Smt. Kamla Devi vs Balbir Singh

Kotwal, J.—Two questions have been referred to the Full Bench for its opinion. These are:

(1) Whether an appeal under Clause 12 of the Letters Patent against a judgment of a single Judge, passed by him in first appeal against a decree or

order of subordinate Court will be competent without the case being declared to be a fit one for appeal by the single Judge?

(2) Whether the view taken by this Court in Satya Jyoti v. R. D. Jyoti, Letters Patent Appeal No. 3 of 1978, decided on 14-3-1979 is correct?

The facts leading to the reference have been set out in detail in the order of reference. A decree u/s 10 of the Hindu Marriage Act, 1955. was

passed against the appellant by District Judge, Jammu. Appeal taken from it was also dismissed by a learned single Judge of this Court. The

appellant then filed an appeal under Clause 12 of the Letters Patent against the judgment of the learned single Judge. An objection was taken on

behalf of the respondent that the learned single Judge not having declared the case to be a fit one for appeal in terms of Clause 12, the appeal was

not maintainable. Reliance was placed upon a Division Bench Judgment of this Court in Satya Jyoti v. R. D. Jyoti, Letters Patent Appeal No. 3 of

1978, decided on 14-3-1979 which prima facie supported the aforesaid objection. The Division Bench, being of the opinion, that no declaration in

terms of Clause 12 was necessary where a single Judge of the High Court had decided a first appeal, has posed the aforesaid questions to be

answered by a larger bench.

Clause 12 of the Letters Patent (Jammu and Kashmir) which is the subject of all polemics in the case, reads as under:--

And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in

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, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order

passed or made in the exercise of the powers of superintendence) of one Judge of the said High Court or one Judge of any Division 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 or

one Judge of any Division Court, consistently with the provisions of the Civil Procedure Code, 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; but that the right of appeal from other judgments of the Judges of

the said High Court or of such Division Court shall be to Us, our Heirs or Successors and be heard by Our Board of Judicial Advisers for report

to Us.

On a careful reading of this Clause the following conclusions can be easily drawn :--

(1) An appeal shall lie from every judgment of one Judge of the High Court or of one Judge of any Division Court, if;

(a) the same is not passed by him in appeal against a decree or order of a Court subject to the superintendence of the High Court, passed by it in

exercise of its appellate jurisdiction; and

(b) the same is not passed in the Civil original jurisdiction of the High Court

(2) An appeal shall also lie from a judgment of one Judge of the High Court, or of one Judge of any Division Court, passed by him in appeal

against a decree or order of a Court subject to the superintendence of the High Court, passed by it in exercise of its appellate judrisdiction,

provided the Judge declares that the case is a fit one for a further appeal to a larger bench, but not otherwise.

(3) No appeal shall lie against any sentence passed by a Judge of the High Court or by a Judge of a Division Court, nor shall an appeal lie against

an order passed by him in exercise of the powers of superintendence of the High Court. It is not necessary to state herein the fourth conclusion in

regard to appeals to the Board of Judicial Advisors, as the Board has since ceased to exist. It is thus manifest that under Clause 12 a party can, as

of a right, go in appeal against a judgment of a single Judge. where the same has been passed by him while hearing an appeal from a decree or

order passed by a lower court in its original jurisdiction, usless a second appeal against such a decree or order is specifically barred under any

other law Union of India (UOI) Vs. Mohindra Supply Company, . No declaration by the single Judge that the case is a fit one for further appeal is

required in such a case. It would be required only where the single Judge has passed a judgment while hearing an appeal from an appellate decree

or order of a lower court. In other words, such a declaration would be a sine qua non for an appeal under Clause 12 only where the single Judge

has decided a second appeal. As a corollary, it would also follow, that in no case shall an appeal lie under Clause 12, where a single Judge has

decided a first appeal from a judgment or order, not passed as a Court, by an officer or tribunal under the appellate jurisdiction of the High Court.

The Clause speaks of decrees or orders passed by Courts alone, which are subject to the superintendence of the High Court, and of no others.

Apart from the plain language of Clause 12, there is ample authority for the proposition that no declaration under Clause 12 is needed when an

appeal is to be preferred against a judgment passed by a single Judge of the High Court, while hearing a first appeal. In Ladli Prasad Jaiswal Vs.

Karnal Distillery Co. Ltd. and Others, their Lordships while interpreting Clause 10 of the Letters Patent (Punjab) which is almost a facsimile of

Clause 12 of the Letters Patent (Jammu and Kashmir), held as under (at page 1286) :--

.....Clause 10 of the Letters Patent of the Lahore High Court (which continues to apply to the Punjab High Court) provides, in so far as it is

material :--

And we do further ordain that an appeal shall lie to the said High Court of Judicature ***** 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 x x x x x 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 x x x x x in 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; x x x x x

Manifestly the Clause confers an unqualified right of appeal to the High Court from the judgment of a single Judge exercising original civil

jurisdiction. Similarly there is a right of appeal from a judgment of a single Judge hearing a civil appeal where the judgment is not in an appeal from

an appellate decree. But against the judgment of a single Judge exercising powers in appeal from an appellate decree, an appeal under the Letters

Patent only lies if the Judge declares that the case is a fit one for appeal, and not otherwise.....

Some other authorities laying down the same rule are : Ramji Singh Vs. Musammat Chhulghhana Kuer and Others, , Dassi Vs. Dhani Ram

Teku, ; Ambujam Vs. T.S. Ramaswamy, . Not a single decision taking a contrary view was cited before us.

An argument was, however, made that in view of the provisions of Section 60 of the Jammu & Kashmir Constitution Act, 1996, hereinafter the

Constitution Act, dealing with appeals, which have been specifically saved u/s 102 of the Constitution of Jammu and Kashmir, hereinafter the

Constitution, an appeal from an appellate decree of a single Judge of the High Court would lie to a Division Bench, provided Judge who passed

the decree declares that the case is a fit one for appeal, but not otherwise; no matter whether the decree against which an appeal is to be filed, has

been passed by the single Judge on first or on second appeal. Section 60 reads as under :--

Procedure in appeals. -- (1) Except as otherwise provided by any enactment for the time being in force and subject to any rules made in this

behalf, the jurisdiction of the High Court of Judicature may be exercised by a single Judge of the Court or by a Bench of two or more Judges of the

Court,

(2) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree or from any order against which

an appeal is permitted by any law for the time being in force passed or made by a single Judge of the High Court shall lie to a bench consisting of

two other Judges of the High Court.

(3) Unless such an appeal is prohibited by any enactment for the time being in force, an appeal from an appellate decree made by a single Judge of

the High Court shall lie to a bench consisting of two other Judges of the High Court, where the Judge who passed the decree declares that the case

is a fit one for appeal,

Taken all by itself, this section no doubt supports the contention that in all cases where an appeal is to be taken from an appellate decree of a

single Judge, his declaration that the case is a fit one for appeal, would be a condition precedent for its maintainability. This is what unmistakably

flows from Sub-section (3). This section has, however, to be read along with some other provisions in order to arrive at a right conclusion. The

first to be noticed is Section 102 of the Constitution which reads:--

Saving of existing jurisdiction of the High Court. -- Subject to the provisions of this Constitution and to the provisions of any law for the time

being in force, the jurisdiction of and the law administered in the 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 the 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.

It starts with the expression ""subject to the provisions of this Constitution and the provisions of any law for the time being in force....."" Obviously,

therefore, provisions of Section 60 would apply, unless there is anything to the contrary, contained either in the Constitution itself, or in any other

law for the time being in force. Existing law in Clause (b) of Section 2 of the Constitution has been defined to mean, ""any law, Ordinance, order,

bye-law, rule, notification or regulation passed, made or issued before the commencement of this constitution by the Legislature or other competent

authority or person having power to pass, make or issue such law, Ordinance, order, bye-law, rule, notification or regulation."" All such laws,

subject to its other provisions, have been saved by the Constitution u/s 157. Admittedly, there is nothing in the Constitution contrary to Sub-section

(3) of Section 60 of the Constitution Act. The question which, therefore, falls for determination is as to whether or not there is anything to the

contrary contained in any other existing law. At this stage, the other provision to be noticed is Section 5 of the Constitution Act, This section reads

as under:--

Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation to the State and its

government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and nothing contained in

this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations,

orders and Ordinances by virtue of his inherent authority.

This section, before its repeal by the J. & K. Constitution (Amendment) Act (No. XVIII, 2008), re-affirmed the existence of the plenary powers

of His Highness to make laws, or to issue orders, executive or judicial, in relation to the State of Jammu and Kashmir, which were deemed to be

inherent in him by virtue of his being the Ruler of the State. This section on its plain terms, had overriding effect not only over the other laws, but

also over the other provisions of the Constitution Act itself. This is distinctly borne out from its opening words ""Notwithstanding anything contained

in this or any other Act ....."" The truism, that His Highness was the fountain head of all the legislative and executive powers in relation to the State

of Jammu & Kashmir, has been acknowledged in judicial decisions as well. In Anchal Singh Vs. Government, the Court while interpreting Section

3 of Regulation (I) (i) of 1991, which is substantially the same as Section 5 of the Constitution Act, observed as follows (at p. 2):--

At the outset it is necessary to determine the question whether the service of the applt. was at the pleasure of His Highness personally or was it at

the pleasure of His Highness Government. His Highness is undoubtedly the source of all legislative, executive and governmental authority in the

State, In legal theory, he personifies the State and constitutes its Government.....

To the same effect are the observations made in a Bench decision of this Court reported as State of J. & K. v. G. S. Baroca AIR 1978 J&K 64

The Constitution Act came into force on September 7, 1939. The Letters Patent were granted in favour of the High Court of Jammu and

Kashmir, by the His Highness on August 28, 1943 i.e. nearly 4 years thereafter. Clause 12 of the Letters Patent brought two significant changes in

Section 60 of the Constitution Act, in that, it enlarged the right of appeal in two ways. In the first place it extended the right not only to decrees

passed by him, but also to all judgments passed by a single Judge, which under Sub-section (3) of Section 60 was restricted to decrees only. What

effect, if at all, it had on Sub-section (2), it is not necessary to discuss herein, as Sub-section (2) deals with decrees and orders passed by a single

Judge on original side with which we are not presently concerned. It is only pertinent to point out that the expression ""judgment"" occurring in

Clause 12 is of much wider amplitude as compared to the expression ""decree"". Almost all the High Courts in the country have accepted the well

known meaning assigned to the expression ""Judgment"" by the High Court of Calcutta in the famous case of the Justices of the Peace for Calcutta v.

Oriented Gas Co. ((1872) 8 BLR 433 ) according to which, ""judgment"" means ""a decision which affects the merits of the question between the

parties by determining some right or liability. It may be either final, or preliminary, or interlocutory, the difference between them being, that a final

judgment determines the whole cause or suit and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be

determined"". An order holding a document inadmissible in evidence, or rejecting the prayer of a person to be brought on record as legal

representative of a party dying during the pendency of an appeal, for example, is no doubt a judgment within the meaning of Clause 12, even

though such an order is not a decree. On the other hand, every order dismissing an appeal on merits is a judgment within the meaning of the said

clause. Viewed thus, every decree is a judgment, though every judgment may not be a decree. Pari ratione, no order passed by a Judge of this

High Court in his criminal appellate or revisional jurisdiction, is appealable under Clause 12, because it is not a judgment deciding any right or

liability within the meaning of this Clause K.V. Muniswamy Mudaliar Vs. Kajaratnara Pillai and Ots., . The other change which Clause 12 brought

in Sub-section (3) was that an appeal against a judgment of a single Judge of the High Court could be filed as of right, when the same was passed

by him in an appeal against a decree or order of a Court Subordinate to the High Court passed by it in its original jurisdiction, which under Sub-

section (3) could not be filed without his leave. To this extent, therefore, provisions of Clause 12 are contrary to the provisions of Sub-section (3)

of Section 60 within the meaning of Section 102 of the Constitution. There can be no manner of doubt that the Letters Patent (Jammu and

Kashmir) are ""law for the time being in force"" within the meaning of Section 102, for they clearly fall within the definition of the expression ""existing

law"" given in Clause (b) of Section 2 of the Constitution and have been saved u/s 157. My answer to question No. 1 would be, therefore, in the

affirmative.

The order passed in Satya Jyoti's case (L. P. A. No. 3 of 1978, D/- 14-3-1979) (J & K) (supra) is no doubt brief and does not deal

exhaustively with the point at issue. It merely says:

We have heard the learned counsel for the appellant. Learned counsel has not been able to convince us that right of appeal is available to him

under Letters Patent. Nor can he invoke Section 96 of C. P. C. to his aid as that section cannot be said to be applicable to the said case. There is

nothing in the High Court rules which could indicate that any right of appeal is available to the applicant in the present case. The appeal is dismissed

in limine.''

If this order is interpreted to lay down the rule, that even in a case which a single Judge of the High Court has decided on first appeal, a declaration

by him that the case (sic) would be a condition precedent for the maintainability of an appeal under Clause 12, then with due respect to the learned

Judges who constituted the Bench, the law laid down in the aforesaid judgment, in my opinion, does not appear to be correct and my answer to

the second question, in the premises, will be in the negative.

Since the present appeal is clearly maintainable, the record of the case will be sent back to the Division Bench for its decision on other points.

Dr. Anand, J.

I have gone through the lucid judgment prepared by my learned brother Kotwal, J. I entirely agree with the law expressed by his Lordship that

no declaration under Clause 12 of the Letters Patent is needed where an appeal is to be preferred against a judgment passed by a single Judge of

the High Court, in a first appeal from a decree or order and that the judgment in Satya Jyoti's case (L. P. A. No. 3 of 1978, D/- 14-3-1979) (J &

K) does not lay down the correct law. Support for these views is also available from the High Court Rules, 1975.

Rule 47 reads thus :

An appeal under the Letters Patent from the judgment of a Judge sitting alone passed in a cause, not being an appeal from an appellate decree or

order, shall be posted before a bench of two Judges for preliminary hearing.

Rule 49 reads thus :

An application for a certificate under Clause 12 of the Letters Patent in the case of the judgment of a single Judge deciding a second appeal shall

be made orally before him immediately after the judgment is delivered. No subsequent application for the purpose shall be entertained unless for

special reason shown by an application supported by an affidavit the Judge is satisfied that circumstances existed rendering the immediate

application impossible.

From a plain reading of Rule 49 (supra), it is obvious that a declaration by a single Judge to the effect that the case is a fit one for further

appeal is required only where the single Judge has passed a judgment in a second appeal i.e. while hearing an appeal from an appellate decree or

order of a subordinate court.

Rule 47 provides that when an appeal is preferred under the Letters Patent, from a judgment of a single Judge passed in a cause, other than an

appeal from an appellate decree or order, no declaration of fitness is required from the single Judge. However, such an appeal has to be posted,

before the Bench of two Judges, for preliminary hearing. The expression ""in a cause"" in Rule 47, would also include a first appeal heard by a single

Judge of the court.

Thus, the answer to the first question referred to the Full Bench for its opinion would be in the affirmative, while the answer to the second

question would be in the negative.

Mufti Baha-Ud-Din Farooqi, Ag. C.J. (Minority view)

The facts have been stated in detail in the judgment proposed to be delivered by Kotwal, J. I need not repeat them. The point that really arises

for determination is whether an appeal lies to the High Court from the judgment of a single Judge hearing a civil appeal in respect of a decree or

order of a subordinate court without the case being declared to be fit for appeal by such judge. The presently existing jurisdiction of the High Court

is regulaled by Section 102 of the Constitution of Jammu and Kashmir, (shortly the 'State Constitution').

Section 102 reads :

Saving of existing Jurisdiction of the High Court. -- Subject to the provisions of this Constitution and to the provisions of any law for the time

being in force, the jurisdiction of the law administered in the 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 sitting 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.

This section saves the jurisdiction conferred on this court by the Jammu and Kashmir Constitution Act of 1996 which was in force immediately

before the commencement of the State Constitution. Section 60 of the Jammu & Kashmir Constitution Act, 1996 (shortly the '1996 Act') provided

as under :

(1) Except as otherwise provided by any enactment for the time being in force and subject to any rules made in this behalf the jurisdiction of the

High Court of Judicature may be exercised by a single Judge of the Court or by a Bench of two or more Judges of the Court.

(2) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree or from any order against which

an appeal permitted by any law for the time being in force passed or made by a single Judge of the High Court shall lie to a Bench consisting of

two other Judges of the High Court.

(3) Unless such an appeal is prohibited by any enactment for the time being in force, an appeal from an appellate decree made by a single Judge of

the High Court shall lie to a Bench consisting of two other Judges of the High Court, where the Judge who passed the decree declares that the

case is a fit one for appeal.

On a plain reading of this section it follows that unless such an appeal is barred by any law for the time being in force, an appeal would lie to

the Division Bench from the judgment of a single Judge hearing a civil appeal in respect of a decree or order of a subordinate court if the judgment

amounts to a decree and the Judge who has passed the judgment declares that the case is fit one for appeal. Needless to add that the word

'decree' has been defined in Section 2(2) of the CPC and it is in that sense that this word has been used here.

The 1996 Act came into force on 2nd of September, 1939. Thereafter, on 28-8-1943, the then ruler granted Letters Patent to the High Court.

Clause 12 of the Letters Patent reads:

And we do further ordain that an appeal shall lie to the said High Court of Judicature 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, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order

pass ed or made in the exercise of power of superintendence of one Judge of the said High Court or one Judge of any Division 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 or

one Judge of any Division Court, consistently with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in

respect of a decree or order made in 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 but that the right of appeal from other judgments of the Judges of the

said High Court or of such Division Court shall be to Us, Our Heirs or Successors and be heard by our Board of Judicial Advisors for report to

us.

This Clause undoubtedly confers an unqualified right of appeal to the High Court from the judgment of a single Judge hearing a civil appeal in

respect of a decree or order of a Subordinate court. Accordingly, in the matter of appeal from the judgment of a single Judge hearing a civil appeal

in respect of a decree or order of a Subordinate Court, the provisions of Letters Patent are directly in conflict with the provisions of Section 60 of

the 1996 Act. The question is: which of the two provisions should prevail in the matter?

It has been contended that the then ruler possessed plenary powers of legislation in respect of the State and the powers were so wide in

amplitude that he could make a provision contrary to the provisions of 1996 Act and that Clause 12 was one of such provisions. For this, reliance

has been placed upon Section 5 of the 1996 Act, Section 5 reads:

Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation to the State and its

government are hereby declared to be and to have always been inherent in and possessed find retained by His Highness and nothing contained in

this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations,

orders and ordinances by virtue of his inherent authority.

There can be hardly any doubt that this section saved the inherent powers of the then ruler as a source of legislative, executive and

governmental authority in the State, His powers of legislation were wide enough to enable him to make provisions contrary to 1995 Act. The

provisions so made could take effect over the provisions of 1996 Act. But it does not mean that by an executive enactment the then ruler could

amend or override the provisions of 1996 Act. The question that necessarily arises is whether the Letters Patent is an executive enactment or a

legislative enactment? If the answer be that it is a legislative enactment, then, there can be no doubt that the provisons of Clause 12 would override

the provisions of Section 60 of the 1996 Act. On the other hand, if it is held that the Letters Patent is an executive enactment, then, the provisions

of Clause 12 shall have to be read subject to the provisions of Section 60 of 1996 Act.

In Venkataramaiya's Law Lexicon (2nd Edition) the meaning of Letters Patent is given as ""Letters by which the king makes his grants, whether

of lands, honours, franchises or anything else"". In Wharton's Law Lexicon (14th Edition) it is given as ""Writings of the sovereign, sealed with the

Great Seal of England whereby a person or public company is enabled to do acts or enjoy privileges which he or it could not do or enjoy without

such authority"". Accordingly the letters patent is an executive enactment and not a legislative enactment. The decision in the case of Benoari Lal

Sarma and Others Vs. Emperor, supports this view. In that case the question arose whether Section 38 of the Interpretation Act in terms applied,

to the Letters Patent? It was held that Section 38 did not apply in terms to the Letters Patent, the principle underlying Section 38 could however

apply in construing the provisions of the Letters Patent. The reason given was that Letters Patent was not a legislative enactment In this view, the

provisions of Clause 12 must be treated as subordinate to the provisions of Section 60 of the 1996 Act. It necessarily follows that there is no

unqualified right of appeal to the High Court from the judgment of a single Judge hearing a civil appeal in respect of a decree or order of a

subordinate court. The appeal is subject to the conditions specified in Section 60 of the 1996 Act. Thus, the jurisdiction of the High Court to hear

an appeal from the judgment of a single Judge hearing a civil appeal in respect of a decree and order of the subordinate courts is limited. The scope

of such jurisdiction cannot be extended by Rule 47 and Rule 49 of the High Court Rules. The rules are intended for the convenient transaction of

the business of the court and cannot confer any jurisdiction which is not already there.

For the reasons stated above I regret my inability to agree with the opinion of Anand and Kotwal, JJ. and say that my reply to the first question

would be that Clause 12 of the Letters Patent must be read subject to Section 60 of 1996 Act and, so read, there is no unqualified right of appeal

to the High Court from the judgment of a single Judge hearing a civil appeal in respect of a decree or order of a subordinate court. The right is

subject to the conditions set out in Section 60 of the said Act. It necessarily follows that the view taken by this court in the case of Satya Jyoti (L.

P. A. No. 3 of 1978, D/- 14-3-1979) (J & K) was correct inasmuch as that case did not satisfy the conditions of Section 60 of the 1996 Act,

Accordingly my reply to question No. 2 would be in the affirmative.

Order of the Court

In accordance with the judgment of the majority, question No. 1 is replied in the affirmative and question No. 2 in the negative.