Raghubans Lal and Others vs Solano and Others

Courtney-Terrell, C.J.—In my opinion this Letters Patent appeal must be dismissed on a preliminary objection by the respondents that no appeal lies to a Divisional Court u/s 10 of the Letters Patent, from a decision of a Judge passed in the exercise of revisional jurisdiction. The only facts which are material to this decision are these: A final decree for partition as between the respondents and the appellants was passed on 22nd December 1922, the suit for partition having been begun in the year 1917, and delivery of possession was granted to the parties of the respective takhtas allotted to them on 28th February 1923. Now on 18th January 1927, the respondents applied to the Subordinate Judge u/s 151, Civil P.C., praying him to set aside the final decree which had been passed. The merits of the application need not concern us at the moment. This application was rejected by the Subordinate Judge. Thereupon the respondents applied to the High Court in revision of the Subordinate Judge''s decision. The matter came before a single Judge of this Court who set aside the order of the Subordinate Judge and directed that the partition should be reopened. From the decision of the single Judge of this Court the appellants come before us on a Letters Patent appeal, and the respondents object that the decision of a single Judge, was a decision in the exercise of revisional jurisdiction.

Now two points were urged by the appellants. The first point was that it being conceded that an order truly made in exercise of revisional jurisdiction is not subject to appeal it is nevertheless clear according to the wording of Clause 10, Letters Patent that if in fact and in law the order made was against the jurisdiction of the High Court to act in revision then the matter is open to appeal; that is to say a single Judge who purports to exercise the jurisdiction may exercise the jurisdiction, if he acts judicially, in any way he pleases without his decision being subject to appeal but he is not the final Judge so far as the High Court is concerned as to whether he did or did not possess any jurisdiction to pass the order. To this the answer has, I think, rightly been made, that a decision purporting to be in the exercise of revisional jurisdiction, whether the assumption of jurisdiction is justified or not and whether the order is right or not on its merits, is not subject to appeal. The single Judge is the final authority subject to appeal only to the Privy Council, first of all, as to whether he had or had not jurisdiction; secondly, on the merits of the particular case itself, and that view of the matter was taken by the Calcutta High Court in the case of Byomkes Seth v. Bhut Nath Pal AIR 1921 Cal. 217 and has not since been doubted by any High Court. The second point taken by the appellants is based upon the difference between the old Letters Patent of this Court and the Letters Patent as now amended. It is said and it is conceded for the purposes of this argument that the old Letters Patent applies to this case, and the old Letters Patent in Clause 10 thereof is thus, so far as the material part is concerned, worded:

And we do further ordain that an appeal shall lie to the High Court of Judicature at Patna from the judgment (not being the order made in the exercise of revisional jurisdiction in a case which has been called for by the said Court...).

The new Letters Patent omits the words "which has been called for by the said Court" and with that omission the words of the Letters Patent as amended are the same as the words of the Calcutta Letters Patent upon which the decision above referred to was based. Now it is said that if those words "in a case which has been called for by the High Court" are taken into consideration they limit the case where no appeal lies to a Divisional Court to one in which the records have been called for by the High Court suo motu and therefore, in a case like the present where the records were called for on the application of one of the parties, is not within the terms used by the Letters Patent and hence an appeal lies. It was conceded that no authority could be produced in which such a construction has been given to these words and moreover, in my opinion, the words do not bear that construction. The words "which has been called for by the said Court" are general in their application and refer both to the case in which the High Court has suo motu called for records and the case where the records have been called for on the application of one of the parties. Therefore, even if the old Letters Patent applied to this case, no appeal against the order lies and if the distinction created by those words in the old Letters Patent is left out of consideration, then the old Letters Patent must be construed in exactly the same way as the Calcutta High Court construed the amended Calcutta Letters Patent and the reasoning of the Calcutta High Court applies. I would therefore dismiss this appeal on the preliminary point with costs to the respondents: hearing fee five gold mohurs.

Mohamad Noor, J.

I agree.