Judgement

JAGANMOHAN REDDY, J.:- The question in this appeal by certificate is whether a Bench of the High Court of Patna in an appeal from the judgment of a Single Judge of that Court in a first appeal can consider all matters which a Single Judge could have decided and is not limited by the restrictions imposed by Section 100 of the Code of Civil Procedure.

2. A few facts may be stated in order to better comprehend the question posed before us. The plaintiff/appellant filed a money suit against the defendant for recovery of Rs.7,865/7/- due from him on account of sale of grains and Rs.1,512/9/- as interest. The defendant admitted the purchase of grain from the appellant but denied stipulation of interest. The case of the defendant was that he had borrowed Rs.6,000/- from the plaintiff for the marriage of the grand-daughter at the rate of 12 annas per hundred per month. The Trial Court, after considering the evidence, decreed the suit. In a first appeal to the High Court, the Single Judge allowed it and reversed the judgment and decree of the Trial Court. In the judgment it was observed:

(a) "The court below seems to have been influenced by the statement of the defendant in paragraph 5 of the written statement where he averred that the plaintiff. But this statement is of no consequence".

(b) "The non-examination of the defendant and non-production of the account books were immaterial".

(c) "The three witnesses examined on her (appellant) behalf have been found to be unreliable. She has adduced no other, evidence in support of the claim".

Against this judgment of the Single Judge the plaintiff preferred a Letters Patent Appeal; In view of a sharp conflict of decisions on the scope of cl.10 of the Letters Patent of the Patna High Court, the question earier set out was referred to a Full Bench. In the Full Bench, two Judges Narasimham, C.J., and R.K. Choudhary, J., took the view that the findings of fact by the Single Judge are binding on them and they cannot go into those questions in a Letters Patent appeal. In this view they followed Ramsarup Singh v. Muneshwar Singh, AIR 1964 Pat 76 as laying down the correct law. The view taken in the Division Bench case of Jugal Kishore Bhadari v. Union of India, 1965 BLJR 24 to the contra was held to be too wide. U. N. Sinha, J., gave a dissenting judgment, the view taken by him is, however, consistent with the consensus of opinion of the other High Courts as also of this Court which unfortunately was not brought to the notice of the learned Judges of the Patna High Court probably because it does not seem to have caught the eye of any of the law reporters. Clause 10 of the Letters Patent of the Patna High Court is analogous to clause 15 of other Chartered High Courts namely Calcutta, Madras, Bombay or clause 10 of the Allahabad High Court. There is no dispute that an appeal lies to a Division Bench of the High Court from the judgment of a Single Judge of that Court in appeal from a judgment and decree of a court subject to the superintendence of the High Court, the only question is whether the power of a Division Bench hearing a Letters Patent Appeal under clause 10 of the Letters patent of Patna High Court or its analogous provisions in the Letters Patent of other High Courts is limited only to a question of law under Section 100 of the Code of Civil Procedure or has it the same power which the Single Judge has as a first Appellate Court in respect of both questions of fact and of law. The limitations on the power of the Court imposed by Ss.100 and 101 of the Code of Civil Procedure cannot be made applicable to an Appellate Court hearing a Letters Patent Appeal from the judgment of a single Judge of that High Court in a first appeal from the judgment and decree of the court subordinate to the High Court for the simple reason that a Single Judge of the High Court is not a Court subordinate to the High Court. This Court in Ladli Prasad v. Karnal Distillery Co. Ltd., (1964) 1 SCR 270 had occasion