Preamble Act No. 5 of 1959

PREAMBLE

An Act to make provision regulating the business and the exercise of the powers of the High Court of the State of Kerala

WHEREAS it is expedient to make provision regulating the business and the exercise of the powers of the High Court of the State of Kerala ;

(1) This Act may be called the Kerala High Court Act, 1958.

(2) It shall come into force on such date as the Government may, by notification in the Gazette, appoint.**

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**

In this Act, "High Court", means the High Court of the State of Kerala.

S.3 Powers of Single Judge

The powers of the High Court in relation to the following matters may be exercised by a Single Judge provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges: -

(1) Determining in which of several courts having jurisdiction a suit shall be heard.

(2) Admission of an appeal in forma pauperis.

(3) Exercise of original jurisdi

S.4 Powers of a Bench of two Judges

The powers of the High Court in relation to the following matters may be exercised by a Bench of two Judges, provided that if both Judges agree that the decision involves a question of law they may order that the matter or question of law be referred to a Full Bench: -

(1) Any matter in respect of which the powers of the High Court can be exercised by a Single Judge.

(2) An appeal-

(a) from a decree or or

S.5 Appeal from judgment or order of Single Judge

¹[Appeal from judgment or order of Single Judge

An appeal shall lie to a Bench of two Judges from-

(i) a judgment or order of a single Judge in the exercise of original jurisdiction; or

(ii) a judgment of a single Judge in the exercise of a appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court ³[xxx]

Legal Commentary on Section 5 of the Kerala High Court Act, 1958

Introduction

Section 5 of the Kerala High Court Act, 1958, primarily delineates the scope and manner of appeals to the Kerala High Court, especially from judgments or orders passed by Single Judges under various circumstances. It establishes the jurisdictional boundaries for intra-court appeals, including the types of orders that are appealable and the procedural requirements involved.

What does Section 5 Say

Section 5 specifies that an appeal shall lie to a Bench of two Judges against:- a judgment or order of a Single Judge in the exercise of original jurisdiction (Section 5(i)),- a judgment of a Single Judge in appellate or other proceedings that materially and directly affects the rights of the parties (Section 5(ii)),- certain interlocutory or procedural orders, subject to specific conditions.

It also clarifies that appeals against interlocutory orders that do not materially affect rights are generally not maintainable, and the section restricts appeals from certain types of orders, including interim or procedural orders, unless they substantially impact the substantive rights.

Essential Ingredients

• Appealability: Only judgments or orders specified under Section 5 are appealable.
• Jurisdiction: Appeals are limited to orders/orders of judgments that materially affect rights or are passed in original or appellate jurisdiction.
• Order Type: Interlocutory orders not affecting rights are typically not appealable.
• Procedure: The appeal must be filed within the prescribed limitation period, generally 30 days, with the requisite Court fee.
• Scope of Review: The appellate court generally does not reappreciate evidence but examines whether the order was correct in law or perverse.

Scope of Section

Section 5 confines the High Court's intra-court appellate jurisdiction, emphasizing that:- Only specific judgments or orders are appealable.- Appeals are generally limited to material orders affecting substantive rights.- The section excludes appeals against procedural or interlocutory orders unless they have a material impact.- It restricts the scope of appeals, especially against interim orders, unless they substantially affect rights or cause prejudice.

Punishment for Section

The section itself does not prescribe specific punishments. However, non-compliance with procedural requirements, such as filing within time or paying Court fees, can lead to dismissal of appeals. Additionally, filing frivolous or non-maintainable appeals may attract costs or contempt proceedings under other laws.

Legal Comments

• Appeal Scope - Section 5 limits intra-court appeals to judgments/orders that materially affect rights or are passed in original/appellate jurisdiction, excluding purely procedural or interlocutory orders unless they have substantial impact. [Source: "Project Manager Central Sliver Plant Csp Kuttoor VS K. O. Poulose"]
• Interlocutory Orders - Appeals against interlocutory orders that do not substantially affect rights are generally not maintainable, emphasizing the importance of materiality in appellate jurisdiction. [Source: "Kerala State Road Transport Corporation vs K.N. Sreenivasan, S/o. Narayanan"]
• Material Impact - Orders that significantly affect the rights of parties, such as those granting or denying substantive relief, are appealable under Section 5. [Source: "Union Territory Of Lakshadweep Represented By Its Administrator VS Salmikoya K. "]
• Interim Orders - Writ appeals against interim orders are permissible only if such orders substantially affect rights or cause prejudice, otherwise, they are not maintainable. [Source: "P. Muhammed Shafi S/o Seethi vs State of Kerala"]
• Procedural Limitations - Appeals must be filed within the prescribed limitation period, often 30 days, and with proper Court fees; failure to do so results in dismissal. [Source: "M. K. GOPALAN, S/O. LATE VELU VS NIT MULTI PURPOSE CO-OPERATIVE SOCIETY LTD. "]
• Nature of Orders - Orders of a purely procedural nature, or those that do not affect substantive rights, are generally not subject to appeal under Section 5. [Source: "Kerala State Road Transport Corporation vs K.N. Sreenivasan, S/o. Narayanan"]
• Order vs. Judgment - Section 5 distinguishes between judgments and orders, providing a specific scope for appealability based on the order's impact and jurisdiction. [Source: "Rajam Babu, W/o K. K. Babu VS Babu K. K. , S/o Kumaran"]
• Appeal Against Interim Orders - The law restricts appeals against interim orders unless they are found to materially and directly affect rights or cause prejudice. [Source: "Union Bank of India, Represented by its Regional Manager, Kottayam vs Suwique Traders"]
• Appeals in Service and Disciplinary Cases - In service disputes, unless the order materially affects the rights, appeals under Section 5 are generally not entertained; courts emphasize alternative remedies. [Source: "MAHARAJ PLYWOOD AND BOARD VS NIYAS P.K., S/o. KUNJUMUHAMMED"]
• Restrictions on Appeals - Section 5 restricts appeals against certain orders, especially where statutory remedies are available or where the order is interlocutory and of procedural nature. [Source: "Centre For Professional & Advanced Studies School Of Medical Education vs Bindu K."]
• Legal Precedent - The Supreme Court and High Court rulings reinforce that Section 5 restricts appeals to orders with substantial impact, and procedural or interlocutory orders are generally not appealable unless they cause prejudice. [Source: "Messrs Rajalakshmi Associates VS Messrs Meenakshi Papers"]
• Procedural Diligence - Proper compliance with procedural requirements, such as filing within limitation and paying Court fees, is essential; non-compliance leads to dismissal of appeals. [Source: "Assistant Labour Officer Grade-I vs R.V. Abdul Jaleel"]
• No Appeal Against Certain Orders - Orders passed in exercise of inherent or statutory powers, especially in criminal or civil proceedings, are often not subject to intra-court appeal unless specified. [Source: "Messrs Rajalakshmi Associates VS Messrs Meenakshi Papers"]
• Legal Remedy and Exhaustion - When alternative statutory remedies are available, courts discourage intra-court appeals unless the order is of a material nature affecting substantive rights. [Source: "Venugopalan. P.k. Vs State Of Kerala"]
• Nature of the Order in Disciplinary/Administrative Cases - Orders related to disciplinary proceedings or administrative authority are often not appealable unless they have a material impact on rights or are of a final nature. [Source: "Babilu Sankar VS Sree Padmanabhaswamy Temple"]
• Limitations and Exceptions - Section 5 does not provide a right of appeal against every order; exceptions are made for orders that materially and directly affect the rights of the parties, especially in original jurisdiction. [Source: "Vineet Ganesh, S/o. A. Ganesh VS Priyanka Vasan, D/o. Late Shri P. V. Vasan"]

This concise commentary encapsulates the scope, application, and judicial interpretation of Section 5 of the Kerala High Court Act, 1958, emphasizing its restrictive nature and procedural prerequisites for intra-court appeals.

S.6 Cases to be heard by Full Bench under direction by Chief Justice

Vol withstanding anything contained in this Act, the Chief Justice may direct that any matter be heard by a Full Bench.

S.7 Procedure on reference to Full Bench

When a question of law is refer red to a Full Bench, the Full Bench may finally decide the case or return it with an expression of its opinion upon the question referred for final adjudication by the Bench which referred the question or, in the absence of either or both of the referring Judges, by another Bench.

S.8 Powers of Vacation Judge

(1) During the adjournment of the High Court the Chief Justice shall nominate a Single Judge of the High Court for the hearing of all matters which require to be immediately or promptly dealt with and such Judge shall have all the powers of the High Court, except in cases in which such power must be exercised under the provisions of any law by more than one Judge,

(2) If shall be competent for the Chief Justice during any such adjournment of the High Court to constitute a Bench of two judges or a Full Bench for the hearing of any case.

S.9 Repeal

The provisions of the Travancore-Cochin High Court Act 1125 (V of 1125), in. so far as they relate to matters provided in the- Act, shall stand repealed.