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In Re: Patthi Srinadham and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberRevn. Petn. No. S.R. No. 5072 of 1961
Judge
Reported inAIR1963AP18
ActsCode of Civil Procedure (CPC) , 1908 - Sections 114 - Order 47, Rule 1
AppellantIn Re: Patthi Srinadham and ors.
Advocates:Manohar Singh, Adv.
DispositionPetition dismissed
Excerpt:
.....appeal stating 'no leave' in order - as a result petitioners not allowed leave to file letters patent appeal against that decision before supreme court - petition filed against such order - review lies in law against order refusing leave to file letters patent appeal - no sufficient ground available for granting review available - held, though review available against impugned order no review can be granted as no sufficient ground for review available - petition dismissed accordingly. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it...........leave' which obviously means that he refused leave to the appellants-plaintiffs to file a letters patent appeal against that decision. the two appellants filed s.r. no. 5072 of 1961 praying for review of that order of srinivasachari, j. so far as that portion of the judgment 'no leave' is concerned. the office raised an objection saying that no review lay against 'no leave' in a judgment of the court; thereupon, this matter was heard by me.2. the questions that arise for consideration are:--(1) whether a review lies in law against an order of 'no leave' by which leave was refused for filing a letters patent appeal? 2. if review lies, whether the order of 'no leave' by srinivasachari in s. a. no. 209 of 1957 dated 16-1-1961 has to be reviewed? point no. i :- the contention of the learned.....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. On 16-1-61, Srinivasachari, J. pronounced Judgment in S. A. No. 209 of 1957 dismissing the appeal with costs. In that judgment, the learned Judge stated in the end 'No leave' which obviously means that he refused leave to the appellants-plaintiffs to file a Letters Patent Appeal against that decision. The two appellants filed S.R. No. 5072 of 1961 praying for review of that order of Srinivasachari, J. so far as that portion of the judgment 'No leave' is concerned. The office raised an objection saying that no review lay against 'No leave' in a judgment of the Court; thereupon, this matter was heard by me.

2. The questions that arise for consideration are:--

(1) Whether a review lies in law against an order of 'No leave' by which leave was refused for filing a Letters Patent Appeal?

2. If review lies, whether the order of 'No leave' by Srinivasachari in S. A. No. 209 of 1957 dated 16-1-1961 has to be reviewed?

POINT NO. I :- The contention of the learned Advocate for the petitioners is that the order which is sought to be reviewed namely, refusing of leave to file a Letters Patent Appeal is not part of the main judgment, that it is a separate order under the Letters Patent Act and that as such, a review lies. The relevant part of Clause 15 of the Letters Patent reads as follows:

'.....and that notwithstanding anything herein before provided an appeal shall fie to the said High Court from a judgment of one Judge of the said High Court..... pursuant to Section 108 of the Government of India Act (made tin or after the 1st day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree of order made in the exercise of appellate jurisdiction by 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.'

Rule 105 of the Appellate Side Rules of the Andhra Pradesh High Court runs as follows:--

'When an appeal against an appellate decree or order has been heard and disposed of by a single Judge, an application for leave to appeal under Clause 15 of the Letters Patent of the High Court shall be made orally and immediately after the judgment has been delivered.'

Rule 95 of the Appellate Side Rules of the Madras High Court was also substantially to the same effect.

3. In support of the contention that the order refusing leave to appeal is not a part of the main judgment but is a separate and distinct order, the following can be urged. In Clause 15 itself, the words relating to the judgment viz., 'where the judge who passed the judgment' are used hi the past tense and the words relating to declaration viz., 'declares that the case is a fit one for appeal' are used in the present tense. This shows that an order granting or refusing leave has to be made after the judgment has been passed. Rule 105 provides that an application that the case is a fit one for further appeal should be made orally and immediately after the judgment has been delivered. In In re Sridhar Rao, AIR 1958 Andh-Pra 60, a Bench of this Court held that R. 95 of the Madras Appellate Side Rules (corresponding to R. 105) was mandatory and that it did not confer any discretionary power on the Court to excuse the delay.

This means that there shall be no appreciable gap of time between the pronouncement of the judgment and the application for leave to appeal which application has been referred to in Clause 15 as a declaration by the Court. The words used suggest that the application has to be made orally after the judgment has been delivered and consequently the order on the application for leave has to be passed only after the judgment has been rendered.

4. All the same, the above contention was negatived by a Bench of the Madras High Court in Kumarappa Chettiar v. Official Receiver, West Tanjore, : AIR1950Mad216 , wherein the learned judges observed as fallows : (at p. 642 (of Mad U) : (at pp. 217-218 of AIR ) )

'.....The judgment in a second appeal is passed in the exercise of the appellate jurisdiction of the High Court and it is 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 and the question whether the judgment passed by the High Court in a second appeal against the appellate judgment of a subordinate Court is one which is fit to be taken up for appeal or not, cannot but form part of the judgment itself.

* * * * * * * * The order refusing or granting of leave cannot be independent of the judgment itself in so far as that order could only be passed on the merits of the appeal itself and as such it is not independent of the judgment but only a part of it.'

The learned judges approved of the decision of a Bench of the Bombay High Court in Balu Harshet v. Shrikrishna Govind, ILR 54 Bom 331 : (AIR 1930 Bom 224), wherein, the learned Judge (Murphy, J.) observed as follows:

'I am not overlooking the fact that it is the refusal to make the declaration after the single Judge's judgment has been recorded which is sought to be appealed against, but the declaration required is 'that the case is a fit one for appeal' which is in effect a part of the judgment on the merits of the case passed in second appeal'.

The learned Judges of the Madras High Court concluded as follows: (at p. 643 (of Mad LJ) : (at p. 218 of AIR)) :

'We are, therefore, of the opinion that the order refusing leave in this case is a part of the judgment itself against which there is no appeal under Clause 15 of the Letters Patent.'

The learned Judges came to the above conclusion after an elaborate discussion of the law on the subject. The various important aspects which can be urged in favour of the contention that the order refusing leave is a separate and distinct entity from the judgment have also been considered and rejected. I respectfully follow the above decision and hold that the order refusing leave to appeal is a part of the main judgment itself.

5. There is no provision in the Letters Patent for an appeal against an order refusing leave like the one concerned in the present proceedings. In Ramanayya v. Kotayya 57 Mad LJ 398 : (AIR 1930 Mad 75), it was held that no appeal lay under Clause 15 of the Letters Patent against the refusal of a single judge of the High Court to grant leave to appeal from the judgment passed by him in a second appeal. Similarly, in M. Govinda Rao In Re, ILR 59 Mad 293 : (AIR 1936 Mad 134), their Lordships held that even if an order of a single fudge of the High Court refusing to grant leave to appeal could be regarded as a judgment under the first part of Clause 15 of the Letters Patent, an order to a different effect by a Division Bench on appeal therefrom would not suffice to give the applicant a right of appeal against the second appellate decree because, under the second part of Clause 15, the second appellate decree would be appealable only on a certificate granted by the judge who heard the second appeal. The decision referred to above viz., : AIR1950Mad216 , is also an authority for the position that, under Clause 15 no appeal lies against such an order.

6. The question is whether a review lies against the order. In Venkatasubbarayadu v. Govinda Krishna Yachendrulu Varu, ILR 40 Mad 651 : (AIR 1917 Mad 670), it was held that it was competent to the High Court to review judgments in appeals preferred under Clause 15 of the Letters Patent. Therein it was observed as follows: (at p. 652 (of ILR Mad) : (at p. 670 of AIR))

'Clause 44 of the Letters Patent says that the provisions are subject to the legislative powers of the Governor-General in Council. As at present advised, we are in agreement with Mr. Subrahmanya Ayyar that this provision would not enable Courts, by implication, to supplement the Letters Patent by importing into it all acts ejusdem generis passed by the Governor-General in Council..... Even in this view, we think that by Section 117 of the Code of Civil Procedure (Act V of 1908), the Governor-General in Council did incorporate into the Letters Patent the provisions relating to review. It was then argued that the Review section, Section 114 of the Code (Act V of 1908), cannot apply as it provides only for the review of decrees or orders under the Code of Civil Procedure. We are not impressed by this argument. In the first place decrees are passed in appeals heard under the Letters Patent only under the Code of Civil Procedure. In the second place, Clause (b) of Section 114 does not require that orders and decrees should have been passed under the Code, (at p. 653 (of ILR Mad) : (at p. 671 of AIR) ). 'Apparently the practice of this High Court has been in favour of allowing reviews to be filed in appeals under the Letters Patent.'

The learned judges followed the decision of the Bombay High Court in Ratanchand Khimchand v. Damji Dharsey, AIR 1927 Bom 232 and held that Section 114 applied to decrees or orders passed in Letters Patent Appeals. The above decision of the Madras High Court in ILR 40 Mad 651 : (AIR 1917 Mad 670), was quoted with approval by a Bench of the Punjab High Court in Suba Singh v. Neki Kishen, .

7. In Sabitri Thakurain v. Savi, 40 Mad LJ 308 : (AIR 1921 PC 80), their Lordships of the Privy Council dealt with the contention that the Orders and Rules made under the Code of Civil Procedure, 1908 have no application to appeals brought under the Letters Patent of 1865. Their Lordships observed that the said contention was too wide and concluded thus (at p. 318 (of Mad LJ) : (at p. 84 of AIR) ).

'In conclusion, there is no reason why there should be any general difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure in other matters, and if this particular matter of security for costs is not dealt with in the Orders and Rules made under the powers of the Code, when it arises in connection with the jurisdiction created by the Letters Patent, Section 15, no rules of procedure have been formulated with regard to it, though the High Court's power to regulate procedure in Letters Patent Appeals is independent and has been preserved. The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of the original civil jurisdiction, to which the Code is not to apply.'

Nothing has been mentioned specifically in the Letters Patent or in the rules made under the Letters Patent providing for or denying review of an order of 'No leave' such as concerned in the present case. Consequently, it would follow that on the principle of the above decision the provisions in Section 114 and Order 47 C. P. C. would apply and that review would lie against such an order. Section 114 C. P. C. says that any person considering himself aggrieved by a decree or order from which no appeal is allowed by the Code may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit. Order 47 C. P. C. provides that a person may apply for review of the order for various reasons mentioned in it.

8. In Nand Kishore Singh v. Ram Gulam Sahu, ILR 39 Cal 1037, the Calcutta High Court held that an order rejecting an application for leave to appeal to His Majesty-in-Council came within the description of orders contemplated in Section 114 C. P. C. and was subject to review. But, the order of rejection in that case was an order passed under the C. P. C. itself namely Order 45 C. P. C. The question as to whether a review lay of a judgment or an order passed under the Letters Patent did not arise in that case.

9. In Sri Adinarayanaswamy Etc., Temple v. Hanumacharyulu, : AIR1962AP245 , a Bench of this Court held that where an order was passed under Order 12 Rule 3 of the Supreme Court Rules, 1950 (cancelling a certificate for leave which had been granted), it was not capable of being reviewed for the reason that there was nothing in the Supreme Court Rules which permitted such a course. That decision was on the basis that by virtue of Section 112 C. P. C., it was not permissible to fall back upon the provisions of the C. P. C. when an order had been made under the Supreme Court Rules. The principle of that decision does not apply to the present case.

10. I, therefore, hold on Point No. I that a review lies in law against the order refusing leave to file a Letters Patent Appeal.

11. Point No. 2. The learned Counsel for the petitioners-plaintiffs contends that there are sufficient grounds for reviewing the order 'No leave' of Srinivasachari, J. which came under the head 'for any other sufficient reason' in Order 47 Rule 1 C. P. C. The learned Judge has carefully considered all aspects of the case and agreed with the concurrent finding of the Courts below and refused to grant leave. I am not satisfied that there is sufficient ground for granting a review. I find accordingly on this point.

12. In this result, I dismiss this petition.


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