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B.F. Pushpaleela Devi Vs. State of A.P., Rep. by Its Secretary, Education Department, Secretariat and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 887 of 2002
Judge
Reported in2002(5)ALD1; 2002(5)ALT103
ActsCode of Civil Procedure (CPC) - Sections 104 and 104(2) - Order 43, Rule 1 - Order 47, Rules 4, 4(2) and 7(1); Government of India Act - Sections 107
AppellantB.F. Pushpaleela Devi
RespondentState of A.P., Rep. by Its Secretary, Education Department, Secretariat and ors.
Appellant AdvocateV. Joyagayya Sarma, Adv.
Respondent AdvocateG.P. for Education
DispositionWrit appeal dismissed
Excerpt:
civil - maintainability of appeal - clause 15 of letters patent and section 104 order 43 rule 7 (1) of code of civil procedure, 1908 - whether an appeal under clause 15 filed against order in review petition declining to review order is maintainable - dispute affecting rights of parties must have been decided in order to treat 'order' as 'judgment' within meaning of letters patent - an order refusing to review final order simply confirming original order is not 'judgment' within meaning of clause 15 - such order seemingly just reiteration of original final order - no appeal maintainable against such order - only remedy left is to file appeal against original final order if allowed by law - order 47 rule 7 (1) bars appeal only where order refusing to review do not amount to judgment within.....ar. lakshmanan, c.j.1. whether an appeal under clause 15 of the letters patent filed against an order passed by a learned single judge in a review petition declining to review the order is maintainable or not is the question involved in this appeal referred to by a division bench of this court for an authoritative pronouncement. 2. the appellant is the writ petitioner in w.p.no.7723 of 1998. she is a retired teacher in the 4th respondent institution. she filed the writ petition impleading the state andhra pradesh, represented by it's secretary, education department, director of school education, government of andhra pradesh and district educational officer as respondents 1 to 3 respectively for a declaration that the petitioner is entitled for the grant of pay fixation without reference.....
Judgment:

Ar. Lakshmanan, C.J.

1. Whether an Appeal under Clause 15 of the Letters Patent filed against an order passed by a learned single Judge in a Review Petition declining to review the order is maintainable or not is the question involved in this Appeal referred to by a Division bench of this Court for an authoritative pronouncement.

2. The appellant is the writ petitioner in W.P.No.7723 of 1998. She is a retired teacher in the 4th respondent institution. She filed the Writ Petition impleading the State Andhra Pradesh, represented by it's Secretary, Education Department, Director of School Education, Government of Andhra Pradesh and District Educational Officer as respondents 1 to 3 respectively for a declaration that the petitioner is entitled for the grant of pay fixation without reference to the fact whether the post held by her is aided or unaided and for a direction to the 3rd respondent- District Educational officer, Hyderabad District to grant her the scale of Rs.1550-3050 w.e.f. 1.6.1989 and grant the pay in the revised pay scales of 1993 and fix her pension and pensionary benefits and for other consequential benefits.

3. S.R. Nayak, J after hearing the parties dismissed the writ petition as not maintainable by order-dated 24.3.2000. The relevant portion of the order reads thus:

Although the above noted reliefs are sought the respondents 1 to 3, the Governmental authorities, the learned counsel for the petitioner was not in a position to trace the obligation of any of the Governmental authorities either to pay the salary in the time scale claimed by the petitioner or the power of the Governmental authorities to direct the private management, the 4th respondent herein, to extend the pay scales claimed by the petitioner with reference to any provision in the A.P. Education Act or other statute. In that view of the matter, it cannot be said that the District Educational Officer, Hyderabad District, 3rd respondent herein, acted illegally in rejecting the request of the petitioner to direct the management of the 4th respondent-School to fix her pay in the time scale of Rs.1550-3050. It seems to my mind that the respondents 1 to 3, the Government authorities, are impleaded as party respondents only to maintain the writ petition. This Writ Petition does not involve enforcement of any public law obligation against any of the official respondents. Hence, the writ petition is not maintainable.

In the result, the Writ Petition is dismissed. However, it is made clear that this order shall not preclude the petitioner enforcing her rights, if any, against the 4th respondent - School in an appropriate legal action, if she is so advised. All the contentions, claims and the Counter claims of the petitioner and the 4th respondent taken in their respective pleadings are kept open to be agitated by the parties at an appropriate stage. No costs.

4. Against the aforesaid order, the appellant herein filed a review petition being Review W.P.M.P.No.13881 of 2000 on 24.4.2002 and the learned single Judge dismissed the review petition in the following manner.

Heard the learned counsel for the petitioner. I do not find any error apparent on the face of the record or any clerical mistake warranting review of the order of this Court dated 24.3.2001 made in W.P.No.7723 of 1998. The Review W.P.M.P. is, therefore, dismissed. No costs.

5. Against the said order, the appellant has filed the present Writ Appeal under Clause 15 of the Letters Patent.

6. When the Writ Appeal came up for admission, noticing conflicting decisions on the issue by different Full Benches of this Court a Division Bench comprising of Dr. Justice AR. Lakshmanan, CJ and Ghulam Mohammed, J, has referred the matter to a Larger Bench for an authoritative pronouncement on the question. The reference order reads thus:

Whether an Appeal under Clause 15 of the Letters Patent against the dismissal of Review Petition is maintainable or not is the question involved in this Appeal. There are conflicting decisions on this issue. The first judgment on this issue is M. SRINIVAS vs . JAWAHARLAL NEHRU TECHOOLOGICAL UNVIERSITY, HYDERABAD, : 1991(3)ALT1 (FB). In this case, the Full Bench held that Writ Appeal is maintainable under Clause 15 of the Letters Patent Appeal before this Bench. The next judgment on the issue is reported in EXECUTIVE OFFICER, GROUP TEMPLES, GUNTUR vs . DASARATHA RAMA RAO, : 1999(4)ALD164 (DB). The judgment in this case was rendered by a Division Bench comprising of M.S. Liberhan, CJ and A.S. Bhate, J. The Division Bench held that no Writ Appeal lies against the order of Single Judge rejecting review, when no appeal is filed against the original order. In this case, the Judgment reported in M. SRINIVAS vs. JAWAHARLAL NEHRU TECHOOLOGICAL UNVIERSITY, HYDERABAD(supra) was not referred to. The judgment in IMTIYAZ HUSSAIN vs . T. DURGAMALA, : 2001(6)ALD375 (FB) and H. KONDAL REDDY vs . CENTRAL BANK OF INDIA, HYDERABAD, : 2002(1)ALD280 (FB) was rendered by another Full Bench comprising of S.B. Sinha, CJ., Bilal Nazki, J and V.V.S. Rao, J. The question that arose for consideration in this case was under what circumstances a Letters Patent would lie either against an order refusing to review the original order of the learned Single Judge. The Bench felt that the said question being an important question of law and as the decision of a division Bench of this Court in EXECUTIVE OFFICER, GROUP TEMPLES, GUNTUR vs. DASARATHA RAMA RAO (2 supra) requires reconsideration, the matter may be heard by a Larger Bench/Full Bench. In this case also, the judgment in M. SRINIVAS vs. JAWAHARLAL NEHRU TECHOOLOGICAL UNVIERSITY, HYDERABAD(supra) was not referred. The learned counsel for the appellant submits that no answer has been given to his question. The last one in the series is the judgment rendered in H. KONDAL REDDY vs. CENTRAL BANK OF INDIA, HYDERABAD by another Full Bench of this Court. This Full Bench at paragraph 47 has observed as follows:

' As observed by us when a review application is dismissed in limini even without ordering notice to other side no writ appeal lies against such order for an order dismissing review application at the threshold is not a judgment as per the tests laid down in Shah Babulal Khimji case. We hold that the Division Bench in Executive Officer v. Dasaratha Ramarao (1994(4) ALD 164), laid down law correctly'. In the result, the Bench held that the impugned judgment is not a judgment within the meaning of Clause 15 of the Letters Patent and therefore, the Writ Appeal is not maintainable. In this case also, the judgment in M. SRINIVAS vs. JAWAHARLAL NEHRU TECHOOLOGICAL UNVIERSITY, HYDERABAD was not referred to.

Since, there are conflicting opinions on the issue in question, by different Full Benches, in our opinion, the same can be resolved by a Larger Bench. We, therefore, refer this matter to a Larger Bench for an authoritative pronouncement on the question involved in this case.

The Registry is directed to place the matter before the Honourable the Chief Justice for placing the matter before Larger Bench comprising of five Judges.

7. Mr. V. Venkatarao, learned counsel appearing for the appellant submitted that an order refusing to review an order by the learned single Judge is a 'Judgment' within the meaning of Clause 15 of the Letters Patent and as such the appeal filed against the impugned order of the learned single Judge is maintainable under the Letter Patent jurisdiction. He would also submit that Clause 15 of the Letters Patent prevail over Order 47, Rule 7(1) of the Code of Civil Procedure and Order 47, Rule 7(1) C.P.C. would bar appeals under the Letters Patent only to the extent where the orders refusing to review did not amount to 'judgment'. In support of his contention, he has placed reliance on the Full Bench decisions of this Court in SATTEMMA vs. VISHNU MURTHY, : AIR1964AP162 FB, M. SRINIVAS vs. JAWAHARLAL NEHRU TECHNOLOGICAL UNVIERSITY, HYDERABAD (supra) and H. KONDAL REDDY vs. CENTRAL BANK OF INDIA, HYDERABAD (supra).

8. On the other hand, the learned Government Pleader for Education would vehemently submits that the impugned order passed by the learned single Judge dismissing the review petition in limini without issuing notice to the respondents is not a judgment and, therefore, no appeal under Clause 15 of the Letter Patent lies. He would further submit that by reason of the impugned order, the rights of the parties have not been affected; therefore, it cannot be construed as a 'judgment' within the meaning of Clause 15. He strongly relied upon the decision of the Apex Court in SHAH BABULAL KHIMJI vs. JAYABEN, : [1982]1SCR187 and H. KONDAL REDDY vs. CENTRAL BANK OF INDIA, HYDERABAD (supra).

9. Whether an order passed by a learned single Judge of the High Court in exercise of the original jurisdiction declining to review the judgment is appealable under Clause 15 of the Letters Patent is agitating the mind of the Courts at one point of time or the other. As already noticed earlier, three Full Benches of this Court had gone into the issue. Before we examine the aforesaid decisions, we may refer to Order 47, Rule 7 CPC, etc. and Clause 15 of the Letters Patent.

10. Order 47, Rule 1 of Code of Civil Procedure confers right on a party to the proceeding to seek for review of Judgment upon discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. Sub-rule (1) of Rule 4 provides that where it appears to the Court that there is not sufficient ground for a review, it shall reject the application. Sub-rule (2) of Rule 4 provides that where the Court is of opinion that the application for review should be granted, it shall grant the same provided a notice is issued to the opposite party to enable him to appear and be heard in support of the decree or order, a review of which is applied for. However, no application shall be granted if the discovery of new matter or evidence, which the applicant alleges, was not within his knowledge or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation. Rule 7 which is relevant for our purpose reads thus:

7. Order of rejection not appealable - Objections to order granting application: (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree of order finally passed or made in the suit.

(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.

11. Thus, it is seen that any person considering himself aggrieved (1) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (2) by a decree or order from which no appeal is allowed, or (3) by a decision on a reference from a Court of Small Causes and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

12. A Court or Tribunal has no inherent jurisdiction to review its decision duly pronounced. It can do so only if it is authorised by statute. A party aggrieved by a decree or a decision may apply for a review in any of the following cases:

1. On the ground of the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the party or could not be produced by him at the time when the decree was passed or order made; or

2. On account of some mistake or error apparent on the face of the record; or

3. For any other sufficient reason.

13. When a review is sought on the ground of discovery of new evidence, the evidence must be relevant and of such a character that if it had been given in the suit it might possibly have altered the judgment. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but also the discovery of any new and important matter, which was not within the knowledge of the party when the decree was made.

14. Mistake or error apparent on the face of the record: A review may be granted, whether on any ground urged at the original hearing of the suit or not, whenever the Court considers that it is necessary to correct an evident error or omission and it is immaterial how the error or omission occurred. Thus, a review was granted where an error on a point of law was apparent on the face of the judgment, namely, failure to apply the law of limitation to the facts found by the Court or failure to consider a particular section of a provision of law part thereof. A review may also be granted where there is an error of procedure apparent on the face of the record. The words 'for any other sufficient reason' must be one sufficient to the Court to which the application for review is made and they cannot be held to be limited to the discovery of new and important matter or evidence or the occurrence of a mistake or error apparent on the record. The ground of review must be something, which existed at the date of the decree, and the rule does not authorise the review of a decree, which was right when it was made, on ground of the happening of some subsequent event. Further, it is a condition precedent that no superior court should have been moved for selfsame relief before filing a review petition. The error must be one which strikes one on merely looking at the record and which would not require any long drawn process of reasoning on a point where there may conceivably be two opinions. An applicant seeking for review cannot raise a ground not taken in the original proceeding. Review cannot be sought to supplement the evidence or to introduce new evidence. The applicant for review must show that he could not have produced the evidence in spite of due diligence. He should show that he did not have custody of the document or that he had been deprived of the documents. If an appeal has already been filed before the review is applied for and the appeal is still pending, review cannot be made. If an application for review is already filed then the review application can be heard and disposed of provided the appeal is not disposed of before the review application is taken up for disposal. It is competent to a party against whom an exparte decree or order is passed to apply for a review if the circumstances bring the case within order 47, Rule (1) C.P.C. But, however, it has been held by the Courts that a party whose appeal has been dismissed for want of appearance has no remedy by way of review. The words 'the court which passed the decree or order' in Order 47, Rule 1 include a transferee court by virtue of Section 150 CPC. When no fresh facts are brought out by way of discovery of new and important evidence justifying a reconsideration of the earlier decision, which was given after the most careful consideration, review is not permissible. The mere admission of an application for review and the issue of a rule therein does not in itself, disturb the finality of the judgment or the proceeding. It only means that the Court is tentatively satisfied about the merits of the application, but after hearing the parties, the Court can reaffirm its earlier judgment and reject the application. It is only when the application is allowed that the proceeding is reopened and the earlier judgment put in jeopardy. After an appeal has been preferred from a decree, no application can be made for review of that decree. Power of review will not be exercised where the review petition is based on the same ground as had been already considered in the original proceeding. Where it appears to the Court that there is no sufficient ground for a review, it shall reject the application and no such application shall be granted without previous notice to the opposite party. It is a condition precedent to the exercise of jurisdiction under this rule that notice should be given as provided therein.

15. Part VII of the CPC deals with appeals. Section 104 CPC which is in pari materia with Section 588 of Act X of 1877 provides for orders from which appeal lies. It reads thus:

104. (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.

(a) to (f) omitted.

(ff) an order under S.35-A.

(ffa) an order under S.91 or S.92 refusing leave to institute a suit, of the nature referred to in S.91 or S.92, as the case may be;

(g) an Order under S.95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree

(i) any order made under rules from which an appeal is expressly allowed by rules;

Provided that no appeal shall lie against any order specified in Cl. (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

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

16. Order 43 C.P.C. provides for appeals from Orders. Rule 1 enumerates a list of orders from which appeals shall lie under the provisions of Section 104. Clause (w) of Rule 1 provides that an order passed under Rule 4 of Order 47 granting an application for review is appealable.

17. This Court in exercise of its jurisdiction under Article 225 of the Constitution of India framed rules known as the Writ proceeding Rules, 1977. Rule 24 of the said rules reads thus:

All other rules relating to causes and matters coming before the Original Side and Appellate Side of the High Court and the provisions of the Code of Civil Procedure, 1908 will apply to the Writ Petition and the Writ Appeals in so far as they are not inconsistent with these rules.

18. At this stage, it may be relevant to reproduce Clause 15 of the Letters Patent (Madras) 1862, which is applicable to this Court. It reads as follows:

Appeal from Courts of original jurisdiction to the High Courts in its appellate jurisdiction:- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras 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 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 S.108 of Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall like to the said High Court from a judgment of one Judge of the said High Court one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made (on or after the 1st day of February, 1929) 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, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, Our heirs or Successors in Our or Their Privy Council, as hereinafter provided.

19. The above provision in Clause 15 generally shows that against a 'judgment' passed by a learned Single Judge of the High Court, in the original jurisdiction or first appellate jurisdiction, a Letters Patent Appeal lies to a Division bench. If the 'judgment' is passed in second appellate jurisdiction, a Letters Patent Appeal would lie only if the said Judge certified the case to be a fit one for such further appeal. So far as the latter provision regarding appeals against second appeals is concerned, the same has been taken away by Section 100-A introduced by the Central Act 104 of 1976.

20. The Letters Patent jurisdiction is not attracted and available if the Judgment is passed by the High Court 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. It is also not attracted and available if the order is made under the revisional jurisdiction of the High Court and it is also not attracted in respect of a sentence or order made or passed 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. It is, therefore, clear that if the order complained of is not a Judgment, the appellate jurisdiction of the High Court under Clause 15 of the Letters Patent is not attracted and available.

21. Before we consider the Full Bench decisions of this Court, it is relevant to refer to the decision of the Apex court IN SHAH ABDULAL KHIMJI vs. JAYABEN D. KANIA AND ANOTHER which arose out of the judgment of the Division Bench of the Bombay High Court. The facts of the case are that the plaintiff-appellant therein filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver in respect of the suit property and injuncting the defendant from disposing of the suit property during the pendency of the suit. A learned single Judge of the Bombay High Court dismissed the application. The appeal filed was dismissed on the ground that the order of the learned single Judge was not a judgment as contemplated by Clause 15 of the Letters Patent of the High Court. The matter was carried in appeal before the Supreme Court. The substantial questions of law raised before the Supreme Court are as to the scope, ambit and meaning of the word 'Judgment' appearing in Clause 15 of the Letters Patent of Bombay High Court and corresponding clauses in the Letters Patent of other High Courts. It may be mentioned that the significance of the word 'judgment' assumes a special importance in those High Courts, which have ordinary civil jurisdiction depending on valuation of the suit or the action. These High Courts are Calcutta, Bombay, Madras as also Delhi and Jammu and Kashmir. The other high Courts do not have any ordinary civil jurisdiction but their original jurisdiction is confined only to a few causes like probate and administration, admiralty and cases under Companies Act.

22. The Supreme Court has exhaustively dealt with the provisions of Section 104 read with Order 43, Rule 1 CPC vis--vis Clause 15 of the Letters Patent. On a consideration of various decisions of the Apex Court including the decision of the Privy Council in HURRISH CHUNDER CHOWDRY vs. KALI LSUNDARI DEBIA, (1882) 10 Ind. App. 4 came to the conclusion that Section 104 read with Order 43, Rule 1 clearly applies to the proceedings before the Trial Judge of the High Court. Dealing with the aforesaid provisions, the Hon'ble Supreme Court held that although the Letters Patent is a special law, certain provisions of the Code of C.P.C. in the matter of procedure do apply to appeals against the decision of a trial Judge of the High Court to a larger Bench i.e. to internal appeals. It was also held that there is no inconsistency between the Letters Patent jurisdiction and Section 104 read with order 43, Rule 1 of C.P.C. and the said provisions creates a forum for appeal against orders falling under various clauses of Order 43, Rule 1 to a Larger Bench of the High Court without at all disturbing, interfering with or overriding the Letters Patent Jurisdiction.

23. Referring to the decision in SHANKARLAL AGGARWAL vs. SHANKARLAL PRODDAR, : [1964]1SCR717 it was further observed at para 33:

There is yet another aspect of the matter which shows that S.104 merely provides an additional or supplemental remedy by way of appeal and, therefore, widens rather than limits the original jurisdiction of the High Court. For instance, in this very case with which this Court was dealing, an order passed under S.202 of the Companies Act was appealable to a larger Bench and yet it was argued that the order being of an interlocutory nature would not be a judgment and therefore no appeal would lie to the division Bench. This contention was negatived by the Supreme Court and it was held that against the order passed by a Trial Judge under the Companies Act, an appeal would lie to the Division Bench. On a parity of reasoning, therefore, Section 104 read with Order 43, Rule expressly authorises and creates a forum for appeal against orders falling under various clauses of Order 43, Rule 1 to a larger Bench of the High Court without at all disturbing, interfering with or overriding the Letters Patent Jurisdiction. (Emphasis ours)

24. On the above provisions, finally the Apex Court concluded thus:

1. That there is no inconsistency between S.104 read with Order 43, Rule 1 and the appeals under the Letters Patent and there is nothing to show that the Letters Patent in any way excludes or overrides the application of S.104 read with Order 43, Rule 1 or to show that these provisions would not apply to internal appeals within the Court.

2. That even if it be assumed that Order 43, Rule 1 does not apply to Letters Patent appeals, the principles governing these provisions would apply by process of analogy.

3. That having regard to the nature of the orders contemplated in the various clauses of Order 43, Rule 1, there can be no doubt that these orders purport to decided valuable rights of the parties in ancillary proceedings even though the suit is kept alive and that these orders do possess the attributes or character of finality so as to be judgments within the meaning of Clause 15 of the Letters Patent and hence, appealable to a Larger Bench.

4. The concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position.

25. Despite the finding that Section 104 read with Order 43, rule 1 applies to Letters Patent appeals and all orders passed by a Trial Judge under clauses (a) to (w) would be appealable to the Division Bench, the Apex Court observed that there would still be large number of orders passed by a Trial Judge which may not be covered by Order 43, Rule 1. It was observed:

The next question that arises is under what circumstances orders passed by a Trial Judge not covered by Order 43, Rule 1 would be appealable to a Division Bench. In such cases, the import, definition and the meaning of the word 'judgment' appearing in Clause 15 assumes a real significance and a new complexion because the term 'judgment' appearing in the Letters Patent does not exclude orders not falling under the various clauses of Order 43, Rule 1. Thus the serious question be decided in this case and which is indeed a highly vexed and controversial one is as to what is the real concept and purport of the word 'judgment' used in Clause 15 of the Letters Patent. The meaning of the word 'judgment' has been the subject matter of conflicting decisions of the various High Courts raging for almost a century and in spite of such length of time, unfortunately, no unanimity has so far been reached. As held by us earlier, it is high time that we should now settle this controversy once for all as far as possible.

26. Admittedly, an order refusing to review a final order passed in a proceeding is not one of the orders mentioned in Order 43, Rule 1 CPC from which an appeal lies to Larger Bench.

27. It may be relevant to refer to the observations made by Sir Richard Couch, C.J. of the Calcutta High Court in JUSTICES OF THE PEACE FOR CALCUTTA vs. THE ORIENTAL GAS CO., (1872) 8 Beng. LR 433 while interpreting Clause 15 of the Letters Patent, which reads as follows:

We think that 'Judgment' in Cl. 15 means a decision, which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.'

28. According to the Supreme Court, the interpretation given by Sir Richard Couch, C.J is very strict and narrow.

29. In T.V. TULJARAM ROW vs. M.K.R.V. ALAGAPPA CHETTIAR, (1912) ilr 35 Mad.1 Sir Arnold White, C.J of the Madras High Court observed thus:

The test seems to me to be not what in the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent.

I think, too, an order on independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) - e.g. an order on an application for an interim injunction, or for appointment of a receiver is a 'Judgment' within the meaning of the clause'

30. It was further observed at para 91:

Analysing the observations of the learned Chief Justice it would appear that he has laid down the following tests in order to assess the import an definition of the word 'judgment' as used in Cl. 15 of the Letters Patent:-

1. It is not the form of adjudication which is to be seen but its actual effect on the suit or proceeding;

2. If, irrespective of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding, it doubtless amounts to a judgment;

3. Similarly, the effect of the order, if not complied with, is to terminate the proceedings, the said order would to a judgment;

4. Any order in an independent proceeding which is ancillary to the suit (not being a step towards judgment) but is designed to render the judgment effective can also be termed as judgment within the meaning of the Letters Patent.

So far as this test is concerned, the learned Chief Justice had in mind orders passed by the Trial Judge granting or refusing ad interim injunction or appointing or refusing to appoint a receiver.

5. An order may be a judgment even if it does not affect the merits of the suit or proceeding s or does not determine any rights in question raised in the suit or proceedings.

6. An adjudication based on a refusal to exercise discretion the effect of which is to dispose of the suit, so far as that particular adjudication is concerned would certainly amount to a judgment within the meaning of the Letters Patent.

31. After an analysis of the observations made by Sir Richard Couch, C.J. of the Calcutta High Court in JUSTICES OF THE PEACE FOR CALCUTTA VS. THE ORIENTAL GAS CO., (1872) 8 Beng. LR 433, the observations of Sir Arnold White, C.J. of the Madras High Court in T.V. TULJARAM ROW vs. M.K.R.V. ALAGAPPA CHETTIAR, (1912) ilr 35 Mad.1, decisions of the Calcutta High Court in CHANDI CHARAN SAHA vs. JANANENDRA NATH BHATTACHARJEE, AIR 1919 Cal.667. MATHURA vs. HARAN, AIR 1916 Cal.361, LEA BADIN vs. UPENDRA MOHAN ROY CHAUDHURY, AIR 1935 CAL.35, SHORAB MERWANJI MODI vs. MANSATA FILM DISTRIBUTORS, : AIR1957Cal727 , a Full Bench Judgment of the Nagpur High Court in MANOHAR DAMODAR BHOOT vs. BALIRAM GANPAT BHOOT, AIR 1952 NAG.357, the decisions of the Apex Court in ASRUMATI DEBI vs. KUMAR RUPENDRA DEB RAIKOT, : [1953]4SCR1159 , UNION OF INDIA vs. MOHINDRA SUPPLY CO., : [1962]3SCR497 , RADHEY SHYAM vs. SHYAM BEHARI, : [1971]1SCR783 , SHANTI KUMAR R. CANJI vs. HOME INSURANCE CO. OF NEW YORK, : [1975]1SCR550 the Full Bench decision of the Allahabad High Court in MT. SHAHZADI BEGUM vs. ALAKNATH, AIR 1935 ALL 620 which the Supreme Court was in agreement with the observations made by the Allahabad High Court and decisions of other High Courts, and also referring to the definition of 'judgment' under Section 2(9) of C.P.C., which defines 'Judgment' to mean 'a statement given by the Judge on the grounds of decree or order', Fazal Ali, J speaking for himself and A. Varadarajan, J at paras 115, 119 and 120 observed thus:

115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned.

119. Apart from the tests laid down by Sri White, C.J. the following considerations must prevail with the Court:

(1) That the trial Judge being a senior Court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the to her cannot be treated as a Judgment otherwise the appellate Court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order, which he passes, must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.

2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the question in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.

3) The test laid down by Sri White, C.J. as also by Sri Couch, C.J. as modified by the later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind.

32. It was further observed:

120. Thus, these are some of the principles, which might guide a Division Bench in deciding whether an order passed by the trial Judge amounts to a judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition give illustrations of interlocutory orders, which may be treated as judgments:

1. An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant.

2. An order rejecting the plaint.

3.An order refusing leave to defend the suit in an action under order 37, Code of Civil Procedure.

4. An order rescinding leave of the trial Judge granted by him under Cl.12 of the Letters Patent.

5. An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit against the defendant even though the suit is kept alive.

6. An order rejecting an application for a judgment on admission under O.12, Rule 6.

7. An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure.

8. An order varying or amending a decree.

9. An order refusing leave to sue informa pauperis.

10. An order granting review.

11. An order allowing withdrawal of the suit with liberty to file a fresh one.

12. An order holding that the defendants are not agriculturists within the meaning of the special law.

13. An order staying or refusing to stay a suit under Section 10 of the Code of civil Procedure.

14. An order granting or refusing to stay execution of the decree.

15. An order deciding payment of court-fees against the plaintiff.

33. From the above it is clear that in order to treat an 'order' as 'Judgment' within the meaning of the Letters Patent, a controversy must have been decided affecting the valuable rights of the parties and it must contain the traits and trappings of finality.

34. There cannot be any dispute that against the order of a learned single Judge of the High Court exercising original jurisdiction in a proceeding under Article 226 of the Constitution of India, an appeal would lie to the Division Bench in terms of Clause 15 of the Letters Patent.

35. A distinction can, however, be maintained between a case where review is sought against the order passed in an interlocutory application and in a case where review is sought against an order passed in an original proceeding. In case where the review is sought against the interlocutory order, a review is permissible under Clause 15 of the Letters Patent, in the light of the Judgment of the Apex Court in Khimji's case, only if the valuable rights of the parties are determined in such an interlocutory order and it had the traits and trappings of a final order. That means the interlocutory order passed by the learned Judge must have determined the rights of the parties which is the subject matter in a main proceeding. Pending the main proceeding if the learned Judge proceeded to determine the valuable rights of the parties in an interlocutory application, which he ought not to, which had in effect amounted to final disposal of the main proceeding itself, then, in such cases, the affected party has a right of appeal against that order under Clause 15 of the letters patent as it would be a judgment within the meaning of the said clause.

36. An order passed in an application for review refusing to review a final order passed in a writ proceeding simply confirming the original order by a cryptic order, in our view, is not a 'judgment' within the meaning of Clause 15 of the Letters Patent. In such cases, we are of the view that the order passed in the review application is nothing but reiterating the earlier final order and it merges with the earlier final order passed in the original proceeding. Therefore, no appeal is maintainable against such order and the only remedy available to the party is to file an appeal against the original order at once, if it is so permissible as per law. However, if the order passed on the review application has re-determined the rights of the parties to the controversy and modified the earlier final order on the basis of any new and important matter or evidence which could not be produced by the applicant or within his knowledge even after the exercise of due diligence at the time when the decree was passed or order made, in our considered opinion, the earlier final order passed in the original proceeding merges with the order passed in the review application and against such modified order passed in a review application if a party aggrieved, he will have a right of appeal under clause 15 of the letters patent as the same could be construed as 'Judgment' within the meaning of Clause 15 of the Letters Patent. Even sub-rule (1) of Rule 7 of Order 47 provides that an order grating application may be objected to at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.

37. Though Order 43, Rule 1 CPC provides for an appeal against an order passed under Rule 4(2) of Order 47 C.P.C. granting an application for review, no provision was made in Order 43, Rule 1 conferring right of appeal on the party where the application is rejected under Rule 4(1) of Order 47 CPC. Even in the illustration of interlocutory orders mentioned in Khimji's case, the Supreme Court has not referred to the same even though it did refer that an appeal is maintainable against an order granting review. Though that is not to be an exhaustive list of interlocutory orders which may be treated as judgments, but, in the view we have taken above, it cannot be said that an order rejecting an application for review of an order passed in an original proceeding under Clause 15 of the letters patent would be a judgment within the said clause unless it qualifies to be a Judgment as per the tests laid down in Khimji's case. If the party is aggrieved by the final order in a proceeding before the High Court, he has remedy of appeal under Clause 15 itself. But, if he has chosen to file a review application and if he fails to show sufficient ground for review of the final order and is rejected in limini, he cannot claim right of appeal against such order passed in the review application unless it has re-determined the rights of the parties to the proceeding and modified the earlier final order.

38. We shall now analyse the various Full Bench decisions of this Court relied upon by the learned counsel appearing for the appellant.

39. The earliest Full Bench decision of this Court in SATTEMMA vs. VISHNU MURTHY (supra) was rendered by a Bench consisting of P. Cnandra Reddy, CJ, Gopalakrishnan Nair, J and Narasimhamam, J.

40. The question referred to be answered by the Full Bench relates to the maintainability of an appeal under Clause 15 of the Letters Patent against an order of a learned single Judge refusing to review an order passed by him earlier dismissing the petition for leave to prefer an appeal informa pauperis. The Full Bench held that a decision refusing to review an order is a judgment within the meaning of Clause 15 of the Letters Patent. The Full Bench relied upon the decision of the Supreme Court in STATE OF UTTAR PRADESH vs. VIJAYANAND, : [1962]45ITR414(SC) . The Bench also held that the refusal to review the order passed by the single Judge dismissing the petition for leave to prefer an appeal informa pauperis results in the dismissal of the appeal on account of the inability of the appellant to pay the court fee as it puts an end to the appeal in the High Court. The Full Bench also held that Order 47 Rule 7 CPC does not override Clause 15 of the Letters Patent, on the other hand clause 15 prevails over Order 47, Rule 7 CPC. Referring to the decision of the Apex Court in UNION OF INDIA vs. MOHINDRA SUPPLY CO., : [1962]3SCR497 the Bench held that the right derived from Clause 15 of the Letters Patent is not affected either by order 47, Rule 7 CPC or by Order 43, Rule 1 CPC or any other provision of the Civil Procedure Code which restricts the right of appeal. However, the Bench held that a decision to review an order is a judgment within the meaning of clause 15 of the Letters Patent. But, in view of the decision of the Supreme Court Khimji's case unless the order is amounted to judgment within the para meters lay down therein, it cannot be treated as a judgment. To that extent, the decision of the Full Bench does not reflect the correct proposition of law. It was also observed that Order 47, Rule 7 CPC does not override Clause 15 of the Letters Patent and that Clause 15 prevails over Order 47, Rule 7 CPC. The observation of the Full Bench that Clause 15 prevails over Order 47, Rule 7 CPC may not also reflect the correct proposition of law in view of the conclusion arrived at by the Supreme Court in Khimji's case at para 33 wherein it was observed that on a parity of reasoning, section 104 read with Order 43, Rule 1 expressly authorises and creates a forum for appeal against orders falling under various clauses of Order 43, Rule 1 to a larger bench of the High Court without at all disturbing, interfering with or overriding the Letters Patent jurisdiction.

41. The next Full Bench decision of this Court is in M. SRINIVAS vs. J.N.T.U. HYDERABAD rendered by a Bench consisting of Yogeshwar Dayal, CJ, M. Jagannadha Rao, and Upendralal Waghray, J. The reference to the Full Bench has been made by a Division Bench doubting the correctness of the earlier Full Bench decision in Sattemma vs. Vishnumurthy (supra) in view of the decision of the Supreme Court in Khimji's case. The question referred to was whether a Letters Patent (Madras) as applicable to Andhra Pradesh High Court, against an order of a learned single Judge refusing to review under Order 47 Rule 4(1) CPC and whether Order 47, Rule 7(1) CPC is a bar to the maintainability of such an appeal. The Full Bench formulated two points for consideration vis., (1) Whether the order passed by the learned single Judge in a review petition refusing to review an order of dismissal of a writ petition is a 'judgment' for purposes of Clause 15 of the Letters Patent? 2) Whether a Letters Patent Appeal filed against order of a learned Single Judge refusing to review an order of dismissal of a writ petition is barred by Order 47, Rule 7(1) C.P.C. on the analogy of the provisions in Section 104(2) CPC, as construed by the Supreme Court in Shah Babulal Khimji's case?

42. After referring to the decision of the Apex Court in State of U.P. vs. Vijayanand (supra) the Full Bench at para 9 held:

The above said decision has been reaffirmed by the Supreme Court in Shah Babulal Khimji's case (2 supra) (para 103) and the Court went on further to observe that even an order dismissing a review application under Order 47 Rule 4(1) CPC will be a 'judgment'. This is because, an order allowing a review petition is made appealable under O.43, R.1(w) and therefore an order dismissing a review petition is also appealable on that analogy. The Supreme Court observed:

We might mention here that under Clause (w) of O. 43, Rule 1 an order granting an application for review is appealable. On a parity of reasoning therefore, an order dismissing an application for review would also be appealable under the Letters Patent being a judgment though it is not made appealable under Order 43 Rule 1.

Of course, the order refusing to review must be a 'judgment' as per the tests referred to in Shjah Babulal Khimji's case (2 supra). In the present case, the order refusing to review is an order which refuses to accept the petitioner's case that he belongs to a schedule Tribe and, in our view, there can be no doubt that it is a 'judgment' as per the above tests. We accordingly hold in favour of the appellant that the order impugned in the Letters Patent Appeal is a 'judgment'. Point No.1 is decided accordingly in favour of the appellant. (Emphasis ours)

43. In our considered view, though the Supreme Court in Khimji's case while referring to the decision in State of UP v. Vijayanand and referring to Clause (w) of Order 43, Rule 1 which provides that an order granting an application for review is appealable, on a parity of reasoning held that an order dismissing an application for review would also be appealable under the Letters Patent being a judgment though it is not made appealable under 43 Rule 1, the said conclusion should be understood on an over all analysis of the Judgment in Khimji's case and the tests laid down by the Apex Court therein in relation to the word 'Judgment'. But, unless the order dismissing the application for review amounted to 'Judgment' as per the tests laid down in Khinji's case, it is not made appealable. Therefore, one has to understood the observations of the Apex Court in para 103 on an overall analysis of all the conclusions reached by the Apex Court and the tests laid down in regard to the word 'Judgment'. The statute has not provided an appeal against the order dismissing an application for review under Order 43, Rule 1 C.P.C. in cases arising under the Code. But, however, an order dismissing an application for review would be appealable under the Letters Patent provided it is a Judgment within the meaning of Clause 15. Every order dismissing an application for review may not be appealable under the Letters Patent. In our view, it is only an order which qualifies to be appealable as per the tests laid down in Khimji;s case is appealable. Therefore, the Full Bench in M. Srinivas vs. J.N.T.U has rightly said at para 9 'Of course, the order refusing to review must be a 'judgment' as per the tests referred to Shah Babulal Khimji's case'. We are in agreement with the said view taken by the Full Bench. On a consideration of the facts of the case and the order therein, the Full Bench held that the order in the said case is a 'judgment' as per the above tests.

44. On the second point, on a consideration of the decision of Apex Court in Khimji's case, the Full Bench held that the provisions of order 43, Rule 1 C.P.C. are in addition to the provisions of Clause 15 of the Letters Patent and for the purpose of appealability to a Division Bench, the condition is that the order of the single Judge must be a 'judgment'. It was held that Section 104(1) and 104(2) are not intended to restrict or control the right of appeal conferred by Clause 15 of the Letters Patent. The Full Bench at para 28 held as follows:

The proper way of reconciling the several paragraphs in the judgment is to hold that the Supreme Court accepted that Clause 15 of the Letter Patent gave an independent jurisdiction conferring right of Appeal against 'judgments' of learned Single Judges of the High Court whether passed in original jurisdiction or first appellate jurisdiction under Section 104(1) read with order 43, Rule 1 C.P.C. The only condition is that these orders must amount to 'judgments' as understood in Clause 15 of the Letters Patent. Section 104(2) is intended to bar further appeals under the Code and is not intended to restrict or control the right of appeal conferred by Clause 15 of the Letters Patent against judgments of learned Single Judges whether passed in original or first appellate jurisdiction under S.104(1) read with Order 43, Rule 1 C.P.C. If, therefore, both Sections 104(1) and 104(2) are not intended to restrict or control the right of appeal conferred by Clause 15 of the Letters Patent, it cannot, by any parity of reasoning, be held that Order 47, Rule 7(1) has also been intended to bar Letters Patent Appeals against orders of learned Single Judges refusing to review an earlier order, provided the orders amounted to 'judgments' as understood under Clause 15 of the Letters Patent; Order 47, Rule 7(1) CPC would bar appeals under the Code of Civil Procedure to the extent where the orders refusing a review did not amount to 'judgments'. The ultimate test is whether the 'order' is a 'judgment' as understood in Clause 15 of Letters Patent. If it is a 'judgment' neither S.104(2) nor Order 47, Rule 7(1) would bar a Letters Patent Appeal. Point No.2 is decided accordingly.

45. Therefore, whether Order 47, Rule 7(1) or Section 104(2) CPC would bar a Letters Patent Appeal would depend upon the test whether the 'order' impugned is a 'judgment' within the meaning of clause 15 of Letters Patent in the light of the tests laid down by the Apex Court in Khimji's case. Order 47, Rule 7(1), in our view, bars appeals only where orders refusing to review do not amount to judgments. If it is a judgment within the meaning of Clause 15 of the Letters Patent, Order 47, Rule 7(1) CPC is not a bar for maintainability of writ appeal. If it were otherwise, no appeal would lie under the Letters Patent. The Full Bench had broadly agreed with the view take by the Full Bench in Sattemma vs. Vishnumurthy.

46. In our view, if the order could be construed as a Judgment within Clause 15 of the Letters Patent, the appeal is maintainable under the Letters Patent, notwithstanding the fact that a bar has been created under Order 47 Rule 7(1) read with Section 104(2) C.P.C. in view of the decision of the Apex court in Khimji's case. Even though an appeal against the order refusing to review the order is not permissible but such an appeal is permissible if it is construed to be a judgment within the meaning of Letters Patent. Therefore, notwithstanding the fact that the appeal against an order refusing to review is not maintainable under the provisions of the Code, an appeal could still be permissible under Clause 15 of the Letter Patent if it is a judgment under the said Clause.

47. In Executive Officer, Group Temples, Guntur vs. Dasaratha Ramarao (supra) a Division Bench consisting of M.S. Liberhan, CJ and A.S. Bhate, J held that no writ appeal lies against an order of the Single Judge rejecting a review petition if no appeal is filed against the original order. Unfortunately, the above Full Bench decisions of this Court and the Judgment of the Apex Court in Khimji's case have not been brought to the notice of the learned Judges.

48. We may now notice the Full Bench decision of this Court in IMTIYAZ HUSSAIN vs. T. DURGAMALA (supra) rendered by the Judges comprising of S.B. Sinha, CJ, Bilal Nazki, J and V.V.S. Rao,J. The question arose for consideration in this matter is under what circumstances Letters Patent Appeal would lie - either against an order refusing to review the original order or the original order of the learned Single Judge. Though the Bench had opined that the above question being an important question of law as the decision of this Court in Executive Officer, Group Temples, Guntur vs. Dasaratha Ramarao (supra) requires reconsideration, it was observed that the matter may be heard by a Larger Bench/Full Bench. A reading of the entire judgment would show that the Bench has not laid down any proposition of law, but, however, has decided the case on merits.

49. The next Full Bench decision is in H. KONDAL REDDY vs. CENTRAL BANK OF INDIA, HYDERABAD which was again comprised of S.B. Sinha, CJ, Bilal Nazki, J and V.V.S. Rao,J. It was held that as to whether an order refusing to review a judgment passed by this Court would amount to judgment or not must be determined upon considering the matter on merit and thus it cannot be said that no appeal as such is maintainable. The Bench observed:

24. By way of example we may mention that there may be cases where an error apparent on the face of the record is visable but the Bench turns a blind eye thereto. It may also sometimes become necessary to pass an order in a review petition to do complete justice to the parties in the event it is found that the Court failed to consider an important aspect of the matter.

25. The review jurisdiction is also an original jurisdiction, which is exercised by the writ Court only in terms of Article 226 of the Constitution of India. (See Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909). Some times a prayer for review may have to be entertained at the instance of third party if he is affected thereby although he was not a party to proceedings.

26. The jurisdiction of this Court under Article 226 of the Constitution of India is a wide one. The High Court is not only a Court of Law but also a Court of Equity. Justice is higher than law, although it may have to be administered in accordance with law. As an appeal is a continuation of the original proceeding, the appellate power cannot be held to be circumscribed by the provisions of Order 47, Rule 7 of the Code of Civil Procedure.

50. It was also held that a right of appeal conferred on a suiter under Clause 15 of the Letters Patent thus, cannot be said to have been taken away under Order 47, Rule 7 of the Code of Civil Procedure. Clause 15 of the Letters Patent would, thus prevail over order 47, Rule 7 of the Code of Civil Procedure. However, it was held that there cannot be any doubt that the court should ordinarily not exercise its jurisdiction unless a strong case has been made out.

51. However, having regard to the merit of the matter, the Bench was of the opinion that no case has been made out to interfere with the impugned judgment inasmuch as the petitioner therein has admitted his guilt.

52. The Full Bench took notice of the Judgment of the Apex court in Khimji's case while arriving at the above conclusions. The observation of the Bench that Clause 15 of the Letters Patent would prevail over order 47, Rule 7 of the Code of Civil Procedure, as noticed earlier, is not consonance with the conclusions arrived at by the Apex Court in Khimji's case.

53. V.V.S. Rao, J in his separate Judgment broadly agreed with the law that an appeal under clause 15 does lie against every judgment of a learned single Judge but when the learned single Judge refuses to exercise the power of review at the instance of the party who set the Court proceedings in motion, no letters patent appeal lies. To that extent his separate judgment has to be read along with the judgment of S.B. Sinha, CJ. applying the tests laid down in Khimji's case, the learned Judge held that when the learned single Judge dismissed the review petition in limini without issuing notice to the respondent, it is not a judgment and in such a case no appeal under Clause 15 lies. On merits of the case, the learned Judge agreed with S.B. Sinha, CJ.

54. There cannot be any dispute about the propositions laid down in the above case. The tests laid down by the Apex Court in Khimji's case are applicable to every order passed in the review application notwithstanding the fact that whether that application was dismissed at the initial stage even without ordering notice or after issuing notice. Issuing of notice, in our view, has no relevance. Only the content of the order has relevance for application of the tests laid down in Khimji's case. If the order has re-determined the valuable rights of the parties to the proceeding, whether without issuing any notice or after issuing notice, it is a judgment as per the tests laid down in Khjimji's case within the meaning of Clause 15 of the Letters Patent. Of course, no review application under Order 47, Rule 4(2) C.P.C. shall be granted without issuing notice to the opposite party as provided under Proviso (a) to Rule 4(2).

55. We may also notice a Division bench Judgment of the Madras High Court in T. MARAPPAN vs. THE EXECUTIVE ENGINEER AND AMDINISRTRATIVE OFFICER, SALEM HOUSING UNIT, SALEM, 1996(2) Law Weekly 117 rendered by K.A. Swami, CJ and one of us - Dr. Justice AR. Lakshamanan,. In that case a letters patent Appeal was preferred against the order passed by the learned single Judge in a Contempt Application. The learned single has recorded a categorical finding that the complainant-appellant had failed to prove that the respondents therein had committed any contempt. The learned single Judge has also found that the contempt application was not bona fide and the intention of the complainant was to coerce the officials concerned to make an allotment under the guise that they have disobeyed the order of the Court. In the circumstances, the learned Judge while dismissing the application has awarded costs of Rs.10,000/- to be paid to each of the respondents therein.

56. The question that fell for consideration before the Bench was as to whether the contempt appeal is maintainable under Clause 15 of the Letters Patent. It was contended before the Bench that as the order affects the appellant very much and it is a judgment, the appeal is maintainable as per Clause 15 of the Letters Patent. In support of the said contention, the learned counsel has placed reliance on a decision of the Full Bench of Madras High Court in VIDYA CHARAN SHUKLA vs. TAMIL NADU OLYMPIC ASSOCIATION BY ITS GENERAL SECRETARY K. MURUGAN, 1991(2) Law Weekly 29 and placed reliance on paragraph 27 of the said Judgment. The Bench held:

There is no doubt that the Court has got the power to do ex debito justitiae. But, the question is, whether such a power could be exercised in a proceeding, which is not maintainable before it. Therefore, unless this Letters Patent Appeal is maintainable, the jurisdiction as stated in paragraph 27 of the aforesaid judgment cannot be exercised. The proceeding in question is the one arising out of Contempt of Courts Act. In this proceeding, there is no other matter decided or dealt with, which can be said to fall outside the purview of the Contempt of Courts Act. The learned single Judge has dealt with the question as to whether there has been any violation of the order committed by the respondents as alleged by the complainant. On a consideration of the entire materials, the learned Judge has held that no such violation or disobedience of the order of this Court is established. As already pointed out, the learned judge has held that the petition itself was not bona fide. It cannot e said that awarding of costs falls outside the purview of contempt proceedings. The application for contempt filed by the complainant can be dismissed eve with costs, if the court finds that such application is not bona fide and tenable. Cost is a part of the cause. In K. KARTHIKJEYAN vs. THE STATE BANK OF MYSORE REP. BY ITS CHIEF MANAGER, MADRAS-I (L.P.A.NO.112 OF 1995 DATED 6.4.1995), a division Bench of this Court has held that Letters Patent Appeal preferred against an order dismissing a Contempt Application was not maintainable under Clause 15 of the Letters Patent. The same position obtained in the instant case. Therefore, we have no hesitation in holding that the letters Patent Appeal is not maintainable. As such, the position of law is that there should be no further continuation of the case by way of appeal, against the order dismissing the application filed for contempt of Court holding that no commission of contempt of court is established. Therefore, in such a case, if it is held that the Letters Patent Appeal is maintainable, it would result in defeating the object contained in Section 19 of the Contempt of Courts Act. Hence, we are of the view that this appeal is not maintainable. Accordingly, it is dismissed as not maintainable.

57. We may also notice another decision of the Madras High Court in R. RAJAGOPAL vs. M.P. CHOLLAMUTHU, 1994(2) Law Weekly, 78. The Bench comprises of K.A. Swami, CJ and Somasundaram J. In that case, the learned single Judge in a Contempt Application filed by the 1st respondent therein declared that the first respondent is entitled to quarry sand in Amaravathi river and directed the respondents 2 to 4 to permit the first respondent to quarry sand for a period of 3 1/2 months. The Division Bench was inclined to hold that such an order is 'Judgment' for the purpose of Clause 15 of the Letters Patent and that the order under appeal satisfies the conditions prescribed in Clause 15 of the Letters Patent. It was held:

Inasmuch as by the order under appeal, the learned single Judge has declared that the first respondent is entitled to quarry sand in the area in question for a period of 3 1/2 months and directed the respondents 2 to 4 to permit the first respondent to quarry sand for a period of 3 1/2 months from 1.5.1993, the Court is inclined to hold that such an order is a 'Judgment' for the purpose of Clause 15 of the Letters Patent and that the order under appeal satisfies the conditions prescribed in Clause 15 of the Letters Patent. In these circumstances, there can be no hesitation in holding that the present appeal is maintainable under Clause 15 of the Letters Patent.

58. We have given our thoughtful consideration to the question posed for authoritative determination. In our opinion, the order of the Court rejecting the application shall not be appealable but an order granting the application may be objected to at once by an appeal from the order granting the application. When the Court rejected the application and refused to order the party may still has a remedy to appeal against the original order. At the same time, an order granting an application would amount to determining the rights of the parties and, therefore, in our opinion, the same is appealable. In other words, no appeal lies under the Code from an order rejecting an application for review unless it is qualified to be a 'Judgment' as per the tests laid down in Khimji's case. The order is also not open to revision under Section 115 of the Code for even if it is wrong; it is no more than an erroneous exercise of discretion. But, where there is no exercise of discretion at all, as where the court rejects the application not after considering whether there are sufficient grounds for review but on the erroneous view that it has no jurisdiction to entertain the application, the order is open to revision for it is then a case of failure to exercise a jurisdiction vested in the court by law. Likewise, no second appeal lies from an order passed in appeal from an order granting an application for review. This is now sufficiently clear from the provisions of Order 43, Rule 1, Cl.(W) read section 104(2). Likewise, no appeal lies from an order refusing to readmit the application for review of judgment, which has been dismissed for default under sub-rule (2). A review is also maintainable on the ground of error apparent on the face of the record. We have already noticed in para 120 of the Judgment of the Supreme Court in Khimji's case, which enumerated different types of orders, which amounts to judgment within the meaning of Letters of Patent.

59. As the order of the learned single Judge in Review Petition was one refusing to grant the relief, it is not a judgment within the meaning of Clause 15 and only an appeal against the final order is maintainable in law and also on merits. On merits, it attains the quality of finality and would, therefore, be a judgment within Clause 15 of the Letters Patent. But, at the same time, the order passed by the learned single Judge rejecting review petition not being a judgment within the meaning of Clause 15 of the Letters Patent; an appeal to the Division Bench is not maintainable.

60. An order, which is appealable under the Code or under any other statute, becomes appealable as the statute confers a right on the litigant to prefer an appeal against such order. Such an order may or may not be appealable as 'judgment' under Clause 15 of the Letters Patent. An order which may be appealable under Clause 15 of the Letters Patent as a 'judgment' becomes appellable as Letters Patent confers on the litigant a right of appeal against such an order of 'judgment'. An order appealable under the Letters Patent may or may not be appealable under the Code. A right of appeal is a creature of statute. A litigant does not have an inherent right to prefer an appeal against an order unless such a right is conferred on the litigant by law. Certain orders become appealable under the Code, as the code makes such orders appealable. Other statutes may confer a right of appeal in respect of any order under the statute. The Letters Patent by clause 15 also confer a right to prefer an appeal against a judgment. An order, which satisfies the requirements of judgment within the meaning of clause 15, becomes appealable under the Letters Patent. What kind of an order will constitute a judgment within the meaning of clause 15 of the Letters Patent and will become appealable as such must necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed. In our opinion the judgment within the meaning of Clause 15 of the Letters Patent would have to satisfy two tests. First, the judgment must be the final pronouncement which puts an end to the proceedings as far as the court dealing with it is concerned. Secondly, the judgment must involve the determination of some right or liability though it may not be necessary that there must be a decision merits. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability. Since there is no definition of the word judgment in the letters patent itself, the expression has necessarily to be construed and interpreted in each case. It is, however, safe to say that if any order has the effect of finally determining any controversy forming the subject-matter of the suit itself or any part thereof or the same affects the question of Court's jurisdiction or the question of limitation, such an order will normally constitute 'judgment' within the meaning of clause 15 of the Letters Patent. We must not, however, be understood to say that any other kind of order may not become judgment within the meaning of clause 15 of the Letters Patent to be appealable under the provisions thereof.

61. Broadly above are the principles governing the issue. We answer the reference accordingly.

62. By the impugned order, the learned single Judge found no error apparent on the face of the record or any clerical mistake warranting review of the order. No valuable rights of the parties have either been decided or re-determined in the impugned order thereby affecting the rights of the parties. In our considered opinion, it would not amount to 'Judgment'. Therefore, the only remedy available to the appellant is to appeal against the original order in accordance with law.

In the result, Writ Appeal is dismissed as not maintainable. We, however, make it clear that the appellant is at liberty to file an appeal against the original order if she so desires in accordance with law. No costs.


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