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PETITIONER:

SHAH BABULAL KHIMJI

Vs.

RESPONDENT:

JAYABEN D. KANIA AND ANR.

DATE OF JUDGMENT10/08/1981

BENCH:

FAZALALI, SYED MURTAZA

BENCH:

FAZALALI, SYED MURTAZA

VARADARAJAN, A. (J)

SEN, AMARENDRA NATH (J)

CITATION:

1981 AIR 1786 1982 SCR (1) 187

1981 SCC (4) 8 1981 SCALE (3)1169

CITATOR INFO :

RF 1986 SC1272 (10,108,109)

RF 1988 SC 915 (17)

RF 1990 SC 104 (8)

ACT:

Code of Civil Procedure, 1908-Section 104 Order 43 Rule

1-Scope of-Letters Patent-Clause 15-Right of Appeal under

clause 15-If affected by section 104, Order 43 Rule 1.

HEADNOTE:

In a suit for specific performance of an agreement to

sell filed on the original side of the Bombay High Court the

plaintiff (appellant) prayed for certain interim reliefs. A

single Judge of the High Court dismissed the application. A

Division Bench of the High Court, on appeal by the

plaintiff, held that the appeal was not maintainable on the

ground that the impugned order of the single Judge was not a

’judgment’ within the meaning of clause 15 of the Letters

Patent of the High Court.

In appeal to this Court it was contended on behalf of

the appellant that since the trial Judge is governed by the

procedure prescribed by the Code of Civil Procedure, by

virtue of the provisions of section 104 read with Order 43

Rule (1) the impugned order is appealable to a larger Bench;

(2) assuming that the Letters Patent was a special law,

section 104 read with Order 43 is in no way inconsistent

with clause 15 of the Letters Patent; (3) even if section

104 read with Order 43 Rule 1 does not apply an order

refusing to appoint a receiver or to grant injunction has

the attributes of finality and, therefore, amounts to a

judgment’ within the meaning of Letters Patent.

Allowing the appeal

^

HELD:

(per Fazal Ali and A. Varadarajan, JJ.)

(Amarendra Nath Sen, J. concurring.)

Since the Order of the trial Judge was one refusing

appointment of a receiver and grant of ad-interim

injunction, it is a ’judgment’ within the meaning of the

Letters Patent both because order 43 rule 1 applies to

internal appeals in the High Court, and such an order even

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on merits contains the quality of finality and would be a

judgment within the meaning of clause 15 of Letters Patent.

Hence an appeal is maintainable to the Division Bench. The

Division Bench was in error in dismissing the appeal without

deciding it on merits. [259 F-G]

188

There is no inconsistency between section 104 read with

Order 43 Rule 1, C.P.C. and appeals under Letters Patent.

There is nothing to show that Letters Patent in any way

excludes or overrides the application of section 104 read

with Order 43 Rule 1 or that these provisions do not apply

to internal appeals within the High Court. [237 E-F]

Code of Civil Procedure 1877, by sections 588 and 589,

did not make any distinction between appeals to the High

Court from the District Court and internal appeals to the

High Court under Letters Patent. Notwithstanding the clear

enunciation of law by the Privy Council that section 588 did

not affect nor was it inconsistent with the provisions of

Letters Patent and that, therefore, orders of a trial Judge

which fall beyond section 588 could be appealable to a

larger bench under the Letters Patent if its orders amounted

to a ’judgment’ within the meaning of clause 15 of the

Letters Patent, there was a serious controversy among the

High Courts on this question. Section 104 of the C.P.C.,

1908 made it clear that appeals against orders mentioned in

Order 43 Rule 1 were not in any way inconsistent with the

Letters Patent but merely provide additional remedy by

allowing appeals against miscella