JUDGMENT
S.K. Dubey, J.
1. This Order shall govern the two appeals.
1. When the two appeals under Order XLIII, Rule 1(r) of the Code of Civil Procedure, for short the ‘Code’, came up for hearing on admission, a question arose :
Whether an appeal permitted under Section 104 of the Code against an order passed in a suit, value of which exceeds Rs. 50,000/-, is to be heard by a Judge sitting alone under Clause (b) of Rule 1 of Chapter I of Section 1 of the High Court Rules and Orders in Madhya Pradesh, for short, the ‘Rules’ or is to be heard by a Division Bench?
2. On this question we heard Shri Balwant Singh and Shri A.M. Naik, counsel for the parties in M.A. No. 96 of 1993; Shri H.D. Gupta, Deputy Advocate General for appellant in M.A. No. 157/1993, and Shri R.D. Jain, amicus curiae.
3. Shri J. P. Gupta, Senior Advocate;
Shri M.K. Jain, Shri K.K. Lahoti, Shri K.L.
Mangal, Shri S.S. Bansal and Shri V.K.
Sharma, Advocates, also addressed the Court.
4. Having heard the counsel for the parties and the members of the Bar at length, we have formed the opinion that an appeal against an order under Section 104 of the Code, passed in a suit, value of which exceeds Rs. 50,000/ – shall be heard and disposed of by a Judge sitting alone under Rule 1(b) of Chapter I of Section 1 of the Rules and not by a Division Bench.
5. The heading of Chapter I in which the rule finds place is “Jurisdiction of a single Judge and of Benches of the Court,” relevant extract of Rule 1 we quote:
“1. The following matters shall ordinarily be heard and disposed of by a Judge sitting alone:–
(a) An appeal from an appellate decree of a District Court.
(b) A first or second appeal from an appealable order under the Code of Civil Procedure.
(c) An appeal under Section 110-D of the Motor Vehicles Act, 1939, for compensation the Value of which does not exceed Rs. 50,000.
Explanation.– The value of a cross-objection filed in any such appeal shall not be included in the value of the appeal. However, if the value of the cross-objection exceeds Rs. 50,000 the appeal as well as the cross-objection shall both be heard by Division Bench.
(d) An appeal of a civil nature under any Act of the Central or State Legislature or First Appeal under the Code of Civil Procedure, the value of which does not exceed the sum of Rs. 50,000 and any application or reference made under such Acts, if such appeals, applications or reference is not otherwise expressly provided for.
Explanation.– The value of a cross-objection filed in any such appeal shall not be included in the value of the appeal.
However, if the value of the cross-objection exceeds Rs. 50,000 the appeal as well as cross-objection shall both be heard by Division Bench…..”
6. A look to Rule 1 shows that Clause (a) of Chapter I speaks of a second appeal from an appellate decree of a District Court, while Clause (b) ibid speaks of a first or second appeal from an appealable order under the Code. Clause (c) relates to the appeals under the Motor Vehicles Act, while Clause (d) speaks of an appeal of a civil nature under any Act of the Central or State Legislature or First Appeal under the Code, the value of which does not exceed Rs. 50,000. In Clause (d) the relevant expression is “First Appeal” under the Code. It is significant that there is no reference to a “decree” of a Court of original jurisdiction after the words “First Appeal” and, therefore, if there would not be Clause (b), the provisions of Clause (d) could be applicable even to an order appealable under the Code.
7. The two expressions ‘decree’ as defined in Section 2(2) and ‘order’ defined in Section 5(14) of the Code make a marked distinction, so also in an appeal arising out of a decree and an appeal out of an order passed under the Code, permitted by Section 104 of the Code. A Division Bench of this Court in case of B.S. Adityan v. Fencing Association, 1991 MPLJ 418 has considered the same and observed in para 9 thus:
“9. Before embarking upon a critical examination of the provision of Section 104 of the Code, we may state that it is settled law that the right of appeal is not a natural and inherent right of a person in respect of any litigation, but the same is a creature of statute. Any person having a grievance of a civil nature has a right to institute a suit in Court, independently of any statute in that behalf, unless the cognizance of the suit is expressly or impliedly barred under the provision of any law. But a right of appeal does not exist and cannot be assumed unless expressly conferred by statute or the rules having the force of statute. In this context, it may be pointed out that Section 96 of the Code deals with appeals from decrees passed by any Court exercising original jurisdiction to the Court authorised to hear appeals, while Section 104 deals with appeals from order specified in Sub-section (1) thereof. There is an apparent and a fine distinction between a decree and “an order inasmuch as the adjudication which is a decree within the meaning of Clause (2) of Section 2 of the Code, there is, invariably a provision, for appeal and further a second appeal under Section 100 of the Code only if the case involves a substantial question of law. But no appeal would be competent against an order unless it is expressly provided and falls within the ambit of Section 104 and in any case, no second appeal would be competent due to the embargo contained in Sub-section (2) of Section 104 of the Code which specifically provides that “no appeal shall lie from any order passed in appeal would be maintainable against an order in appeal under Section 104 due to the bar contained in Sub-section (2) of Section 104 of the Code…..”
8. Under Clause (b) of afore-extracted Rule 1, a first or second appeal lies from an appealable order before a Judge sitting singly, under the Code irrespective of valuation, while Clause (d) neither speaks of the order nor of the decree, but speaks of the appeal of the civil nature under any Act of the Central or State Legislature or ‘First Appeal’ under the Code, the value of which does not exceed the sum of Rs. 30,000/-. In Clause (d), the valuation of the first appeal which a Judge sitting alone has to hear has been restricted to Rs. 50,000. -. If Clause (d) is interpreted to cover the appeals of civil nature against an order under the Code, then there will be overlapping of the jurisdiction which will be subject to the choice of a litigant, i.e., a litigant can avail the jurisdiction of a Judge sitting alone under Clause (b) by filing an appeal against an order, as it does not restrict the valuation or he may avail the jurisdiction of the Division Bench, stating that the value of the suit is beyond Rs. 50,000/-, which is not the intention of the rule-making authority. Therefore, the two provisions are to be interpreted on the doctrine of harmonious construction. Under Clause (b), an appeal lies against an appealable order under the Code and is to be heard by a Judge sitting alone, irrespective of its value. While Clause (d) does not speak of appeal against an ‘order’ under the Code, but the expression used is ‘First Appeal’ under the Code, which meant to cover an appeal from a decree of a regular Civil Court having an original jurisdiction and from which the First Appeal lies under an authorisation of a statute of the High Court. Therefore, Clause (d) operates in the field of the cases which are not covered by Clause (b); in other words, Clause (d) is confined to first appeal under Section 96 of the Code from original decree, and not from an order of which an appeal is provided under Section 104 of the Code, which has been dealt in Clause (b). This interpretation of Clauses (b) and (d) gives effect to the two provisions, making the expression in Clause (d) effective, and the provisions meaningful. It is sound principle of interpretation of statutes that the Courts always presume that legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. All words and expression should be given effect to and no word or expression should be rendered nugatory. This principle of presumption is equally made applicable in the case of rule making authority. See J.K.C.S. & W, Mills v. State of U.P. AIR 1961 SC 1170.
9. The above is also clear from the Explanation given after Clause (d) that in first appeal under the Code, the cross-objection lies. However, if the value of the cross-objection exceeds Rs. 50.000/-, the appeal as well as the cross-objection shall both be heard by Division Bench. If we look to Chapter IV, ibid, relating to Court hours and presentation of appeals and applications, the classification of the proceedings and petitions therein make a distinction between an appeal arising out of a decree and an appeal against an order. Clause 3 relates to classification of the proceedings which we quote:
“3. Every petition shall be headed “In the High Court of Judicature at Jabalpur.” If it relates to a cause, appeal or other proceeding already before the Court, the class and number of such cause, appeal or proceeding shall be set out immediately below the title; otherwise the class of proceeding to which the petition belongs shall be indicated.
Note — The classification of proceeding in the High Court is as follows:
(i) First Appeals, (ii) Second Appeals, (iii) Miscellaneous Appeals, (iv) Civil Revisions, (v) Miscellaneous Civil Cases, (vi) Criminal Appeals, (vii) Criminal Revisions, (viii) References in cases involving Capital punishments, and (ix) Miscellaneous Criminal Cases.
First and Second Appeals refer to appeals from original and appellate decree respectively, all appeals from orders including those under Section 47, Code of Civil Procedure, whether original or appellate, being classified as miscellaneous, Civil Revisions refer to revisions of a lower Court’s decree or order under Section 115 of the Code of Civil Procedure, Section 25 of the Provincial Small Cause Courts Act or Section 75 of the Provincial Insolvency Act.” The Note relates to the classification of proceeding in the High Court. First Appeals, Second Appeals, Miscellaneous Appeals. Below the Note, First and Second Appeals refer to appeals from original and appellate decree respectively, all appeals from orders including those under Section 47 of the Code, whether original or appellate, being classified as Miscellaneous appeals. Therefore, it is abundantly clear that the orders against which an appeal is provided under Section 104, which do not fall within the expression “decree” that appeal irrespective of its value shall be heard by a Judge sitting alone.
10. Accordingly, both the appeals filed under Order XLIII, Rule 1(r) of the Code, be placed for hearing before the Judge of this Court sitting alone.
11. Before parting with the record, we
place on record our appreciation to the
members of the Bar for the valuable assistance rendered by them during the course
of hearing.