A letters patent appeal is not maintainable against an order passed under Order 43, Rule 1 of the Civil Procedure Code.

U.L. Bhat, C.J.

1. The appellant in this letters patent appeal filed a suit against the respondents herein and prayed for an order of injunction under Order 39, Rules 1 and 2, Civil Procedure Code. The Court passed an order which was not to plaintiff's satisfaction. The plaintiff thereupon filed a miscellaneous appeal in this Court. A learned Single Judge dismissed the appeal.

2. The question which arises for consideration is whether letters patent appeal is maintainable. We are told that a similar question has been referred by a Division Bench to the Full Bench of this Court. In view of what we propose to indicate hereinafter, we think it unnecessary to refer this case to Full Bench or to wait till the Full Bench disposes the reference already made.

3. The order passed by the trial Court in this case is appealable under Order 43, Rule 1, Civil Procedure Code. An appeal lies against such an order by virtue of Section 104(1)(i) of the Code. Sub-section (2) of Section 104 states that no appeal shall lie from any order passed in appeal under this section. This provision is a complete bar against a second appeal in a matter covered by Order 43. Civil Procedure Code. This position of law is clear and free from all ambiguity.

4. Our attention is invited to the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and Anr., AIR 1981 SC 1786. This decision dealt with the question whether L.P.A. would lie against an order passed by a Single Judge of the Bombay High Court in the original jurisdiction. It was held that Section 104 read with Order 43, Rule 1 clearly applies to the proceedings before the Trial Judge of the High Court and there is no inconsistency between this provision and the appeal under Letters Patent. It was also held that letters patent appeal i.e. first appeal against the decision of the Single Judge lies. This decision docs not have any relation to the question in controversy before us. That has been decided by the Supreme Court in Madan Naik v. Hansubala Devi, AIR 1983 SC 676. The Supreme Court has observed as follows :

"Frankly speaking, no appeal would lie under Letters Patent against a decision rendered by the High Court in an appeal from order under Order 43, Rule 1".

This decision has been followed by this Court in Chunnilal Laxman Prasad v. Agrawal and Co., 1987 MPLJ 165 and in B.S. Adityan v. Fencing Association of India, Jabalpur, 1991 MPLJ 418 and other decisions.

5. The only other decisions of this Court referred to us are Shrichand Komalchand Jain v. Sardar Tejinder Singh and Ors., 1979 MPLJ 170 and Raghvendra Singh Choudhary v. Seema Bai, 1988 MPLJ 450. The former decision dealt with a case where the trial Court dismissed an application under Order 9, Rule 13, Civil Procedure Code and Single Judge of the High Court reversed the decision and set aside the decree. It was held that L.P.A. would lie. In the latter case, during the pendency of a matrimonial appeal in the High Court, learned Single Judge passed an order granting maintenance under Section 24 of the Hindu Marriage Act. It was held that L.P.A. lies against such an order. The decision in Shrichand Komalchand Jain's case was rendered before the decision of the Supreme Court in Madan Naik's case. The latter decision did not consider whether second appeal would lie by way of L.P.A. against the appellate judgment of a learned Single Judge in relation to an order passed under Order 43, Civil Procedure Code.

6. We are bound to follow the dictum laid down in Madan Naik's case (supra) and hold that the L.P.A. is not maintainable. As such, a reference of the question to a Full Bench is quite unnecessary. The appeal is dismissed but without any costs.