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High Court Of Madhya Pradesh
FAIZAN UDDIN , S. K. CHAWLA
B.S.ADITYAN - Appellant
Versus
FENCING ASSOCIATION OF INDIA, JABALPUR - Respondents
L. P. A. 19 Of 1990
Decided On : 09/07/1990
LETTERS PATENT APPEAL - INJUNCTION - MAINTAINABILITY - LETTERS PATENT APPEAL AGAINST APPELLATE ORDER OF SINGLE JUDGE IN APPEAL UNDER O. 43, R. 1 OF THE CODE OF CIVIL PROCEDURE - BAR UNDER S. 104 (2) OF THE CODE OF CIVIL PROCEDURE - COMPETENCE OF LETTERS PATENT APPEAL.
Fact of the Case:
The Indian Olympic Association (IOA) is a society registered under the Societies Registration Act. It consists of various federations affiliated with the IOA. The management of the IOA is controlled by a duly elected Executive Council in accordance with rules for a term of 4 years. A Special General Meeting may be summoned at any time by the President of IOA at his discretion or it is convened on a written requisition signed by the Presidents and Secretaries of not less than 15 Member-Units within one month from the date of receipt by the President of the said requisition in accordance with Cl. 6 of the Rules and Regulations, with which the IOA and various affiliated units are governed.
Finding of the Court:
The Letters Patent Appeal from order of the learned single Judge of this High Court passed in appeal under O. 43, R. 1 is incompetent on account of the bar contained in sub-sec. (2) of S. 104 of the Code of Civil Procedure.
Issues: Whether a Letters Patent Appeal is maintainable against the appellate order of the learned single Judge passed in appeal under O. 43, R. 1 read with S. 104 (1) of the Code of Civil Procedure?
Ratio Decidendi: 1. The right of appeal is not a natural and inherent right of a person in respect of any litigation, but the same is a creature of statute. 2. S. 104 of the Code deals with appeals from orders specified in sub-sec. (1) thereof. There is an apparent and a fine distinction between a decree and an order inasmuch as, the adjudication which is a decree within the meaning of Cl. (2) of S. 2 of the Code, there is, invariably, a provision for appeal and further a second appeal under S. 100 of the Code only if the case involves a substantial question of law. But no appeal would be competent against an order unless it is expressly provided and falls within the ambit of S. 104 and in any case, no second appeal would be competent due to the embargo contained in sub-sec. (2) of S. 104 of the Code which specifically provides that "no appeal shall lie from any order passed in appeal under this section". 3. A letters patent appeal is nothing but a second appeal before a Division Bench of the same High Court against an order of a single Judge of that Court. 4. A reading of S. 104 of the Code, as a whole reproduced at over will go to show that the proviso to sub-sec. (1) restricts the right of appeal against an order specified in Cl. (ff) thereof, while sub-sec. (2) of. S. 104 of the Code further restricts the right of a party to only one appeal. Thus, S. 104 of the Code bars an appeal under the letters patent if the order appealed against is unappealable under sub-sec. (2) of S. 104 read with O. 43, R. 1 of the Code, because there is no saving clause in sub-sec. (2) of S. 104 as has been inserted in sub-sec. (1) of S. 104 of the Code.
Final Decision: The Letters Patent Appeal is dismissed as it is not competent in view of the bar contained in sub-sec. (2) of S. 104 read with O. 43, R. 1 of the Code of Civil Procedure.
( 1 ) THIS Letters Patent Appeal under Cl. 10 of the Letters Patent of Madhya Pradesh High Court by the defendants has been directed against the orders passed on 29-6-1990 to 11-7-1990 by the learned single Judge of this Court in Misc. Appeal No. 227 of 1990.
( 2 ) THE facts in brief giving rise to this appeal may be stated thus: The Indian Olympic Association / respondent No. 3, herein, is a Society registered under the Societies Registration Act. It consists of various Federations which are affiliated with the Indian Olympic Association. The Management of the Indian Olympic Association (hereinafter referred to as the 'i. O. A. ') is controlled by a duly elected Executive Council in accordance with rules for a term of 4 years. A Special General Meeting may be summoned at any time by the President of I. O. A. at his discretion or it is convened on a written requisition signed by the Presidents and Secretaries of not less than 15 Member-Units within one month from the date of receipt by the President of the said requisition in accordance with Cl. 6 of the Rules and Regulations, with which the I. O. A. and various affiliated units are governed.
( 3 ) ON 16-5-1990 certain members of the I. O. A. gave a notice to Shri Adityan, appellant No. 1 herein. The President of the I. O. A. to hold meeting at Delhi on 15-6-1990 to consider no confidence motion against the President Shri Adityan. On 27-5-1990 a Special General Meeting of the I. O. A. was called by the President to consider the question of no-confidence motion against him and it was decided to hold the meeting at Madras on 15-6-1990. But, in the meanwhile, the requisitionists of the meeting gave a notice on 29-5-1990 to hold the meeting on 15-6-1990 at Delhi and not at Madras to consider the matter of no confidence motion against the appellant No. 1 Shri Adityan. On 8-6-1990 a civil suit was filed in its original side in Delhi High Court by the I. O. A. against the 17 requisitionists including the two plaintiffs-respondents Nos. 1 and 2, herein. An application was also moved in the suit filed in the Delhi High Court for grant of temporary injunction against the 17 requisitionists and the plaintiffs-respondents Nos. 1 and 2, herein, to restrain them from holding a meeting of the I. O. A. at Delhi on 15-6-1990. The application was opposed by the respondents Nos. 1 and 2, herein. The Delhi High Court by order dated 8-6-1990 (Annexure-D) restrained. the requisitionists and the respondents Nos. 1 and 2, herein, from holding a meeting on 15-6-1990 at Delhi on the basis of requisition dated 16-5-1990, but allowed the Special General Meeting to be held at Madras on 15-6-1990 to consider the question of loss of confidence in the present Executive Council of the I. O. A. and at the same time appointed an observer for the said meeting.
( 4 ) THEREAFTER, on 14-6-1990 Tamil Nadu Association which is one of the members of the Indian Olympic Association, also filed a Civil Suit in Madras High Court in its original side against the appellants Nos. 1 and 2, herein, to restrain them from holding the Special General Meeting at Madras on 15-6-1990 or at any day at any place. An application for grant of temporary injunction was also made which was disposed of by the Madras High Court by order dated 14-6-1990 (Annexure-E) whereby the injunction sought for was declined, but it was directed that the meeting may be held at Madras in which the voting shall be by secret ballot inasmuch as that those ballot papers issued to the voting persons alone would be valid which are signed by the Secretary of the Association/respondent No. 2, herein, and the Observer appointed by Delhi High Court and the meeting convened on 15-6-1990 would be presided over by the President, Shri. Adityan. Consequently, the Special General Meeting on the I. O. A. was held on 15-6-1990 at Madras which according to the report of the secretary General / appellant No. 2, herein, and that of the Observer, it resulted int
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