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State of H.P. and anr. Vs. Ajit Kumar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 24 of 1974
Judge
Reported inAIR1976HP61
ActsConstitution of India - Article 226; ;Delhi High Court Act, 1966 - Section 10; ;Code of Civil Procedure (CPC) , 1908 - Section 141 - Order 47, Rule 1; ;Delhi High Court Act, 1966 - Section 10; ;Delhi High Court (Original Side) Rules, 1967 - Rule 19
AppellantState of H.P. and anr.
RespondentAjit Kumar
Appellant AdvocateAdv. General
Respondent Advocate S. Malhotra, Adv.
DispositionAppeal dismissed
Cases Referred and Shanti Kumar v. Home Insurance Co. New York
Excerpt:
- .....the learned advocate general representing the appellant sought for the aid of section 10 of the delhi high court act, 1966 inasmuch as he attempted to discover a right of appeal within that provision. in sub-section (1) of section 10 the language used is 'exercises ordinary original civil jurisdiction conferred by sub-section (2) of section 5' which is obviously not the case in the present situation. the learned single judge has not exercised ordinary original civil jurisdiction conferred by sub-section (2) of section 5 of the delhi high court act, 1966. a reading of sub-section (2) of section 5 makes it clear that the ordinary original civil jurisdiction has to relate to a suit the value of which exceeds rs. 50,000/-. the learned single judge has rather entertained a civil writ.....
Judgment:

D.B. Lal, J.

1. Shri Ajit Kumar filed Civil Writ Petition No. Ill of 1974, wherein he sought for the quashing of the impugned orders, Annexures 'G' and 'J' to the petition whereby he was reverted from the post of Deputy General Manager (Works) in the Transport Department His case was, that he was appointed Deputy General Manager (Works) in the vacancy caused by the transfer of one Shri I. C. Mahajan to the Government of India. According to petitioner, his appointment was on probation for a period of two years and as such could not be held ad hoc. The appointment was also made on the recommendation of the Public Service Commission. Subsequently Shri I. C. Mahajan returned from the Government of India and as a result to that Shri Ajit Kumar was reverted by notification Annexure 'G' dated November 7, 1973. Subsequently he was appointed officiating Deputy General Manager in the Himachal Pradesh Agro Industries Corporation but from that post also he was reverted vide Annexure 'J' in April 1974. The petitioner sought to impugn these two reversion orders.

2. The learned single Judge before whom the writ petition was set down for hearing was asked to make an order slaying the operation of the two annexures 'G' and 'J' so that the reversion of the petitioner is not made from the post of the Deputy General Manager (Works). The learned single Judge at first granted interim stay of the reversion orders and thereafter made the interim stay absolute. Against that order the present Letters Patent Appeal has been filed before this Division Bench.

3. A preliminary objection has been taken by the learned counsel for the respondent Ajit Kumar that no appeal lies before the Division Bench under Clause 10 of the Letters Patent as the decision of the learned single Judge cannot be construed a 'Judgment' within the meaning of that clause.

4. The learned Advocate General representing the appellant sought for the aid of Section 10 of the Delhi High Court Act, 1966 inasmuch as he attempted to discover a right of appeal within that provision. In Sub-section (1) of Section 10 the language used is 'exercises ordinary original civil jurisdiction conferred by Sub-section (2) of Section 5' which is obviously not the case in the present situation. The learned single Judge has not exercised ordinary original civil jurisdiction conferred by Sub-section (2) of Section 5 of the Delhi High Court Act, 1966. A reading of Sub-section (2) of Section 5 makes it clear that the ordinary original civil jurisdiction has to relate to a suit the value of which exceeds Rs. 50,000/-. The learned single Judge has rather entertained a civil writ petition which is by way of extraordinary civil jurisdiction exercised by him. It is certainly not the jurisdiction exercised within the meaning of Sub-section (2) of Section 5 of that Act. Therefore, Section 10 (1) is not per se applicable. That apart, the said provision only prescribes a forum and not a right of appeal. In University of Delhi v. Hufiz Mohd. (AIR 1972 Delhi 102) a Full Bench of that Court was considering Section 10 (1) and held that the said section provides for forum of appeal. Their Lordships were considering Rule 19 of the Delhi High Court (Original Side) Rules, 1967 and Order 43 Rule 1 of the Code of Civil Procedure and observed that these provisions indicate the orders which were appealable. Therefore, Section 10 (1) was contradistinguished from Rule 19 and Order 43 Rule 1 and it was held that the section provided only for forum and not for right of appeal. It cannot be disputed that right of appeal is a substantive right which can only be inferred from a provision relating thereto. As far back as in Minakshi Naidu and Subramanya Sastri ((1888) ILR 11 Mad 26) the Privy Council held that it is not to be assumed that there is a right of appeal in every matter which comes under the consideration of a Judge; such right must be given by the enacted law, or equivalent authority. The view was reiterated in Gaja v. Mohd. Farukh (AIR 1961 All 561) and it was held that an appeal is a substantive right and not a mere matter of procedure and unless it is conferred by a statutory provision a right of appeal cannot be stated to exist. Therefore, the learned Advocate General cannot lake assistance of Section 10 (1) by assuming that a right of appeal is conferred by that provision. This is in addition to the objection that Section 10 (1) in terms does not apply to a right of appeal against an order passed by a single Judge while exercising writ jurisdiction.

5. The appellant referred to Section 141 of the Code of Civil Procedure and Rule 19, Chapter I of the Delhi High Court (Original Side) Rules, 1967. Both these provisions applied the procedure of the Code in regard to all proceedings in any Court of civil jurisdiction. Rule 19 made particular reference to the proceedings on original side in Delhi High Court. An argument was founded that an order in the nature of interim injunction granted by the learned single Judge was an order appealable under Order 43 Rule 1 of the Code of Civil Procedure and since the provision of the Code is applicable in writ jurisdiction a right of appeal shall accrue against that order. A reading of Section 141 makes it clear that only provisions as to procedure apply to all proceedings in any Court of civil jurisdiction. There may not be any dispute to hold that while exercising writ jurisdiction the Court engages in a proceeding of civil jurisdiction. In that connection reference can be made to Krishualal Sadhu v. State of West Bengal (AIR 1967 Cal 275); Asst. District Panchayat Officer Rae Bareli v. Jai Narain Pradhan (AIR 1967 All 334); Mall Singh v. Smt. Laksha Kumari Khaitan (1968 All LJ 210) and Lalman Gupta v. State of U. P., Lucknow (1970 All LJ 1379). But the argument still remains that only provisions regarding procedure as contained in the Code shall apply to a proceeding under writ jurisdiction. A right of appeal being a substantive right cannot be held to be a matter of procedure. For a similar reason Rule 19 of the Delhi High Court (Original Side) Rules, 1967 will not apply although it talks of the provisions of the Code of Civil Procedure but then it refers to all proceedings on the original side. In other words Rule 19 is meant for jurisdiction to be exercised under Section 5 (2) of the Delhi High Court Act, 1966. The learned single Judge in the instant case never exercised that category of jurisdiction- This being the position Rule 19 of the Delhi High Court (Original Side) Rules, 1967 will not be of any help to the appellant.

6. The learned Advocate General then called for his assistance Clause 10 of the Letters Patent but for that he has to show that the order of the learned single Judge is a 'judgment'. In the University of Delhi (AIR 1972 Delhi 102) (FB) (supra) the Full Bench of Delhi High Court was faced to interpret the expression 'judgment' although with reference to Section 10 (1) of the Delhi High Court Act, 1966. Their Lordships showed inability and in ultimate analysis held that the facts and circumstances in each case shall determine as to whether the order made by the Court is a 'judgment' within the meaning of Section 10 (1). The controversy is raging right from (1872) 8 Beng LR 433 (Justices of the Peace for Calcutta v. Oriental Gas Co.). Their Lordships referred to (1912) ILR 35 Mad 1, AIR 1935 Rang 267 (FB). AIR 1952 Nag 357 (FB). AIR 1954 Mad 1057 (FB), AIR 1953 SC 198 and finally AIR 1963 SC 946. According to their Lordships right up to 1966 when the Delhi High Court Act was passed there was no authoritative pronouncement or precise definition of the term 'judgment' in the Letters Patent. In Standard Glass Beads Factory v. Shri Dhar, (AIR 1960 All 692) a Full Bench of that Court was considering the meaning of 'judgment' in Clause 10 of the Letters Patent, In that case a learned single Judge of the High Court dismissed an appeal against an order of a subordinate court granting an interim injunction. I was held that the order finally determined the right of a party to a specific temporary relief.

As such it was held to be a 'judgment'. Their Lordships divided 'judgment' in three categories 'final judgment', 'preliminary judgment' and an 'interlocutory judgment'. It was held that the order was at any rate, interlocutory judgment and as such appealable under Clause 10 of the Letters Patent. But since then in Shanti Kumar v. Home Insurance Co. of New York (AIR 1974 SC 1719} the Supreme Court considered the meaning of 'judgment' under Clause 15 of the Bombay Letters Patent and laid down certain tests which in my opinion need be applied in the present case. In finding out whether the order is a 'judgment' within Clause 15, observed their Lordships, it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. Their Lordships further held that the right or liability is to be found out by the Court. The nature of thy order will have to be examined in order to ascertain whether there has been a determination of any right or liability. In the present case their has neither been a decision of the action on merit nor determination of some right or liability. The case for interim relief in favour of Ajit Kumar has been ascertained, prima facie, and that would not be determination of merit of the action. Although he has been granted a temporary relief, yet determination of some right or liability qua Ajit Kumar or the State has not taken place. Therefore, applying the tests laid down by the Supreme Court the order appealed against cannot be considered 'judgment' within Clause 10 of the Letters Patent. There can be no dispute that Section 10 (2) of the Delhi High Court Act, 1966 affords ample protection to Clause 10 of the Lahore High Court which became applicable to Delhi High Court and is now applicable to Himachal Pradesh High Court. If authority is needed, reference can be made to Ashok Kumar v. Administrator Himachal Pradesh (1968 Delhi LT 82). Therefore, Clause 10 of the Letters Patent is the only relevant provision under which an appeal could be filed. The order, of the learned single Judge does not amount to 'judgment' within the meaning of that clause. As such the appeal is not maintainable.

7. In fact the present dispute is a covered matter so far as this Court is concerned. A Division Bench of this Court has held in Dharam Vir Puri v. State of H. P. (ILR (1972) Him Pra 301) that no appeal lies from an order of a learned single Judge vacating the interim order maintaining the status quo which in other words is nothing but an order refusing temporary injunction. A Full Bench decision of Delhi High Court Begum Aftab Zamani v. Lal Chand Khanna (1969 Delhi LT 15) = (AIR 1969 Delhi 85) (FB) was referred to and it was held that the order never amounted to 'judgment' within the meaning of Clause 10. In my opinion, therefore, the decision in Dharam Vir Puri (supra) applies and so far as this Court is concerned it has been decided that no appeal lies against the impugned order.

8. The learned Advocate General also contended that the petition for appeal can be considered a review under Order 47 Rule 1. But the difficulty is that a review petition is required to be filed in a prescribed manner and the provisions of the High Court Rules and Orders have not been followed and besides all that, the review petition is maintainable before the very same Judge who has made the order. Therefore, the petition of appeal cannot be converted into a petition of review and no relief can be granted to the State on that ground.

9. It was also contended by the respondent that the required copies of the documents were not filed along with the appeal and as such Rule 3 of Fart C Chapter 2-C, Volume V of the Rules and Orders of the Punjab High Court was not complied with. On the basis of Bikram Dass v. Financial Commissioner, Revenue, Punjab, Chandigarh (AIR 1975 Punj and Har 1 (FB)) it was contended that the appeal is not maintainable as a mandatory provision has been disregarded. But in that very decision it was held that the delay can be condoned under Section 5 of the Limitation Act. The learned Advocate General has filed an application under Section 5 of the Limitation Act and on the basis of the averments made the delay, if any, in filing the appeal can be condoned. Moreover, it is not even necessary to decide as to whether the afore-mentioned rule is mandatory or as to whether the appeal will be incompetent as the required documents were not filed along with it. As the appeal is being dismissed on another ground, it may not be necessary to decide this point of dispute.

10. It was also contended on behalf of the respondent that necessary parties were not made parties in the appeal and as such the appeal has to fail on that ground. It is, however, not pointed out as to which party was left out and could be considered necessary for entertaining the appeal. As such this plea is not substantiated.

11. In view of what I have stated above, the present appeal is not maintainable and the same is rejected. No order is made as to costs.

R.S. Pathak, C.J.

12. I have perused the judgment of D. B. Lal, J. whileagreeing with him that the present appeal is not maintainable I am unable, with respect to subscribe to all the reasons on which he has based his judgment. I shall set out the reasons which have prevailed with me.

13. The question whether this appeal is maintainable can be disposed of shortly.

14. The learned Advocate General says that the appeal lies under Section 10 (1) of the Delhi High Court Act. Section 10 (1) does not apply because it contemplates an appeal from the judgment of a single Judge exercising the ordinary original civil jurisdiction conferred by Section 5 (2) of the Act. In Asa Singh Kochhar v. Darshan Singh Koch-bar FAO No. 32 of 1974 (Him Pra) I have taken the view that while Section 10 (1) provides a right of appeal as well as the forum of appeal, the appeal must be from a 'judgment' in the sense of that expression in Clause 10 of the Letters Patent, that is to say it must be a decree disposing of a suit or an order which has the effect of determining any rights in controversy between the parties. Asrumati Debi v. Kumar Rnpendra Deb, (AIR 1953 SC 398) and Shanti Kumar v. Home Insurance Co. New York AIR 1974 SC 1719. The interim order made by the learned Single Judge against which the present appeal has been preferred does not dispose of the suit and cannot be said to determine any rights in controversy between the parties. By such an order the Court merely provided for a temporary equilibrium between the parties pending the determination of the respondent's rights in controversy in the writ petition. Besides, Section 10 (1) of the Delhi High Court Act can be availed of, as its language indicates only where a single Judge has exercised the jurisdiction conferred by Section 5 (2). That jurisdiction is a jurisdiction enacted by statute. It is not the constitutional jurisdiction conferred by Article 226 of the Constituion which [has been invoked by the respondent.

15. In the alternative, reliance was placed by the learned Advocate General on Clause 10 of the Letters Patent, but inasmuch as the expression 'judgment' in that clause means what it does as mentioned above, no assistance can be derived by him from that provision.

16. The learned Advocate General then rests this appeal on Section 141 of the Code of Civil Procedure and also relies on Rule 19 of Chapter I of the Delhi High Court (Original Side) Rules, 1967. I may reiterate what I have already said in Asa Singh Kochar (supra) (FAO No. 32 of 1974 (Him Pra)) that neither Section 141 of the Code nor Rule 19 of the aforesaid Rules relate to anything more than the practice and procedure of the court. They cannot be employed for spelling out a substantive right of appeal.

17. It is also not possible to accept the contention of the learned Advocate General that the present appeal should be treated as a review application. The principles applicable to the exercise of that jurisdiction are well settled. If the appellant intended to apply for review of the interim order, that application should have been made to the learned single Judge who passed that order.

18. I am clearly of the opinion that the present appeal is incompetent.

19. The appeal is rejected, but in the circumstances, there is no order as to costs.


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