Back
High Court Of Calcutta
S. B. SINHA, MAHEMMAD HABEEB SHAMS ANSARI, S. N. BHATTACHARJEE
TANUSREE ART PRINTERS - Appellant
Versus
RABINDRA NATH PAL - Respondent
G. A. 3296 Of 1998
Decided On : 05/18/2000
LETTERS PATENT - APPEAL - MAINTAINABILITY - ORDER 37 RULE 5 - JUDGMENTS - DEFINITION - LETTERS PATENT, CLAUSE 15 - INTERPRETATION - CODE OF CIVIL PROCEDURE, 1908 - SECTIONS 4, 104 - INTERPRETATION.
Fact of the Case:
The instant case arose from a reference made to a Special Bench to consider the correctness of a Division Bench judgment holding that an appeal against an order of a single Judge of the High Court granting conditional leave to defend a suit under Order 37 Rule 5 of the Code of Civil Procedure (CPC) was not maintainable under Clause 15 of the Letters Patent. The Division Bench had followed earlier decisions holding that such an order was not appealable because it did not necessarily mean that the plaintiff would succeed in the suit.
Finding of the Court:
The Special Bench, upon considering the provisions of the Letters Patent, the CPC, and relevant Supreme Court judgments, held that an appeal against an order of a single Judge refusing leave to defend or granting conditional leave to defend under Order 37 Rule 5 was maintainable under Clause 15 of the Letters Patent. The Court reasoned that such an order was a 'judgment' within the meaning of Clause 15, and that section 104(1) of the CPC, which provides for appeals against certain orders, did not constitute a bar or otherwise curtail the right of appeal conferred on an aggrieved litigant under Clause 15.
Issues: 1. Whether an appeal against an order of a single Judge refusing leave to defend or granting conditional leave to defend under Order 37 Rule 5 is maintainable under Clause 15 of the Letters Patent? 2. Whether section 104(1) of the CPC constitutes a bar or otherwise curtails the right of appeal conferred on an aggrieved litigant under Clause 15 of the Letters Patent?
Ratio Decidendi: 1. Clause 15 of the Letters Patent provides for an appeal to the High Court from the judgment of a single Judge, except in certain specified cases. 2. An order refusing leave to defend or granting conditional leave to defend under Order 37 Rule 5 is a 'judgment' within the meaning of Clause 15 of the Letters Patent. 3. Section 104(1) of the CPC provides for appeals against certain orders, but it does not constitute a bar or otherwise curtail the right of appeal conferred on an aggrieved litigant under Clause 15 of the Letters Patent. 4. Section 4 of the CPC preserves any special or local law in force, and Clause 15 of the Letters Patent is a special law within the meaning of section 4. 5. The right of appeal under Clause 15 of the Letters Patent is in no way curtailed or affected by section 104 of the CPC.
Final Decision: The Special Bench answered the reference accordingly, holding that the appeal in the instant case was maintainable under Clause 15 of the Letters Patent.
( 1 ) -I had the benefit of reading the judgment of my learned Brother Sinha, J. In agreeing with the conclusions to the effect that the appeal in the instant case is maintainable under Clause 15 of the Letters Patent, I wish to state my own reasons therefor, as under:
( 2 ) THE matter has been referred to the Special Bench for considering the correctness of the Division Bench Judgment of this Court in M/s. Merchants of Traders (P) Ltd. v. M/s. Sarmon Pvt. Ltd. , reported in (1997)2 CAL LT 38 (HC ). By the said judgment, the Division Bench held that the appeal preferred against an order of a learned single Judge of this High Court is not maintainable under Clause 15 of the Letters Patent. The learned single Judge by his order under appeal before the said Division Bench had granted conditional leave to defend the suit in terms of Order 37 Rule 5 of the Code of Civil Procedure. In coming to the said conclusion, the Division Bench had followed the ratio of the earlier Division Bench Judgments in Hiralal Deb Gupta v. Salil Kumar Paul, reported in AIR 1973 Cal 320 and Bonwarilal Roy v. Sohanlal Daga, reported in ILR (1955)1 299. The ratio of those two earlier decision was that the order was not appealable because by refusing leave to defend or by granting conditional leave to defend under Order 37, it did not necessarily mean that the plaintiff would succeed in the suit. Order 37 as it stood then envisaged a decree being passed subsequently.
( 3 ) THE latter Division Bench presided over by Ruma Pal, J. (As Lordship then was) noticed the amendment to Order 37 by the amendment of the Code of Civil Procedure on 1976 and was of the view that the said two decision in (1) Hiralal Deb Gupta and (2) Bonwarilal Roy (supra) can no longer said to be applicable to Order 37 as it stands after the amendment. The Division Bench was also of the opinion that by virtue of the decision of the Supreme Court in Shah Babu Lal Khimji v. Jayaben D. Kania and Anr. , reported in AIR 1981 SC 1786 wherein it was observed as follows;"where the trial Judge in a suit under Order 37 of the Code of Civil Procedure refused the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a Larger Bench. "an order refusing leave to defend or granting conditional leave to defend is appealable under Clause 15 of the Letters Patent. Since a contrary view has been taken by the another Division Bench in Hiralal Deb Gupta (supra), the matter has been referred to a Larger Bench.
( 4 ) THE only question for consideration before this Bench, therefore, is as to the correctness of the judgment of the Division Bench in Hiralal Deb Gupta (supra) wherein, it was held that an appeal against an order refusing leave to defend or granting such leave conditionally under Order 37 Rule 5 is not appealable.
( 5 ) THE answer to the said question posed before us would depend upon the question whether an appeal against an order of a learned single Judge of this Court is maintainable under Clause 15 of the Letters Patent of this High Court, despite there being no appeal provided against such order under Order 43 Rule 1 of the Code of Civil Procedure read with section 104 of the Code.
( 6 ) THE objection to the maintainability of such appeal is founded on the ground that under section 104 read with Order 43 Rule 1 and the Clauses thereunder, no appeal has been provided against an order passed by a learned single Judge under Order 37 Rule 5. In other words, the contention against maintainability of such appeal is that section 104 of the Code creates a bar to entertaining such appeals. Sustena
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
