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High Court Of Madhya Pradesh
U. L. BHAT, M. V. TAMASKAR
MAHESH CHANDRA CHOUBEY - Appellant
Versus
M.M.DUBEY - Respondents
L. P. A. 11 Of 1992
Decided On : 04/21/1994
LETTERS PATENT APPEAL - MAINTAINABILITY - ORDER PASSED BY SINGLE JUDGE IN APPEAL UNDER ORDER 43, RULE 1, C. P. C. - NO FURTHER APPEAL LIES TO DIVISION BENCH - SECTION 104 (2), C. P. C. - CLAUSE 10 OF LETTERS PATENT.
Fact of the Case:
Appellant challenged an order passed by a single judge of the High Court in an appeal under Order 43, Rule 1, C. P. C., arguing that the Letters Patent is a special law that overrides the provisions of the Code of Civil Procedure and that an appeal under Clause 10 of the Letters Patent is maintainable.
Finding of the Court:
The court held that an appeal under Clause 10 of the Letters Patent is not maintainable against an order passed by a single judge of the High Court exercising powers under Section 104 read with Order 43, Rule 1, C. P. C. The court relied on the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 S. C. C. 8 : AIR 1981 SC 1786, which held that Section 104 of the C. P. C. provides an additional or supplementary remedy by way of appeal and it widens the original jurisdiction of the High Court and not limits it.
Issues: Whether an appeal under Clause 10 of the Letters Patent is maintainable against an order passed by a single judge of the High Court in an appeal under Order 43, Rule 1, C. P. C.
Ratio Decidendi: The court held that the provisions of Section 104 (2), C. P. C. expressly prohibit further appeal from an order passed in an appeal under Order 43, Rule 1, C. P. C. The court also held that Clause 10 of the Letters Patent does not provide for a second appeal to the Division Bench from the appellate order of the single judge passed under Order 43, Rule 1, C. P. C.
Final Decision: The court dismissed the appeal as not maintainable.
( 1 ) ORDER in this appeal shall also govern disposal of L. P. A. No. 2 of 1993 (Dinesh Kumar Dubey v, Krishna Kumar Das and two others), as the point for consideration is analogous.
( 2 ) THE brief facts necessary as to how the question arose and the matter was referred to the Full Bench, are as follows: The respondent No. 4 Pankaj Kumar Chatterjee filed a suit for declaration and permanent injunction in the court of the District Judge, Jabalpur, which was registered as Civil Suit No. 98a of 1991. The reliefs sought in the suit are: (a) That the defendant No. 1 (appellant), President of the Society, be restrained from functioning as President of the Society; (b) That the defendant No. 2 (respondent No. 1) Shri M. M. Dubey, be restrained from functioning as Principal of the N. E. S. Law College and from interfering with the working of the college; and (c) That the defendant No. 3 (respondent No. 2) Shri S. K. Tiwari, be restrained from functioning as Principal of the Naveen Vidhya Bhiwan, Gorakhpur, Jabalpur. The reliefs sought were based upon two paramount allegations, namely, (i) that the elections were held to the managing committee of the New Education Society (respondent No. 3) after a lapse of nine years on 23-7-1989 in which the appellant was elected as the President and in an inquiry held by the Registrar of Firms vide his name dated 19-6-1990 informed that the election procedure adopted was illegal and thus the appellant herein has no authority or power to perform the duties and to exercise the powers of the President of the New Education Society and any act done by him is per se illegal and without the authority of law; and (ii) the resignation of Shri M. M. Dubey, Principal of the N. E. S. College was submitted and considered in a meeting held on 9-8-1991 and was accepted; thereafter an order was passed by the appellant on 10-10-1991, purported to be in exercise of the powers as President, that the resignation dated 9-8-1991 could not be given effect to, as it was not put up before the managing committee nor it was accepted by a competent body, is illegal and that after the acceptance of the resignation of Shri M. M. Doubey, it was beyond the competence of the President to appoint him as Principal and to permit him to withdraw his resignation, which was already accepted by the Managing Committee.
( 3 ) ALONG with the suit, an application for temporary injunction under Order 39, Rules 1 and 2, C. P. C. claiming the following reliefs, was also filed: (a) That the defendant No. 1, i. e. appellant be restrained from functioning as President of the Society; (b) That the defendant No. 2, i. e. respondent No. 1 be restrained from functioning as Principal of the N. E. S. College; and (c) That the defendant No. 3, i. e. respondent No. 2, be restrained from functioning as Principal of Naveen Vidhya Bhawan, Gorakhpur, Jabalpur. The appellant, Dr. Choubey, and other contesting defendants filed their reply to the application under Order 39, Rules 1 and 2, C. P. C.
( 4 ) AFTER hearing the parties, the District judge dismissed the application on grant of temporary injunction by his order dated 16-12-1991. Aggrieved by the said order of the District Judge, the plaintiff (respondent No. 4) preferred an appeal in this Court under Order 43, Rule l (r) of the Code of Civil Procedure, which was registered as M. A. No. 643 of 1991. A learned single Judge of this Court heard the matter on 26-3-1992 and delivered judgment on 7-4-1992 restraining the appellant from functioning as President of the New Education Society, Jabalpur during the pendency of the matter. As regards the Principal of the College, an order of injunction was issued on the condition that if he secures permission within two months of the order of the Court from the University that the University has no objection to his continuing as Principal, but in the absence of no objection certificate from the University, he was restrained from discharging the duti
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