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Obedur Rehman and anr. Vs. Ahmedali Bharucha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberLetter Patent Appeal No. 198 of 1981
Judge
Reported inAIR1983Bom120; 1982(1)BomCR430; (1982)84BOMLR310; 1982MhLJ283
ActsCode of Civil Procedure (CPC), 1908 - Sections 104(2) - Order 43, Rule 1
AppellantObedur Rehman and anr.
RespondentAhmedali Bharucha and ors.
Appellant AdvocateS.M. Kapadia, Adv. i/b. and;Chitnis Vaithy & Co.
Respondent AdvocateC.C. Shenoy, A.G.P.
Excerpt:
.....the applicability of section 104 (2) of the civil procedure code, 1908 in respect with the letters patent appeals - the court ruled that section 104 (2) of the code also applied to letters patent appeals therefore, the appeal against the order of single judge that dismissed the appeal filed under section 104 of the code against the order refusing to grant temporary injunction, was liable to be dismissed as was not maintainable under section 104 (2) of the code. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he..........an appeal against the order passed by the single judge and it is independent of the code of civil procedure. mr. kapadia conceded that there are no separate rules governing the letters patent appeals in regard to the hearing and procedure. it is contended by mr. kapadia that the letter patent is a special law and being a special law it is not affected by the provisions of section 104 of the code of civil procedure or it is not controlled by s. 104 of the code.5. the preliminary objection is formulated on the basis that section 104(2) of the code of civil procedure prohibits such an appeal. sec 104 (2) reads thus:'104. (2) no appeal shall lie from any order passed in appeal under this section'.it is undisputed that the present appeal is clearly an appeal filed against the order.....
Judgment:

Deshpande, J.

1. This letter patent appeal is directed against the rejection of appeal against order being appeal No. 905 of t 1981. It is not necessary to give detailed facts of the present appeal.

2. The plaintiff-appellants herein filed a suit No. 6279 of 1981 in the City Civil Court at Bombay for obtaining injuction against the defendants. During the pendency of the said suit, the plaintiff applied for interim injunction. That prayer for interim injuction was rejected by the City Civil Court at Bombay. Against the rejection of that prayer the plaintiff filed an appeal against order and that appeal against order was dismissed on November 26, 1981. It is this order which is being challenged in this letter patent appeal, by the plaintiff appellants.

3. At the time of admissions, a preliminary objection is taken that High letters patent appeal is not maintainable. In all such matter, which came before us prior to this one, we had held so. by our orders, because, in some matters the Counsel concerned that the appeals are not maintainable.

4. In this appeal. Mr. Kapadia, the learned Counsel who appears for the appellants, has addressed the agreements in support of the case that the letters patent appeal in maintainable. Mr. Kapadia argued that clause 15 of the letter patent creates a forum and clauses 15 provides an appeal against the order passed by the single Judge and it is independent of the Code of Civil Procedure. Mr. Kapadia conceded that there are no separate rules governing the letters patent appeals in regard to the hearing and procedure. It is contended by Mr. Kapadia that the letter patent is a special law and being a special law it is not affected by the provisions of Section 104 of the Code of Civil Procedure or it is not controlled by S. 104 of the Code.

5. The preliminary objection is formulated on the basis that Section 104(2) of the Code of Civil procedure prohibits such an appeal. Sec 104 (2) reads thus:

'104. (2) No appeal shall lie from any order passed in appeal under this section'.

It is undisputed that the present appeal is clearly an appeal filed against the order under S. 104 of the Code of Civil procedure read with the provisions of Court. 43, R. 1 of the Code. Under the code of Civil Procedure, the appeals are governed by three kinds of provisions only, the first kinds of provisions only, for the first kind of provisions is under Section 96 of the Civil P.C. i. e., Appeal From Original Decree; the second provision of appeal i. e. second Appeal against the appellant decree under Section 100 of the Civil P. C. and the third under Section 104 of the Code, which governed the appeal against the order.

6. It is not disputed by Mr,. Kapadia that this appeal, which was filed before the single Judge, is governed by S. 104 of the Civil P. C. because the same was directed against the order of dismissal of Notice of Motion at the stage of asking interim injunction. It is certainly governed by the provisions of Order 43 Rule 1 of the Code.

7. As far as Clauses 15 of the Letter Patent Appeals is concerned, in our opinion, the provisions of Section 104 of the attracted and it is applicable to the Letter Patent Appeals also because the Letter Patent Appeals cannot be said to be an exception and cannot override the provisions of the Code of Civil procedure.

8. Under Clause 37 of the Letter Patent Appeals it is provided that the letter patent will be guided by Code by Civil Procedure while making the rules by the High Court and can be altered by the competent Legislature. In this connection, it may be noted that right or appeal is not inherent right of the aggrieved party,. It is the creature of statute and if it can be taken away by Statute on party can claim that this remedy must be available to the party. Right of appeal is not attached to the litigation unless it is provided by law. There must be a clear authority for filing appeal and if the authority is against filing the appeal that legal provision is also to be respected and obeyed, Section 104(2) of the Civil P. C. clearly bars an appeal. The plain reading of S. 104(2) of the code that no appeal shall lie form any order passed in appeal under this section is significant. Section is prohibitive and the provisions of prohibitive section under the general principle of interpretation of statute must be construed strictly. In this view of the matter, in out opinion, the appeal filed under Section 104 of the Code before the single Judge of the High Court being an appeal against the order and the order passed by the single Judge in that appeal being an order passed in appeal governed by S. 104 of the Code of Civil Procedure is certainly prohibited under the provisions of S. 104(2) of the code (Sic).

9. In this connection a reference could made to the judgment of the Supreme Court delivered in Shah Babulal Khimji v. Jayaben D. Kania : [1982]1SCR187 . In the judgment the Supreme Court has specifically dealt with the provisions and it is held that (Para 79):--

'There is no inconsistency between Section 104 read with Order 43, R. 1 and the appeal under the Letter Patent Appeals and there is nothing to show that the letter patent in any way excluded or overrides the application of Section 104, read with Court. 43 R. 1 or to show that these provisions would not apply to internal appeals within the High Court'. In view of the observations of the Supreme Court, the appeal filed by the Plaintiff- appellants in the form of Letter Patent Appeals is not maintainable and the same will have to be dismissed.

10. At this stage, a request for Leave to Appeal to Supreme Court was made by the learned Counsel for the Plaintiff- appellants. Since we are deciding this matter on the strength of the judgment of the Supreme Court the request for leave to appeal is rejected and leave refused.

11. However, at the request of the appellants-plaintiffs, status quo to be maintained for a period of one month from today.

In the result, the appeal fails and the same is dismissed with no order as to costs.

12. Appeal dismissed.


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