CASE NO.: Appeal (civil) 6060 of 1998 PETITIONER: MUNICIPAL CORPORATION OF BKIHANMUMBAI AND ANR. RESPONDENT: STATE BANK OF INDIA DATE OF JUDGMENT: 02/12/1998 BENCH: DR. A.S. ANAND CJ & B.N. KIRPAL & V.N. KHARE JUDGMENT:
JUDGMENT
1998 Supp (3) SCR 288
The following Order of the Court was delivered : Leave granted.
This appeal by special leave calls in question an order of the Division
Bench of the High Court of Bombay Dated 13th January, 1998 dismissing the
Letters patent Appeal on the ground that the same was not maintainable. A
brief reference to the facts, at this stage, would be apposite.
The respondent herein had preferred an appeal before the Additional Chief
Judge of Small Causes Court under Section 217 of the Bombay Municipal
Corporation Act. The learned Additional Chief Judge of the Small Causes
Court decided the appeal vide order dated 8th February, 1996.
Aggrieved by the order passed by the learned Additional Chief Judge, Small
Causes Court dated 8th February, 1996, the respondent filed a second appeal
in the High Court under Section 218-D(1) of the Act. The learned single
Judge of the Bombay High Court on 31-1-1997 allowed that appeal partly. The
appellant questioned the order of the learned single Judge dated 31st of
January, 1997 through a Letters Patent Appeal. An objection was raised
before the Division Bench of the High Court regarding the maintainability
of the Letters Patent Appeal on the ground that against an order of
dismissal of the second appeal by the High Court, no further appeal could
He either under Letters Patent or any other law. Reliance was also placed
on Section 100-A of the Code of Civil Procedure. The objection found favour
with the learned Division Bench and without going into the merits of the
order of the learned single Judge, the Letters Patent Appeal was dismissed
as not maintainable.
We have heard Mr. Bhimrao N. Naik, learned senior counsel appearing for the
appellants and Mrs. Refique Dada, learned senior counsel appearing for the
respondent. The Bombay Municipal Corporation Act, 1888 is a complete Code
and contains provision for filing appeal etc. against order made under the
Act. Section 217(1) of the Act provides :
“217( I) Subject to the provisions hereinafter contained, appeals against
any rateable value or tax fixed or charged under this Act shall be heard
and determined by the Chief Judge of the Small Causes Court.
A bare reading of Section 217(1) of me Bombay Municipal Corporation Act,
1888 shows that the jurisdiction exercised by the Chief Judge of the Small
Causes Court is appellate jurisdiction.
Section 218 provides for the period when the cause of complaint can be said
to have accrued for filing of an appeal under Section 217 of the Act. It
is, therefore, futile to contend mat the proceedings under Section 217(1)
are “original proceedings” in the first forum. The proceedings are
appellate proceedings in a second forum and not original proceedings in a
first forum.
Against the appellate order of the learned Chief Judge of the Small Causes
Court, an appeal is provided to the High Court under Section 218 D. Section
218 D provides :
“Section 218 D. (1) An appeal shall lie to the High Court
(a) from any decision of the Chief Judge of the Small Cause Court in an
appeal under Section 217 by which a rateable value in excess of two
thousand rupees is fixed, and
(b) from any other decision of the said Chief Judge in an appeal under
the said section, upon a question of law or usage having the force of law
or the construction of a document.
(2) The provisions of the Code of Civil Procedure, 1908, with respect to
appeals from original decrees shall so far as, they can be made applicable,
apply to appeals under sub-section (1) and orders passed therein by the
High Court may on application to the said Chief Judge be executed by him as
if they were decrees made by himself.
Provided that no such appeal shall be heard by me High Court Unless it is
filed within one month from the date of the decision of the Chief Judge.”
Thus, according to Section 218 D, an appeal shall also lie to the High
Court from any decision of the Chief Judge of the Small Causes Court in an
appeal under Section 217, ‘ upon a question of law or usage having the
force of law or the construction of a document’. That the respondent had
taken recourse to Section 218 D(1) in filing an appeal against the
appellate order of the learned Additional Chief Judge of the Small Causes
Court is not in dispute. The appellant has not questioned the
maintainability of the appeal filed by the respondent under Section 218 D
of the Act before the learned single Judge of the High Court before us.
Thus, it is obvious that the appeal filed by the respondent under Section
218 D of the Act was a second appeal against the appellate Order made by
the Addl. Chief Judge, Small Causes Court, Under the Bombay Municipal
Corporation 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 Causes Court passed under Section 217(1) of the Act.
Section 100A of the Code of Civil Procedure, which was introduced by the
Amendment Act, 1976 specifically bars any further appeal in such cases.
That Section reads :
“106 A. No further appeal in certain cases. – Notwithstanding anything
contained in any Letters Patent for any High Court or in 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 or from
any decree passed in such appeal.”
This section has been introduced to minimise the delay in the finality of a
decision. Prior to the enactment of the above provision, under the Letters
Patent, an appeal against the decision of a single Judge in a second appeal
was, in certain cases, held competent, though under Section 100 of the Code
of Civil Procedure there was some inhibition against interference with the
findings of fact. The right of taking recourse to such an appeal has now
been taken away by Section 100A of the Code of Civil Procedure (supra).
Since, an appeal under Section 217(1) of the Act is a first ‘appeal in a
second forum/ court and an appeal under Section 218D of the Act is the
second appeal in the third forum/court, ho further appeal would be
competent before the fourth forum/court in view of Section 100A of Code of
Civil Procedure (supra).
In the instant case, since an appeal from the appellate order was heard and
decided by a learned single Judge of the High Court, no further appeal was
maintainable from the judgment and order of the learned single Judge passed
in that appeal. The view taken by the Division Bench of the High Court
under the circumstances suffers from no error. This appeal has no merits
and it is dismissed as such. No costs.
Learned counsel appearing for the appellants at this stage, submitted that
the appellants could challenge the order of the learned single Judge
against which the Letters Patent has been held to be not maintainable
directly under Article 136 of the Constitution. It shall be open to the
appellants to take recourse to such other proceedings as may be available
to them in law to challenge that order but we express no opinion on that
question or on the merits of the order of the learned single Judge, since
in this appeal that order has not been put in issue.
