Case Note & Summary
In this appeal by special leave, the Supreme Court considered whether a Letters Patent Appeal under Clause 10 of the Letters Patent lay to the Division Bench of the High Court against an order of a learned single Judge passed in exercise of appellate jurisdiction vacating an ad interim status quo order in a suit challenging action under Section 29 of the State Financial Corporation Act. The appellant, a hotel company, had filed a civil suit for declaration and permanent injunction alleging that steps taken by the Orissa State Finance Corporation and others under Section 29 were illegal and sought protection of its possession over the hotel premises. Pending suit, the appellant applied under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 for ad interim injunction restraining dispossession. On July 12, 1994, the trial court granted status quo, allowing the appellant to remain in possession. The respondents appealed to the High Court; a learned single Judge vacated the status quo order on May 18, 1995. Aggrieved, the appellant filed Letters Patent Appeals before the Division Bench. By the impugned order dated December 16, 1996 in A.H.O. Nos. 40-42 of 1995, the Division Bench held the appeals not maintainable. Hence the present special leave appeals. Before the Supreme Court, the appellant, through Additional Solicitor General A.M. Singhvi, argued that under Clause 10 of the Letters Patent an appeal lay against the single Judge's order because it was a judgment within the meaning of Section 2(9) of the Code, and that the bar under Section 104(2) was not attracted by operation of Section 4(1) of the Code. Reliance was placed on the Division Bench decision in Sukuri Dibya and the Full Bench decision in Birendra Kr. Majhi, and it was contended that the distinction was not brought to the notice of the Supreme Court in its earlier decision in Resham Singh Pyara Singh v. Abdul Sattar. The Supreme Court rejected the contention. The Court reiterated that the right of appeal is a creature of statute. It noted that an appeal against an interlocutory order is provided under Section 104(1) read with Order XLIII Rule 1 of the Code, and an interim injunction order passed under Order XXXIX Rule 1 is appealable under Order XLIII Rule 1(r). Here the status quo was granted under Order XXXIX Rule 1, so it was appealable. Sub-section (2) of Section 104 expressly prohibits a second appeal from any order passed in appeal under that section. The Supreme Court followed its earlier decision in Resham Singh Pyara Singh v. Abdul Sattar, which held that no Letters Patent Appeal would lie against an appellate order of a learned single Judge of a High Court by reason of the bar under Section 104(2). The Court analysed Clause 10 of the Letters Patent and held that it consisted of only two parts: the first part allowed appeal from a judgment of a single Judge not being a judgment passed in exercise of appellate or revisional jurisdiction; the second part allowed appeal from an appellate judgment only if the single Judge certified the case as fit for appeal. The High Court Division Bench and Full Bench had misinterpreted Clause 10 as containing three components; that analysis was incorrect. The Court further clarified that Shah Babulal Khimji v. Jayaben D. Kania did not assist the appellant because in that case the single Judge was exercising original jurisdiction, not appellate jurisdiction, when passing the order under Order XL Rule 1 and Order XXXIX Rule 1. Section 4(1) of the Code could not apply because it operates only in the absence of a specific provision to the contrary, whereas Section 104(2) is an express prohibition. Consequently, the Court held that the views in Madhusudan Vegetable Products Co. Ltd., Firm Chhunilal Laxman Prasad, and Shashikala v. Hiren were correct, and that Sukuri Dibya and Birendra Kr. Majhi were not good law. The object of the amendments was to cut down delay and curtail remedial steps. Accordingly, the appeals were dismissed with no order as to costs, and the Division Bench's order declaring the Letters Patent Appeals not maintainable was upheld.
Headnote
A) Civil Procedure - Appeals Against Interlocutory Orders - Order XLIII Rule 1(r) read with Section 104 CPC provides appeal against interim injunction order passed under Order XXXIX Rule 1; Section 104(2) expressly prohibits appeal from order passed in appeal - Code of Civil Procedure, 1908 (CPC) Sections 104(1), 104(2), Order XXXIX Rule 1, Order XLIII Rule 1(r) - The trial court had granted status quo in an injunction application; on appeal by respondents, the single Judge vacated it. The Supreme Court held that the right of appeal is a creature of statute and since sub-section (2) of Section 104 specifically prohibits a second appeal, no further Letters Patent Appeal lay against the single Judge's appellate order (Paras not mentioned). B) Letters Patent - Clause 10 - Maintainability of Letters Patent Appeal Against Single Judge's Appellate Order - Clause 10, Letters Patent (Orissa High Court) - Clause 10 consists of two parts: the first part permits appeal from judgment not being judgment passed in appellate or revisional jurisdiction; the second part allows appeal from appellate judgment only if single Judge certifies fit case. The single Judge's order vacating status quo was passed in appellate jurisdiction; no certificate was mentioned. Held that the main part of Clause 10 excluded judgments from appellate jurisdiction, so no Letters Patent Appeal lay without certificate (Paras not mentioned). C) Interpretation - Section 4(1) CPC and Precedent - Section 4(1) Cannot Override Express Prohibition Under Section 104(2); Shah Babulal Khimji Applies Only to Original Jurisdiction - Code of Civil Procedure, 1908 (CPC) Section 4(1), Section 2(9) - The appellant contended that Section 4(1) CPC saved Letters Patent Appeal despite Section 104(2) and that the order was a judgment under Section 2(9) as held in Shah Babulal Khimji. Rejecting this, the Court held that Section 4(1) applies only in absence of specific contrary provision, and Section 104(2) is such provision; Shah Babulal Khimji involved single Judge exercising original jurisdiction, not appellate jurisdiction. Consequently, Sukuri Dibya and Birendra Kr. Majhi were overruled as not good law; Madhusudan Vegetable Products, Chhunilal Laxman Prasad and Shashikala approved (Paras not mentioned). D) State Financial Corporation Law - Section 29 Action - Underlying Dispute Concerned Illegal Steps Under Section 29 to Disturb Possession - State Financial Corporation Act, Section 29 - The appellant filed suit challenging steps under Section 29 and obtained interim status quo; the present appeal concerned only procedural maintainability of Letters Patent Appeal against vacation of that status quo. The Supreme Court upheld that procedural bar irrespective of merits; appeals dismissed (Paras not mentioned).
Issue of Consideration
Whether a Letters Patent Appeal under Clause 10 of the Letters Patent lies to the Division Bench against an order of a learned single Judge passed in exercise of appellate jurisdiction vacating a status quo order in an interim injunction matter, despite the bar under Section 104(2) of the Code of Civil Procedure, 1908, and whether Section 4(1) of the Code saves such appeal.
Final Decision
The appeals were dismissed. No costs. The Supreme Court held that a Letters Patent Appeal under Clause 10 of the Letters Patent would not lie against an order of a learned single Judge passed in exercise of appellate jurisdiction under Section 104(1) read with Order XLIII Rule 1(r) CPC due to the bar of Section 104(2) CPC, and Section 4(1) did not save it. The High Court Division Bench decision declaring the appeals not maintainable was upheld. Sukuri Dibya and Birendra Kr. Majhi were overruled as not good law; Madhusudan Vegetable Products, Firm Chhunilal Laxman Prasad and Shashikala were approved.
Law Points
- Right of appeal is a creature of statute
- Section 104(2) CPC expressly prohibits appeal from an order passed in appeal
- Clause 10 of Letters Patent excludes judgments passed in exercise of appellate jurisdiction from its first part
- Section 4(1) CPC does not apply where specific contrary provision exists
- Shah Babulal Khimji applies only to orders passed in original jurisdiction
- interim injunction order under Order XXXIX Rule 1 is appealable under Order XLIII Rule 1(r)
- second appeal is barred in such matters
- object of CPC amendments is to cut down delay and curtail remedial steps
