Case Note & Summary
The dispute concerned a claim to certain lands in Bombay. The petitioner claimed to have entered into an agreement on June 21, 1973 to purchase lands from A.H. Wadia Charity Trust and had earlier filed Suit No. 298 of 1975 against Mohd. Amin and others, obtaining an injunction restraining interference with his possession and construction of a boundary wall. Subsequently, the respondent filed Suit No. 493 of 1990 in the City Civil Court, Bombay, seeking injunction and claiming possession over land admeasuring 1947 square metres. The petitioner then filed Suit No. 3670 of 1994 on June 16, 1994, seeking an injunction to restrain the respondent from trespassing into his land. An interim injunction was initially granted on June 28, 1994. On appeal from that order, a learned single Judge of the Bombay High Court directed the Commissioner to demarcate the lands in exclusive possession and enjoyment of the petitioner within the compound wall by order dated September 13, 1995. The petitioner challenged this order by way of a Letters Patent Appeal, contending that the single Judge's order amounted to granting a temporary mandatory injunction to break the compound wall and remove articles. The Division Bench of the Bombay High Court, by order dated October 13, 1995, rejected the Letters Patent Appeal on the ground that no LPA would lie against an order of a single Judge passed in an appeal under Section 104 CPC. Aggrieved, the petitioner filed special leave petitions before the Supreme Court. The Supreme Court examined the relevant provisions of the Code of Civil Procedure, 1908. Section 104(1) provides an appeal from orders listed in Order 43, including Rule 1(r) covering orders under Order 39 Rules 1, 2, 2A, 4, or 10. Section 104(2) expressly states that no appeal shall lie from any order passed in appeal under that section. The Court held that when an appeal is filed before a single Judge of the High Court under Order 43 Rule 1(r) read with Section 104(1) from an order of the City Civil Court, Section 104(2) operates as a bar to any further appeal, including a Letters Patent Appeal. The Court distinguished the decision in Shah Babulal Khimji v. Jayaben, noting that in that case the suit was on the original side of the High Court and the single Judge passed an interlocutory order, from which a Letters Patent Appeal was available under the Letters Patent; therefore, the ratio was not applicable to the present case where the single Judge acted as an appellate court under the CPC. Accordingly, the Supreme Court dismissed the special leave petitions, upholding the Division Bench's order that the Letters Patent Appeal was not maintainable.
Headnote
A) Civil Procedure - Appeals - Maintainability of Letters Patent Appeal - Code of Civil Procedure, 1908, Section 104 and Section 2; Order 43 Rule 1(r); Order 39 Rules 1, 2, 2A, 4, 10 - The petitioner filed an appeal before a single Judge of the Bombay High Court under Order 43 Rule 1(r) read with Section 104(1) CPC against an order of the City Civil Court granting or refusing injunction. The Division Bench held that no Letters Patent Appeal lay against the single Judge's appellate order. The Supreme Court affirmed this view, holding that Section 104(2) expressly bars any further appeal from an order passed in appeal under Section 104(1), and that the ratio in Shah Babulal Khimji v. Jayaben is inapplicable because that case concerned an interlocutory order passed by a single Judge on the original side of the High Court, where Letters Patent appeal is available, unlike an appellate order under CPC from a subordinate court. Held that the special leave petitions must be dismissed. (Paras 1-2)
Issue of Consideration
Whether a Letters Patent Appeal lies to a Division Bench against an order of a single Judge of the High Court passed in appeal under Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure, 1908, and whether the principle in Shah Babulal Khimji v. Jayaben applies to such appeals.
Final Decision
The Supreme Court dismissed the special leave petitions, holding that no Letters Patent Appeal lies against the order of a single Judge passed in appeal under Section 104(1) CPC because Section 104(2) expressly bars any further appeal from such appellate order. The Court found that the ratio in Shah Babulal Khimji v. Jayaben was inapplicable as that case involved an interlocutory order passed by a single Judge on the original side of the High Court, while here the single Judge exercised appellate jurisdiction under the CPC from a subordinate court.
Law Points
- Section 104(2) of the Code of Civil Procedure
- 1908 bars any further appeal from an order passed in appeal under Section 104(1)
- Order 43 Rule 1(r) CPC provides appeal from orders under Order 39 Rules 1
- 2
- 2A
- 4
- or 10
- Shah Babulal Khimji v. Jayaben ratio applies only to appeals from original side interlocutory orders of single Judge
- not to appellate orders under Section 104 CPC
- Letters Patent Appeal not maintainable against single Judge's appellate order under Order 43 Rule 1 read with Section 104 CPC
