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Municipal Corporation of Delhi Vs. Kuldip Lal Bhandari and ors. - Court Judgment

LegalCrystal Citation
SubjectMtoor Vehicles
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 50D of 1966 and First Appeal No. 144D of 1964
Judge
Reported inAIR1970Delhi37; 5(1969)DLT543
ActsMtoor Vehicles Act, 1939 - Sections 110D
AppellantMunicipal Corporation of Delhi
RespondentKuldip Lal Bhandari and ors.
Advocates: S.N. Chopra,; R.L. Tandon,; Vijay Kishan and;
Cases ReferredNur Mohammed v. S. M. Solaiman
Excerpt:
letters patent, clause 10 - decision of a single judge in an appeal under section 110-d of mtoor vehicles act, 1939--a 'judgment' within the meaning of.; that a decision given by a single judge of high court in an appeal against the award of the claims tribunal under section 110-d of the mtoor vehicles act, 1939 is a 'judgment' within the meaning of clause 10 of the letters patent and accordingly a letters patent appeal lies there from. nur mohd. v. s.m. solaiman, 49 calcutta weekly ntoes 10 relied upon, and toher case-law discussed and reviewed.; letters patent appeal under clause 10 of the letters patent from the judgment of the single judge hon'ble mr. justice s. b. capoor dated the 8-2-1966 against the award of the claims tribunal under section 110-d of the mtoor vehicles.....v.s. deshpande, j. (1) due to ant to the d.t.u. bus no. dlp 658 belonging to the appellant-municipal corporation of delhi, a lady named mrs. b. bhandari suffered injuries which resulted in her death. the respondents, as her legal representatives, claimed compensation from the appellant before the mtoor accidents claims tribunal, delhi on the ground that the injuries caused to mrs. bhandari were due to the negligence of the appellant's employees, viz. the driver and the conductor of the bus. the claim was dismissed by the tribunal but was partially decreed by a learned single judge of the then circuit bench of the punjab high court for delhi in an appeal preferred to the high court against the award of the tribunal under section110-d of the mtoor vehicles act, 1939.(2) the present appeal.....
Judgment:

V.S. Deshpande, J.

(1) Due to ant to the D.T.U. bus No. Dlp 658 belonging to the appellant-Municipal Corporation of Delhi, a lady named Mrs. B. Bhandari suffered injuries which resulted in her death. The respondents, as her legal representatives, claimed compensation from the appellant before the Mtoor Accidents Claims Tribunal, Delhi on the ground that the injuries caused to Mrs. Bhandari were due to the negligence of the appellant's employees, viz. the Driver and the Conductor of the bus. The claim was dismissed by the Tribunal but was partially decreed by a learned Single Judge of the then Circuit bench of the Punjab High Court for Delhi in an appeal preferred to the High Court against the award of the Tribunal under Section110-D of the Mtoor Vehicles Act, 1939.

(2) The present appeal was preferred before a Division Bench of this Court under Clause 10 of the Letters Patent applicable to this High Court. It is common ground that such an appeal lies from the judgment of a single Judge of the High Court. The respondents have, however, raised a preliminary objection against the maintainability of this appeal on the ground that the decision of the learned single Judge against which this appeal purports to be made is nto a 'judgment' within the meaning of Clause 10 of the Letters Patent. The Divion Bench speaking through my lord the Chief Justice surveyed the relevant case law on the subject and referred the matter to the Full Bench on the 15th May, 1968 in view of the apparent lack of agreement among the judicial decisions.

(3) The Central question for consideration by us is whether the judgment under appeal given by the learned single Judge in an appeal against the award of the Claims Tribunal under Section IIO-D of the Mtoor Vehicles Act, 1939 (hereinafter called the Act) is:-(1) a judgment, (2) given by a Judge of this Court within the meaning of Clause 10 of the Letters Patent

(4) In view of the lack of agreement among the judicial decisions ntoiced in the referring order, it is necessary to go to the first principles under-lying the question. It is to be ntoed that the claim for compensation made by the relatives of the deceased is based on the alleged negligence of the employees of the appellant-Corporation. Its nature is simply a suit for negligence. Negligence is a well established ground for claim for damages in the law of torts. Such a claim has been a part of common law for many years and has been entertained by civil Courts in their ordinary action. Claim for damages for injuries caused by the persons in charge of the mtoor vehicle was also entertained by ordinary Civil Courts in India prior to the enactment of Mtoor Vehicles Amendment) Act, 100 of 1956, which for the first time empowered the State Governments to constitute one or more Mtoor Accidents. Claims Tribunals. Under Section 110 of the amended Mtoor Vehicles Act, the State Government may constitute one or more Mtoor Accidents Claims Tribunals for such areas as may be specified. It is only in respect of those areas for which such Claims Tribunals are constituted, that the jurisdiction of the Civil Courts is taken away by the Claims Tribunals. For. the rest of the areas, the Civil Courts will continue to entertain these claims. The significance of this fact for the nature of the jurisdiction of the Claims Tribunal is that the nature of the claim which is entertained by the Claims Tribunal is precisely the same which is entertained by a Civil Court. The Tribunal itself is nto, however, a Civil Court, inasmuch as the very purpose of establishing it was to adjudicate all these claims more expeditiously than would be done by a Civil Court. This is why the procedure of making the claim before the Tribunal under Section 110-A and the enquiry made by the Tribunal under Section 110-B are of a summary nature as distinguished from the ordinary procedure of Civil Courts. Section 110-C gives certain specified powers of a Civil Court to the Tribunal showing thereby that the Tribunal is nto an ordinary Court of law. Section 110-D gives right of appeal to the High Court against an award of the Tribunal except when an award is for an amount which is less than Rs. 2,000.00.

(5) The decision of the Tribunal is called an 'award.' The word 'award', nto being defined in the Act, has to be construed in its general sense. The ordinary dictionary meaning of an award is a judicial decision. It is true that the decision of an Arbitrator is also called an award. But, it would nto be correct to think that the award is given only by an Arbitrator and that whenever the decision is called an 'award', the Tribunal giving it must be an Arbitration Tribunal. It is well known that numerous statutory Tribunals have been created in recent times by Legislation. The decisions of many of them are called awards. But these Tribunals are nto considered Arbitration Tribunals, merely by the fact that their decisions are called awards. As stated in 2 Halsbury's. Laws of England, (III Edition) paragraph 132:-

'ITis, however, a question in each case whether a particular tribunal set up by a statute for dealing with particular questions, is an arbitration tribunal. Where the expression 'arbitration' is nto used, and toher essential features of arbitration are absent, the presumption is that such a tribunal is nto an arbitration tribunal but either a court of law or a special tribunal governed exclusively by its own code (p).'

(6) In Race Course Betting Control Board v. Secretary of State for Air, (1), the question was what was the nature of the General Claims Tribunal established under the Compensation (defense) Act, 1939. Uthwatt, J. was of the opinion that since the Tribunal was nto a Court, it would be an Arbitration Tribunal. The Court of appeal, however, differed from this view. In their opinion, there is a third class of Tribunals which are neither Arbitration Tribunals nor Courts. These are special Tribunals governed entirely by the statutes creating them and the only remedies of those dissatisfied with the finding of, such a Tribunal are those which are given by the particular statutes dealing with such a Tribunal. Lord Greene M.R. at page 63 of the Report refused to attach any weight to the word 'referred' in support of the contention that the matter referred to the Tribunal should be regarded as arbitration proceeding merely because of the use of the word 'referred'. Mackinnon L J. at page 64 of the report ntoed that the decision of the Tribunal was called 'award' but stated that there was ntohing to prevent the Legislature creating a Tribunal of a special kind which is neither a Court of record nor an Arbitration Tribunal.

(7) Under the Arbitration Act, 1940 reference to arbitration is made either because of an agreement between the parties or because of a statutory provision. The award of such an Arbitrator is final and is nto open to appeal. In btoh these fundamental respects the Claims Tribunal under the Act differs from an Arbitration Tribunal. We are, thereforee, of the view that Mtoor Accidents Claims Tribunal is neither a Court nor an Arbitration Tribunal, but is a Statutory Tribunal, the incidents of which are governed entirely by the provisions of the Act.

(8) The decision of the Tribunal except when it awards compensation of less than Rs. 2,000.00 is open to appeal to the High Court under Section 110-D of the Act. It is to be ntoed that the claim for compensation of negligence in all its aspects is tried before the Claims Tribunal. There are no limits on the jurisdiction of the Tribunal in trying the Claim and in deciding it. This may, for example, be constrasted with the jurisdiction of the Court under Section 18 of the Land Acquisition Act. A reference there under is made to the Court by the Collector for determination of objections to the measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment among the person interested. Unlike an ordinary Court, the Court acting under Section 18 of the Land Acquisition Act is precluded from considering any toher matter relating to the award. On the principle that an appeal is a continuation of the original proceeding, an appeal to the High Court under Section 54 of the Land Acquisition Act against the decision of the Court under Section 18 thereof would also, it appears, be limited to the same matters in respect of which only a reference could be made by the Collector to the Court under Section 18. This was so held in Hitkarini Sabha v. Jabalpur Corporation, (2). Further Section 12 of the said Act provides that the award of the Collector shall, except as provided in the Act, be final regarding the area and value of the land .and the compensation among the parties interested. In this context the appeal provided for by Section 54 is only by way of an exception to the finality laid down by Section 12. Such exception cannto be enlarged by recourse to the Letters Patent.

(9) The difference between the Jurisdiction of a Claims Tribunal under Act and the jurisdiction of an Arbitration under Section 19 of the defense of India Act, 1939 is even more marked, inasmuch as the latter is expressly called an Arbitrator with the arguable implication that his award is final only subject to one statutory appeal by Section 19(f) thereof.

(10) It is in this background that we have to consider the nature of the jurisdiction of the High Court dealing with an appeal under Section 110-D of the Act. As already stated above, the claim for compensation caused by negligence is well known to the law of torts, as a part of common law independent of any statute. The claim nto being a creation of any particular statute, it would be reasonable to suppose that the provisions of the Mtoor Vehicles (Amendment) Act, 1956 were intended only to expedite the trial of such a claim by the establishment of Claims Tribunals. The statute did nto toherwise intend to cut down or modify or change, in any way, the common law right. Section 110-F barred the jurisdiction of Civil Courts only to entertain the original claim as a trial Court. This bar operated only when in the particular area the Claims Tribunal had been established. In the toher areas the Civil Courts continue to entertain such a claim. The appeal to the High Court under Section IIO-D of the Act enables the High Court to consider the claim in its entirety free from any limitations in the same way as the High Court would consider the claim in an appeal from a Civil Court from an area in which a Claims Tribunal has nto been established. This, thereforee, is pre-minently a case to which the following observation of Lord Parker of Waddington in National Telephone Company Limited v. Postmaster General, , applies:-

'WHEREby statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think, that the Court will determine the matters, as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.'

INthat case, the reference to the Railway Canal Commission was made by agreement of parties. It was. argued, thereforee, that the Commission acted nto as a Court, but as Arbitrators, and, thereforee, no appeal would lie against its decision. The contention was rejected and it was held that the reference to the Commission was to it as a Court and nto as Arbitrators. Viscount Haldane, L.C. at page 552 observed as follows :

'WHENa question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.'

(11) Lord Moulton at pages 559-560 explained the view further in the following words:-

'THEsole question thereforee for decision is whether the Railway and Canal Commission, when acting under the powers of the section qutoed above, are acting as a Court. To my mind the language of the section leaves no room for doubt on this point. The matter is referred to 'the Railway and Canal Commission', i.e. to a well-known Court, named by its statutory name. In such a case the prima facie and natural meaning of the language used is that it is referred to the Court as such, and any one who would maintain that the true meaning is that it is referred to the existing personnel of the Court as arbitrators merely has to face so strong a presumption in favor of the ordinary meaning of the language that, in order to succeed in this contention, he must shew that toher portions of the enactment relating thereto establish beyond all reasonable doubt that his contention is correct.'

(12) The principle was applied by the Privy Council and later by the Supreme Court in the following cases :

INSecretary of State for India v. Chelikani Rama Rao, the claim of a person to an interest in land reserved by the Government as a forest area was tried first by the Settlement Officer. An appeal was provided to the District Judge. There was no express provision for further appeal to the High Court. The question was whether the District Judge acted as such in his ordinary capacity and jurisdiction, so that an appeal would lie to the High Court under the Code of Civil Procedure. Lord Shaw delivering the judgment of the Board distinguished the previous decision of the Privy Council in Rangoon Btotooung Co. Ltd. v. Collector of Rangoon, and observed as follows : 'THEclaim was the assertion of a legal right to possession of property in land and if the ordinary Courts of the country are seized of a dispute of that character it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation'.

(13) The decision was followed by the Privy Council in Mong Ba Thaw House case . In Hem Singh v. Basant Das, the question was whether the appeal to the Privy Council was competent. Under Section 12 of the Sikh Gurudwara Act, (Punjab Act 8 of 1925), Tribunals are constituted by the local Government with power to determine claims made in accordance with the provisions of the Act. The jurisdiction of the Civil Courts to deal with such claims is expressly barred. Section 34 of the Act gave a right of appeal to the High Court against the final order of the Tribunal. In dealing with the preliminary objection relating to the competency of the appeal against the judgment of the High Court to the Privy Council, Sir George Rankin, who delivered the judgment of the Board, pointed out at page 190 of the Report that (1) the Tribunal was given the same powers as are vested in Civil Courts, (2) its procedure was to be the procedure of the Code of Civil Procedure, (3) the formal expression of its decision was described as a decree, and (4) the matters on which the Tribunal gave decisions concerned questions relating to the property etc. It was thereforee, held that no special jurisdiction was conferred on the High Court by Section 34 of the Act, but that the jurisdiction conferred on the High Court by Section 24 was intended to include the new subject matter as part of ordinary appellate jurisdiction of the High Court. At pages 191-192 of the report. Sir George Rankin again pointed out the nature of the questions which would come up before the Tribunal and concluded as follows:-

'HAVINGregard to the character, the variety and the importance of the questions to be dealt with by a Tribunal and to the terms in which the right of appeal to the High Court is provided by the Section, their Lordships are of opinion that provisions of the Civil Procedure Code with reference to appeals to his Majesty in council applied to decrees of the High Court made under Section 34 of the Sikh Gurdwara Act.'

(14) In National Sewing Thread Co. Ltd. v. James Chadwick and Bros. the appeal to the High Court from the decision of the Registrar under Section 76 of the Trade Marks Act, 1940, was held to mean that the jurisdiction had been invested in the High Court as an established Court with all incidents attached thereto. In South Asia Industries (P) Ltd. v. S.B. Sarup Singh, it was held that the appeal to the High Court under Section 39 of the Delhi Rent Control Act, 1958 without any limitation thereon would have been regulated by the practice and procedure obtaining in the High Court including the right of appeal under Clause 10 of the Letters Patent, but for Section 43 thereof, which expressly gave finality to an order passed on such appeal.

(15) The latest decision of the Supreme Court is, perhaps, most important. It is Collector of Varanasi v. Gauri Shanker, (10) The decision of the High Court in an appeal under Section 19(f) of the defense of India Act, 1939 against the award of the Arbitrator under the said Act was held to be a determination by the High Court and as such amenable to special appeal to the Supreme Court under Article 136 of the Constitution. In an earlier decision in Hans Kumar v. Union of India, it had been held that the High Court in dealing with the appeal under Section 19(f) of the defense of India Act, 1939 does nto act as a Court and the judgment of the High Court was nto a judgment within the meaning of Clause 10 of the Letters Patent. This decision was followed by a Division Bench of the Punjab & Haryana High Court in Fazilka Dabwali Transport Company v. Madan Lal which was the only decision brought to our ntoice in which the question considered was whether the decision of a single Judge of the High Court in an appeal against the award of the Mtoor Accidents Claims Tribunal under Section 110-D of the Mtoor Vehicles Act was a 'judgment' within the meaning of Clause 10 of the Letters Patent. The question was answered in the negative on a reasoning which may be summarised as below : The Claims Tribunal is nto a Court. An appeal is a continuation of the original proceeding. The appeal to the High Court, thereforee, takes the colour from the original proceeding before the claims Tribunal. The proceeding before the Claims Tribunal gets the complexion of arbitration inasmuch as its decision is called an 'award'. As the decision of the Tribunal is nto a judgment, the decision of the High Court in appeal is also nto a judgment, but is an award. The proceedings before the Arbitrator under the defense of India Act, 1939, those before the Commissioner under the Workmen's Compensation Act, 1923 and those in the Court under Section 18 of the Land Acquisition Act were also in the nature of arbitration proceedings. The appeals from their decisions to the High Courts and the decisions of the High Court in those appeals were held nto to be appeals to the High Courts and nto to have resulted in 'judgments' in Hans Kumar v. Union of India, (ii) Gopal Singh v. Stale of Punjab and Rangoon Btotooung Co. v. Collector, Rangoon , respectively.

(16) The provisions of the above mentioned statutes and the nature and the proceedings there under are clearly distinguishable from those of the Mtoor Vehicles Act and the nature of the proceedings before the Mtoor Accidents Claims Tribunal. It would be useful to examine the distinction. Section 19 of the defense of India Act, 1939 expressly refers to an Arbitrator and the award given by him. The decisions of the Supreme Court in Hans Kumar v. Union of India, was based expressly on the principle that the award of an Arbitrator is final and unappealable. The said decision rested on two main grounds viz. that the High Court did nto act as a High Court, but as an Arbitration Tribunal in considering the appeal against the award of the Arbitrator and secondly, that the judgment given by the High Court A in the appeal was nto a judgment, but an award. The first of these two grounds has been expressly dissented from the Supreme Court in its later decision in Collecter, Varanasi v. Gauri Shanker, in which the Supreme Court preferred to follow the view expressed by the House of Lords in National Telephone Company v. Postmaster General, (3) and observed as follows :-

'Prima facia it appears incongrous to hold that the High Court is nto a 'Court'. The High Court of a State is at the apex of the State's judicial system. It is a Court of record. It is difficult to think of a High Court as anything toher than a 'court'. We are unaware of any judicial power having been entrusted to the High Court except as a 'court'. Whenever it decides or determines any dispute that comes before it, in invariably does so as a 'Court'. That apart, when Section 19(l)(f) specifically says that an appeal against the order of an arbitrator lies to the High Court, we see no justification to think that the legislature said something which it did nto mean.'

(17) The implication of the above observation of the Supreme Court is that the theory that an appeal takes colour from the original proceeding is nto to be carried too far. It is to be ntoed that there are three aspects to be considered, viz.

(1)the nature of the Tribunal, (2) the nature of the proceeding before it, and (3) the nature of the decision given by it.

(18) It would nto be correct to say that merely because the Tribunal was nto a Court or the proceeding before it was nto a suit or its decision was nto a judgment, but an award, the High Court hearing appeal against its decision would nto be a Court or the proceeding before the High Court would nto be in its ordinary jurisdiction or that the decision of the High Court on such appeal would nto be a judgment. thereforee, even if the original proceeding took place before the Arbitrator resulting in an award, the appeal to the High Court did nto turn the High Court itself into apersona designata or an Arbitration Tribunal and did nto, thereforee, make the judgment of the High Court an award. If the High Court acts as such in considering an appeal from the award given by an Arbitrator under Section 19 of the defense of India Act, then it would appear that the High Court would also be acting as a High Court in hearing an appeal under Section 54 of the Land Acquisition Act (Shri Chand v. Union of India, and also in hearing an appeal under Section 30 of the Workmens' Compensation Act against the decision of a Commissioner given there under. We need nto, however, consider here these more far reaching implications of the Supreme Court decision in Collector of Varanasi v. Gauri Shanker. But, the limited implication which is relevant for our purpose is that in hearing the appeal under Section 110-D of the Act, the High Court must be held to be acting as a High Court and nto as a Tribunal, inasmuch as the claim for compensation for negligence is a common law right nto created by a statute and the claim is considered by the Tribunal in its entirety without limitation with the result that an appeal to the High Court is made in its ordinary Civil Jurisdiction. In fact, appeal by special leave under Art. 136 lies to the Supreme Court against the determination or order of a Tribunal. The High Court also has the superintendence over toher Courts and Tribunals under Article 227 of the Constitution. It has never been doubted that the Supreme Court and the High Court act as the Supreme Court and the High Court in functioning under Articles 136 and 227 of the Constitution respectively and do nto act as an Arbitrator or a Tribunal in doing so. For the same reason the High Court would also act as the High Court and nto as a Tribunal in hearing the appeal under Section 110-D of the Act.

(19) The nature of the proceeding before the Court under Secton 18 of the Land Acquisition Act is limited to the four matters referred to in Section 18. The decision of the Privy Council in Rangoon Btotooung Ltd. v. Collector, Rangoon was expressly based on the particular facts of the case in which two judges of the Rangoon High Court acted btoh as the Court under Section 18 of the Land Acquisition Act and as the High Court under Section 54 of the said Act. The Privy Council, thereforee, treated the decision as an award and nto a decision in an appeal from the award.

(20) The nature of the proceeding before the Commissioner under the Workmens' Compensation Act and the decision given by him were nto investigated by the Punjab High Court in Gopal Singh v. State of Punjab , the Court simply followed the Privy Council decision in Rangoon Btotooung Co. Ltd. v. Collector, Rangoon , referred to above and held that the judgment of the High Court in an appeal against the decision of the Commissioner would nto be judgment within the meaning of Clause 10 of the Letters Patent. We have already explained that the Privy Council decision was based on the special facts of the case. Since no toher reasons are given by the Punjab High Court their decision in this case does nto affort any guidance to us.

(21) We may here recall that one aspect of the question for consideration before us is whether the decision under appeal is the decision of the High Court. In view of the Supreme Court decision in Collector, Varanasi v. Gauri Shanker , the High Court must be held to have acted as a High Court in hearing the appeal. The toher aspect of the question alone now remains to be considered, viz. whether the decision by the High Court is a judgment or nto.

(22) For the purpose of the Supreme Court in Collector, Varanasi v. Gauri Shanker , it was nto necessary to decide whether the decision of the High Court was a judgment. It was sufficient that it was a determination against which an appeal to the Supreme Court would lie under Article 136 of the Constitution.

(23) As observed by Fazal Ali, J. in Bharat Bank v. Employees of Bharat Bank, in paragraph (5) the word 'determination' was used under Article 136 to widen its scope to include appeals nto only from judgments of the High Courts but also from determinations of Tribunals. The question, thereforee, whether a particular decision of the High Court is a judgment or is only a determination must turn on the connected question whether the decision is given by the High Court acting as a High Court or whether it is given by it acting as a Tribunal or a persona designata. Under Section 110-D the High Court can act only as a High Court nto merely because this is the effect of the Supreme Court decision in Collector Varanasi v. Gauri Shanker, cited above, but also bacause the Claims Tribunal is dealing with a common law right in all its amplitude and without any statutory limitations. The appeal to the High Court is also, thereforee, concerned with a common law right unfettered by any statute. The jurisdiction of the High Court would also, thereforee, be its ordinary jurisdiction and nto any special jurisdiction fettered by any statute. Once this is established, the decision given by the High Court must be regarded as a judgment. A close study of the reasoning of the Supreme Court decision in Hans Kumar v. Union of India referred to above, would show that these two features are inseparable from each toher. One cannto exist without the toher. We have already considered judicial decisions above in which the decisions given by the High Court were held nto to be judgments. In each of them the High Court was held nto to be acting in its ordinary jurisdiction, but in its special jurisdiction under the terms of a particular statute or as a persona designata, or as a Tribunal or as Arbitrator. None of these decisions can apply to the present case. There is no escape, thereforee, from conclusion that the decision of the learned single judge under appeal was a judgment of the High Court within the meaning of Clause 10 of the Letters Patent.

(24) In this connection, it may be observed that the provisions of Clause 11 of the Letters Patent nto only make the High Court a Court of appeal from toher Civil Courts and Courts subject to the Court's special superintendence but also invest it with appellate jurisdiction in such cases as may, after the date of the publication of the Letters Patent, be made subject to appeal to it by any law made by a competent legislative authority for India. Section 110-D of the Act may be said to be such a law.

(25) We may add that the judgment under appeal satisfies the toher requirements of a 'judgment' within the meaning of Clause 10 of the Letters Patent laid down by the Supreme Court in Asrumati Debi v. Kumari Rupendra Dev , viz. (1) it terminates the suit or proceeding and (2) it affects the merits of the controversy between the parties. We further understand that the State Governments have framed Rules under Section 111-A of the Act making the award of the Claims Tribunal executable as a decree. If so, the judgment under appeal is also executable as a decree. This is an additional reason why it has to be regarded as a judgment and nto as an award or a mere determination.

(26) Before closing, we may refer to the Division Bench decision of the Calcuta High Court in Nur Mohammed v. S. M. Solaiman , in which the question was whether the judgment of a learned single Judge of the High Court under Section 46 of the Calcutta Municipal Act was appealable as a judgment of the High Court to a Letters Patent Bench. Mitter J., speaking for the Court on a review of the case law, came to the following conclusions which may be usefully reproduced below :

'(1)that the general rule is that when a matter reaches a civil Court, the procedure of Civil Courts would be attracted including the provisions regulating appeals from its judgments, decrees or orders, but (2) this general rule is applicable only when the matter comes to that Court as part of its ordinary jurisdiction and nto by reason of a special jurisdiction having been conferred upon it : The last-mentioned proposition defines the precise scope of the principle. The nature of the dispute would be a material factor to be taken into consideration in coming to the conclusion whether a special jurisdiction was intended to be conferred on the Civil Court. If the dispute relates to a right or liability which is itself the creation of the statute and which apart from the statute would nto come within the jurisdiction of the Civil Court, the jurisdiction conferred by it on the Civil Court, be it the High Court or a subordinate Civil Court, to determine the said dispute would be considered to be a special jurisdiction.'

(27) For the reasons stated above, thereforee, we reject the preliminary objection and hold that the decision under appeal is a decision of a learned single Judge of the High Court and that it amounts to a judgment within the meaning of clause 10 of the Letters Patent. The result is that the appeal would now go back to the Division Bench to be heard on merits

(28) Costs shall be costs in the cause.


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