D.M. Dharmadhikari, C.J.
1. This LPA has been listed before us with Civil Application No. 9257 of 2001 filed by the appellants seeking condonation of delay caused in filing the LPA in Civil Application No. 3602 of 2001 which was filed seeking order under Order 39, Rule 2A read with Section 151 of CPC. Civil Application No. 3602 of 2001 was disposed of by giving certain directions and observations by judgment and order dated 27-6-2001 which is the subject matter of this LPA.
2. On behalf of the respondents, learned counsel Mr. D. C. Dave raised an objection that the present LPA preferred against the order of the learned single Judge dated 27-6-2001 passed in the proceedings in appeal from order for alleged breach of the order of injunction passed therein under Order 39, Rule 2A read with Section 151 of the Code of Civil Procedure is not maintainable under Clause 15 of the Letters Patent.
3. In support of the preliminary objection, it is stated that the impugned order which has been passed under Order 39, Rule 2A of the CPC is in exercise of appellate powers under Order 43. Rule 1(r) read with Section 104 of the Code. In support of the preliminary objection raised regarding maintainability of the LPA, learned counsel for the respondents strongly placed reliance on decisions of this Court in : AIR1986Guj10 (Jayant Vrajlal v. Jayantkumar) : (1993)2GLR1312 (Babulal A. Patel v. Manlben and : AIR2000Guj139 (J. J. Desai v. Gujarat Chamber of Commerce and Industry.
4. Learned counsel for the appellants in reply to the said preliminary objection argued that the learned single Judge in appeal under Order 43, Rule 1 CPC has exercised his original powers under Order 39. Rule 2A CPC. By the impugned order, he has held the appellants guilty of breach of the order of injunction and directed them to restore possession of the suit premises to the respondents within one month from the date of receipt of the writ of the order, failing which the present appellants are directed to be detained in civil prison for a period of two months. Learned counsel for the appellants on the question of maintainability of the appeal, strongly relied on two decisions of Division Bench of this Court reported in : AIR1976Guj1 (Shantilal Chandrashanker v. Bai Basi and (1997) 2 Guj LH (UJ) 20 (Mohmed Usuf Daudbhal v. Mohmadbhai Karimbhai Mansur).
5. For deciding the preliminary objection of maintainability of the LPA, only few admitted facts are required to be stated.
6. Rohitbhai Dhanjibhal Patel (respondent No. 1 herein) filed civil suit No. 102 of 1992 in the Court of Civil Judge (Junior Division). Anand against the present appellants for partition of the suit property situated in lot No. 1 bearing city survey No. 1312, plot No. 2009 which was in exclusive possession of the plaintiff-respondent who was residing and carrying on business of fruit and juice centre in the suit property. In the suit, he also claimed Interim injunction by application, Ext. 5, learned trial Judge granted ex parte Injunction on 6-7-1992. The learned trial Judge, however, after hearing both the parties vacated that order. Thereafter on 4-12-1992 with respect to lots Nos. 1 and 2, the period of earlier ex parte Injunction was, however, extended to enable the plaintiff to approach the appellate forum. The plaintiff-respondent then preferred Appeal from Order No. 35 of 1993 In this Court under Order 43, Rule l(r) of the Code, Along with the appeal, civil application No. 406 of 1993 was filed on 9-2-1993. The Court granted Interim injunction in terms of prayer Clause 3 (A) with notice sent to the opposite party returnable on 25-2-1993. Learned single Judge on 16-4-1993, confirmed the ex parte Injunction. From the record of the case and the impugned order. It appears that the appeal was listed before R. P. Dholakia, J. for default of the appellants in not supplying the paper book. This Court then granted time upto 11-1-2001 for supplying paper book, failing which, under a peremptory order, the appeal was to stand dismissed for non-prosecution. From the record. It appears that the appeal was listed before K. R. Vyas, J. and on 11-1-2001, he extended the time to supply paper book upto 21-1-2001,failing which the appeal was directed to be dismissed for non-prosecution. It appears that thereafter, for alleged non-supply of paper book the registry treated the appeal to have been dismissed for non-prosecution. The section officer of Civil Revision Department prepared a note on 22-2-2001 to the above effect and the appeal was assigned to the record room as automatically dismissed.
7. The plaintiff-respondent then filed MCA No. 468 of 2001 in A. O. No. 35 of 1993 praying that the appeal be restored and the interim injunction granted be continued. The application was supported by affidavit of the clerk of the advocate for the respondent-plaintiff pointing out that after the conditional order was passed by the learned single Judge, paper book was in fact supplied in time. On civil application, on 23-3-2001, after hearing both the parties, the learned single Judge directed restoration of the appeal from order and along with it restored temporary Injunction granted and confirmed earlier.
8. In the meantime, on 17-3-2001, the defendants (appellants) disturbed the possession of the respondent-plaintiffs in the suit property and in fact dispossessed them.
9. The stand taken before the learned single Judge by the defendants- appellants was that for non-supply of paper book within time under the peremptory order, the appeal actually stood dismissed on 22-1-2001 and thereafter no injunction was there in operation. The defendants-appellants were, therefore, within their rights to remove the plaintiff-respondent from possession of the suit property of lot No. 1. It is on the above facts that the learned single Judge accepted the case of the plaintiff-respondent that despite supply of paper book under the second order of the learned single Judge and within extended time, the appeal was wrongly treated by the office to have been dismissed under the peremptory order. Learned single Judge took the view that even if according to the defendants, no order of Injunction was subsisted on the date of dispossessing the respondent, as the suit on the basis of which injunction order was passed was pending before the trial Court, it was not open to the defendants to take forcible possession of the disputed property of lot No. 2.
10. Learned single Judge by the impugned order dated 27-6-2001 which is inappeal before us came to the conclusion as under :
'In my view, even by mistake of registry of this Court, the appeal from order which was treated as dismissed for non-prosecution for not supplying paper book, on restoration of the said appeal from order by the Court on March 23, 2001, the injunction order granted in civil application No. 406 of 1993 automatically revived and on day of dispossession of applicant. It was in operation. Thus, it is evident that during subsistence of the interim injunction granted against the opponents restraining them from dispossessing the applicant from the suit property of lot No. 1 the opponent in a most high handed manner by taking law in their hands had flouted the order of this Court and had committed breach of injunction order for which serious action requires to be taken against them under Order 39, Rule 2A read with Section 151 of the Code.' Having thus reached the above conclusion that the appeal could not have been treated by the registry as dismissed for non-prosecution and the injunction order was in law operative, the Court held the defendants-appellants guilty of committing breach of the order of the Court. It was directed that they should restore possession of the suit property. Lot No. 1 to the respondent-plaintiff within one month. On failure thereof, the defendants-appellants were directed to be detained in civil prison for two months. It would be better to reproduce the operative part of the impugned order dated 27-6-2001 of the learned single Judge :
'On consideration of the materials placed on record, I am of the view that the opponents have committed wilful breach of the order restraining them from dispossessing the applicant of the suit property of lot No. 1. Therefore, they are liable to be punished under Order 39, Rule 2A of the Code. Before sentencing the opponents for the breach of the order, straightaway. I think that, in the interest of justice, an opportunity should be given to opponents to avail of a remedy. Opponents Nos. 1 and 2 are, therefore, ordered to restore the possession of the suit property of Lot No. 1 to the applicant within one month from the date of receipt of the writ of this order and to restore the status quo ante in respect of the suit property described by Lot No. 1 of civil suit No. 102/92, pending in the Court of learned Civil Judge (S.D.) Anand. In case, the opponents Nos. 1 and 2 fail to comply with these directions, the suit property of Lot No. 1 shall be attached and Court receiver shall be appointed to take possession of the said property and applicant shall be put to possession of the suit property and the opponents Nos. 1 and 2 shall be detained in civil jail for a period of two months. Civil Application No. 3602 of 2001 stands disposed of accordingly. Rule is made absolute to the above extent with no order as to costs. Liberty is reserved to the applicant to take appropriate proceeding for taking action for lodging claim of compensation for damages for demolition of dwelling and business premises by the opponents Nos. 1 and 2.'
11. On the submission made by the learned counsel for the contesting parties and the decisions of this Court relied by them, the main question that falls for decision on the preliminary objection is whether the power exercised by the learned single Judge in the pending appeal from order under Order 43, Rule 1 CPC, read with the provisions of Order 39. Rule 2A CPC is exercise of his original power of his appellate power. It is not disputed by the learned counsel for the parties that under Clause 15 of the Letters Patent the order of judgment passed in exercise of appellate jurisdiction is not subject to internal appeal from judgment of the single Judge to the two Judges of this Court.
12. The answer to the said legal question is aptly given by the Division Bench of this Court in the case of Jayant Vrajlal. : AIR1986Guj10 (supra) In which the test applied is stated as under (at p. 12, para 5 of AIR) :
'The crux of the problem, in order to determine as to whether what is the nature of the power which the learned single Judge was exercising in the present case, is that could he have made this order de hors the exercise of the revisional jurisdiction in substantive proceeding which might have been moved before him independent of the revisional proceedings of which he was seized. If the answer is in the negative, then it cannot be gainsaid that the impugned order is an order made in exercise of the revisional proceedings notwithstanding the fact that he was not finally disposing of the revision before him.'
13. Other decision relied on, on behalf of the respondents in the case of Babulal A. Patel : (1993)2GLR1312 (supra) also takes similar view and the following observations made therein are pertinent for our purpose:
Then, the further question that comes up for consideration is, what is the nature of the jurisdiction exercised by the learned single Judge when he dismissed the application for condonation of delay in preferring the second appeal. An application for condonation of delay would arise in original jurisdiction or first appellate jurisdiction or second appellate jurisdiction. The entertaining of such application and disposal of it are not independent of the main proceedings in relation to which it Is filed. The filing of an application for condonation of delay is Inextricably related to and connected with the main proceedings, concerning which it is filed. The nature of the main proceedings will decide the nature of the jurisdiction. If the said application is filed in relation to orginal proceedings, the jurisdiction Invoked will be original. If it is filed in first appellate proceedings the Jurisdiction will be first appellate. If it is filed in second appellate proceedings, the Jurisdiction invoked would be second appellate.'
14. The same view has been taken by the Division Bench of this Court in the case of J. J. Desai : AIR2000Guj139 (supra) where the preliminary objection raised was regarding maintainability of appeal against the order of the single Judge in appeal from order whereby after hearing the parties, he had modified the order of injunction on certain terms and observations. LPA in these circumstances, was held to be not maintainable.
15. Applying the above test and ratio of the Division Bench decisions of this Court, on which reliance has been placed by the respondents, the conclusion is that since the order has been passed by the learned single Judge in exercise of power under Order 39, Rule 2A but in the course of proceedings under Order 43. Rule 1, the learned single Judge was exercising his appellate power and not his original power. The impugned order could not have been passed de hors the appellate proceedings pending before him. Bipartite order of temporary injunction was alsopassed by the learned single Judge duringthe pendency of appeal under Order 43, Rule 1 (r).The impugned order came to be passed during the pendency of appeal and regardingbreach of bipartite order of injunction passedduring the appeal. The order holding theappellants guilty of breach of injunction anddirecting restoration of possession was anorder passed by the learned single Judge inexercise of appellate powers. The powers oforiginal Court can be exercised by the appellate Court by virtue of its appellate powers. It cannot, therefore, be held that as andwhen appellate Court exercises powers avail-able also to the original Court, the powerexercised in appeal is a power exercised inoriginal proceedings so as to hold intra-courtappeal under LPA maintainable. '
16. The decisions of the Division Bench of this Court (supra) relied on behalf of the respondents fully support the preliminary objection.
17. The Division Bench decision in the case of Shantilal Chandrashanker : AIR1976Guj1 (supra) on which strong reliance has been placed by the learned counsel for the appellants for contending that LPA lies, was a case which arose from an order passed under Order 41. Rule 11 (1) of the Code, whereby the appeal was dismissed for default for appearance of the appellants. The Division Bench came to the conclusion that where the appellant or his counsel is absent, the appeal could have been dismissed in default and not on merits. The subsequent application made by the appellants should, therefore, be treated as application for restoration and re-admission of the appeal under Order 41. Rule 11 which was liable to be allowed. It appears from the judgment in the case of Shantilal, : AIR1976Guj1 (supra) that question of maintainability of LPA was not directly raised and, therefore, the following observations cannot be held to be taking a decision which is binding as precedent (para 13) :
'We had asked Mr. R. K. Abichandani to appear as an Amicus Curlae and to help us by looking up the authorities and we express our appreciation and our gratitude to him for the help that he has rendered. He pointed out that it is possible to take the view that the present Letters Patent Appeal may not be maintainable but the order under appeal finally disposes of the rights of the partiesand is really an order on an original proceedings before D. P. Desai, J. namely, on an application for restoration and hence the Letters Patent Appeal would lie and is maintainable and it is, therefore, on this footing that we have proceeded to deal with this Letters Patent Appeal.'
From the above observations and contents of the judgment, it is clear that against dismissal of the appeal in default of appearance of the appellant or his counsel and not on merits. LPA was preferred in which other side was not represented. Mr. R. K. Abichandani (as he then was) was appointed as counsel to act as Amicus Curiae. The question of maintainability of appeal was not raised and came up for consideration only Incidentally and, therefore, the Division Bench expressed the view as quoted above. That was also a case where final order came to be passed of dismissing appeal in default which was held to be appealable. In the present case, the order under consideration has been passed on allegation of breach of injunction for restoration of property to the plaintiff In the course of appeal under Order 43, Rule 1. CPC. The order impugned In this LPA is, therefore, not a final order determining finally the rights of the parties.
18. So far as other decision relied on behalf of the appellants in the case of Mohmed Usuf v. Mohmadbhai Karimbhai (1997) 2 Guj LH (UJ) 20 (supra) is concerned, the same arose out of an order by which revision under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act. 1947 came to be dismissed for default of appearance of parties or their counsel, application filed under the provisions of Order 9, Rule 9 was also rejected. Learned Judges of the Division Bench relying on the decision of the Bombay High Court in : AIR1950Bom355 (Mohanlal v. Bombay Life Assurance Co.) and Calcutta High Court in : AIR1974Cal331 (Gourlal v. Hara Sundari), came to the conclusion that the order passed on application under Order 9. Rule 9 by the single Judge is judgment within the meaning of Letters Patent and LPA would be competent.With utmost respect to the learned Judges of the Division Bench of this Court, they failed to notice that in the Bombay case, the order in appeal was passed on the original side by the learned single Judge of that Court by dismissing application under Order 9, Rule 8 and 9 of the Code. It wasthus an order which was judgment of the single Judge in original proceedings. Hence, LPA was clearly maintainable. Similarly, Calcutta case in : AIR1974Cal331 (supra) was also a case from an order on application under Order 9. Rule 3 and 4 of the Code passed by the learned single Judge of that Court. In Bombay and Calcutta High Court cases, orders subjected to LPA were all passed under Order 9 of the Code in original proceedings before the learned Judges of those High Courts. This distinction was not noticed by the Division Bench in the case of Mohmed Usuf, (1997 (2) Guj LH (UJ) 20) (supra).
19. It may be mentioned that the decision of Bombay and Calcutta High Courts taking a view that a final order of a single Judge of the High Court exercising powers under the CPC on original side of the High Court is appealable to Division Bench under Clause 15 of the Letters Patent to the said High Courts is supported by the decision of the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D. Kania. AIR 1981 SC 1786. The Supreme Court resolved the cleavage in opinions expressed by the different High Courts on the question whether the provisions of Section 104 of the Code read with Order 43, Rule 1 of the Code are applicable to the internal appeals provided by the Letters Patent of the High Court. After a detailed discussion of the provisions of the Code in various decisions of the High Courts, in the case of Shah Babulal Khimji : 1SCR187 (supra). Supreme Court came to the conclusion :
'Although the Letters Patent is a special law certain provisions of the Code of Civil Procedure in the matter of procedure do apply to appeals against the decision of a trial judge to a larger Bench i.e. to 'internal appeals'.
A combined reading of the provisions of Sections 4, 5, 104 and Order 49 Rule 3 of CPC leads to the Irresistible conclusion that Section 104 read with Order 43, Rule 1 clearly applies to the proceedings before the trial Judge of the High Court. There is no inconsistency between the letters patent jurisdiction and Section 104 read with Order 43, Rule 1 of the Code.'
The Bombay : AIR1950Bom355 and Calcutta : AIR1974Cal331 High Courts decisions (supra) thus consistently with the view taken by the Supreme Court in the case of Shah Babulal Khimji. : 1SCR187 (supra), have held that a final order passed by a single Judge of the High Court on original side Is a 'judgment' within the meaning of the Letters Patent and an appeal lies against the said judgment Under Clause 15 of the Letters Patent to the Division Bench of the same High Court in accordance with the provisions of Order 43, Rule 1 read with Sec. 104 of the Code. The decision of the Division Bench (coram : C. K. Thakker, J (as he then was) and R. M. Doshit, J.) clearly appears to have been rendered by not noticing that the decisions of the Bombay and Calcutta High Courts, on which the Bench placed reliance on the question of mantainability of appeal were based on the orders made by single Judges of those High Courts on the original side to the Division Bench of the same High Courts under their Letters Patent. The above discussion thus makes the decision of the Division Bench of this Court (coram : C. K. Thakker. J. (as he then was) and R. M. Doshtt, J.) distinguishable and per incuriam. There was no contest in that case. The mere submission of the counsel of the appellant and the case relied on by him were accepted on the question of maintainability of the appeal without examining the ratio in Bombay and Calcutta High Courts decisions (supra).
19A. The earlier Division Bench decisions in the case of Jayant Vrajlal : AIR1986Guj10 (supra), Babulal J. Patel, : (1993)2GLR1312 (supra) and J. J. Desai. : AIR2000Guj139 (supra) were neither cited nor noticed by the Division Bench. In the unre-ported judgment in the case of Mohmed Usuf. (1997 (2) Guj LH (UJ) 20) (supra) on which strong elince has been placed by the learned counsel for the appellants, it appears that question of maintainability of appeal was raised by the Court itself and it was decided on the submissions made by the learned counsel for the appellant. There were no arguments on that question in the absence of any opposite party.
20. For the detailed discussion aforesaid, we uphold the preliminary objection raised by the respondents and hold that LPA against the impugned order is not maintainable. Consequently, the same is dismissed.
After pronouncement of the above order the learned counsel for the appellant made a request for extending the period of stay granted by the learned single Judge.
This prayer is opposed by the learned counsel for the respondents. The stay granted by the learned single Judge was only up to 30th September 2001. Neither in equity nor in law, according to us, the appellant is entitled for any further indulgence. Prayer is rejected.