Sharmila and Others vs Subhadra and Others

Balasubramanyan, J.—These appeals challenge orders of remand passed by a learned Single Judge in appeals filed before this court u/s 96 of the CPC in terms of Section 12 read with Section 13 of the Kerala Civil Courts Act, 1957. The appeals are sought to be filed as Civil Miscellaneous Appeals invoking Order XLIII Rule 1 (u) of the CPC and not on the basis of the right conferred by Section 5 of the Kerala High Court Act, 1958. When these appeals came up for orders, an objection was raised on behalf of the respondents that these Civil Miscellaneous Appeals are not maintainable. What we are answering now is the question of the maintainability of Civil Miscellaneous Appeals against orders of remand passed in appeals by a learned single Judge of this Court, in appeals arising from original decrees of the Subordinate Judge''s Court. Section 5 of the Kerala High Court Act in so far as it is relevant, provides that an appeal would lie to a bench of two Judges from a judgment of a single Judge in exercise of appellate jurisdiction in respect of a decree or order made in exercise of original jurisdiction by a subordinate court. The Kerala High Court Act does not define the expression ''judgment'' occurring in Section 5 (ii) of the Kerala High Court Act.

Section 2(9) of the CPC defines a ''judgment'' as meaning the statement given by the Judge of the grounds of a decree or order. It may be noted that Section 5 of the High Court Act was amended by the Kerala High Court (Amendment) Act, 1966 by which Section 5 as it stood was substituted. Before that substitution Section 5 read:-

An appeal would lie to a bench of two Judges from a judgment or order of a Single Judge in exercise of original jurisdiction. An appeal would lie to a bench of two Judges from a Judgment of a Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate court where the Judge who passed the judgment declares that the case is a fit one for appeal.

Amendment of Section 5 by Act 6 of 1966 was to remove an anomaly. Whereas, the judgment of a single Judge made in exercise of original jurisdiction and a judgment rendered by a single Judge in exercise of Second Appellate jurisdiction were made appealable, a judgment rendered by a single Judge in an appeal from a decree or order made by a subordinate Judge''s court in exercise of its original jurisdiction, was not made appealable. This aspect was noted by a Division Bench in Manuel v. Revenue Inspector, (1968 KLT 485). There was a bifurcation of Section 5 by making a separate provision for an appeal against a judgment or order of a Single Judge in exercise of original jurisdiction, a judgment of a Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court and a judgment of a Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate court, if the Judge who passed the judgment, certified that the case was a fit one for appeal. Last of these provisions introduced as Section 5(iii) of the High Court Act, became redundant after the amendment of the Code by the Amending Act of 1976 which abolished further appeals from decisions of a Single Judge passed in exercise of Second Appellate jurisdiction against the judgment rendered by a subordinate court in exercise of its appellate jurisdiction. Section 100A provided that notwithstanding anything contained in any Letters Patent or in any High Court Act or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal. Since Section 5(iii) of the High Court Act thus became redundant, by the Kerala High Court (Amendment) Act, Act 20 of 1987, Section 5(iii) was omitted. Thus going by Section 5 as it now stands, an appeal lies from a judgment or order of a Single Judge passed in the exercise of original jurisdiction and from a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court. We are not concerned here with Section 5(i) of the Act providing for an appeal against a judgment or order of a Single Judge in the exercise of original jurisdiction. We need deal only with the scope of Section 5(ii) of the High Court Act for the purpose of this case.

In St. Pauls Yacobaya Suriyani Church v. Ithappiri, 1971 KLT 871, an attempt was made to seek leave of the Court to file an appeal against a decision rendered in a Civil Miscellaneous Appeal filed under Order XLIII Rule 1 (u) of the Code of Civil Procedure, challenging an order of remand passed by the District Court. The learned Judge held that Section 5(iii) of the Act applied only in the case of a decision in an appeal from an appellate decree and that Section does not cover the disposal of an appeal filed under Order XLIII Rule 1 (u) of the CPC and hence no leave could be granted. The learned Judge emphasised that u/s 5 of the High Court Act, an appeal under a thud category is provided only from a judgment in Second Appeal and not from a judgment in a Civil Miscellaneous Appeal and that Section 104(2) of the CPC could not be bypassed. A Full Bench of this court held in Fr. Abraham Mathews v. Ittan Pillai, 1981 KLT 260, that the decision of a Single Judge disposing of a Civil Miscellaneous Appeal u/s 104 of the Code of Civil Procedure, is not appealable to a Division Bench u/s 5 of the High Court Act. The Full Bench also took note of the bill introduced for amending Section 5 of the High Court Act by omitting Section 5 (iii) of the Act. In Damodaran v. Sankaran, 1985 KLT 153, it was held that an order of a Single Judge refusing to set aside an abatement in a First Appeal was not appealable to a Division Bench u/s 5(ii) of the Act by taking the view that Section 5(ii) cannot include in its purview orders passed in interlocutory or ancillary matters. The Division Bench reasoned that it was only a final judgment in exercise of the First Appellate jurisdiction that was appealable u/s 5(ii) of the High Court Act.

An appeal filed u/s 96 of the Code is governed by Order XLI of the Code. An appeal filed in terms of Section 96 could be disposed of in any one of the modes prescribed by Order XLI of the Code. The court could also dispose of the appeal in terms of Rules 23 or 23A of Order XLI rue 23 by remanding the suit to the trial court for a fresh trial and disposal. A decision remanding a suit rendered in an appeal filed u/s 96 of the CPC is not understood as a judgment but it is understood as an order. This is clear from the decisions in Damodaran v. Sankaran, 1985 KLT 153, and St. Pauls Yacobaya Suriyani Church v. Ithappiri, 1971 KLT 871, referred to above. On the scheme of the Code, such an order of remand is appealable with reference to clause (ii) of Section 104(1) of the Code providing for an appeal from an order made under Rules from which appeal is expressly allowed by the Rules. The prescription is in Order XLIII, and Rule l(u) of Order XLIII, providing for an appeal from an order of remand under Rules 23 or 23A of Order XLI, where an appeal would life from the decree of the appellate Court. The appeal against the decree contemplated here, cannot include an appeal against the decision of a Single Judge of the High Court, since, the Code does not provide for an appeal against such a decree. The right to appeal against a judgment of a Single Judge in exercise of appellate jurisdiction u/s 96 of the Code is conferred only by Section 5(ii) of the High Court Act. Neither Section 96 nor Order XLI of the Code provides for a further appeal to the High Court from the decision of a Single Judge of the High Court rendered in an appeal u/s 96 of the Code. Section 100 of the Code providing for a Second Appeal is also not applicable since a Second Appeal lies only from an appellate decree of a subordinate court. Order XLI-A only makes applicable, the Rules of Order XLI to an appeal to the High Court from original decrees of subordinate courts. That also does not provide for a further appeal from a decision rendered in an appeal u/s 96 of the Code. Order XLII only makes applicable the Rules of Order XLI as modified by Order XLI-A, to appeals from appellate decrees of subordinate courts. Order XLII-A provides that the Rules of Orders XLI and XLI-A shall apply so far as may be, to appeals from decrees and orders of a Single Judge to a Division Bench. Thus on the scheme of the Code, no further appeal is provided to a Division Bench of the High Court from a decision rendered by a Single Judge in an appeal filed u/s 96 of the Code. In that context, it is clear that the right of appeal is traceable only to Section 5(ii) of the High Court Act. We may notice in this context that, u/s 4 of the Code, rights available under any other provision, is saved.

We may notice here that though the appellants have invoked Order XLIII Rule 1 (u) of the Code in these memoranda of appeals, it was agreed before us by counsel on all hands that the appeals are really on the basis of the right conferred by Section 5(ii) of the Kerala High Court Act.

The controversy whether an appeal lay to a Division Bench from an interlocutory order passed in exercise of original jurisdiction by a Single Judge of the High Court was set at rest by the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, . Therein, the test to decide whether a decision rendered was a judgment was laid down and their Lordships held that an order of a trial Judge refusing to appoint a Receiver or to grant an ad-interim injunction is undoubtedly a judgment within the meaning of the Letters Patent of the Bombay High Court, both because Order XLIII Rule 1 applies to internal appeals in the High Court and apart from it, such an order even on merits, attains the quality of finality and would therefore be a judgment within the meaning of Clause 15 of the Letters Patent. More importantly, their Lordships held:-

The Concept of the letters patent governing only the internal appeals in the High Courts and the CPC having no application to such appeals, is based on a serious misconception of the legal position.

Though the said decision would squarely govern only cases coming u/s 5(i) of the High Court Act, the said decision does have a bearing on the question falling for decision here, to the extent it has clarified that even though Letters Patent is a special law, certain provisions of the CPC in the matter of procedure too apply to appeals under the Letters Patent. But as we have seen, there is no conferment of a right of appeal to a Division Bench from the decision of a Single Judge in a First Appeal in terms of the Code of Civil procedure. Hence, this decision can have relevance in this case only to the extent of enabling us to hold that the procedure prescribed by the Code may apply even to appeals filed u/s 5 of the High Court Act, to the extent it is not inconsistent with the special law under which the appeal is filed.

In Johnskutty Joseph v. Philip Abraham, 1995(2) KLJ 661, a Division Bench held that an order made in exercise of original jurisdiction under the Patents Act by a Single Judge, was appealable u/s 5(i) of the High Court Act, but not u/s 104 of the CPC and that, Section 104 of the Code does not control Section 5(i) of the High Court Act. The decision of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, , was not referred to therein. A Full Bench in Venugopalan v. Malappuram District Co-operative Milk Supply Union, 1995(2) KLJ 170, held that an appeal u/s 5(ii) of the High Court Act is not impaired or whittled down by Section 100 of the Code, or the limitations contained therein. It is therefore clear that an appeal u/s 5(ii) of the Act stands independent of the provisions for appeal contained in the Code of Civil Procedure.

Thus, once we trace the right of appeal only to Section 5(ii) of the High Court Act, it is clear that the appeal can be numbered only as Appeal from First Appeal (A.F.A.) as per the practice adopted by this Court. The appeal cannot be filed as a Civil Miscellaneous Appeal by invoking Section 104 or Order XLIII Rule 1 of the Code of Civil Procedure. The appellants are hence not entitled to file, what they call, Civil Miscellaneous Appeals against the judgment of a Single Judge in exercise of his First Appellate jurisdiction though it is one remanding the suit to the trial Court.

Once we hold that the appeal is only u/s 5(ii) of the High Court Act, the question is, what is the Court Fee payable on that appeal. What Section 5(ii) of the High Court Act makes appealable is the ''judgment'' of a Single Judge. An order of a Single Judge is not made appealable. For example, no appeal lies from an interlocutory order passed by a Single Judge in an appeal filed u/s 96 of the Code unlike in the case of an order, even if interlocutory, made in exercise of original jurisdiction, made appealable u/s 5(i) of the High Court Act (See also K.S.Das v. State of Kerala, 1992 (2) KLT 358 (FB)). The expression ''judgment'' alone occurs in Section 5(ii) of the High Court Act and the expression ''order'', specifically included in Section 5(i) of the High Court Act, is excluded. Hence, the appeal u/s 5(ii) of the High Court Act is an appeal against a judgment. The definition of ''order'' in Section 2(14) of the Code shows that an order is an formal expression of a decision of a Civil Court which is not a decree The expression ''order'' is used in juxtaposition to decree and both are final determinations of the matters in controversy. An order of remand in that sense is not a formal expression of a decision in a cause. A reference to Section 105 of the Code would suggest that an order of remand would be open to challenge in a subsequent appeal against the decree, but for the special prohibition contained in Section 105(2) of the Code and as laid down by the Supreme Court in Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, , and earlier order of remand by the High Court can be challenged in the Supreme Court in an appeal against the decree subsequently passed, because Section 105(2) of the Code does not apply to the Supreme Court. It does apply to the High Court in view of Section 117 of the Code An order of remand has only the character or quality of putting an end to the appeal filed before the Appellate Court. That quality or character may bring it within the meaning of the expression ''judgment'' occurring in Section 5(ii) of the Act. For the purpose of these cases, we are willing to adopt the view of the High Court of Andhra Pradesh in Kuppa Viswapathi Vs. Kuppa Venkata Krishna Sastry, . Thus, at best, it can be said that a decision in an appeal by a Single Judge remanding the suit to the trial Court is a ''judgment'' within the meaning of Section 5(ii) of the High Court Act.

Section 52 of the Kerala Court Fees and Suits Valuation Act provides that the fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal. The same rule applies to Second Appeals also. The question is whether Section 52 of the Court Fees Act would apply to appeals filed u/s 5(ii) of the High Court Act. The other provision in the Court Fees Act that is relevant is Article 3 Schedule II of the Act. It says that the fee payable on a memorandum of appeal from an order inclusive of an order determining any question u/s 47 or Section 144 of the Code and not otherwise provided for is as provided therein. Schedule II Article 3(2) covers appeals u/s 5 of the High Court Act. Article 3(2)(a)says that the Court Fee payable in an appeal from an order passed in exercise of appellate jurisdiction is Ten Rupees. Article 3(2)(b) provides that if the appeal is from an order passed in exercise of original jurisdiction which would be appealable under the Code had it been passed by a subordinate Court is Ten Rupees. Article 3(2)(c) says that in any other case, the Court Fee would be One Hundred Rupees. In our view that what is appealed against is a ''judgment'' and not an ''order'', Article 3(2) of Schedule II of the Court Fees Act cannot apply to these appeals. This aspect, in our view, is covered by a Full Bench decision of this Court, though that decision related to the Court Fee payable u/s 5(iii) of the High Court Act as it then stood. But u/s 5(iii) of the High Court Act also, the appeal was against the judgment of a Single Judge in exercise of Second Appellate jurisdiction.

In Asma Beevi v. Haji M.V.Moidu, 1973 KLJ 162, the Full Bench held that the Court Fee payable in an appeal against the judgment of the Single Judge was on ad valorem basis and not under Article 3(2) of Schedule II of the Kerala Court Fees and Suits Valuation Act. The Full Bench held that only an appeal against an order u/s 5 of the High Court Act, attracted Article 3 of Schedule II of the Court Fees Act. It was further held that Section 52 of the Kerala Court Fees and Suits Valuation Act applies to appeals under Sec. 5 of the High Court Act as well. Thus, it was held that court fee was payable under Sec. 52 of the Court Fees Act. Of course, that was not a case of remand in Second Appeal. But, that in our view cannot make a difference in the legal position in view of our conclusions that the appeal is only against a judgment under ''Section 5(H) of the High Court Act. It is interesting to note that in none of these cases, the provision under which the Court Fee is paid is indicated. In all the appeals, Rs. 10/- has been paid as Court Fee. How the Registry can accept such memoranda of appeals which do not specify the provision under which the Court Fee is paid, is not clear. But, obviously. Court Fee has been paid under Schedule II Article 3(2) of the Court Fees Act. But as held by the Full Bench, the said provision applies only to orders and not to judgments. What is made appealable u/s 5(ii) of the High Court Act, is the judgment of a Single Judge rendered in exercise of First Appellate jurisdiction. Hence, the appellants are bound to pay Court Fee u/s 52 of the Kerala Court Fees and Suits Valuation Act. The Court Fees now paid in these appeals are not proper.

We, thus, find that the Civil Miscellaneous Appeals as now filed are not maintainable. The Registry is directed to number these appeals as Appeals from First Appeals and return the respective memorandum of appeal to the respective counsel for correcting the valuation and the Court Fee payable and for paying the Court Fee due on the appeal.