JUDGMENT
Jahagirdar, J.
1. The appellant ahs filed a suit in the City Civil Court at Bombay , being S. C. Suit No. 304 of 1987. The suit was filed for an injunction restraining the defendants from entering into the suit premises which are business premises where he plaintiff was conducting a business described as hotel business. In practice it means a business where drinks and eatables are served to the customers. In that suit he took out a notice of motion bearing No. 2630 of 1987 and another notice of motion bearing No. 285 of 1987. These notices of motion are dt. 27th April 1987 and 6th Jan. 1987 respectively. Notice of Motion No. 2630 of 1987 was for appointment of receiver in respect of the suit property.
2. Before we proceed to mention the circumstances leading the parties to this Court, it would be necessary to briefly mention the facts which led the appellant, hereinafter referred to as “the plaintiff”, to file the suit in the City Civil Court. The plaintiff had come in possession of the suit premises under an agreement of April 1969 entered into between the plaintiff and one Krishna Patil. On 1st of May 1969 this agreement was reduced to writing. The plaintiff continued to be in possession of the suit premises till the middle of 1976. In the meantime, on 4th Feb. 1976 Krishna Patil, the original person with whom the plaintiff had entered into the agreement, expired. Thereafter on 1st May 1976 the plaintiff entered into another agreement, described as the conducting agreement, with Subhash Krishna Patil, who is the son of
Krishna Patil. He is defendant 4 in the suit.
3. It is alleged in the plaint and it seems to be admitted between the parties that the building in which the suit premises are situated were in dilapidated condition and the tenants formed themselves into an association for repairing the entire building. Of the contribution towards the repairs the plaintiff has paid a sum of Rs. 18,000- Rs. 12,000 on 2nd Dec., 1985 and Rs. 6,000 on 12th Dec., 1985. Defendants 2 and 3 in the suit were authorised on behalf of the tenants of the building to carry out the repairs and they have passed receipt acknowledging receipt of the amounts paid by the plaintiff, though the receipts are undoubtedly in the name of defendant 4.
4. A note may also be taken of some parallel proceedings. The sister of defendant 4 had filed a suit in the City Civil Court for maintenance after the death of Krishna Patil. That suit was filed against defendant 4. The plaintiff has also been made a party in that suit. It has been mentioned that in that suit the plaintiff has deposited a sum of Rs. 10,000 which amount was probably to be paid to the plaintiff in that suit.
5. The 4th defendant has also filed a suit in the Small Causes Court against the present plaintiff for possession of the suit premises. That suit is said to have been filed for possession on the ground of non-payment of compensation or at least a prayer was made for the recovery of the amount of compensation which was allegedly not paid by the plaintiff. That suit was withdrawn on 5th of December, 1986. The present suit has been filed on 14th Jan. 1987 and the notices of motion mentioned above were taken out by the plaintiff.
6. The question before the learned trial Judge was who was in possession of the suit premises on the date of the suit. The learned trial Judge, after considering the entire material which was placed before him, has given a very lucid and elaborate judgment in which he held that the plaintiff has proved that he was in possession of the suit premises on 14th Jan. 1987. The learned Judge had appointed a Commissioner who visited the suit premises on 24th April 1987. The Commissioner had in his report stated that defendant 4 was found to be carrying on the business of selling tea along with Mrs. Maria D’Spuza, who was joined in the suit as defendant 5. That there were some of the belongings of the plaintiff in the suit premises was also noted by the Commissioner. The learned trial Judge considered the report of the Commissioner, appreciated the probabilities of the case, and came to the conclusion, as mentioned above, that the plaintiff was in possession of the suit premises on the date on which the suit was filed. Till the time the learned trial Judge gave his judgment disposing of the two notices of motion, defendants 4 and 5, undoubtedly, had made certain alterations in the suit premises; may be, they had invested some amount also. But that itself was not a ground as to why defendants 4 and 5 in particular should be allowed to continue in possession of the suit premises. The learned trial Judge, in para, 27 of his judgment, has mentioned that since defendants 2, 3, 4 and 5 have attempted to take over the possession of the suit premises and have also attempted to disturb the status quo which obtained on the date of the filing of the suit, it would be just and convenient and absolutely necessary that Court Receiver, High Court, Bombay, be appointed receiver of the suit premises. Accordingly he made absolute Notice of Motion No. 2630 of 1987 by appointing the Court Receiver, High Court as receiver of the suit premises with all powers under O.40, R.1 Cvil P.C. He directed the Court Receiver to take possession of the suit premises and to appoint the plaintiff as his agent to remain in possession of the suit premises. This he did by his judgment and order dt. 29th of Sept. 1987 which was challenged by defendants 4 and 5 in appeal from Order No. 1007 of 1987.
7. The said appeal from Order No. 1007 of 1987 was admitted. In that appeal, defendants 4 and 5 also filed a civil application, being Civil Application No. 6208 of 1987, for stay of the order of appointment of receiver passed by the learned trial Judge. Mehta J. by his order dt. 7th Dec. 1987 in Civil Application No. 6208 of 1987 thought it appropriate to modify the order passed by the learned trial Judge, which he did as follows:-
“To my mind, an appropriate order would be to permit the Court Receiver, who has already been appointed, to take charge of the premises and to hand them over to the petitioners on usual terms and conditions as the Court Receiver’s Agent. The petitioners will deposit in Court a sum of Rs. 2,000/- per month subject to further orders from the Court”.
8. From what has been stated above it is clear that Mehta. J. confirmed the order of appointment of the Court Receiver, but modified the direction regarding who should be the agent of the receiver. Against this order the present Letters Patent appeal has been preferred by the original plaintiff. The earlier Division Bench which admitted this appeal left open the question of the maintainability of the appeal to be decided at the time of its final hearing. In this appeal, the plaintiff-appellant made an application being Civil Application No. 6571 of 1987, for stay of the order passed by Mehta, J. in Civil Application No. 6208 of 1987 (in A.O. No. 1007 of 1987). The earlier Division Bench, by a detailed speaking order, granted rule on 17th Dec., 1987. The Division Bench also granted stay in terms of prayer (a) of the said civil application. The effective direction was that the Court Receiver should take possession of the suit premises and appoint the plaintiff as his agent thereof on such terms and conditions as to security as the Court Receiver may consider just and proper. Rule on the civil application was made returnable on 7th Jan. 1988.
9. In the meantime, we have been told, defendants 4 and 5 preferred a Special Leave Petition bearing No. 15857 of 1987 to the Supreme Court. It has been mentioned to us that the said Special Leave Petition was disposed of on 4th Jan., 1988 with the order that status quo as on the date of the order of the Supreme Court shall be maintained till the disposal of the civil application. Liberty was given to defendants 4 and 5 to approach the Supreme Court, if necessary, from the order passed by the High Court in the civil application.
10. When the civil application came up for final hearing the question of the maintainability of the appeal itself was naturally raised by Mr. Abhyankar, the learned Advocate appearing for the contesting respondents, Mr. Abhyankar contended and not without justification, that if it is demonstrable that this Letters Patent appeal is incompetent then the civil application also should be dismissed. Since the question of the maintainability of this Letters Patent appeal was left open while admitting the appeal and since this question was of sufficient relevance for the disposal of the civil application. we, with the consent of the parties fixed this appeal for final hearing.
11. Mr. Gumaste, the learned Advocate appears for the appellant and Mr. Abhyankar appears for the contesting respondents. The order impugned in this appeal is an order passed in a civil application which itself had been preferred by the appellant in an appeal from order which lies to the High Court from the orders of the City Civil Court under O. 43, R.1 read with S. 104, Civil, P.C., hereinafter referred to as “the Code”. Mr. Abhyankar contended that in view of the judgment of the Supreme Court in Shan Babulal Khimji v. Jayaben. , no appeal lies from any order passed in exercise of the jurisdiction of an appellate Court under S. 104 of the Code. Prior to the aforesaid judgment of the Supreme Court, undoutedly, at least in this Court, Letters Patent appeals used to be filed against the orders passed disposing of the appears from orders under s. 104 of the code. This was because it was though, and it has been so held in some judgments of this Court, that Cl. 15, Letters Patent was independent of S. 104 of the Code and despite the ban contained in S. 104 (2) of the Code an appeal could lie under Cl. 15 Letters Patent. That position is no longer valid after the decision of the Supreme Court in Shah Babulal’s case. It has been held that that sub-sec. (2) of S. 104 of the Code would restrict the scope or the number of appeals permissible under cl. 15. Letters Patent. If this is so and if it is shown that the order passed by Mehta J. is an order in an appeal under s. 104 of the Code then by virtue of the language contained in S. 104(2) of the Code, this Letters Patent appeal would naturally be barred. This is the sum and substance of Mr. Abhyankar;s argument.
12. in Support of this contention Mr. Abhyankar has invited our attention to a judgment of the Kerala High Court in Chellappan v. K.P. Varughese, , wherein a learned single Judge has held that an appeal to the High Court against an interlocutory order passed by a District Judge in an appeal under S. 104 read with O.43 of the Code was incompetent and therefore liable to be dismissed in limine. Mr. Abhyankar also relied upon a judgment of the Allahabad High Court in Umatur Bobab v. Mahadeo Prasad in support of his submission. In C. Kalahasti v. P.C. M. Chetti, , Natarajan, J.a he then was sitting as a single Judge, held that an order passed by an appellate Court under O.39, R. 1 of the Code cannot be construed as order passed by a Court in exercise of its original jurisdiction. Reference was made to the relevant provisions of the Code and it was noticed that a Court must pass orders either in exercise of its original jurisdiction or in exercise of its appellate jurisdiction. If an appeal from an order is preferred to an appellate Court and during the course of the proceedings of that appeal from order any order is passed by the appellate Court, the latter order will necessarily be an order passed in appeal because it is an order passed in exercise of the appellate jurisdiction. It this is so them by virtue of the provision contained in suc-sec. (2) of s. 104 of the code, further appeal from that order will be barred.
13. Mr. Gumaste concedes the position that if an appeal which he insists is maintainable under cl. 15, Letters Patent. Will not be maintainable if there is a specific bar against the same in any of the provisions of the code or any other law. That this is the position is now clear from the judgment of the Supreme Court in Shah Babulal’s case Mr. Gumaste insists that under the first part of Cl. 15 Letters Patent an appeal from a judgment given by a learned single Judge of the High Court is maintainable. He has contended that the order passed by Mehta J. in the instant case amounts to a judgment and from the clear language of Cl. 15 Letters Patent an appeal against the said jdugment is maintainable, though it is passed by Mehta J. in exercise of his appellate jurisdiction. Mehta J. has passed this order in an appeal from an order of a trial Court. He wanted to persuade us to hold that the order of Mehta J. amounts to a judgment. We have, however not though it necessary to go into that question in great details because we are of the opinion that Mr. Gumaste must necessarily fail on the maintainability of this Letters Patent appeal. Mr. Gumaste is perfectly justified in saying and we agree with him in that regard, that if a right of appeal is given by one provision of law, it cannot be taken away except by an explicit provision of a law or by necessary implication. With the object of showing that the right of appeal which is available to him under the first part of Cl. 15. Letters Patent has not been taken away by any other provision in the Code. Mr. Gumaste has taken us through several provisions of the Code. It is not necessary for us to refer to the same because if we find that the order passed by Mehta J. is an order passed in an appeal preferred under S. 104 of the Code, the bar contained in sub-s. (2) of that Section will immediately come into operation. It is the contention of Mr. Gumaste that the order passed by Mehta J. is not an order passed in an appeal under S. 104 of the Code, but it is passed independent of the appeal. According to Mr. Gumaste, the order contemplated in sub-s. (2). S. 104 of the Code is an order finally disposing of an appeal and not an order which is passed during the course of the hearing of the appeal or before the disposal thereof. It is definitely not an order passed in an application for interim reliefs.
14. It is not possible for us accept this interpretation of sub-s. (2) of S. 104 of the Code sought to be put by Mr. Gumaste. The words of the said provision are clear. They are to the effect “any order passed in appeal under this Section”. Sub-s, (2) of S. 104 does not say “an order disposing of an appeal passed under this Section”. We do not see how we can rewrite sub-s (2). S. 104 of the Code in the manner suggested by Mr. Gumaste. If anything the language of the other Sections in the Code also suggests that when the legislature used the words “any order passed in appeal under this Section”, if did not restrict the meaning of the word “order” to “an order finally disposing of an appeal”, See. For example, the language of S. 105 of the Code. It deals with order made by a Court in exercise of its original or appellate jurisdiction and mentions that any such order is not the subject-matter of an appeal except as otherwise provided, but the validity of the order can be challenged in any appeal preferred from the decree finally passed. If the legislature wanted to restrict the ban imposed by S. 104(2) of the Code to only an order finally disposing of an appeal, it would have naturally used an appropriate language and not a term which is much wider than what is being suggested by Mr. Gumaste.
15. We are proceeding on the assumption, which assumption if fully justified, that an appellate Court in exercise of its jurisdiction under S. 104 of the Code ahs jurisdiction to pass orders of the nature contemplated by O.43, R.1 of the Code. The appellate Court thus will be having powers to pass order under O.39 or O.40 of the Code. Nevertheless, such order will be orders passed in exercise of its appellate jurisdiction. The appellate jurisdiction which is exercised in the instant case is the one under S. 104 of the Code. It is necessarily an order passed in an appeal, though on an application for inter in relief. We do not see how it is possible to say that the order passed by Mehta J. in the instant case is not an order in an appeal under s. 104 of the Code. If this is so, then the bar contained in sub-s. (2) s. 104 of the Code will necessarily operate, as has been pointed out by the Supreme Court in Shah Babulal’s case . WE are, therefore, satisfied that this Letters Patent appeal is not maintainable, Naturally, no relief can be given to the appellant, who is the petitioner in Civil Application NO. 6571 of 1987.
16. Rule in Civil Application No. 6571 of 1987 is discharged with no order as to costs. Letters Patent Appeal No. 129 of 1987 is dismissed as not being maintainable.
17. After hearing Mr. Gumaste and Mr. Abhyankar, wde are inclined to continue the status quo as ordered by the Supreme Court for some further time. Accordingly it is directed that status quo as ordered by the Supreme Court in Special Leave Petition No. 15857 of 1987 shall continue till 30th March, 1988.
18. Order accordingly.