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Jagannath Ganbaji Chikhale Vs. Gulabrao Raghobaji Bobde - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal Nos. 9, 10, 12 to 14 of 1965
Judge
Reported in(1965)67BOMLR609; 1965MhLJ426
AppellantJagannath Ganbaji Chikhale
RespondentGulabrao Raghobaji Bobde
DispositionAppeal dismissed
Excerpt:
.....re tirupruliswami [1955] mad. 1033 and shrinivasa reddiar v. krishnaswttmi reddiar [1955] a.i.r. mad. 72 referred to. - - 4. it is well settled that a right of appeal can only be given by a statute, there being no general right of appeal against the decision of one court to another..........a reading of this clause shows that an appeal is provided by clause 15 against the judgment of a single judge within the court itself. while providing for this appeal, exceptions have been created and the exceptions are four in number:-(1) a judgment rendered by a single judge exercising appellate jurisdiction in respect of a decree which is made in the exercise of appellate jurisdiction by a subordinate court-in common parlance called the second appellate jurisdiction, (2) an order rendered by a single judge in the exercise of revisional jurisdiction of the high court, (3) an order or sentence rendered by a single judge in the exercise of powers of superintendence of the high court under the provisions of section 107 of the government of india act, 1915, and (4) an order rendered in.....
Judgment:

Patel, J.

1. Last week these letters patent appeals were before us but as we felt some doubt whether any such appeal could lie we directed that these matters be placed before us for hearing on the question, whether an appeal lies under Clause 15 of the Letters Patent against the decision of a Single Judge given in a special civil application filed under Article 227 of the Constitution.

2. Clause 15 of the Letters Patent of this High Court which is in similar words as that of Calcutta and Madras High Courts, is as follows, so far as is relevant to the present case:-

And we further ordain that an appeal shall lie to the said High Court of Judicature & Bombay 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 passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act....

The subsequent portion can have no- possible application and therefore, need not be reproduced. A reading of this clause shows that an appeal is provided by Clause 15 against the judgment of a Single Judge within the Court itself. While providing for this appeal, exceptions have been created and the exceptions are four in number:-(1) a judgment rendered by a Single Judge exercising appellate jurisdiction in respect of a decree which is made in the exercise of appellate jurisdiction by a subordinate Court-in common parlance called the second appellate jurisdiction, (2) an order rendered by a Single Judge in the exercise of revisional jurisdiction of the High Court, (3) an order or sentence rendered by a Single Judge in the exercise of powers of superintendence of the High Court under the provisions of Section 107 of the Government of India Act, 1915, and (4) an order rendered in the exercise of criminal jurisdiction. These are the four exceptions, to an appeal as a matter of right, against the judgment of the Single Judge within the Court. In respect of the first exception, a provision is made for an appeal on condition that the Judge, who decided the matter, gives a certificate that the matter is one fit for an appeal under Clause 15 and that is provided by the second part of the clause which we have omitted.

3. It is argued by Mr. Kherdekar that whatever may be the position in respect of the decision of a Single Judge given under Section 115 of the Civil Procedure Code, it is impossible to regard exercise of power by a Single Judge under Article 227 of the Constitution as an exercise of revisional jurisdiction. He argues that Article 227 of the Constitution gives far wider power to a High Court to interfere with decisions of subordinate Courts and tribunals than Section 115 of the Civil Procedure Code, and, therefore, it is impossible to regard the exercise of such powers as exercise of revisional jurisdiction. He argues that exercise of powers of superintendence under Article 227 of the Constitution is not the same as exercise of powers under Section 107 of the Government of India Act, 1915 and hence the latter part of the exception cannot apply.

4. It is well settled that a right of appeal can only be given by a statute, there being no general right of appeal against the decision of one Court to another Court. It would be much more so in the case where a right of appeal is claimed from the judgment of a Single Judge to a larger Bench within the same Court. Unless, therefore, the right to appeal is discernible from the provisions of the clause itself, no such right can exist.

5. It is not necessary to trace the history of the statutes giving revisional powers to the High Courts and also the Letters Patent. It is sufficient to say that an order of a Single Judge made in the exercise of revisional jurisdiction was held to be appealable under Clause 15 of the Letters Patent. These came to be amended in 1919 by which the exception as to orders made in the exercise of revisional jurisdiction and of powers of superintendence was created. On a plain reading of Clause 15 it is obvious that it is not necessary in order that a decision be not appealable, that the decision of the Single Judge must have been rendered in the exercise of the revisional powers of the High Court, Even if the judgment is given while exercising the powers of superintendence, under the then provisions of Section 107 of the Government of India Act, 1915, an appeal is excluded.

6. Now, it is true that when the Government of India Act, 1915, was replaced by the Government of India Act, 1935, the corresponding provision, Section 224 of the said Act, did not enable a High Court to exercise powers of superintendence in judicial matters over the decisions of subordinate Courts. To that extent, until the Government of India Act, 1935, continued to be in force, the reference to Section 107 in Clause 15 of the Letters Patent would not have carried much meaning, as the High Court could not have exercised any powers of revising the orders of the subordinate Courts under Section 224 of the Government of India Act, 1935. By the Constitution, the Government of India Act, 1935, was repealed and instead of Section 224 of that Act, Article 227 came to be substituted. It cannot be denied that the power of superintendence given by Article 227 is as wide as was available to the High Court under Section 107 of the Government of India Act, and there can be no doubt that the exercise of power by the High Court, by a Single Judge, under Article 227 is one of superintendence, as has been stated by the article itself, over subordinate Courts and tribunals, unlike the exercise of power under Article 226 which is entirely of a different nature and which probably cannot be resorted to as long as a master falls under Article 227 which is a special provision relating to Courts and 'tribunals. Then the only question that arises is whether it is permissible to substitute 'Article 227 of the Constitution' for 'Section 107 of the Government of India Act,' 1915 in this clause.

7. In this connection it must be remembered that by Clause 44 of the Letters Patent, the provisions of the Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council and also of the Governor-General in Council under Section 71 of the Government of India Act, 1915, and also of the Governor-General in cases of emergency under Section 72 of that Act. The provisions being subject to the legislative powers of the Indian Legislature, they would be subject to any rules of interpretation of statutory provisions framed by the Indian Legislature i.e. the General Clauses Act, 1897. Section 8 of the General Clauses Act, 1897, provides that where that Act, or any Central Act or Regulation made after the commencement of that Act, repeals and re-enacts, with or without modification, any provision of a former enactment then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references, to the provision so re-enacted. Now, it is true that the Constitution can hardly be regarded as a Central Act or a Regulation made after the enactment of the General Clauses Act. Article 367, however, of the Constitution provides that the General Clauses Act of 1897 shall apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. It would seem, therefore, that Section 8 would be applicable in the present case. Apart from this, it has been recognised that the rule stated in Section 8 of the General Clauses Act is not a special rule of interpretation but one generally accepted on fundamental principles and, if that is so, apart from the provisions of that clause, inasmuch as Section 107 of the Government of India Act, 1915, was repealed and Section 224 was re-enacted by the Government of India Act, 1935, and later that section was repealed and was re-enacted in the form of Article 227 of the Constitution, the reference to Section 107 of the Government of India Act must be read as reference to Article 227 of the Constitution. In this view we are supported by the decision of the Supreme Court in N.S. Thread Co. v. James Chadwick & Bros. : [1953]4SCR1028 where the question was whether the words 'pursuant to Section 108 of the Government of India Act' in Clause 15 of the Letters Patent could be read as 'pursuant to Article 225 of the Constitution'. The Court applied the provisions of Section 8 of the General Clauses Act. The Court also observed (p. 360) :.Assuming however but not conceding, that strictly speaking the provisions of the Interpretation Act and the General Clauses Act do not for any reason apply, we see no jurisdiction for holding that the principles of construction enunciated in those provisions have no application for construing these charters.

Consequently, the reference to Section 108 of the Government of India Act was read as reference to Article 225 of the Constitution.

8. There being, therefore, no doubt that the Single Judge deciding writ petitions under Article 227 against the decisions of the Revenue Tribunal exercises the powers of superintendence of the High Court under Article 227 of Constitution and an appeal against such a decision having been expressly barred, the question as to whether it is akin to or wider than the revisional jurisdiction of the High Court does not fall to be considered.

9. The view which we have taken finds support in the views of the Madras and Calcutta High Courts. The question came to be considered by the Calcutta High Court as early as 1953 in the case of Sukhendu v. Hare Krishna. : AIR1953Cal636 The dispute arose under the Rent Restriction Act out of an application for ejectment under Section 41 of the Presidency Small Cause Courts Act against the decision of a Bench. A petition purporting to be one under Section 115 of the Civil Procedure Code and Article 227 of the Constitution was filed in the High Court and was eventually dealt with by a Single Judge. Against the decision of the Single Judge a Letters; Patent was filed by the defendant. The learned Judges traced the history of the Civil Procedure Code and also the powers vested in the High Court under the various statutes and came to the conclusion that the power exercised by a Single Judge in a writ petition under Article 227 being power of superintendence, the decision in such a matter rendered by him would not be appealable. Similar view has been taken in In re Tirupuliswamy [1955] Mad. 1033 and Srinivasa Reddiar v. Krishinaswami Reddiar : AIR1955Mad72 . It is true that the distinction sought to be made by Mr. Kherdekar between the revisional jurisdiction and the general power of superintendence vested in the High Court under Article 227 of the Constitution was not made in Tirupuliswamy's case, But, as we have stated above, it is really not necessary to go into that question inasmuch as an appeal against the judgment of a Single Judge rendered in the exercise of the power of superintendence of the High Court is excluded.

10. In the result, we must hold that the appeals are incompetent. They will, therefore, stand dismissed.


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