Mahesh Chandra Choubey vs M. M. Dubey

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1994 Supreme(MP) 362

1995 JLJ 141
(FULL BENCH)
U.L. Bhat, C.J., M.V. Tamaskar and P.P. Naolekar, JJ.
Mahesh Chandra Choubey v. M.M. Dubey and others
L.P.A. No. 11 of 1992; Decided on 21.4.1994.

Advocates:
V.K. Tankha for appellant; Rajendra Tiwari,
R. Shrivastava and N.S. Kale with S.K. Dixit for respondents 1, 2 and 4.

Headnote:Letters Patent (M.P.) -- Cl. 10 -- Civil P.C., 1908 -- S. 104 (2) and O. 43 R.1--order of High Court in miscellaneous appeal under O. 43 R.1 -- no letters patent appeal against such order is maintainable before Division Bench.
       Sub-section (2) of section 104, Civil Procedure Code expressly prohibits further appeal from an order passed in an appeal under Order 43, Rule 1, Civil Procedure Code. A perusal of the Letters Patent would clearly reveal that an appeal lies against an order passed by a Single Judge to a larger Bench of the same High Court, if it is not the judgment passed in the exercise of appellate jurisdiction in respect of decree or order made by the Court below, unless the Judge who passed the judgment declares that the case is a fit one for appeal. Therefore, there is nothing in the Letters Patent to that if under Order 43, Rule 1 applies to internal appeal in the High Court, that further appeal would lie against the appellate order of the Single Judge to a Division Bench. [Para 8
       If a Single Judge has passed an order in an appeal against the order passed by a District Judge under Order 43, Rule 1, Civil Procedure Code a further appeal under the Letters Patent would not be maintainable and this view is fully Supported by the express language used in clause 10 of the Letters Patent. 1979 JLJ 180,1988 JLJ 495,1987 JLJ 377 and 1991 JLJ 15 referred to (1981) 4 SCC 8 and AIR 1983 SC 676 followed. [Para 13
       ySVlZ isaVsaV ¼e-iz-½ && [kaM 10 && flfoy izfØ;k lafgrk] 1908 && /kkjk 104¼2½ rFkk vk- 43 fu- 1 && izdh.kZ vihy esa vk- 43 fu- 1 ds v/khu mPp U;k;ky; dk vkns‘k && ,sls vkns‘k ds fo#) [kaM U;k;ihB ds le{k isVsaV vihy pyk, tkus ;ksX; ugha gSA

       flfoy izfØ;k lafgrk dh /kkjk 104 dh mi/kkjk ¼2½ esa flfoy izfØ;k lafgrk ds vk- 43 fu- 1 ds v/khu ikfjr vkns‘k ds fo#) vkSj vkxs vihy vfHkO;Dr :i ls fuf"k) gSA ySVlZ isaVsaV ds ifj‘khyu ls ;g Li"Vr% izdV gksxk fd fdlh ,dy U;k;k/kh‘k }kjk ikfjr vkns‘k ds fo#) vihy mlh mPp U;k;ky; dh cM+h U;k;ihB ds le{k gksxh] ;fn og fupys U;k;ky; dh fMØh vFkok vkns‘k ds laca/k esa vihyh vf/kdkfjrk iz;qDr djrs gq, ikfjr fu.kZ; ugha gS] tc rd fd og U;k;k/kh‘k ftlus og fu.kZ; ikfjr fd;k gS ;g ?kks"k.kk ugha dj nsrk gS fd og ekeyk vihy ds fy, mi;qDr ekeyk gSA blfy, ySVlZ isaVsaV esa ,slk dqN&Hkh ugha gS fd ;fn vk- 43 fu- 1 ds v/khu mPp U;k;ky; esa vkarfjd vihy dks ykxw gksrs gS] ,dy U;k;k/kh‘k ds vihyh vkns‘k ds fo#) vkxs vkSj vihy [kaM U;k;kihB ds le{k gksxhA ¿ iSjk 8À

       ;fn fdlh ,dy U;k;k/kh‘k us flfoy izfØ;k lafgrk ds vk- 43 fu- 1 ds v/khu fdlh vihy esa fu.kZ; ikfjr fd;k gS] ySVlZ isVsaV ds v/khu vkSj vkxs vihy dh tkus ;ksX; ugha gksxh] ;g fopkj ySVlZ isaVsaV ds [kaM 10 dh vfHkO;Dr Hkk"kk ls Hkh lefFkZr gSA 1979 ts ,y ts 180] 1988 ts ,y ts 495] 1987 ts ,y ts 377 rFkk 1991 ts ,y ts 15 fufnZ"VA ¼1981½ 4 ,l lh lh 8 rFkk , vkb vkj 1983 ,l lh 676 vuqlfjrA ¿ iSjk 13À

ORDER

P.P. Naolekar, J. -- 1. Order in this appeal shall also govern disposal of LPA 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 Chhaterjee 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 Bhawan, 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 memo 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 N.E.S. College was submitted and considered in a meeting held on 9.8.91 and was accepted; thereafter an order was passed by the appellant on 10.10.91, 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 anJ that after the acceptance of the resignation of Shri M.M. Dubey, 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, Civil Procedure Code, 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, Rule 1 and 2, Civil Procedure Code.

4. After hearing the parties, the District Judge dismissed the application for 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 1 (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 continuance as Principal, then he shall continue as Principal, but in the absence of no objection certificate from the University, he was restrained from dis

Click Here to Read the rest of this document

1994 Supreme(MP) 362

1995 JLJ 141(FULL BENCH)U.L. Bhat, C.J., M.V. Tamaskar and P.P. Naolekar, JJ.Mahesh Chandra Choubey v. M.M. Dubey and othersL.P.A. No. 11 of 1992; Decided on 21.4.1994.

Cases Referred (10)

1995 JLJ 141
(FULL BENCH)
U.L. Bhat, C.J., M.V. Tamaskar and P.P. Naolekar, JJ.
Mahesh Chandra Choubey v. M.M. Dubey and others
L.P.A. No. 11 of 1992; Decided on 21.4.1994.