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Ghulam Mohammad Wani Vs. Shyam Sunder Mirza - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberLetters Patent Appeal No. 4 of 1982
Judge
Reported inAIR1983J& K16
ActsCode of Civil Procedure (CPC) , 1908 - Section 115
AppellantGhulam Mohammad Wani
RespondentShyam Sunder Mirza
Advocates: K.N. Raina and; Abdul Qayoom, Advs.
DispositionAppeal dismissed
Cases ReferredKishan Chand v. Tej Ram
Excerpt:
- .....his contention, however, is that the order could have been and has in reality been passed by the learned judge in exercise of his appellate jurisdiction alone, in that, he has modified the award in exercise of his appellate powers under section 39 of the arbitration act. the order having been in reality passed by him on first appeal and which ought to have been passed by him under section 39 alone, an appeal against it was clearly maintainable under clause 12.2. right of appeal is determined by what the court against whose order the appeal is filed purported to do and not by what it should have done. even assuming that the order under appeal could or ought to have been passed by the learned judge in exercise of his appellate jurisdiction, no appeal against the same would still be.....
Judgment:

1. This appeal under the Letters Patent is directed against an order of the learned Acting Chief Justice purported to have been passed by him in exercise of his revisional jurisdiction. The proposition that no appeal under Clause 12 of the Letters Patent lies against an order passed by a single Judge of the High Court in exercise of his revisional jurisdiction, has not been disputed by Mr. Raina. His contention, however, is that the order could have been and has in reality been passed by the learned Judge in exercise of his appellate jurisdiction alone, in that, he has modified the award in exercise of his appellate powers Under Section 39 of the Arbitration Act. The order having been in reality passed by him on first appeal and which ought to have been passed by him under Section 39 alone, an appeal against it was clearly maintainable under Clause 12.

2. Right of appeal is determined by what the court against whose order the appeal is filed purported to do and not by what it should have done. Even assuming that the order under appeal could or ought to have been passed by the learned Judge in exercise of his appellate jurisdiction, no appeal against the same would still be competent in terms of Clause 12, once it is shown that he purported to pass the order in exercise of his revisional jurisdiction. Relying upon a single Bench decision of the Lahore High Court in Gopal Singh v. Mangal Singh. AIR 1928 Lah 341, a similar view had been taken by a Division Bench of this court in Kishan Chand v. Tej Ram, 1977 Kash LJ 158 : (AIR 1978 J & K 9). We, therefore, dismiss this appeal in limine.


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