Jaimin J. Desai vs Gujarat Chamber Of Commerce & … on 20 December, 1999

JUDGMENT

J.N. Bhatt, J.

1. What is in ‘focus :-The main question, in the focus, which, revolves, round, for determination and decision, in this Letters Patent Appeal (LPA), is, “Whether, an appeal would lie under Clause 15, of the Letters Patent Appeal of the Bombay High Court, applicable to the Gujarat High Court, to a Division Bench of this Court, from the judgment of a Single Judge, of this Court, recorded and rendered in exercise of Appellate Jurisdiction arising out of “Appeals from Orders” involv-ing and warranting analysis, interpretation of, and applicability of the provisions” :

(i) Clauses 15 and 44 of LPA of Bombay Applicable to Gujarat (ii) Sections 100-A, 102(2), Section 104(1) & (2), 105,106, 107 and 109 of the Civil Procedure Code (CPC) and (iii) Order 43, Rule 1 (r) and Order 45, Rule 3 of the CPC and (iv) Article 133(1) and (2) and Article 134-A and Article 147 of the Constitution of India.

2. The appeal, before the learned Single Judge, came to be filed, against the Interlocutory order of injunction, against the order of, City Civil Court, in Original Suit, No.4939 of 1999, for, perpetual Injunction. By virtue of the impugned interlocutory order, under Order 39 Rules 1 and 2 of CPC, recorded by the Trial Court, and challenged before, the Learned Single Judge, upon hearing the parties, came to be modified, with, certain directions and observations. Thus, in reality, issue of appealability of interim order, pending, the Appeal from Order passed by the Learned Single Judge, is the soul and substratum of this LPA.

3. Whether, an interlocutory – discretionary order amounting to judgment of the Learned Single Judge of this Court recorded in Appeal against the Order arising out of the original pending Civil Suit before the City Civil Court, could be questioned by invoking the aids of Clause 15 of the LPA of Bombay, as applicable in Gujarat, before the Division Bench of this Court, is the main question which has surfaced, in this LPA, for our adjudication, against the interim order and judgment of the Learned Single Judge of this Court recorded, on 4.11.1999, in a Civil Application preferred in an Appeal from Order.

4. Factual Matrix: Obviously, the skeleton relevant and material, projection of facts, giving rise to this appeal, may be, necessary to be highlighted, so as, to appreciate, the merits of the appeal and the serious challenge against the impugned order including tenability of L.P. The Appellant is the Respondent in the Appeal from Order and the Plaintiff in the Original Civil Suit, and, therefore, hereinafter referred to for the sake of brevity, and, convenience, as Plaintiff, whereas, respondents before us are the appellants in the Appeal from Order and original defendants in Regular Civil Suit No.4939/99 and, therefore, hereinafter, referred to, as the Defendants.

5. The original Plaintiff, by filing the aforesaid suit for declaration and injunction, inter alia, contended against the original Defendants before the City Civil Court, at Ahmedabad, and pleaded that he is one of the businessmen doing his business, in Ahmedabad, and the action of the Defendants, Gujarat Chamber of Commerce and Industries (GCCI) in revising the fees for admission and subscription against the provisions of the Constitution of the GCCI and is, therefore, illegal and without any authority. It was, also, contended by the plaintiff that he being a local person and doingbusiness, is entitled to be a member of defendant-GCCI. In substance, therefore, the revision of memebership and admission fees was sought to be quashed by filing a suit.

6. Along with the suit, an application for interlocutory injunction under Order 39 Rules 1 and 2 of CPC came to be preferred. The Trial Court was pleased to issue notice of motion and after hearing both the parties, allowed the notice of motion by its order, dated 30.9.99, whereby, the defendant-GCCI was restrained from implementing and recovering the admission and membership fees as per the revised rates which are as per the schedule produced, at Ex. 111/3, which was sought to be made effective from 10.9.99.

7. Appeal from Order under Order 43 Rule 1(r) of CPC and multifaceted challenges:

Feeling aggrieved by the interlocutory order recorded by the learned Trial Court, the defendant-GCCI carried the matter in Appeal against the impugned Order and applied for interim order by filing a Civil Application in an Appeal from Order for stay. In short, what was sought to be stayed was the order of the Trial Court, whereby, the defendant came to be restrained from implementing the revised fees for admission and subscription. The Appeal from Order, obviously, in the light of the provisions of Order 43 Rule 1(r) read with Section 104 of the Code of Civil Procedure. 1908 was filed and there is no any controversy about it.

The learned Single Judge, upon hearing the learned advocates appearing for the parties and analysing the facts and circumstances passed the impugned order. What is being, seriously, challenged and criticized before us in this appeal, is the observations and directions contained in the impugned order in general and the directions contained in paras 9, 10, 11 and 12 of the impugned order, in particular. It would, therefore, be expedient and appropriate, at this stage, to reproduce the said directions contained in paras 9 to 12, which reads as under:

“9. In the circumstances, looking to the facts and the circumstances of the case, it is directed that the defendant-Association shall deposit the difference of amount i.e. the difference between the old rate and the new rate with a scheduled bank and in the event of its losing in the litigation, shall return the amount to its members who had paid at the revised rates with interest thereon at the rate of 10%.

10. Sr. Advocate Shri Nanavati has submitted that the applicants shall be informed by way of public advertisement which would be published in one Gujarati and English daily having wide circulation in Ahmedabad and Gujarat. The advertisement shall be published on or before 15-11-99 and the applicants shall be given time up to 15-12-99 to pay the difference of fees.

11. It is also clarified that the applicants who have already paid admission fees as well as annual subscription at the old rates, and if they pay the difference before 15-12-99 and if they are accepted as members of the association, they shall be deemed to have paid the entire amount on the day on which they had paid their fees as per the old rates. It has also been assured by Sr. Advocate Shri Nanavati that the application forms which have been received shall be scrutinised as soon as possible and preferably before 31-1 -2000.

12. Hearing of Civil Suit No.4939/99 is directed to be expedited. It is hoped that the learned advocates appearing before the trial court and the litigants shall extend their co-operation to the trial court so that the suit can be disposed of as soon as possible.”

8. We have heard the learned advocates appearing for the parties at a greater length. We have also examined the documentary evidence relied on by both the parties and also considered the factual scenario emerging from the record of the case. A preliminary objection came to be raised on behalf of the respondent about the tenabil-ity and the maintainability of the Letters Patent Appeal under Clause 15 of the Letters Patent of Bombay. We have heard the learned advocates on the question of tenability and maintainability of the appeal, as well as, the merits of the appeal as requested. No doubt, this Court is of the clear view, that if the appeal held to be incompetent, the examination and appraisal of the merits of the impugned order, in such an appeal would not be entertainable, and, if we come to the conclusion that the appeal is maintainable, obviously, then only the second stage and action should be to consider the merits of the impugned order. Thus, we can embark upon and enter the area of merits of appeal only if Letters Patent Appeal is held to be tenable.

9. Rival Submissions: Learned Counsel, Mr Tanna, inter alia, has opposed the preliminary objection about the appealability of the impugned order with the help of Clause 15 of the Letters Patent of Bombay. Learned Counsel, Mr Tanna, has raised the following submissions against the submission raising the maintainability of this appeal:

(1) That the appealability of any order or for that purpose judgment, may be interlocutory or temporary has to be judged and determined upon the type and manner of the exercise of powers by the Court (Learned Single Judge) concerned, in the present case.

(2) In that he has further submitted that if the learned single Judge is shown to be, totally, travelling beyond the appellate scope and having passed directions without jurisdiction or something of that nature, could be questioned in an appeal under Clause 15 of the Letters Patent which is not only statutory, but it is more than that. He has also submitted that the provisions of Letters Patent by virtue of which Chartered High Courts came into existence are very sacrosanct.

(3) That the Court is never helpless, in putting and placing the impugned order or direction. Without adjudication in such a case in a proper, just and legal shape and form even in a Letters Patent Appeal.

(4) In support of this contention, he has, also, placed reliance on host of case law to which reference will be made by us as and when required at an appropriate stage, hereinafter.

(5) Of course, he has also, seriously, criticized the impugned order on merits and has contended that the impugned order is unjust, totally, perverse and beyond the jurisdiction and without any application of mind and, therefore, is liable to be quashed in exercise of the appellate powers conferred under Clause 15 of Letters Patent of Bombay as applicable to Gujarat.

10. The vehement submissions propounded by learned Counsel Mr Tanna have been, seriously, opposed and countered by the learned Counsel Mr Nanavati, while appearing for the respondent-original defendants. He has, fully, supported the order challenged in this appeal and reiterated that the Letters Patent Appeal is not the proper remedy against the impugned order. He has, also, relied on several decisions, to which reference will be made at an appropriate stage.

11. Before we embark upon the inquiry or the exercise of examination of rival contentions raised before us, it would be interesting to mention that most of the host of the case law, relied on by both sides is, virtually, common.

12. Historical origin and evolution of Letters Patent Provisions :

Clause 15 of the Letters Patent of Bombay, as applicable to Gujarat provides, intra-court or an internal appeal against judgment of a single judge of the High Court to the Division Bench, not being the judgment passed in exercise of appellate jurisdiction in respect of a decree or order or judgment made in exercise of the appellate jurisdiction by the Court. In other words, the judgment of a single Judge of the High Court, pursuant to Section 108 of the Government of India Act, 1915, is appealable before the Division Bench. But not when the impugned judgment is passed in exercise of appellate jurisdiction. Clause 15 of the Letters Patent of Bombay, therefore, needs to be, closely, examined which has a jurisprudential and historical contours and chronicles.

13. Clause 15 of the Letters Patent of Bombay reads as under :

“15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction — And we do further ordain that an appeal shall lie to the said High Court of Judicature at (Madras) (Bombay), Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, on or after the first day of February 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us. Our heirs or successors in Our or Their Privy Council, as hereinafter provided.”

14. It could be very well seen from the aforesaid provisions of Clause 15, that the Letters Patent of Bombay, in which the appellate jurisdiction is prescribed, as such came to be inherited by our High Court from the appointed day, like that, from 1st May 1960, from the Erstwhile State of Bombay, which came to be bifurcated into two States, namely, the State of Maharashtra and the State of Gujarat, by virtue of Bombay Reorganisation Act, 1960. Section 28 of the said Act constituted this High Court as a separate High Court in and for the State of Gujarat. Section 30 of the said Act laid down the jurisdiction and empowerment of the powers exercisable by the High Court. Section 30 of the said Act reads as under:

“30. Jurisdiction ofGujaratHighCourt:-The High Court of Gujarat shall have, in respect of any part of the territories included in the State of Gujarat, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, as excisable in respect of that part of the said territories by the High Court of Bombay.”

15. It is, therefore, very clear that this High Court, was conferred with the same jurisdiction which under the law immediately in force before, 1st May 1960, was exercisable by the Bombay High Court in respect of territories included in the State of Gujarat. By virtue of Clause 15 of the Letters Patent, the Bombay High Court had jurisdiction to hear an appeal against any judgment of a single Judge of that High Court and this jurisdiction by virtue of Section 30 has been inherited by this Court and that is the reason why this High Court can in exercise of such Jurisdiction hear an appeal against any judgment of a single Judge of the High Court just as Bombay High Court could, immediately prior to the appointed day hear an appeal against any judgment of the learned single Judge of that High Court in respect of the Gujarat territories.

16. Of course, there does not appear any other inhibition or limitation or for that purpose any fetters as regards the nature of jurisdiction exercisable by a learned single Judge except the appellate jurisdiction of single Judge. The only condition for the exercise of the powers of “Letters Patent Appeal under Clause 15, is subject only to

the fulfillment of this condition and an appeal can be entertained by this Court in exercise of the appellate jurisdiction against the judgment of the single Judge so long as it is a judgment within the parameter and ambit of the jurisdiction vested in the Bombay High Court irrespective of whether it is given by the Bombay High Court immediately prior to, 1st May, 1960 or it is given in exercise of jurisdiction, subsequently, conferred on this High Court.

17. In substance, the very design and the purpose of the provisions of Section 30 of the Bombay Reorganisation Act, 1960, is to vest in the High Court the appellate jurisdiction of the Bombay High Court under Clause 15 of the Letters Patent and it cannot be held to be excluded merely on the ground that the impugned orders came to be made in exercise of the jurisdiction conferred after the appointed day. The High Court of Gujarat, therefore, shall have, in respect of any of the territories included in the State of Gujarat of such jurisdiction and powers and authority as under the law in force, immediately, before the appointed day, like that, 1st May, 1960, were exercis-able in respect of that part of the State of Bombay.

18. It is evident from the aforesaid provision of Section 30 that this High Court is conferred with the same jurisdiction which was under the law in force immediately before, 1st May, 1960, as was exercis-able by the Bombay High Court in respect of the geographical territories of the State of Gujarat. Clause 15 of the Letters Patent of Bombay, therefore, came to be applied in the State of Gujarat upon bifurcation and installation of the High Court. It, therefore, becomes explicit that this Court has jurisdiction to hear and entertain an appeal against the order of the single Judge which is not recorded or not being in exercise of appellate jurisdiction. The very design and decideratum of the provisions of Section 30 of the Bombay Re-organisation Act 1960, is to vest in this High Court the appellate jurisdiction of the Bombay High Court which was, hitherto, exercisable by the Bombay High Court before bifurcation under Clause 15 of the Letters Patent so that an internal or an intra-court appeal could be entertained by the Division Bench against the judgment of the learned single Judge.

Section 108 which is, specifically, referred in Clause 15 is of Government of India Act, 1915, which reads as under:

“108(1). Each High Court may by its own rules provide, as it thinks fit, for the exercise, by one or more Judges, or by division Courts constituted by two or more Judges, of the High Court, of the original and appellate jurisdiction vested in the Court.

(2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several division Courts.”

19. The Government of India Act, 1915, was repealed by Government of India Act, 1935, and Government of India Act, 1935, in turn, came to an end, upon commencement of the Constitution of India, 1950. The power conferred on the High Court and the Chief Justice under Section 108, however, still subsists and it has not been affected in any manner, whatsoever, either by Government of India Act, 1935 or by the Constitution of India. Section 223 of the Government of India Act, 1935 provided that subject, inter alia, to the provisions of any Act or the appropriate legislatures, the respective powers of Judges of any existing court in relation to administration of justice in the Court including the powers to make rules and to regulate sitting of the Court or any Division Bench shall be same as existed immediately before the Government of India Act, 1935. Same provisions also came to be incorporated and enshrined in Article 225 of the Constitution of India. Under Constitution of India.

20. Under Constitution of India.

Article 225 of the Constitution of India, evidently, prescribes the provision for the preservation of the jurisdiction of the existing High Courts. It would be profitable to make a reference to the said provisions:

“225. Jurisdiction of existing High Courts– Subject to the provisions of, this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of Justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original Jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the connection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such j urisdiction.”

21. The powers, jurisdiction and right to make rules and regulate the administration of justice enjoyed and existed, immediately, before the commencement of the Constitution of India, therefore, becomes, crystal clear powers conferred by virtue of Section 108 of the Government of India Act, 1915. In short, what we propose to emphasise is that the provisions of Section 108 of the Government of India Act, 1915, which is, specifically referred to in Clause 15 have not been abridged or abrogated, but are, to an extent, reformed, rejuvenated with greater vigour by Government of India Act, 1935 and, in turn, later by the Constitution of India.

22. Therefore, it cannot be gainsaid that the High Court and the Chief Justice still enjoys, unqualified, powers empowered under Section 108 of the Government of India Act, 1915. The aforesaid provisions, clearly, go to show that under Clause 15 of the Letters Patent of the Chartered High Courts from the judgement within the meaning of that term as used in that clause in exercise of original jurisdiction of a single Judge of the High Court, an appeal lies to the Division Bench of that High Court and there is no qualification or limitation as to the nature of the jurisdiction exercised by the single Judge while passing the judgment save as provided, an appeal is not barred by any statute, for example Section 100-A of the Code of Civil Procedure, 1908, and provided the conditions laid down by Clause 15, are fulfilled.

23. It would, therefore, become very clear, that the conditions prescribed by Clause 15 and finally amended, in this behalf are :

“An appeal shall lie to the High Court of Judicature at Bombay — applicable to

Gujarat.

(1) from a judgment

(2) of one Judge of the High Court

(3) pursuant to Section 108 of the Government of India Act of 1915

(4) not being –

(a) a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court.

(b) an order made in the exercise of revisional jurisdiction,

(c) a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915, (Corresponding Article 227 of Constitution of India)

(d) a sentence or order passed or made in the exercise of criminal jurisdiction.”

24. An intra-court appeal against a judgment of the single Judge in a petition under’ Article 226 of the Constitution of India is not barred, whereas, Clause 15 Itself bars an intra-court appeal against the judgment of the single Judge even in a petition under Article 227 of the Constitution of India. The provisions of Article 227 are referable to the provisions of Section 107 of the Government of India Act, 1915. The powers of superintendence prescribed in Section 107 of the Government of India Act, 1915 are corresponding to the provisions which are incorporated in Article 227 of the Constitution of India, even if, exercised by a single Judge, appeal would not lie before the Division Bench against his judgment for the simple reason that the exercise of jurisdiction mentioned in Clause 15 by the single Judge is referable to only and only the original jurisdiction and not appellate jurisdiction, revisional and criminal jurisdiction of the Single Judge.

25. The phraseology of the Letters Patent, the Government of India Act of 1915 and the Government of India Act, 1935, make it profusely obvious that the words “Original” and “Appellate: were used with reference to legal jurisdictions of the High Courts created by ordinary legislations as distinct from organic or Constitutional jurisdiction not subject to such laws. The historical origin of Clause 15 lies In the Imperial device to

provide an intra-court appeal in causes heard in the exercise of its original civil jurisdiction by the High Court acting by its single Judge’s Court, all other appeals being differently provided for.

26. Articles 226 and 227 of the Constitution contain inbuilt rule-making power and, therefore, after the coming into force of the Constitution, the authority to make rules is not required to be traced to Section 108 of the Government of India Act, 1915, but resides in Articles 226 and 227 of the Constitution supplemented with regard to identical matters by Article 225. The fact that the Letters Patent can be amended by ordinary legislation shows that the jurisdiction of the High Court under Articles 226 and 227 could not fall within the purview of the Letters Patent, or is included therein.

27. Merely because a single Judge has passed an order or ajudgment in exercise of his appellate jurisdiction, the same cannot be questioned before the Division Bench invoking the aids of Clause 15 of the Letters Patent of Bombay. The parameter which is, specifically, prescribed in Clause 15 is very clear that an appeal against the judgment of a single Judge would lie before the Division Bench of the same High Court under Clause 15 of the Letters Patent provided the impugned judgment is in exercise of the original jurisdiction and not appellate jurisdiction. It cannot be contended that in exercise of the appellate powers, learned single Judge has travelled beyond the scope of his jurisdiction or has exceeded his jurisdiction and therefore, on that ground itself appeal would become competent under Clause 15 of the Letters Patent of Bombay, as contended. It is not the quality, it is not the content, but the exercise of power and the source of power which would determine the applicability of the provisions of Clause 15. So the Court is obliged to consider, while entertaining the Letters Patent Appeal under Clause 15 at the nature of exercise of power and source exercised by the learned single Judge while passing the impugned order.

28. Dynamics and Mechanism of Jurisdiction and Appeal:

Incidentally, it may be noted that the expression “jurisdiction” has awiderjuris-prudential connotation, concept and philosophy. However, for the limited purpose of this appeal, at this juncture, broadly, the nature and the type of the jurisdiction may be articulated and categorised in following four categories:

(1) Original jurisdiction:

(2) Appellate jurisdiction;

(3) Special jurisdiction

(4) Revisional jurisdiction;

Likewise, it would be also interesting to note the type and category of an Appeal and the nature of appeal which could be classified and articulated in the following categories:

(1) First Appeal

(2) Second Appeal

(3) Appeal against Order

(4) Letters Patent Appeal. Parameters of Clause 15 of L.P.

29. While considering the tenability of an, appeal against the judgment of the single Judge, the Court is obliged to put in focus and consider the type of the exercise of the jurisdiction and the type of the appeal. We have observed, hereinbefore, that the appeal would lie to the Division Bench against the order of the single Judge by invoking the aids of the provisions of Clause 15 of the Letters Patent of Bombay provided the order or decision amounting to judgment impugned answers the eligibility criteria pie-scribed in Clause 15 itself. In other words, appeal would be competent before the Division Bench in a case against judgment of a single Judge who has exercised the original jurisdiction while passing the impugned order. Bearing in mind this clear and specific parameter, the main issue of ‘Appealability’ of the impugned order ought to be examined and adjudicated upon.

30. We do not propose to enter into the expression ‘judgment’ employed in Clause 15 of the Letters Patent, as the proposition of law is very well established on this score. The judgment does not signify a final Judgment. Even an order or direction recorded at the interlocutory stage by the single Judge in purported exercise of power as an original Court may, obviously, be a judgment in a fact situation in terms of Clause 15, which could be questioned before the Division Bench. In short, the reference of judgment cannot be assigned a limited and restricted meaning like final order. It may be interlocutory, it may be temporary, it may be interim. What should be the arixiety of the Court, is to see, whether at that stage, such an order or direction concludes the rights of the parties or not and whether such an order, successfully, answers, the qualifying criteria prescribed in Clause 15 of the Letters Patent.

31. Jurisprudentialand Historical Chronicles:

To trace out, shortly, the fusion and evolution of the establishment of High Courts in India, in the special facts, may not be considered, as an irrelevant detour. In view of the involvement of the issue in the present appeal and the fact that host of authorities are relied on, after addressing this Court at a marathon length, it would be expedient to, briefly, examine the jurisprudential historical background.

32. Prior to 1861, there were two sets of Courts in the stream of administration of justice which were required to be united and integrated. In reality, as a matter of fact, uniformity in the administration of justice was absolutely necessary at the relevant time and therefore the two sets of courts came to be integrated and united by virtue of Indian High Courts Act, 1861. Prior to 1861, let us say, from the viewpoint of India populace and interest the scattered, uncared for, ununited, divergent two streams of courts were engaged and employed in the Administration of Justice in this country.

33. The centralisation of the legislative mechanism for the introduction of uniformity and to remove conflicts, confusion and divergent views which were, obviously, created by the enactment of local-laws made by legal Legislatures of different Provinces. The Charter Act, 1833, undoubtedly, proclaimed that action and by virtue of that, the Governor General-in Council, became the lawmaker, which would be binding to all courts, including the local Supreme Courts, as they then existed, including the Bombay Province. It laid down special emphasise on the enactment of uniform law in certain important fields to govern all persons without any distinction of caste, creed and religion. With a view to implement such a policy, the Charter Act, 1833, came to be introduced under which the first and second Law Commission also came to be constituted. It would not be out of place to say that because of the uniform and codifying legislative policy and the resultant legislation in the history of this country, we got one of the very good enactments on the criminal side like. Indian Penal Code and also Code of Civil Procedure and Code of Criminal Procedure for the prevalent circumstances then. These were achievements of such recommendations made by the Law Commissions constituted under the Charter Act, 1833.

34. It would not be out of place to mention, at this juncture that in 1858, the Erstwhile, East India Company, came to be abolished and assumption of the responsibility of the governance of the country was taken over by Crown which was otherwise (hitherto) used to be governed through the East India Company, by virtue of Indian High Courts Act, 1861. It came to be passed on 6th August, 1861 and it empowered the Crown to establish by Letters Patent of High Court of Judicature and pursuant to that and then as amended in 1862 and 1865 provisions, the Calcutta, Bombay and Madras High Courts came to be installed. In short, the grant of Letters Patent has the nexus with the Indian High Courts Act, 1861 and then amended in 1862 and 1865. Her Majesty could grant by Letters Patent the High Court. Accordingly, in 1861, the Calcutta High Court came into existence and thereafter on June 26, 1862, Bombay High Court came into existence.

35. The High Court of Judicature, at Bombay, was Established by Letters Patent, dated June 26, 1862, issued by the British Crown, in pursuance of authority conferred upon it by the Indian High Courts Act, 1861 ((24 & 25) Vict. C. 104) Clause 14 of the said Letters Patent provided as follows:

“14. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction — And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment, in all cases of original civil jurisdiction, of one or more Judges of the said High Court or of any Division Court, pursuant to Section 13 of the said recited Act: Provided always that no such appeal shall lie to the High Court as aforesaid from any such decision made by a majority of the full number of Judges of the said High Court, but that the right of appeal in such case shall be to us. Our heirs or successors, in Our or Their Privy Council in manner hereinafter provided.”

The Letters Patent issued in 1862 were revoked and replaced by Letters Patent, dated, December 28, 1865. Clause 15 of the new Letters Patent in its original form was in the following terms;

“15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction — And we do further ordain that an appeal shall be to the said High Court of Judicature at Bombay, from the judgment (not being a sentence or order passed or made in any criminal trial) of one Judge of the said High Court, or of one Judge of any Division Court, pursuant to Section 13 of the said recited Act; and that an appeal shall also lie to the said High Court from the judgment not being a sentence or order as aforesaid, of two or more Judges of the said High Court, or of such Division Court, wherever such Judges are equally divided in opinion, and do not amount in number of a majority of the whole of the Judges of the said High Court, at the time being; but that the right of appeal from other judgments of Judges of the said High Court, or of such Division Court, shall be to Us, Our heirs or successors, in Our or Their Privy Council, as hereinafter provided,”

36. The Letters Patent, thus, provided and empowered the High Court with the jurisdiction of ordinary, original, civil, appellate besides the jurisdiction with regard to admiralty, etc. The original jurisdiction of the admiralty and also the procedure by Letters Patent came for the first time by introducing a Charter, on 26.6.1862. The Queen established the High Court of Bombay and as per the reported history, it was installed and was inaugurated on 14th August, 1862, at Bombay, with almost similar powers conferred upon the Judicature of Calcutta. Therefore, by virtue of the Letters Patent, the High Courts in India came to be evolved.

37. The Historians have noted that the establishment, existence, installation and subsequent working of Bombay High Court has left an indelible imprint on the society for more than one-and-a-half centuries. The contribution of the Bombay High Court in the emergence and evolution of the concept of independence of judiciary, the case law making, providing integrated, united and codified system of administration of justice and whole mechanism of judiciary has been outstanding and yeoman.

38. In almost all countries and in every civilised society for effective Rule of Law, there are, mainly, two sets of laws;

(1) Substantive law; and

(2) Procedural law;

Substantive laws determine the rights and obligations of citizens, whereas, procedural laws are, no doubt, prescribing procedure, but, also, not less important. Doubtless to say, the efficacy of substantive laws to the much extent depends upon the quality of the procedurallaws. Unless the procedure is evident, clear, simple, inexpensive, easily understandable and expeditious, the substantive laws, however, good are bound to be, unsuccessful, in their purpose and policy. The substantive law has at the first look of being gradually secreted in the inter cases of procedure.

39. The Civil Procedure Code, 1908, is also sought to be simplified to eliminate avoidable delay in the procedural aspects. In fact, the history of Civil Procedure in this country, really, began in the year 1859, when the first uniform Code of Civil Procedure was enacted. Needless to state that before that the procedure in the civil litigation was in a chaotic and coherent condition. As such, there was no uniform law of procedure applicable to the country. Different provinces and areas had adopted different procedure. Sir Charles Wood, the President of the Board, for the first time, made effort in that direction of evolving a uniform procedure and directed the Second Law Commission to address itself to the preparation of a Code of simple and uniform procedure applicable to all the Courts. The Commission had submitted four drafts Code of Procedure which were intended to apply to Ordinary Civil Courts of lower Provinces of Bengal and Presidencies of Madras and Bombay and North Western Province.

40. Four bills based on those drafts were, ultimately, came to be amalgamated and enacted as Code of Civil Procedure, 1859, which was, however, not applicable to the Supreme Court in the Presidency towns and Presidency Small Causes Courts. Again it was subjected to series of amendments. In the meantime, it was extended to, subject to some modification, to the whole of the British India and the High Courts in exercise of their civil intestate testamental and matrimonial jurisdiction. The new Letters Patent of 1865, however, modified this position and empowered the High Court to make their own rules and orders for regulating civil procedures at the same time it imposed a duty at them to be guided by the provisions of Code of 1859 as amended from time to time.

41. Soon after the enactment of the Code of 1877, it was noticed that new Code requires several amendments and as many as 130 sections of the Code came to be amended in 1879. Further amendments were proposed in 1882. It was then decided that the Code should be completely overhauled and recast. That is how, the Code of Civil Procedure, 1908, came to be evolved and enacted. The Code of 1908, though was a product of our well thought on our efforts and experimentation extending of more than half a century, but again time is overdue to make modifications and alterations in view of the appalling backlog of cases which has, unfortunately, become a normal feature of nearly of all the courts of the country. The problem of delay in the law courts has assumed greater importance. No doubt, it must be remembered that CPC is a copy of procedural law designed to facilitate to do justice and it should not be treated as an enactment providing punishments and penalties.

42. The law procedure should be considered as to render justice, wherever, reasonably possible. It is a handmade and not the mistress. Time and again, it has been suggested by various experts in reports of Law Commissions that the problem of delay is complex. However, the simplification of the procedural law is required to be introduced so that dilatory and delaying tactics of an unscrupulous party or its agent can be avoided to an extent, if not totally eradicated. The popular, unfortunate, motto of unsavoury logo “if I am plaintiff, nothing can stop me, if I am a defendant, nothing can move me” syndrome, which has generated paralytic impact on the progress of speed and disposal of the cases must be lynched by evolving effective strategies in procedural law and more so in the CPC and by eliminating avoidable tiers In the hierarchy of appeals. It is in this context, the provisions of Clause 15 in the letters Patent of Bombay, in our clear, opinion, is required to be abolished, being obsolete teethless, out of date and counter-productive.

43. Early disposal of the court cases is the call of the day. It must receive, utmost priority. In order to avoid delay at the appellate stage, one, obvious, remedy for eliminating the delay is in the appeal proceedings is to restrict the number of appeal available to the litigant under the existing laws. It is, rightly, often, complained and criticized in this country that there are too many appeals. Such a criticism finds sufficient justification. No doubt, a litigant must have a right of first appeal before the District Court on facts and law and the second right of second appeal should be only on the question of law before the High Court by a Division Bench so that there is no further right of appeal in so far as statutory provisions are concerned.

It may be mentioned, at this stage, that compared with the multiplicity of appeals in this country, the right of appeal in England is very much circumscribed. In that country, in case of original jurisdiction in the High Court, there is a right of appeal both on facts and law from the judgment of the High Court. From the court of appeal, the litigant may file appeal to the House of Lords subject to leave being granted. Of course, this leave is granted in rare cases and a very few cases have gone to the House of Lords. It is, therefore, necessary to emphasise about the curtailment of right of appeal. Law Commission in 14th report and thereafter in 27th report, undoubtedly, observed and expressed conclusion that delay in decisions of appeals are far greater in High Court than in District Court. It is stated in the 14th report of the Law Commission that on an average in an appeal in the District Court, an appeal is disposed of within one or two years, at that time. The problem of delay in appeal in the High Court is serious. Needless to state that in many appeals more than a decade time is taken for disposal.

44. Order 41 of the CPC lays down the procedure for hearing the appeals. The provisions of this Order are basic and fundamental and are not capable of improvement except, as discussed earlier and by making them simplify it for the appellate proceedings. The simplification, rationalization and modernisation in the procedural law and more so in appellate courts is requiring serious and utmost attention and it is in this context when we are dealing the issue of LPA we could not resist the temptation of mentioning the aforesaid aspects and ideas. We have also highlighted it to substantiate our opinion that it is high time to dispense with the LP of Bombay applicable to Gujarat when the statutory provisions and constitutional provisions are, already, evolved and enacted. Unfortunately, jurisdiction of the High Court in the India in the appellate stage takes very long time for variety of reasons. It has been, therefore, strongly recommended by various committees to accord special attention on the imperative needs to clear arrears in higher courts. When major part of the work of the High Court is constituted by appellate judicial work, the procedural law the relevant rules in general and LP provisions in particular are required to be” reconsidered and reoriented. Undoubtedly, the system itself is passing through great crisis and critical moments and it has come to a crossroads. The administration of justice is imperative for effective and efficient maintenance and sustenance of rule of law. Let us now not remain indifferent, inactive and apathetic any more, else the system may slip in the morgue or may rise in the monuments and in either case, it will be a sad day to weep for every law-abiding citizen and law and Justice functionaries in this country instead of wiping the tears from the eyes of weeping widows, poor and indigent litigants, harassed and handicapped litigants.

45. Before leaving the minor diversion and going to the main route on the highway for examining the merits of the vital issue, it would also be appropriate, at this Juncture, to mention that the evolution and the working of two streams of separate courts for over a period of 80 years and that too separate and parallel system of courts existed, implemented and continued to work in the Presidency, as well as, mofustl areas, and courts in pre-independence period, namely, the Real Courts or Crown Courts, that was one stream and the second stream was Adalats of the Company. After the establishment of the High Court, scattered, uncared for, unknitted, different streams of Adalats and administration of Justice which ran for more than 80 years came to be consolidated, strengthened, united and codified.

46. Appellate Mechanism: Since the central theme of the present appeal is pertaining to the appellate powers of the High Court and also tenabillty of the appeal, it would be interesting to refer to other relevant and material statutory provisions. In this connection, it may be mentioned that in Part VII of the Code’of Civil Procedure, 1908, provisions are madewith the help of Sections 96 to 109 which provide appeals from original decrees. Of course, strictly speaking, they are not directly but incidentally, material for the present. But, in so far as, the procedure even in case, of an “Appeals from Orders” is concerned same provisions have been made applicable for the hearing of an appeal under Section 104 read with Order 43, Rule 1 of C.P.C.

47. The scheme of the appeals and the mechanism of the provisions of appeal, therefore, needs to be presently peeped into. Out of Sections 96 to 109, important provision for the purpose of determining the merits of the issue in focus before us in this appeal is Section 100-A which came into force with effect from, 1.2.77, and which came to be introduced by virtue of Amendment Act (10 of 1976). Section 100 deals with the appeal from appellate decrees, whereas, Section 100-A provides that no further appeal shall lie in certain cases.

48. It would be profitable to read the same with care and caution. The legislative design, the Parliament used in its wisdom is that, notwithstanding, anything contained, in any Letters Patent for any High Court or any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment decision or order of such single Judge in such appeal. The amendment is aimed at minimising the number of appeals and reducing the life-span, of a law suit.

49. It would also be expedient at this juncture to mention the provisions of Section 104 which deals with Appeals From Orders. It provides which orders could be questioned in appeals. It would be, therefore, interesting to look into it seriously. It reads as under:

“104(1) An appeal shall lie from the following orders, and save as otherwise ex-

pressly provided in the body of this Code or by any law for the time being in force, from no other’orders:–

(a) to (of) omitted by Arbitration Act, 1940.

(ff) an order under Section 35A;

(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;

(g) an order under Section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing thg arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(1) any order made under rules from which an appeal is expressly allowed by rules:

Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order or an order for the payment of a less amount, ought to have been made.

(2) No appeal shall lie from any order passed in appeal under this section.”

(Emphasise supplied)

50. Section 105 provides that except, otherwise, expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction, but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. This is mentioned for the simple reason that the orders which are made appealable are provided in Section 104(1) and the orders which are not falling within the purview of Section 104(1) are dealt with in Section 105, whereas, in Section 106 the provision is made as to what Courts to hear the appeals.

51. It, clearly, prescribes that when an appeal from order is allowed, it shall He to the Court to which an appeal would lie from the decree in the suit in which such order was made or where such order is made by a Court not being a High Court in the exercise of appellate jurisdiction, then to the High Court. General provisions relating to appeals and powers of the appellate Courts are defined and prescribed in Section 107 to which we are not very much concerned, at this stage, in this appeal. Section 108, prescribes procedure in appeals from appellate decree and orders, whereas, Section 109 provides appeals to the Supreme Court.

52. After having taken into account the aforesaid provisions, it would be, now, interesting to refer and examine the provisions of Order 43, Rule 1 of CPC. It would become very important as the impugned order and the subject matter of the appeal before us, has been recorded in an Appeal from Order. In the present case, being aggrieved by the order of the learned City Civil Court Judge, in respect of an interlocutory order, under Order 39, Rules 1 & 2 of the CPC, an Appeal from Order came to be filed and the interlocutory order was sought and the learned single Judge while exercising his appellate jurisdiction recorded the impugned order in an appeal which was without any dispute was an Appeal from Order under Order 43 Rule 1(r) read with Section 104(1) of CPC. It is very clear from the provisions of Sub-sSection (2) of Section 104 that no appeal shall lie from any order passed in an appeal under that Section. So the impugned order, unquestionably, came to be recorded by the learned single Judge while exercising his appellate powers in an appeal filed under the provisions of Order 43, Rule 1(r) read with Section 104(1) of the CPC.

53. It is very clear from the close analysis of the statutory set up, the constitutional legal setting highlighted hereinbefore, by us, that the powers conferred on a Division Bench for exercise of appellate jurisdiction against the Judgment of the learned single Judge is referable to the order, direction or for that purpose anyjudgment of the learned single Judge who has exercised the powers of the original jurisdiction. It is not the status of the Judge that counts, it is not the quality of the order that matters, it is the jurisdictlonal source of power which matters. The impugned order, undoubtedly, recorded by the learned single Judge is nothing but an outcome of the exercise of his appellate powers and the jurisdiction con-ferred upon him under Order 43, Rule 1(r) read with Section 104(1) of the CPC.

54. Irrespective of the extent, quality, contours, chronicles or for that purpose the conclusion whether were referable to the subject matter of the appeal or otherwise, by no stretch of imagination could be said to be a decisive factor to confer or to attract the provisions of Clause 15 of the Letters Patent. Even assuming that the order is such which is not within the charted route, but the exercise of power arising under the appellate jurisdiction, then also, by no stretch of imagination it could be said to be attracting the rigours of the provisions of Clause 15 of the Letters Patent of Bombay, as applicable in the State of Gujarat.

55. Learned counsel Mr. Tanna for the appellant-original plaintiff, vehemently, but, unsuccessfully, attempted to convince us that even in a oase of an appeal arising out of the provisions of Order 43, Rule 1(r) read with Section 104(1) of the Code of Civil Procedure, if the exercise of power is exceeded or it is used in such a way that it is violative of the fundamental principles of law or for that purpose no such order could be recorded in exercise of appellate jurisdiction, then the appellate Court as provided in Clause 15 of the Letters Patent of Bombay, which is repeatedly, reiterated to be more than the statutory provision and almost sacrosanct, this Court cannot raise its hand in helplessness and, therefore, must exercise its power under Clause 15 to see that the impugned order is put to its proper and legal shape.

56. Moreover, it was also submitted that the resultant ramifications and implications would be, that for a short interlocutory order, the unsuccessful, party would be forced to go to the Hon’ble Apex Court again resulting into addition of expensive process in the existing expensive system of justice and, therefore, it was contended that liberal view, broader view, better view could be conceived by exercising the powers conferred under Clause 15 of the Letters Patent, as it is something more than the statutory power, almost like a sacrosanct provision for doing ultimate justice and that too in the larger interest of justice.

57. Undoubtedly, above submission of Mr. Tanna, prima facie, would appear to be very innovative. It may, also, appear to be very attractive. But when one gets into the reality of the provisions which we have referred to hereinabove, such a submission turns out to be a dereliction and derogatory, defiling and defacing the object. Nothing has been, successfully, shown or pointed out which would prompt us to exercise or fall back on the powers of this Court under Clause 15 of the Letters Patent in such a situation, if at all, it is so. On the contrary, the ratio of the decisions which have been cited before us, runs, diametrically, opposite to the proposition propounded, to which we shall very soon deal with before concluding this judgment.

58. In fact, looking to the present factual situational reality and the fact that the administration of justice which suffers from three main vices, namely, very expensive, very lengthy and not easily accessible to millions not only demands but, rightly, commands that the intra-court appeal mechanism should be discouraged and therefore it requires to be jettisoned, as early as, possible because the purpose and the design with which it was incorporated at the relevant time in 1862 by British Regime was different. There were three reasons why, in our opinion, probably, the said provisions came to be made, initially, by Clause 14 and subsequently amended in Clause 15 of the Letters Patent of Bombay, namely:

(1) the fallibility of the decision making, which is quite obvious because nobody could be claimed to be infallible, in the situation then prevalent.

(2) most of the Judges who then presided the Court during the British-Regime came from outside the Country, who, obviously, were not accustomed and attuned and acclimatized with the local situational reality, including the customs, culture, social and economical set-up under which interpretation of important laws were to be made.

(3) Appeal finally lay to the Privy Council against the order of the High Court in England, which was, as such, beyond the reach of many.

59. Therefore, with a view to obviate such a situation as to avail the remedy of final appeal before the Privy Council in a foreign land in England was, virtually, a dream not only for a common man but to most of the Indians during the British Regime. That is the reason why keeping in mind the aforesaid objects, the concept and philosophy of intra-court appeal came to be introduced by exercise of the Charter powers under Indian High Courts Act. The question, obviously, would, now, arise as to the position, the prejudice, the predilections which then were prevalent when such Letters Patent provi-

sions came to be made are still holding good ? This aspect probably came to be considered for the first time by the State of UP, as early as, in 1962 by passing Letters Patent Abolition Act, and then UP State had done away with such a obsolete, unnecessary, avoidable procedure of intra-court appeal. This is, precisely, the spirit with which Section 104(2) r.w. 100-A of CPC which, clearly, in terms provided that no further appeal shall lie against the order in an appeal against the order under Section 104(1) read with Order 43 Rule 1(r) of the Code of Civil Procedure, to the High Court.

60. Legal Scenario and Case-Law:

Obviously, next it would lead to the case
law. Now, we would, therefore, like to turn
to the profuse and prolix case law relied on
by the learned counsel appearing for the
parties. Reliance was, strongly, placed on
a Division Bench decision of this Court in
the case of Chhotalal Jivabhai v. Vadilal
Mehta, (1971) 12 GLR 850. It was con
tended that no limitation as regards nature
or quality of jurisdiction could be placed, so
long as, Clause 15 of the Letters Patent
exists. In that context, it was further
submitted that the words of Clause 15 do not
contain any limitation and nature of quality
of the jurisdiction “which must be exercised
by the learned single Judge. It was a case
arising out of Representation of the People
Act, 1951. The learned single Judge had
passed order while entertaining an election
petition. The question which arose was
whether the orders recorded by the learned
single Judge were, as such, pursuant to
Section 108 of the Government of India Act,
1915, and it was only if they were so made
whether they would be appealable under
Clause 15.

61. It was objected to by the other side contending that the orders were passed by the learned single Judge not in exercise of the appellate jurisdiction and the same came to be recorded exercising original jurisdiction. This Court accepted this contention and entertained the LPA. It was in this context that the learned single Judge had passed the impugned order in that matter in exercise of his original jurisdiction in an election petition. Of course, the view which this Court had taken on that point has, subsequently, been overruled by the Hon’ble Apex Court in the case of Upadhyaya v. Dhirendrasinh, AIR 1988 SC 915.

62. Though the learned single Judge in that case had not passed the orders in exercise of appellate jurisdiction, but it cannot be said that he had exercised the original jurisdiction since the orders came to be recorded under the Representation of the People Act which was a self-contained code providing specific provisions about the appellate forum. It was, in this context, the Hon’ble Apex Court held that the jurisdiction exercisable by the learned single Judge under the Representation of the People Act could not be said to be under original jurisdiction but it was in exercise of a “special Jurisdiction” conferred on High Court by virtue of Article 329(b) of the Constitution of India.

Having regard to the historical background and the legislative intendment, it has been, clearly, laid down by the Hon’ble Apex Court while overruling the view of this Court that any order passed by the Single Judge of the High Court in exercise of special jurisdiction would not be appealable invoking the aids of Clause 15 of the Letters Patent of Bombay. Therefore, it cannot be said that when once the jurisdiction to try a matter or for that purpose an election petition by the learned Single Judge exercising special jurisdiction conferred on the High Court, a plea cannot be permitted to be advanced that other incidental orders would be in exercise of original jurisdiction by the High Court, and therefore it would become appealable under Clause 15. The view which we are taking in this matter is reinforced by the observations and conclusions of the Hon’ble Apex Court in Upadhyaya case (supra). Therefore, the reliance placed on the decision of this Court in Chhotalal (supra) is misplaced on both the counts.

63. On the other hand, reliance is, rightly, placed by the learned counsel Mr. Nanavati, for the respondent, on a Division Bench decision of this Court in Madhusudan Veg. Products v. Rupa Chemicals, 1986 GLH 93 : (AIR 1986 Guj 156). This Court had an occasion to consider in almost similar factual situation the provisions of Clause 15 of the Letters Patent and Section 104(2) and Order 43 Rule 1(r) of the CPC. A Letters Patent Appeal with the help of Clause 15 came to be filed by the original plaintiff in a suit before the learned single Judge against the order of interim injunction under Order 39 Rules 1 & 2. Interim injunction was refused by the District Court against which appeal under Order 43 Rule 1 came to be filed and the learned single Judge dismissed the appeal which was challenged before the Division Bench with the help of Clause 15 of the Letters Patent. It therefore, becomes very clear that the factual situation and the proposition of law which we are considering in this appeal were virtually the same before this Court in Madhusudan’s case (supra).

64. This Court, therein, after considering the legislative scheme and the historical background of Clause 15 and Section 104(2) and Order 43 Rule 1 (r) of the CPC. reached to the conclusion that the decision of the learned single Judge against the order passed in exercise of the appellate jurisdiction under Order 43 Rule 1(r) no appeal could be filed as it was not in exercise of original jurisdiction and again Section 100-A of the CPC bars Letters Patent Appeal against the decision of the Single Judge in exercise of his powers under Order 43 Rule 1 of the Code. The view taken by this Court in Madhusudan’s case (supra) came to be upheld by the Hon’ble Apex Court in “New Kenitworth Hotel (P) Ltd. v. Orissa State Finance Corporation, AIR 1997 SC 978″. Thus the proposition that the judgement of the learned single Judge passed in exercise of appellate jurisdiction is not open to be questioned in LPA under Clause 15, is fully reinforced.

65. Merely because the order of the learned single Judge passed pertaining to the interlocutory injunction in the appellate jurisdiction in exercise of order 43 Rule 1 (r) is a judgment, the same would not be questionable before the Division Bench of this Court in exercise of the powers under Clause 15 of the Letters Patent.

66. The question which requires to be considered and the main anxiety of the Court should be to see as to the nature of jurisdiction under which the learned single Judge has recorded the impugned order. If the Court finds that the impugned order is referable to, or is attributable to, the powers exercisable not under the original jurisdiction, then in that case, in our opinion, resort to second appeal with the help of Clause 15 is not permissible. In the present case, undoubtedly, the learned single Judge had exercised the appellate jurisdiction and admittedly not the original jurisdiction. Therefore, the appeal is incompetent before the Division Bench.

67. We do not enter into meticulously the further exercise of the jurisprudential aspect of the appellate powers, but one thing can safely be recorded that a right to appeal is always a creature of the statute. Right of appeal could not be said to be inherent. Unless the statutory provision is made for an appeal, it creates no right. In the present case, apart from the creation of right under the statute, there is a prohibition against, such an appeal in view of the clear provisions of Section 104(2) of the Code of Civil Procedure read with Order 43 Rule 1 (r) and the, newly, introduced provisions of Section 100-A of the CPC. Notwithstanding the fact that the impugned order is recorded, by the learned single Judge and it is a judgment, it does not answer the eligibility criteria to be qualified to be questioned before the Division Bench in an appeal under Clause 15 of the Letters Patent of Bombay.

68. Again in Bhikhabhai v. Pirabhai, 1988(2) GLR 1282, a Division Bench of this Court, has taken the same view while dealing with, almost, similar situation. It was held that Letters Patent Appealunder Clause 15 would not lie against the order or judgment of a learned single Judge unless it is an “outcome of an exercise of original jurisdiction. Section 100-A ofthe CPC clearly states that where any appeal or an appellate decree or order is heard and decided by a shigle Judge of the High Court, no further appeal shall lie from the judgment, decision or order of the single Judge in such appeal or from any decree passed in such appeal.

69. Therefore, the concomitant conclusion upon conjoint reading of the provisions of Sections 104(2) and 100-A read with Order 43 Rule 1(r) and Clause 15 and 44 of the Letters Patent of Bombay would be that the appeal shall lie against the order or decision or a judgement of a learned single Judge of the High Court only if it is in exercise of the original jurisdiction. If it is in exercise of appellate or a special jurisdiction or a revisional jurisdiction, no appeal shall lie or would be competent against the order of the learned Single Judge before a Division Bench of this Court for invoking the aids of the provisions of Clause 15 of the Letters Patent.

It would be, really, pertinent to see that even in Municipal Corporation of Brihanmumbaiv. State Bank of India, (1999) 1 SCC 123 : (AIR 1999 SC 380), the Hon’ble Apex Court had an occasion to deal with and interpret the provisions of Clause 15 of the Letters Patent of Bombay, in the light of the provisions of Section 218-D of the Bombay Municipal Corporation Act, 1888 (3 of 1888) and Section 100-A and 100 of the CPC. The question which was answered was “whether the jurisdiction exercised by the Chief Judge of the Small Cause Court under BPMC Act is appellate jurisdiction or not and whether the proceedings under Section 217(1) of the BPMC Act are original proceedings in the first forum or not and what is the effect of the amendment made in Section 100-A of the Code of Civil Procedure.” It was, clearly, held that the object of Section 100-A is to minimise the delay in finality of decision. The order made under Section 217(l) ofBPMCActby the Chief Judge of the Small Cause Court was order in exercise of the appellate jurisdiction and the appeal filed under Section 218-D of the BPMC Act was, as such, a second appeal against the appellate order made by the Chief Judge of the Small Cause Court. Under the BPMC Act, no further appeal has been provided against the Judgment of a learned single Judge of the High Court deciding the second appeal under Section 218-D of the Act against an appellate order of the Chief Judge of the Small Cause Court passed under Section 217(1) of the Act in view of the clear bar manifested by introducing Section 100A of the CPC. This decision was rendered on 21.12.98 and it, clearly, reinforces the view which we are taking in this appeal.

The Hon’ble Supreme Court, in M. Ramnarain Pvt.. Ltd. v. State Trading Corpn, of India Ltd., AIR 1983 SC 786, by a Bench of three Hon’ble Judges, interpreting the provisions of Clause 15 of the Bombay High Court in an appeal against any provision granting instalments or refusing to grant instalments found that appeal will be Incompetent under Clause 15. If the direction granting instalment or refusing to grant instalment is to be an order when such an order is not appealable under the Code, It would also not become ajudgment within the meaning of Clause 15 of the Letters Patent of Bombay and therefore will not be appealable as such.

70. Similarly, what is the ordinary jurisdiction and the distinction of an ordinary jurisdiction and appellate jurisdiction has been, succinctly, and distinctly explained and propounded by the Hon’ble Apex Court in Shankarlal v. Shankarlal, AIR 1965 SC 507, while interpreting the provisions of Section 202 of the Companies Act, 1913. A question was posed as to when would arise the order having been recorded in exercise of ordinary jurisdiction of the Court in the light of the provisions of Section 202 of the Companies Act and it was held that the words would only excludejurisdiction vested in the Court by special statutes as distinguished from the statutes constituting the Court. In the case of a High Court the limits of whose jurisdiction are governed by its Letters Patent and the Letters Patent would determine what the ordinary jurisdiction is. But that Letters Patent is not immutable and has been the subject of several alterations. Therefore, when the Companies Act was passed in 1913, an appeal lay from very “judgment” of a single Judge of the High Court. But in March 1999, it was amended so as to exclude the rights of appeal from judgment passed in exercise of revisional jurisdiction and in exercise of the power of superintendence under Section 107 of the Government of India Act, 1915.

71. It was held that if the decision in an
appeal were, onlytn an exercise of ordinary
Jurisdiction and then there can be no contro
versy about it, then the construction or
Section 202 of the Companies Act in relation to
a High Court which is the primary Court
exercising jurisdiction under the Companies Act would lead to anomalous results
as Judgments or decisions rendered in dif
ferent types of cases, though all of them are
in the exercise of ordinary jurisdiction are
subject to different conditions as regards
appealability. In short, the proposition of
law laid down in this case is that the
conditions subject to which the appeal may
be had and the manner in which the
provisions are made with regard to appeal,
merely, regulate the procedure to be followed in presentation of the appeal and of
hearing them.

72. Therefore, It was very, clearly, pro-pounded that even in case of original juristdiction, if by statutory prevision the appeal is not provided in the special statute, order or decision occurring in first part of Section 202 of the Companies Act, though, wide, would exclude merely procedural orders or whose which do not affect the rights or liabilities of parties.

73. It would be also interesting to refer again the decision of the Hon’ble Apex Court rendered in Union of India v. Mohindra Supply Co., AIR 1962 SC 256, wherein, it has been clearly held while interpreting the provisions of Section 104(1) Code of Civil Procedure read with Section 4 of the Letters Patent that the right of appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by clause 4 which provides that in the absence of any specific provision to the contrary, nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force.

74. The right of appeal against judgments which did not amount to decree under the Letters Patent, was, therefore, not affected by the provisions of Section 104(1) of the Code of Civil Procedure, 1908. It was held, in this case, that interlocutory judgments though not amounting to decrees which affect the merits of the questions between the parties by determining some right or liability passed by Single Judges of Chartered High Courts were appealable under the Letters Patent. This decision cited on behalf of the appellant will not be helpful and applicable in the facts and circumstances of the present case in view of the amended provisions of Section 104(2) as subsequent to the aforesaid decision, amendment has been made by the Parliament in Section 104 by introducing Sub-section (2) by which it has been clearly, provided that no appeal shall lie from any order passed in appeal under Section 104(2). This amendment came to be introduced in 1976. Therefore, in our opinion, the appellant is not in a position to make any capital out of the aforesaid decision.

75. Reliance is placed on the decision of the Hon’ble Supreme Court in Municipal Board, Saharanpur v. Imperial Tobacco of India Ltd., (1999) 1 SCC 566 : (AIR 1999 SC 264). We are at a great loss to comprehend as to how this decision is helpful to the appellant. In our opinion, the ratio propounded and the law laid down in this case is not at all applicable and attracted here, in the light of the facts of the present case.

76. The Hon’ble Apex Court in State of West Bengal v. Gourangalal Chatterjee, (1993) 3 SCC 1 has held that no appeal to a Division Bench of the High Court either under Sub-section (2) of Section 39 or under the Letters Patent against the order of the single Judge even if passed in exercise of its original jurisdiction. Person appointed as arbitrator being also a technical man and no allegation having been made against him, order of single Judge does not suffer from any infirmity. It was in the context and in the light of the provisions of Section 39 of the Arbitration Act, 1940 and it was held that dismissing of an appeal by the Division Bench of the High Court as not maintainable is justified.

77. Reliance placed on the decision of Shah Babulal Khimji v. Jayaben, AIR 1981, SC 1786 by the learned advocate for the appellant is also of no avail in the light of the facts of the present case. It was held in that case that although the Letters Patent is a special law certain provisions of the Code of Civil Procedure in the matter of procedure do apply to appeals against the decision of a Trial Judge to a larger Bench, like that, the intra-court appeal, While interpreting the relevant provisions, it was held that a combined reading of the provisions of Sections 4, 5, 104 and Order 39, Rule 3 of Code of Civil Procedure led to an irresistible conclusion 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 the Letters Patent jurisdiction and Section 104 read with Order 43 Rule 1 of the Code.

78. So is not the factual situation in this appeal on hand. In this Letters Patent Appeal, the challenge is against the order of the learned single Judge recorded in exercise of ‘Appellate Jurisdiction’ under Order 43 Rule 1(r) read with Section 104(1) of the Code of Civil Procedure, whereas, in the case cited and relied on the provisions of Letters Patent Appeal was held to be maintainable as the learned single Judge whose order was challenged before the Division Bench was recorded in exercise of his original jurisdiction. It would, also, be interesting to note that this decision has been explained by the Hon’ble Apex Court in Umaji vs. Radhikabai, AIR 1986 SC 1272. The decision of Shah Babulal (supra) has been very well explained in para 10 of the decision. In that case, a single Judge sitting on an original side of the Bombay High Court dismissed an application made by the appellant for appointment of an interim receiver and the grant of an interim injunction and the said decision was questioned before the Division Bench of the Bombay High Court and in that context it was held that in view of Clause 15 of the Letters Patent, appeal was maintainable. It may, also, be mentioned that there was also no question of deciding the Letters Patent appeal against the order or decision of the Single Judge in exercise of the ‘Appellate Jurisdiction’. In our view, therefore, the reliance placed on Shah Babulal’s case (supra) is, totally, ill conceived for the support of the LPA on hand.

79. Let us not forget to take a note that in Umaji’s case (supra) the Hon’ble Supreme Court has, succinctly, laid down the law tracing the historical background and statutory chronicles as to when appeal would be maintainable under Clause 15 of the Letters Patent. Of course, the question in that case was whether an order or decision or judgment recorded by the learned single Judge in exercise of writ jurisdiction could be questioned in that context in Letters Patent Appeal before a Division Bench or not? The phraseology of the Letters Patent, the Government of India Act of 1915 and the Government of India Act, 1935, make it obvious that the words “original” and “appellate” were used with reference to legal jurisdictions of the High Courts created by ordinary legislations as distinct from organic or Constitutional Jurisdiction not subject to such laws. It may also be mentioned that in a later decision cited before us and relied on in the case of Lokmat Newspapers (P) Ltd v. Shankarprasad, AIR 1999 SC 2423 : (1999 Lab 1C 2826), the proposition of law laid down in Umaji’s (supra) case has been, fully followed.

80. The proposition laid down in Lokmat’s case (supra) is that the observation of the learned single Judge did not necessarily mean that the learned Judge was not inclined to interfere under Article 227 of the Constitution of India only. The said observation, equally, supports the conclu-sion that the learned Judge was not inclined to interfere under Articles 226 and 227. Under these circumstances, it was not possible to say that the learned single Judge had refused to interfere, only, under Article 227 of the Constitution of India when he dismissed the Writ petition. In fact, the impugned order has not been the outcome of the exercise of Original Writ Jurisdiction. Therefore, as such, this decision, also, would not help the appellant in contending that when the learned single Judge in exercise of the appellate jurisdiction exceeds his jurisdiction or passes some order which could have passed in exercise of his original jurisdiction, the LPA under Clause 15 of the Letters Patent would apply. Of course, it was held that no appeal would lie against the order of the learned single Judge even in a writ petition relying upon the provisions of Article 227 of the Constitution of India, to’which in this appeal, we are not essentially, concerned.

81. Reliance placed on behalf of the respondent in support of the preliminary objection about the tenability of the appeal under Clause 15 of the Letters Patent of Bombay in the case of Prataprai N. Kothari v. John Braganza, (1999) 4 SCC 403 : (AIR 1999 SC 1666), is quite justified upon examination of the ratio propounded in the said decision. The provisions of Clause 15 of the Letters Patent of Bombay are examined and it is held that the order or judgment recorded by the learned single Judge in exercise of an’Appellate Jurisdiction’, interlocutory1 or final, would not be subject to Letters Patent Appeal under Clause 15 of the Letters Patent of Bombay.

82. Much reliance was placed on the decision of the Hon’ble Apex Court in Vinita M. Khanolkarv. Pragna M. Pai, AIR 1998 SC 424. in support of the plea that Letters Patent Appeal is maintainable even against the order or decision or judgment of the learned single Judge in exercise of appellate jurisdiction, In that case, order of the learned single Judge of the Bombay High Court in proceedings under Section 6 of the Specific Relief Act was questioned before the Division Bench of the Bombay High Court where the appealability was challenged in view of the specific bar in Section 6(3) of the Specific Relief Act. It was, in that context, held that notwithstanding the bar or ban contained in Section 6(3) of the Specific Relief Act that no appeal shall lie against the judgment, decree or appeal recorded by the Court under Section 6, as the sdme does not preclude the party from questioning the validity of the order invoking the aids of the provisions of Clause 15 of the Letters Patent of Bombay.

83. When there was a provision for filing an appeal against the order of the single Judge of the High Court in Clause 15 of the Letters Patent the provisions of Section 6(3) of the Specific Relief Act would not render the appeal under Clause 15 incompetent. It is to be mentioned at this juncture that the impugned order of the learned single Judge Challenged before the Division Bench of the Bombay High Court under Clause 15 of the Letters Patent was in purported exercise of Original Jurisdiction of the Bombay High Court and not under the Appellate Jurisdiction, whereas, in the present case, admittedly, there is no question of exercise of original jurisdiction. On the contrary, it is an admitted position that the impugned order in this Letters Patent Appeal is recorded by the learned single Judge in exercise of the ‘Appellate Jurisdiction’ in an appeal against the order under Rule 43 Rule 1(r) read with Section 104(1) of the Code of Civil Procedure. Therefore, that decision, also, is of no help to the appellant.

84. Similarly, the reliance placed on the decision of the Hon’ble Supreme Court in the case of Reliance Industries Ltd. v. Pravinbhai Jashbhai Patel, (1997) 7 SCC 300 : (AIR 1997 SC 3892), is also of no avail to the appellant. The law propounded in that case is not attracted to the facts of the present case. In fact, in that case, in a case of difference of opinion between two judges of the Division Bench, which course should be adopted and followed was the question and it was held that the proper procedure to be followed in the circumstances was to refer the question to a third Judge under Clause 36 of the Letters Patent and not to reject the petition under Order 47 Rule 6 of the CPC. In our opinion, the said decision does not take the case of the appellant any further and the law propounded, therein, is not at all applicable to the facts of the present case.

85. It may, also, be mentioned that in following four decisions, the LPA under Clause 15 of the Letters Patent would lie to the Division Bench in case of an order, judgment or decision recorded by the learned single Judge in exercise of the writ jurisdic-tion, which is not the case in appeal on our hand. Therefore, it would not be necessary to divulge in greater details. They are:

(1) Naranbhai Dahyabhai Patel v. Suleman Isubji Dadabhai, (1996) 7 SCC 278 : (AIR 1996SC 1884).

(2)Mangalbhaiv. Radheshyam. (1992)3 SCC 448 : (AIR 1993 SC 806).

(3) Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha, AIR 1992 SC 185.

(4) Ratnagiri Distt. Central Co-op. Bank Ltd.v. Dinkar Kashinath Watve, 1993 Supp (1) SCC 9.

86. Evidently, Clause 15 of the Letters Patent of Bombay, provides intra-court appeal and, as we have observed herein-be-fore, there was a purpose and policy behind it, at the relevant time. In view of the prevalent explosion of backlog and ever rising docket and the inordinate delay in disposal of cases and skyrocketing expenses involved in litigation, changes in judicial system ought to be made by examination in search of such reforms. It has been observed in various reports of Committees, Commissions, including Law Commissions of India that it is, absolutely, necessary to minimise the multi-tier system and more so, the, intra-court appeal, so as to achieve finality, minimising delay and also with a view to see that it becomes easily accessible to the common man. It is, in this context, State of UP, MP and Maharashtra have passed appropriate legislations for abolition of tier of intra-court appeal or internal appeal exercisable under Letters Patent provisions. Letters Patent Appeal provision appears to be a relic of the past.

87. The legislation abolishing Letters Patent Appeal, by virtue of an Act passed on 29.8.81 in Madhya Pradesh was challenged before the Madhya Pradesh High Court. A Full Bench of the Madhya Pradesh High Court has held that it will be a colourable exercise and it is ultra vires the Constitution. Thereafter, the matter has been taken to the Supreme Court and it is pending, as stated at the Bar. It is also reported that the Government of Maharashtra, enacted the Maharashtra High Court (Hearing of Writ Petition by Division Bench and Abolition of Appeal) Act, 1986 and the said Act received the assent of the President of India and was published in Government Gazette on 20.2.86. Again.it may be noted that the validity of the aforesaid Act came to be challenged in a Writ Petition No. 1953/ 87. This Writ petition is clubed with Appeals No. 1222/85 to 12224/85 pending in the Supreme Court of India. In the meantime, it is reported that the operation of the said Act is stayed by the Hon’ble Supreme Court, pending disposal of the writ petitions.

88. It may, also, be mentioned that in view of the changed scenario and the subsequent amended provisions in Code of Civil Procedure with regard to filing of appeal, the intra-court appeal provision under Letters Patent could be regarded as not only a relic of the past but also very much incompatible with the modern concept of status of learned single Judge. In fact, the exercise of power by the learned single Judge, is for and on behalf of the entire High Court concerned. Itis, rightly, said thatthe High Court speaks through Benches, may be Single, Division or Full Bench on judicial side, whereas. High Court speaks through Committees may be, one member committee or more than one, on its administrative side. The underlying purport and design is that under the relevant Rules, decision taken by the Bench on judicial side or for that purpose Committee or Commission on administrative side under collective Authority (may be of one Judge) on administrative side, is a decision of the High Court on its administrative side under the relevant rules. Therefore, it is high time to do away with the vanishing if not vanquished, obsolete and moribund provisions which we have inherited from the British jurisprudence, to suit the requirement of the then prevalent circumstances and the then existing Regime.

89. In so far as, the appellate provision in general and the Letters Patent Appeals in particular are concerned, the historical background ought to be taken into consideration. It cannot be lost sight of the fact that change is a hub of the system. The only constant thing is change. If there is no change, the result will be redundancy, whereas, in case of constant vigilant change, growth, progress and advancement with the time could be achieved and only by making appropriate changes at appropriate time, progress could be made. It is in this context, various recommendations from various sources and resources have been made to delete or to do away with the old and obsolete provisions in law and more in procedural laws which hamper and cause impediment and hurdles in the progress, speedy and early disposal of the dispute.

90. After having taken into account the overall picture emerging from the record and host of the case law and the catalogue of circumstances. We have no hesitation in holding that in so far as the appealability of Clause 15 of Letters Patent of Bombay is concerned, against the order of the learned single Judge in an Appeal against the Order under the provisions of Order 43 Rule 1(r) read with Section 104(2) and Section 100A and Clause 15 read with 44 of the Letters Patent, the same is not maintainable and the preliminary objection rafsed on behalf of the respondent that against the impugned order Letters Patent Appeal is not maintainable under Clause 15 of the Letters Patent of Bombay is evidently strong, sound and sustainable. Since this point is bound to hit the root of the entire controversy and that too of jurisdiction, we do not deem it expedient nor even it then remains our cup of tea to go into the merits of other contentions propounded upon merits before us.

91. In the result, the appeal merits only and only one fate of rejection, at the threshold. Accordingly, it is rejected, at the admission stage, without any order as to costs.

92. At this stage, learned Counsel, Mr. Tanna, for the appellant, placing reliance on the provisions of Article 132(1), 133(2)(1), 134A read with Article 147 of the Constitution of India, has, vehemently, submitted that this is a fit case for the grant of certificate for appeal to the Supreme Court as certain issues and observations in the light of the Constitutional provisions have been made for the first time. Learned counsel for the respondent, Mr. Nanavatl, has submitted that there is no question of any new exposition or interpretation of the Constitutional provisions for the first time in this judgment. It was therefore, objected by him that this is not a fit case for the grant of certificate for appeal to the Supreme Court,

93. After having considered the rival submissions of the learned Counsel for the parties and the aforesaid provisions of the Constitution, coupled and read with Order 45 Rule 3 of CPC and in the light of the facts and circumstances enumerated and highlighted ‘in-extenso’ hereinbefore, and the host of the case law, we do not think and deem it fit and appropriate case for the grant of certificate as no substantial question of law of general importance, now, requires to be decided by the Hon’ble Supreme Court. Therefore, this request is rejected.

94. Again, at this stage, learned Counsel, Mr. Tanna, requests for staying the order of the learned Single Judge for some time so that further remedy could be pursued which is, also, objected by learned Counsel, Mr. Nanavati, for the respondent, contenting that since the very tenability of the appeal is decided against the appellant, the question of stay of the order of the learned Single Judge does not arise. After having considered the facts and circumstances, since the appellant is desirous of availing further remedy, it would be just and proper to stay the order of the learned single Judge, which has since been stayed so far, fora further period of six weeks from today only.

95. In view of this order passed In the Letters Patent Appeal, the Civil Application which is nothing but a bye-product would not, now, obviously, assume any survival value. Hence it shall also stand disposed of.

96. Before parting, a cosmic but not caustic caution would become imperative for us. We direct the office to circulate copy of this judgment to the Ministry of Law and Justice of Gujarat and Government of India, by a letter for being considered in preparing a clear road map and a view print of effective and efficient strategies to meet with full vigour and vitality and valour and versatality with full soundness and strong hand to the exploding challenges of the 21st century so that a moribund, prevalent, traditional, orthodox system which is predominantly inherited by us from the Anglo-Saxon jurisprudence so that not only the rule of law which is one of the basic feature of the Constitution of India, but also the flame of equality, flag of justice may remain, aloft, at its full mast which would In turn would be a torchbearer and a good guide for one and all who is of the strong belief “howsoever one is high, the law is above all”. We are, quite, confident and sure that the voice raised by us, herein, through this media of this judgment will not be a cry in wilderness and will receive due and appropriate attention and consideration wherever it is necessary and whenever it is warranted.