Shri Krishna Dutt Tewari @ Krishnaditya Narain Tewari vs Devendra Nath Mishra and Others

B.N. Agrawal and P.K. Sarin, JJ.—This appeal has been filed against order dated 18.1.1989 passed in Miscellaneous Appeal No. 221 of 1988, whereby the said appeal has been dismissed summarily.

Short facts are that the Plaintiff filed Title Suit No. 113 of 1987 for declaration of title, confirmation of possession and in the alternative for recovery of possession as well as mesne profit. During the pendency of the suit, an application was filed on behalf of the Plaintiff for appointment of receiver under Order XI, Rule 1 of the CPC (hereinafter to be referred to as ''Code''). The trial court by its order dated 31.5.1988 allowed the prayer for appointment of receiver and appointed an advocate of the court as receiver to manage the suit property. Against the said order Defendant 1st party preferred an appeal before this Court, which was registered as Miscellaneous Appeal No. 221 of 1988 and when the said appeal was placed before a learned single Judge of this Court, by order dated 18.1.1989 the same was dismissed summarily. Hence this Letters Patent Appeal.

In this appeal, Stamp Reporter reported that this appeal was not maintainable in view of the provisions of Section 104(2) of the Code. When the appeal was admitted on 7.9.1989 it was directed that question of maintainability of the appeal shall be considered at the time of its hearing. This being the position, we are first required to consider the question of maintainability of the appeal.

Learned Counsel appearing on behalf of the Appellant submitted that the present appeal is maintainable under Clause 10 of the Letters Patent of Patna High Court and the bar created by Section 104(2) of the Code shall not apply in relation to the present appeal. In support of his submission learned Counsel placed reliance upon three decisions. In the case of Board of Governors St. Thomas School and Ors. v. A.K. George and Anr. AIPT 1984 Cal 208 when Letters Patent Appeal was filed against the order passed by the learned single Judge it was laid down that the appeal was maintainable. We find that in that case, the learned single Judge passed an order in exercise of original jurisdiction and rejected the application for revocation of leave granted ex parte and against the said order Letters Patent Appeal was filed, which was held to be maintainable under Clause 15 of the Letters Patent of Calcutta High Court. The Court held that the appeal was not barred u/s 104 of the Code. In that case, the appeal was rightly held to be maintainable as the bar created by Section 104(2) of the Code did not apply as the order was passed by the learned single Judge in exercise of original jurisdiction and not in exercise of appellate jurisdiction therefore, the aforesaid decision can be of no help for learned Counsel appearing an behalf of the Appellants.

In the case of Saitun Nisa Vs. Triloki Vishwakarma @ Triloki Mistri, a Division Bench of this Court was considering a Letters Patent Appeal, which was filed against decree passed by learned single Judge in a first appeal. Objection was taken that without obtaining leave from the learned single Judge, who disposed of the first appeal, Letters Patent Appeal was not maintainable, but the same was overruled by this Court on the ground that no leave was necessary tor filing a Letters Patent Appeal in cases where the same is filed against decree passed in a first appeal by a learned single Judge of this Court. This case also does not help learned Counsel appearing on behalf of the Appellant.

In the case of Shah Babulal Khimji Vs. Jayaben D. Kania and Another, Letters Patent Appeal was filed before Bombay High Court against order passed by a learned single Judge while exercising original jurisdiction. In a title suit filed before the learned single Judge prayers for injunction and receivership were rejected by him against which order a Letters Patent Appeal was filed. The Division Bench dismissed the appeal as not maintainable on the ground that the order passed by the learned single Judge cannot be treated to be a judgment within the meaning of Clause 15 of the Letters Patent of that High Court. Thereafter when the matter was taken to the apex court, it was laid down that the order passed by the learned single Judge in the receivership and injunction matter was judgment within the meaning of Clause 15 of the Letters Patent of that High Court, and, therefore, Letters Patent Appeal before the Division Bench of that Court was maintainable. In this case, question regarding bar created by Section 104(2) of the Code did not arise.

In our view, the point raised is concluded by a decision of the Supreme court in the case of M/s. New Kenilworth Hotel (P) Ltd. Vs. Orissa State Finance Corporation and others, . In that case, the trial court granted injunction in the form of status quo and when against the said order an appeal was preferred before Orissa High Court under Order XLIII, Rule 1(k) of the Code, the same was allowed and the order of injunction was set aside by the learned single Judge. Against the said order passed by the learned single Judge a Letters Patent Appeal was filed before a Division Bench, which dismissed the same on the ground that the appeal was not maintainable in view of the bar created by Section 104(2) of the Code. Against the order passed by the Division Bench when the matter was taken to the Supreme Court, it was clearly laid down that as further appeal in the injunction matter was barred u/s 104(2) of the Code., High Court was justified in holding that Letters Patent Appeal was not maintainable. While laying down the law their Lordships have distinguished the decision of the Supreme Court in the case of Shah Babulal Khimji (supra), reliance upon which has been placed by learned Counsel appearing on behalf of the Appellant, in which a bar created by Section 104(2) of the Code had no application as order was passed by the learned single Judge in exercise of original jurisdiction.

For the foregoing reasons, we have no option but to hold that the present appeal is not maintainable.

In the result, the appeal fails and the same is, accordingly, dismissed.

As the suit was filed in the year 1987, we direct that the trial court shall take all possible steps for disposal of the suit with utmost expedition.

In the circumstances of the case, we direct that the parties shall bear their own costs.