2000 Supreme(Cal) 262

High Court of Calcutta Special Bench
S.B. Sinha, M.H.S. Ansari & S.N. Bhattacharjee, JJ.
M/s. Tanusree Art Printers & Anr.
Vs.
Rabindra Nath Pal
GA No. 3296 of 1998, APOT No. 659 of 1998, T. No. 990 of 1998, GA No. 2199 of 1996, GA. No. 2379 of 1996, Suit No. C.S. 141 of 1996
Decided on : 18th May, 2000

Headnote:

LETTERS PATENT APPEAL - MAINTAINABILITY - ORDER 37 RULE 5 OF CODE OF CIVIL PROCEDURE - CONDITIONAL LEAVE TO DEFEND SUIT - APPEALABILITY - LETTERS PATENT OF CALCUTTA HIGH COURT, CLAUSE 15 - INTERPRETATION - SCOPE AND APPLICABILITY OF SECTION 104 OF CODE OF CIVIL PROCEDURE AND ORDER 43 RULE 1 OF CODE OF CIVIL PROCEDURE - DISTINCTION BETWEEN ORIGINAL AND APPELLATE JURISDICTION OF HIGH COURT - RELATIONSHIP BETWEEN LETTERS PATENT AND CODE OF CIVIL PROCEDURE - EFFECT OF AMENDMENT OF CODE OF CIVIL PROCEDURE IN 1976 - RATIO DECIDENDI OF SUPREME COURT IN SHAH BABULAL KHIJI VS. JAYABEN D. KANIA & ANR. (1981) 4 SCC 8 - RELEVANCE AND APPLICABILITY.

Fact of the Case:

The appellants had purchased goods from respondents on diverse dates and sought to pay therefor by account payee cheques drawn in plaintiffs favour which were dishonored by the Banks on the grounds; "Refer to drawer", "Insufficient Fund", "Payment stopped by the drawer". The plaintiff, therefore, filed a suit for recovery of a sum of Rs.11,57,872.80 p which became payable to him towards the price of goods sold keeping in view the dishonoured cheques together with interest. The plaint was filed in terms of Order 37 of the Code of Civil Procedure. The plaintiff took out an application for attachment before judgment. He also filed a separate application for grant of injunction and by an order dated 18.7.96 an order of injunction was issued restraining the appellants from dealing with or disposing of their properties. The appellant upon entering appearance filed an application for leave of the Court to defend the suit. The application for attachment before judgment was disposed of an 6th August, 1996 whereupon a direction was issued upon the appellant to furnish security of Rs.4,00,000/-. The appellant subsequently filed an application for recalling the said order which was dismissed. As against the said order an appeal was preferred and a Division Bench of this Court set aside the order of the trial Judge and remitted the matter back to it with a direction to hear out the matter afresh and dispose of the same with a reasoned order. By reason of the judgment under appeal, the learned trial Judge directed the appellant to furnish security of Rs.5,00,000/- by way of bank guarantee or immovable properties within four weeks from the date of the said order and, thus, granted conditional leave to the appellant herein in terms of Order 37 Rule 5 of the Code of Civil Procedure.

Finding of the Court:

The appeal is maintainable against the impugned order under Clause 15 of the Letters Patent of this Court. Letters Patent would be a law for the time being in force within the meaning of the said provision and the same would prevail over section 104 of the Code of Civil Procedure. An appeal would be maintainable from an order which is not provided for under Order 43 Rule 1 of the Code of Civil Procedure.

Issues: 1. Whether an appeal is maintainable against the impugned order under Clause 15 of the Letters Patent of this Court? 2. Whether Letters Patent would be a law for the time being in force within the meaning of the said provision and if so whether the same would prevail over section 104 of the Code of Civil Procedure? 3. Whether keeping in view the phraseology, 'no other orders' an appeal would be maintainable from an order which is not provided for under Order 43 Rule 1 of the Code of Civil Procedure?

Ratio Decidendi: 1. Section 104 of the Code of Civil Procedure read with Order 43 Rule 1 expressly authorises a forum of appeal against orders falling under various clauses of Order 43 Rule 1 to a Larger Bench of a High Court without at all disturbing interference with or overriding the Letters Patent jurisdiction. 2. Having regard to the provisions of section 117 and Order 49 Rule 3 of the Code of Civil Procedure which excludes various other provisions from the jurisdiction of the High Court, it does not exclude Order 43 Rule 1 of the Code of Civil Procedure. 3. There is no inconsistency between section 104 read with Order 43 Rule 1 and the appeals under Letters Patent, as Letters Patent in any way does not exclude or override the application under section 104 read with Order 43 Rule 1 which shows that those provisions would not apply in internal appeals within the High Court.

Final Decision: Appeal dismissed.