.10.2003 passed by the learned District Judge, Lucknow, an interim order dated 13.11.2003 was passed by this Court. Subsequently, in the said writ petition, this Court by its judgment and order dated 18.11.2004 without entering into the merits of the case, directed the trial Court to decide the application for vacation of injunction order on the next date fixed. It was also provided that the case shall not be adjourned on the said date. In compliance of the judgment and order dated 18.11.2004 (supra), the plaintiff had moved an application No.97 with the prayer that he is approaching the High Court again for clarification of the judgment and order dated 18.11.2004 as to whether the interim order dated 13.11.2003 passed by this Court in W.P. No.4130 (M/S) of 2003 is continuing or not. On the other hand, the defendant moved application No.96 with the prayer that the status quo be maintained keeping in view the revisional order dated 22.10.2003 passed by the learned District Judge. The trial Court by the order dated 25.2.2006 had recorded a finding that the application moved by the parties, were not maintainable being not moved in pursuance of any provisions contained in the Code of Civil Procedure. The trial Court relied upon the judgment reported in 1998 JCLR (1) page 731 SC; M/s. Knoria Chemicals & Industries v. U.P. State Electricity Board and others and in 1992 (3) SCC page 1; Sri Chamundi Mopeds Ltd. v. Church of South India Trust Association and other the trial Court rejected both the applications and preponed the date of 3.4.2006 for 14.3.2006 with the observation that the letter and spirit of the judgment of this Court is to explicit (sicexpedite) the pending application relating to injunction.

Against the aforesaid order dated 25.2.2006, passed by the trial Court, the W.P. No.1152 (M/S) of 2006 was preferred and Hon''ble Single Judge by the impugned judgment and order dated 30.5.2007 has set aside the order dated 25.2.2006 passed by the trial Court and directed the trial Court to decide the application for vacation of interim injunction and till the disposal of that application, the status quo was directed to be maintained.

Sri R.N. Gupta, learned counsel for the appellant proceeded to assail the order under appeal on the ground that once by the judgment and order dated 18.11.2004 passed in W.P. No.4130 (M/S) of 2003, this Court while deciding the writ petition finally, directed the trial Court to decide the application for vacation of injunction without granting any adjournment, the Hon''ble Single Judge was not within the jurisdiction to interfere with the order passed by the trial Court where the trial Court had preponed the date for early disposal of the applications in question. Sri R.N. Gupta further submits that Hon''ble Single Judge was not right while directing the parties to maintain status quo without considering the factual controversy in dispute. It was also submitted that even if the doctrine of merger is not applied then the appropriate remedy for the defendants was to move an application under Order XXXIX Rule 2 of CPC in case the defendants were of the view that the revisional order of the learned District Judge, Lucknow was binding and is violated.

Sri R.N. Gupta, learned counsel has further submitted that the writ petition was dismissed on 12.2.2007 in open Court after hearing the parties but later on to his utter surprise, he has come to know that the writ petition was allowed by the Hon''ble Single Judge. He further submitted that the notebook of the stenographer may be summoned. This pleading has been made in the para7 of the memo of the instant special appeal. It has also been submitted by Sri R.N. Gupta that it was he himself who had argued the matter on behalf of the appellant before Hon''ble Single Judge and not Sri Hemant Kumar Mishra but the judgment shows that reference has been made of another Advocate Sri Hemant Kumar Mishra who alleged to have appeared on behalf of the respondents and argued the case.

Sri P.K. Khare, learned counsel for the private respondent, has relied upon the judgment reported in UPLBEC 2003 page 496, Vajara Yojna Seed Farm, Kalyanpur v. P.O. Labour Court II, U.P., Kanpur; 2002 (4) AWC 3050 (LB), Navyug Radiance Senior Secondary School Society and another v. Registrar, Firms, Societies and Chits, U.P., Lucknow and others, 2002 (4) AWC 3055 (LB), Kalidin v. Mata Prasad and others and Special Appeal No.141 of 2006, Pankaj Nigam v. The Zonal Manager, L.I.C. of India, North Central Zone Office, Knapur and another (decided by the Division Bench of this Court comprising of Hon''ble Mr. Justice Jagdish Bhalla and Hon''ble Mr. Justice D.V. Sharma.)

Before considering the controversy of the case on merit it shall be appropriate that the question of maintainability of the special appeal be adjudicated upon first.

The Letter Patent (sicspecial) Appeals is filed under Chapter VIII of Rule 5 of Rules of the Court.

It shall be appropriate that brief history of special appeals be discussed before recording a finding relating to maintainability of special appeal:

After coming into force of the Constitution of India, the Rules of the Courts were framed by Allahabad High Court in exercise of power conferred by Article 225 of the Constitution and all other powers enabling in that behalf. Article 225 of the Constitution is quoted as below:

�225. Jurisdiction of existing High Courts. Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing 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;

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.�

Article 225 of the Constitution of India provided that jurisdiction and law administered in any existing High Court shall be the same as immediately before the commencement of this Constitution subject to provisions of Constitution and to the provisions of any law of the appropriate legislature may by virtue of power conferred on that Legislature by the Constitution.

In Rules of the Court framed in 1952, Chapter VIII, Rule 5 provided for special appeal. Chapter VIII, Rule 5 as it originally existed in Rules of the Court, 1952 is quoted as below:

�5. An appeal shall lie to the 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 Court, and not being an order made in the exercise of revisional jurisdiction, and not being an order passed or made in the exercise of its power of Superintendence, or in the exercise of Criminal Jurisdiction of one Judge, and an appeal shall lie to the Court from a judgment of one Judge 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 Court, where the Judge who passed the judgment declares that the cases is a fit one for appeal.�

A Bill was introduced, namely, U.P. High Court (Abolition of Letters Patent Appeals) Bill, 1962. The aforesaid Bill was introduced to provide for Abolition of Letters Patent Appeals in the High Court of Judicature at Allahabad. The statement of objects and reasons for bringing the aforesaid Bill was stated in following words:

�Statement of Objects and Reasons The present law makes for multiplicity of appeals due to the provisions for appeals under the Letters Patent of the High Court, resulting in the inconvenience and expense to the litigants besides causing delay in the final disposal of a suit. This Bill, is, therefore, intended to provide for the Abolition of Letters Patent Appeals against appellate jurisdiction of Single Judges in the High Court of Judicature at Allahabad.�

U.P. Act No.14 of 1962, namely, the U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 was passed by Uttar Pradesh Legislature which came into force with effect from 13th November, 1962. Section 3 of the aforesaid Act provided for abolition of special appeal from a judgment or order of one Judge of High Court, made in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of High Court. Section 3 of U.P. Act No.14 of 1962 is quoted as below:

�3.(1) No appeal, arising from a suit or proceeding instituted or commenced, whether prior or subsequent to the enforcement of this Act, shall be to the High Court from a judgment or order of one Judge of the High Court, made in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court, subject to the Superintendence of the High Court, anything to the contrary contained in Clause 10 of the Letters Patent of her Majesty, dated the 17th March, 1866, read with Clause 17 of the U.P. High Courts'' (Amalgamation) Order, 1948, or in any other law, notwithstanding.

(2) Notwithstanding anything contained in subsection (1) all appeals pending before the High Court on the date immediately preceding the date of enforcement of this Act shall continue to lie and be heard and disposed of as heretobefore, as if this Act had not been brought into force.�

In view of the provisions of U.P. Act No.14 of 1962, the Rules of the Court, 1952 were also amended vide notification dated 6th November, 1963. Chapter VIII, Rule 5 was substituted by following Rule:

�5. An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction) of one Judge.�

Further amendments were made in U.P. Act No.14 of 1962 and 1975. Thereafter another Amendment Act was passed by Uttar Pradesh Legislature, namely, Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981. The State of Objects and Reasons of the aforesaid Act were as follows:

�Prefatory Note Statement of Objects and Reasons Prior to the enactment of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962 a Letters Patent Appeal could (except in certain cases), be filed before a Division Bench of a High Court against the judgment of the Single Judge. In view of the circumstances obtaining after the establishment of the Supreme Court the said Act of 1962 was enacted under which Letters Patent Appeal against the judgment of a Single Judge of the Allahabad High Court given in exercise of his appellate jurisdiction arising out of the judgment of a Subordinate Court in civil or other proceedings was abolished.

Amendments were made in the aforesaid Act in 1972 and 1975 to abolish the Letters Patent Appeals against the judgments of a Single Judge of the High Court in writ petitions arising out of certain judgments of the Board of Revenue, the Director of Consolidation, the District Judge and the Civil Judge.�

Despite the aforesaid measures, the number of cases in the High Court, continued to increase and impediments in the way of speedy justice could not altogether be removed. It is, therefore, considered necessary to make a similar provision in the U.P. High Court (Abolition of Latters Patent Appeals) Act, 1962 with a view to abolishing the Letters Patent Appeals against the judgment or order of a Single Judge of the High Court under Article 226 or Article 227 of the Constitution in respect of any judgment order or award of the Subordinate Courts, Tribunals or Statutory Arbitrators made in exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act relating to any of the matters enumerated in the State List or Concurrent List of the Seventh Schedule to the Constitution or in respect of any order made in exercise of the appellate or revisional jurisdiction under any such Act, by the State Government or any officer or authority. It is also being provided that the pending Letters Patent Appeal shall continue to be disposed of as before.

The Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Bill, 1981, is introduced accordingly.�

By 1981 Amendment Act Section 5 of 1962 Act was substituted by following provisions:

�2. Substitution of Section 5 of U.P. Act 14 of 1962 For Section 5 of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962, the following section shall be substituted, namely:

�5. Abolition of Letters Patent Appeals in certain other cases (1) Notwithstanding anything to the contrary contained in Clause 10 of the Letters Patent of her Majesty, dated March 17, 1866 read with Clauses 7 and 17 of the U.P. High Courts (Amalgamation) Order, 1948, or in any other law, no appeal arising from an application or proceeding, instituted or commenced whether prior or subsequent to the commencement of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981, shall lie to the High Court from a judgment or order of one Judge of the High Court, made in the exercise of jurisdiction conferred by Articles 226 or 227 of the Constitution, in respect of any judgment, order or award

(a) of a Tribunal, Court of Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or

(b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act.

(2) Notwithstanding anything contained in subsection (1), all appeal of the nature referred to in that subsection pending before the High Court immediately before the commencement of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981, shall be heard and disposed of as if that subsection had not been enacted.�

Chapter VIII, Rule 5 of the Rules of the Courts was again amended by Notification dated 17th July, 1983 to make it in accord with Section 5 of Amendment Act, 1981 Chapter VIII, Rule 5 now existing in the Rules of the Court is as follows

Special Appeal An appeal shall lie to the Court from a judgment (not beign a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitutions or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.�

A plain reading of Rule 5 relating to jurisdiction under special appeal, indicates that no appeal shall lie where a judgment is delivered by Hon''ble Single Judge in exercise of jurisdiction conferred by Article 226 or 227 in respect of a judgment, order or award of a Tribunal, Court or statutory order�.etc.

Power of superintendent of this Court has been conferrd by Article 227 of the Constitution of India. Clause 1 and Clause 2 of Article 227 of the Constitution for convenience is reproduced as under:

�227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.�

From the combined reading of Chapter VIII Rule 5 of the Rules of the Court read with Article 227 of the Constitution, it is amply clear that in case any order passed by a tribunal, court, statutory authority or by quasijudicial authority in pursuance to power conferred by Uttar Pradesh Act or Central Act with respect to any matter enumerated in the State List or Concurrent List and dispute relating to such order is adjudicated by Hon''ble Single Judge, then special appeal shall not be maintainable against such judgment. Meaning thereby, in case a controversy is adjudicated relating to validity of orders passed by subordinate courts, tribunal or other quasijudicial authorities on which powers have been conferred by State and Central Act like U.P.Z.A. & L.R. Act, Land Revenue Act or Minor Mineral Act or any other State or Central Act, then special appeal against such judgment shall not be maintainable under Chapter VIII Rule 5 of the Rules of Court.

In Lucknow University and another v. Ashwani Kumar Walia and another; 1995 (13) LCD 7, this Court held that where interim order does not amount to final adjudication of a controversy, special appeal shall not be maintainable.

In another case reported in 2001 (19) LCD 468, Committee of Management, Adarsh Vidyalaya Samiti Sirodhan, Bulandshahr v. Prescribed Authority/Up Zila Magistrate, Sikandrabad, Bulandshahr, relying upon an earlier Division Bench decision it has been held by this Court that Prescribed Authority while exercising power under Section 25 of the Societies of Registration Act as applicable in U.P. functions as tribunal and an order passed by the Prescribed Authority is impugned in a petition under Article 226 of the Constitution, then the order passed by Hon''ble Single Judge while adjudicating a controversy relating to decision taken by the Prescribed Authority under Section 25 of the Societies Registration Act, cannot be challenged in special appeal under Chapter VIII Rule 5 of the Rules of Court, special appeal shall not be maintainable.

In a case reported in [(1994) 1 UPLBEC 24], Sita Ram Lal v. District Inspector of Schools, Azamgarh and others, where a controversy relating to seniority of a teacher was decided by the Committee of Management and against the said decision representation preferred before the District Inspector of Schools, was dismissed and the said decision was impugned in writ jurisdiction. The Hon''ble Single Judge upheld the decision of Committee of Management by allowing the writ petition and the order of the District Inspector of Schools was quashed. The order of the Hon''ble Single Judge was impugned in special appeal under Chapter VIII of the Rules of Court. While adjudicating the controversy relating to the maintainability of writ petition the Division Bench of this Court held that the District Inspector of Schools while adjudicating the right of parties function as tribunal has the power under clause (f) of Regulation 3 framed under Intermediate Education Act. The power of District Inspector of Schools has trapping of a court being vested with power conferred by Statute. Accordingly, the special appeal shall not be maintainable.

A Division Bench relying upon a judgment of Apex Court reported in Shanker Ram Chandra Abhyankar v. Krishnoti Dattare, AIR 1970 SC 1, while recording a finding that to constitute appellate jurisdiction, there should be existence of relationship of superior and inferior court and such power should be conferred by Statute itself. Relevant portion of the Sita Ram''s case (supra), is reproduced as under:

�10��There was no dispute that respondent No.4 has agitated the matter relating to seniority before the District Inspector of Schools against the decision of Committee of Management. In Shanker Ram Chandra Abhyankar v. Krishnaji Datttraya, AIR 1970 SC 1, the Supreme Court considering the scope of appeal or revision observed:

�The right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are existence of the relation of superior and inferior court and the power on the part of the former to review the decisions of the latter.�

�15��He has trappings of a court and the power has been vested under Statute i.e. Clause (f) of Regulation 3 (1) of the Regulations under the Intermediate Education Act, 1921. Special appeal is not maintainable against the decision of a tribunal under Chapter VIII, Rule 5 of the Rules of the Court.�

In Shyam Singh and others v. Meerut Mandal Vikas Nigam Meerut and others; [1998 (16) LCD 240], the controversy was relating to payment of court fee. The decision given by the Taxing Officer under Section 5 of the Court Fees Act, 1870 was questioned before the Hon''ble Single Judge of this Court. The Hon''ble Single Judge has upheld the decision taken by the Taxing Officer. The special appeal filed against the judgment of Hon''ble Single Judge was held to be not maintainable by a Division Bench of this Court presided over by the then Hon''ble Chief Justice D.P. Mohapatra and Hon''ble Mr. Justice R.R.K. Trivedi. It was held by the Division Bench that since Hon''ble Single Judge has exercised jurisdiction agisnst an order passed by the appellate authority, special appeal shall not be maintainable.

In the case of Ram Kripal Singh v. State Road Transport Corporation, Lucknow and others; [1999 (17) LCD 603], in Division Bench presided over by the then Hon''ble N.K. Mitra, CJ. And Hon''ble D.K. Seth, J., the decision of Hon''ble Single Judge of this Court upholding the award of Labour Court was impugned. Their lordships held that special appeal under Chapter VIII of Rule 5 of Rules of the Court shall not be maintainable. Relying upon the Apex Court judgment in Shah Babualal Khimji v. Jayaben D. Kania; 1981 (4) SCC 8, their lordships held that a litigant does not get any inherent right to prefer an appeal against an order unless such a right is conferred on the litigant by law. It was further held by the Division Bench that the word, ''tribunal'' has not been defined in the Rules but it is a principle of law that a Tribunal is a body or an authority invested with judicial power to adjudicate on questions of law or affecting the rights of the parties in a judicial manner.

In the case of Jai Prakash Agarwal v. Prescribed Authority (SubDivisional Magistrate), Sadar, District Deoria and others; [(1999) 1 UPLBEC 697], a finding was recorded by the Prescribed Authority under Section 25(2) of the Societies Registration Act and thereafter, in writ petition filed under Article 226 of the Constitution of India, the dispute was considered by Hon''ble Single Judge of this Court which was subject matter of special appeal filed under Rule 5 of Chapter VIII of Rules of the Courts. The Division Bench consisting of the then Hon''ble Mr. Chief Justice D.P. Mohapatra and Hon''ble Mr. Justice R.R.K. Trivedi again held that the Registrar while adjudicating the controversy under Section 25(2) of Societies Registration Act functions as tribunal. Hence special appeal under Rules of this Court shall not be maintainable against the decision taken by Hon''ble Single Judge of this Court. Their lordships had further relied upon a Full Bench judgment in the case of Committee of Management, Shri Kashi Raj Mahavidyalaya Aurai District Bhadohi (Varanasi), reported in (1996 (3) UPLBEC 1617 (FB), where it was held that a finding recorded by the Deputy Director of Education in pursuance to power conferred by Section 16A (7) of U.P. Intermediate Education Act, 1921 was deemed to be a decision rendered by a tribunal. Accordingly, it was held that against the judgment of Hon''ble Single Judge, the special appeal shall not be maintainable.

Another Division Bench of this Court presided over by the then Hon''ble Chief Mr. Justice A.L. Rao and Hon''ble Mr. Justice R.R.K. Trivedi, reported in [(1995) 3 UPLBEC 1786]; Kaushal Kishore Singh v. Shubh Karan Misra and others, has held that where a controversy was being adjudicated by the Deputy Director in pursuance to power conferred by Regulation 3 (l)(f) of Chapter II of the Regulations from under the U.P. Intermediate Education Act, 1921 and a writ petition is being preferred by one of the parties against such order, then against the judgment of Hon''ble Single Judge, special appeal shall not be maintainable.

In a recent judgment reported in [2007 (25) LCD 225; Krishna Autar Mittal and another v. Sri Suresh Babu Mittal alias Suresh Chand Mittal and others], a Division Bench consisting of then Hon''ble A.N. Ray, CJ and Hon''ble Ashok Bhushan, J., held that against the judgment of Hon''ble the Single Judge dismissing the writ petition filed against the appellate order of District Judge, Budaon, special appeal shall not be maintainable. Relevant portion of the said judgment is reproduced as under:

�In view of the foregoing discussions, the present special appeal having arisen from a judgment of learned Single Judge given in exercise of writ jurisdiction under Article 226/227 of the Constitution arising from a judgment of learned District Judge in his appellate jurisdiction is clearly barred under Chapter VIII, Rule 5 of the Rules of the Court and is thus dismissed as not maintainable.�

In a case reported on 1998 (2) AWC 1295; Rajni Kant Sahai v. State of U.P. and others, the question before the Division Bench of this Court cropped up was, whether a special appeal lies against the judgment of Hon''ble Single Judge rendered in writ petition under Article 226/227 of the Constitution wherein, the order passed by the Prescribed Authority under Section 12A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 was adjudicated, is maintainable? The Division Bench held that the Prescribed Authority while deciding the controversy under Section 12A of the said Act, functions as tribunal to decide the surplus area of land keeping the choice of tenure holder. Hence the decision rendered by the Prescribed Authority shall be deemed to be a decision by a tribunal. Against the judgment of Hon''ble Single Judge of this Court while affirming or setting aside the order of Prescribed Authority, a special appeal under Chapter VIII Rule 5 of the Rules of the Corut, shall not be maintainable.

In 1999 (2) AWC 1147; Ram Kripal Singh v. U.P. State Road Transport Corporation, Lucknow and others, the controversy adjudicated by the Hon''ble Single Judge was relating to reliefs sought for implementation of a labour court award where a Division Bench held that it comes within the prohibited zone and the special appeal under Chapter VIII Rule 5 of the Court, shall not be maintainable.

Similar proposition of law was reiterated by another Division Bench of this Court in a case reported in 2005 (6) AWC 5245; Mohd. Arif v. Mirza Glass Works and others, where a writ petition was filed against the order passed by the Prescribed Authority under the Payment of Wages Act, 1936. The Prescribed Authority while deciding the question of payment of wages, discharged duty as Tribunal. Hence the judgment of Hon''ble Single Judge relating to order of the Prescribed Authority shall not be appealable under Chapter VIII Rule 5 of the Rules of the Court.

Similar proposition of law also borne out from other case reported in 2000 (3) AWC 2573; Life Insurance Corporation of India v. Special Judge (AntiCorruption)/Addl. District and Sessions Judge, Varanasi and others.

In the case of Sudarshan Singh Bedi v. Additional District Magistrate/Rent Control & Eviction Officer, Varanasi and others; 1993 AWC (2) 916, the Division Bench of this Court held that special appeal shall not be maintainable against the appellate order passed by the Hon''ble Single Judge in case the dispute relates to the order passed by the Tribunal.

The Division Bench had relied upon the case of Jaswant Sugar Mills v. Laxmi Chand; AIR 1963 SC 677, while defining the word, ''tribunal''.

In the case of Vajara Yojna Seed Farm, Kalyanpur v. Presiding Officer, Labour Court II, U.P., Kanpur; 2003 (1) UPLBEC 496, the Division Bench held that special appeal filed against the judgment of Hon''ble Single Judge in respect of award of Labour Court or against the appellate order passed by the Joint Director of Education in exercise of appellate jurisdiction under statutory regulation or against an order passed by election tribunal, shall not be maintainable. It has been further held that the consolidation courts have all traps of the Court while adjudicating the dispute. Hence the order arising out of such dispute from Hon''ble Singh Judge, the special appeal shall not be maintainable.

In the case of Jagdish Singh and others v. The Additional District Magistrate Maharajganj and another; 2002 Vol.3 ALJ 2866, arising out of proceedings under Consolidation of Holdings Act it was held that the special appeal shall not be maintainable.

In the case reported in 2005 (3) AWC 2189; Shyam Bihari v. State of U.P. and others, where a controversy arose from the appellate order of Deputy Inspector General of Police under U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 the Division Bench of this Court held that the special appeal shall be barred under Chapter VIII Rule 5 of the Rules of the Court.

Thus, in view of discussion made hereinabove and keeping in view the settled proposition of law, in case while sitting singly a controversy arising from the judgment, order or award of a tribunal, court or statutory arbitrator made or purported to be made in exercise or purported exercise of jurisdiction under any U.P. or Central Act enumerated in State or Concurrent List of VII Schedule, a special appeal shall not be maintainable.

The word, ''court'', according to Black''s Law Dictionary, has been defined as under:

�Court, n.1. A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice a question of law for the court to decided.

�A Court �.. is a permanently organized body, with independent judicial powers defined by law, meeting at a time and place fixed by law for the judicial public administration of justice.� 1 William J. Hudhes, Federal Practice, Jurisdiction & Procedure $ 7, at 8 (1931).

The judge or judges who sit on such a governmental body. 3. A legislative assembly > in Massachusetts, the General Court is the legislature>. 4. The locale for a legal proceeding 5. The building where the judge or judges convene to adjudicate disputes and administer justice. Also termed (in sense 5) courthouse.�

In the Law Lexicon Dictionary, by P. Ramanatha Aiyer, the word, ''court'', has been defined as under:

�Court: A Court is defined in Coke on Little ton as a place wherein justice is judicially administered. �In every Court, there must be at least three constituent parts the actor, reus andjudex; the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy.� (3 Steph Comm. 6th Ed., pp.383, 385.) See also 30 M. 326=2 MLT 267. Court is a body in the Government to which the public administration of justice is delegated; an organized body, with defined powers, meeting at certain times, and places, for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz., attorneys and counsel, to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure orders in its proceedings.

�The word �Court'' has not been defined in any Act of the Legislature, but it may be presumed that an officer, to be a ''Court'' must be competent to make a judicial decision.� 73 IC 354=25 Bom LR 398=47 Bom 699=AIR 1923 Bom 290. See also 38 Cal 230=8 IC 107=4 Bur LT 246=12 IC 289.

Court is �a tribunal empowered to hear and determine issues between parties. Upon pleadings either oral or written, and upon evidence to be adduced under well defined and established rules, according to settled principles of law.�

�The word court in the statutes is used in its generic sense and includes both judge and jury in a case where a jury is present. 4 C. 483 (FB)=3 CLR 270.

''Court is not confined to the Court room but is present at least when in session, in all parts of the place set apart for its own use or the use of its Judges and officers and of persons attending as witnesses, suitors or jumrs. In the matter of Sudhir Chandra Ray Chaudhuri, AIR 1952 Cal 258, 265.

Court is ordinarily understood as a place where justice is judicially administered. In Re Ramanath Bholgothra, AIR 1953 Mad 953, 954.

''Court''. To be a Court, the person or persons who constitute, it must be entrusted with judicial function (i.e.) of deciding litigated questions according to law. Further they must derive their powers//from the state and exercise the judicial powers of the State. If the tribunal is the result of any private arrangement for the settlement of disputes, it cannot constitute a Court. 47 PLR 284 (FB)=1945 Lab 313.

The entire City Civil Court is not one court, but it denotes distinct and separate courts. Raichander v. Permanand, AIR 1978 AP 349, 353, [Andhra Pradesh Civil Court Act (19 of 1972), S. 3(1)]

�Court�, means, the Court, judge, Arbitrator, Persons or Person, before whom a legal proceeding is held or taken. But S.3, Ind. Evidence Act (1 of 1872) which excludes ''arbitrators'' from the definition of ''Court''.

An appellate court should be considered to be a ''court'' within the definition of the term as contained in S.2(c). Bundi Municipal Board v. Bundi Electric Supply Co. Ltd., AIR 1957 Raj 278, 279 [Arbitration Act 1940 S.2(c)]

The word ''court'' means a court which has civil jurisdiction over the subject matter of the reference. Shahbed v. Mohd. Abdullah, AIR 1967 J&K 120, 125.

Appellate Court is also a ''court'' within and Sec.28 of the Act. M/s. S.D. Bhai & Co. v. Punjabi University Patiala, AIR 1973 Pun & Har 410, 413; B. C. Paul & Sons v. Union of India, AIR 1978 Cal 423, 424.

The word ''court'' should include the appellate and revisional court. Babulal v. Ramswarup, AIR 1960 Raj 240, 242 Sec. 37(5).

The tribunal which is to exercise the jurisdiction for executing the decree is a ''court'' within the scope of S.45 of the Banking Companies Act. Shri Ram Narain v. The Simla Banking and Industrial Co. Ltd., AIR 1956 SC 614, 624.

''Court'' in Prisons Act includes a Coroner and any officer lawfully exercising Civil, Criminal or Revenue jurisdiction. (Act II of 1900, S.2)

Any person empowered to deal with a particular matter and authorized to receive evidence bearing on that matter in order to enable him to arrive at a determination is a ''Court''. 23 MLJ 393=(1912) MWN 1012=13 CrLJ 723=16 IC 755 (762) (per SUNDARA AIYAR, J.)

''Court'' includes a Incometax Collector when engaged in hearing objections to an assessment under Income Tax Act. 3 IC 886 (890)=3 SLR 66.

The Registrar of Cooperative Societies is not ''court''. Prafulla Chandra v. Calcutta Credit Corporation, AIR 1965 Assam 21, 25.

Industrial Tribunal is not a court, Maharana Bhagwat Singhji v. State of Rajasthan, AIR 1963 Raj. 22, 23.

The word, ''Court'' in C.P. Code, O.22, R:3(2) includes an appellate Court, 8 Cal.440. So also the word in O.23, R.1(2), C.P. Code, 8 All 82; 11 IC 22.

The word ''Court'' used in S.14, Limitation Act, does not include a foreign Court. 35 Bom 139=12 Bom LR 977.

Court means a proper court in which a suit ought to have been filed. Amar Chand Inami v. Union of India, AIR 1973 SC 313, 314, 315. [Limitation Act (9 of 1908) Sec.4].

''Court means a court of law in the hierarchy of courts established for the purpose of administration of Justice throughout the Union. The EmployeeInsurance court is not a Court within the meaning of the article�.

P.P.Studio v. E.S.J. Corporation, AIR 1970 Bom 413 at p.415.�

This Court in a judgment reported in AIR 1966 All 124; Har Prasad v. Hans Ram, held that a Tehsildar dealing with a mutation case is a revenue court.

The Apex Court in AIR 1954 SC page 520; Durga Shanker Mehta v. Raghuraj Singh, while relying upon earlier judgment reported in 1950 SC 188, held that the expression ''Tribunal as used in Art. 136, Constitution of India does not mean the same thing as ''court'' but includes, within its ambit all adjudicating bodies, provided they are constituted by the statute and are invested with judicial power as distinguished from purely administrative or executive functions. The Courts or Tribunals established by or under any law relating to the Armed Forces are exempted.

In AIR 1963 SC 874, Engineering Mazdoor Sabha v. Hind Cycles Ltd., the Hon''ble Supreme Court held that the Tribunal as distinguished from the court, exercises judicial power and decides matters brought before it judicially or quasijudicially but it does not constitute a court in the technical sense.

In the case of Jaswat Sugar Mills Ltd., Meerut (In both the appeals) v. Lakshmi Chand and others; AIR 1963 Supreme Court 677 (V 50 C 104), the question for adjudication before the Apex Court was, whether a Conciliation Officer under Industrial Disptue Act possesses judicial power and is a Tribunal and which acts may be treated as judicial acts? Their Lordships had defined as to which acts may be treated as judicial acts in following words:

�(13). To make a decision or an act judicial, the following criteria must be satisfied:

(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts founds in the light of preexisting legal rules;

(2) it declares rights or imposes upon parties obligations affecting their civil rights; and

(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of act, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.�

Subject to aforesaid ingredients, their Lordships held that the Conciliation Officer in granting or refusing permission to alter the terms of employment of workmen, at the instance of the employer, has to act judicially. His decision is not made to depend upon any subjective satisfaction; he is required to investigate and ascertain facts, apply objective standards to facts found and to declare whether the employer makes out a case for granting permission to alter the terms of employment of his employees.

Their Lordships further held that adjudication of a court or Tribunal must doubtless be judicial; but every authority which by its constitution or authority specially conferred upon its required to act judicially, is not necessarily a tribunal for the purpose of Article 136 of the Constitution of India. Their Lordships further proceeded to hold that a tribunal, adjudication whereof is subject to appeal, must beside being under a duty to act judicially, be a body invested with the judicial power of the State.

While defining the word, ''tribunal'' their Lordships further proceeded to hold as under:

�(19). The duty to act judicially imposed upon an authority by statute does not necessarily clothe the authority with the judicial power of the State. Even administrative or executive authorities are often by virtue of their constitution, required to act judicially in dealing with question affecting the rights of citizens. Board of Revenue, Customs Authorities, Motor Vehicles Authorities, Incometax and Salestax Officers are illustrations prima facie of such administrative authorities, who though under a duty to act judicially, either by the express provisions of the statutes constituting them or by the rules framed thereunder or by the implication either of the statutes or the powers conferred upon them are still not delegates of the judicial power of the State. Their primary function is administrative and not judicial. In deciding whether an authority required to act judicially when dealing with matters affecting rights of citizens may be regarded as a tribunal, though not a court, the principal incident is the investiture of the �trappings of a court� such as authority to determine matters in cases initiated by parties, sitting in public, power to compel attendance of witnesses and to examine them on oath, duty to follow fundamental rules of evidence (though not the strict rules of the Evidence Act), provision for imposing sanctions by way of imprisonment, fine, damages or mandatory or prohibitory orders to enforce obedience to their commands. The list is illustrative; some though not necessarily all such trappings will ordinarily, make the authority which is under a duty to act judicially, a ''tribunal''.

In view of the above, where a controversy decided by the court or tribunal or a statutory body or authority under the U.P. Act like Minor & Mineral Act, U.P.Z.A. & L.R. Act, Land Revenue Act, Consolidation of Holdings Act and other alike State or Central Acts and such decisions or orders impugned in a writ jurisdiction under Article 226 or 227 of the Constitution before the Hon''ble Single Judge, then the decision of the Hon''ble Single Judge shall not be amenable to special appeal under Chapter VIII Rule 5 of the Rules of the Court. In the same way, in case an order is passed by a court constituted under the Code of Civil Procedure or Cr PC, an order of such court is impugned in writ jurisdiction under Article 226/227 of the Constitution before Hon''ble Single Judge, then against such order of Hon''ble Single Judge, the special appeal shall not be maintainable. Appropriate alternative remedy is to approach Hon''ble Supreme Court.

It is settled law that every word of statute should be given a meaning. While interpreting a statutory provision the entire section or whole of the statute should be considered as the case may be. According to Maxwell on the Interpretation of Statutes, (12th Edition page 36), any construction which may leave without affecting any part of the language of a statute should ordinarily be rejected. A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated.

In the case of AG v. HRH Prince Ernest Augustus, 1957 (1) All ER 49 (HL), the House of Lord held as under:

�In an appeal before the House of Lords, where the question was of the true import of a statute, the AttorneyGeneral wanted to call in aid the preamble in support of the meaning which he contended should be given to the enacting part, but in doing so was met by the argument on behalf of the respondent that where the enacting part of a statute is clear and unambiguous, it cannot be controlled by the preamble which cannot be read. The House of Lords rejected the objection to the reading of the preamble. Although, ultimately it came to the conclusion that the enacting part was clear and unambiguous. VISCOUNT SIMONDS (LORDS TUCKER agreeing) in that connection said: �I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy.�

The Apex Court in the case of Mohan Kumar Singhania v. Union of India; AIR 1992 SC 1, held that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous then courts are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statute/Rules/regulations relating to the subject matter. Added to this, in construing statute, the court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and underlying intendment of the said statute and that every statute is to be interpreted about any violence to its language and applied as far as its explicit language admits consistent with the established rules of interpretation. The aforesaid settle rule of interpretation has been affirmed by the Apex Court from time to time in various cases including 1974 (1) SCC 596, M/s. Gammon India Ltd. and others v. Union of India and others (para 19), AIR 1978 SC 995, M/s. Punjab Beverages Ltd., Chandigarh v. Suresh Chand and another (para 5), AIR 2002 SC 829, Kailash Chandra and another v. Mukundi Lal and others (para 10) and AIR 2000 SC 66, Grasim Industries Ltd. and another v. State of M.P.

Apart from the fact that every word of statute should be considered during the course of interpretation. It is also settled law that while interpreting a provision contained in an Act or statute the authorities have got no right to interpret a provision by adding or subtracting words as observed by Lord Granworth in Grundy v. Pinniger, (1852) 1 LJ Consolidation of Holdings Act 405:

�To adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from which if we depart we launch into a sea of difficulties which is not easy to fathom.�

The Privy Council also observed (per Viscount Simonds, L.C.):

�Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used.� (see Emperor v. Benorailal Sarma, AIR 1945 PC 48, pg 53).�

In view of the above, every word used in Chapter VIII Rule 5 of the Rules of the Court should be given a meaning. The judgment delivered by Hon''ble Single Judge from a controversy adjudicated by a court, tribunal, appellate authority or revisional authority or arbitrator, cannot be subject to appeal under Chapter VIII Rule 5 of the Rules of the Court.

Needless to say that the special appeal cannot be entertained by the Division Bench of this Court in case the judgment of Hon''ble Single Judges does not fall within the four corner of Chapter VIII Rule 5 of the Rules of the Court. A Full Bench of this Court in a case reported in [1997 (15) LCD 921]: Smt. Anar Kali and others v. Deputy Director of Consolidation and others, held that power to exercise revisional or appellate jurisdiction is a creation of statute. In case statute does not permit, then the court does not have got jurisdiction to exercise such power.

In Sardar Hasan Siddique v. State Transport Appellate Tribunal; AIR 1986 All.132, a Division Bench of this Court observed that a Court or a Tribunal cannot derive jurisdiction apart from the statute. No amount of acquiescence, waiver or the like can counter jurisdiction if a Tribunal is lacking, the doctrine of nullity will come into operation and any decision taken or given by such a tribunal will be a nullity.

In Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96, their Lordships held that the Court cannot usurp legislative functions. The Court cannot rewrite the legislation for the reason that it had no power to legislate. The power of legislation has not been conferred on the Courts.

In Kondiba Dagadu Kadam v. Savitribai Sopan Sujar & others; AIR 1999 SC 2213, the Apex Court held as under:

�It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigant being a substantive statutory right it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before an appeal can be maintained and no court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable jurisdiction.�

In absence of powers conferred by Act or Statute the finding of a court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the statute. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230, Smt. Nai Bahu v. Lal Ramnarayan & others, AIR 1978 SC 22, Natraj Studios Pvt. Ltd. v. Navrang Studio & anr.; AIR 1981 SC 537; Sardar Hasan Siddiqui v. State Transport Apellate Tribunal; AIR 1986 All. 132; A.R. Antuley v. R.S. Nayak, AIR 1988 SC 1531; Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96; Karnal Improvement Trust v. Prakash Wanti & another, (1995) 5 SCC 159; U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd., AIR 1996 SC 1373; State of Gujarat v. Rajesh Kumar Chimanlal Barot & anr., AIR 1996 SC 2664; Kesar Singh & others v. Sadhu & ors., AIR 1999 SC 2213; and Collector of Central Excise, Kanpur v. Flock (India) (P) Ltd., Kanpur, AIR 2000 SC 2484.

In view of the above settled proposition of law as held hereinabove, no special appeal shall be maintainable against the judgment of the Hon''ble Single Judge.

In case, the petitioner''s counsel has any grievance regarding the manner in which the Hon''ble Single Judge had exercised his jurisdiction, then one of the appropriate remedy is to file a review against the said order or approach Apex Court.

For the ends of justice while reserving the judgment, an interim order was passed directing the trial Court to decide the application for temporary injunction by 31.7.2007 in terms of the earlier judgment and order dated 18.11.2004 passed in Writ petition No.4130 (M/S) of 2003. The trial Court is directed to decide the injunction matter expeditiously and preferably, by 31.7.2007.

Subject to the aforesaid observations and directions, the present special appeal is not maintainable. Hence it is dismissed. No orders as to costs.

(Appeal dismissed)