{"id":38954,"date":"1980-11-18T00:00:00","date_gmt":"1980-11-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-kamla-devi-vs-balbir-singh-on-18-november-1980"},"modified":"2018-03-12T09:32:54","modified_gmt":"2018-03-12T04:02:54","slug":"smt-kamla-devi-vs-balbir-singh-on-18-november-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-kamla-devi-vs-balbir-singh-on-18-november-1980","title":{"rendered":"Smt. Kamla Devi vs Balbir Singh on 18 November, 1980"},"content":{"rendered":"
Jammu High Court<\/div>\n
Smt. Kamla Devi vs Balbir Singh on 18 November, 1980<\/div>\n
Equivalent citations: AIR 1981 J K 70<\/div>\n
Author: Kotwal<\/div>\n
Bench: M B Farooqi, A S Anand, I Kotwal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Kotwal, J.<\/p>\n
1. Two questions have been referred to the Full Bench for its opinion. These are:\n<\/p>\n
(1) Whether an appeal under Clause 12 of the Letters Patent against a judgment of a single Judge, passed by him in first appeal against a decree or order of subordinate Court will be competent without the case being declared to be a fit one for appeal by the single Judge?\n<\/p>\n
(2) Whether the view taken by this Court in Satya Jyoti v. R. D. Jyoti, Letters Patent Appeal No. 3 of 1978, decided on 14-3-1979 is correct?\n<\/p>\n
The facts leading to the reference have been set out in detail in the order of reference. A decree under Section 10 of the Hindu Marriage Act, 1955. was passed against the appellant by District Judge, Jammu. Appeal taken from it was also dismissed by a learned single Judge of this Court. The appellant then filed an appeal under Clause 12 of the Letters Patent against the judgment of the learned single Judge. An objection was taken on behalf of the respondent that the learned single Judge not having declared the case to be a fit one for appeal in terms of Clause 12, the appeal was not maintainable. Reliance was placed upon a Division Bench Judgment of this Court in Satya Jyoti v. R. D. Jyoti, Letters Patent Appeal No. 3 of 1978, decided on 14-3-1979 which prima facie supported the aforesaid objection. The Division Bench, being of the opinion, that no declaration in terms of Clause 12 was necessary where a single Judge of the High Court had decided a first appeal, has posed the aforesaid questions to be answered by a larger bench.\n<\/p>\n
2. Clause 12 of the Letters Patent (Jammu and Kashmir) which is the subject of all polemics in the case, reads as under:–\n<\/p>\n
  “12. And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in 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 the exercise of the powers of superintendence) of one Judge of the said High Court or one Judge of any Division Court 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, consistently with the provisions of the Civil Procedure Code, made 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 the Judges of the said High Court or of such Division Court shall be to Us, our Heirs or Successors and be heard by Our Board of Judicial Advisers for report to Us.”\n<\/p>\n
3. On a careful reading of this Clause the following conclusions can be easily drawn :–\n<\/p>\n
(1) An appeal shall lie from every judgment of one Judge of the High Court or of one Judge of any Division Court, if;\n<\/p>\n
(a) the same is not passed by him in appeal against a decree or order of a Court subject to the superintendence of the High Court, passed by it in exercise of its appellate jurisdiction; and<\/p>\n
(b) the same is not passed in the Civil original jurisdiction of the High Court <\/p>\n
(2) An appeal shall also lie from a judgment of one Judge of the High Court, or of one Judge of any Division Court, passed by him in appeal against a decree or order of a Court subject to the superintendence of the High Court, passed by it in exercise of its appellate judrisdiction, provided the Judge declares that the case is a fit one for a further appeal to a larger bench, but not otherwise.\n<\/p>\n
(3) No appeal shall lie against any sentence passed by a Judge of the High Court or by a Judge of a Division Court, nor shall an appeal lie against an order passed by him in exercise of the powers of superintendence of the High Court. It is not necessary to state herein the fourth conclusion in regard to appeals to the Board of Judicial Advisors, as the Board has since ceased to exist. It is thus manifest that under Clause 12 a party can, as of a right, go in appeal against a judgment of a single Judge. where the same has been passed by him while hearing an appeal from a decree or order passed by a lower court in its original jurisdiction, usless a second appeal against such a decree or order is specifically barred under any other law (Union of India v. Mohindera Supply Co., AIR<\/a> 1962 SC 256). No declaration by the single Judge that the case is a fit one for further appeal is required in such a case. It would be required only where the single Judge has passed a judgment while hearing an appeal from an appellate decree or order of a lower court. In other words, such a declaration would be a sine qua non for an appeal under Clause 12 only where the single Judge has decided a second appeal. As a corollary, it would also follow, that in no case shall an appeal lie under Clause 12, where a single Judge has decided a first appeal from a judgment or order, not passed as a Court, by an officer or tribunal under the appellate jurisdiction of the High Court. The Clause speaks of decrees or orders passed by Courts alone, which are subject to the superintendence of the High Court, and of no others.\n<\/p>\n
4. Apart from the plain language of Clause 12, there is ample authority for the proposition that no declaration under Clause 12 is needed when an appeal is to be preferred against a judgment passed by a single Judge of the High Court, while hearing a first appeal. In Ladli Parshad v. Karnal Distillery Co., AIR<\/a> 1963 SC 1279 their Lordships while interpreting Clause 10 of the Letters Patent (Punjab) which is almost a facsimile of Clause 12 of the Letters Patent (Jammu and Kashmir), held as under (at page 1286) :–\n<\/p>\n
“…..Clause   10   of   the   Letters Patent of the Lahore High Court (which continues to apply to the Punjab High Court) provides, in so far as it is material :–\n<\/p>\n
“And we do further ordain that an appeal shall lie to the said High Court of Judicature ***** 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 x x x x x 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 x x x x x in 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; x x x x x”\n<\/p>\n
Manifestly the Clause confers an unqualified right of appeal to the High Court from the judgment of a single Judge exercising original civil jurisdiction. Similarly there is a right of appeal from a judgment of a single Judge hearing a civil appeal where the judgment is not in an appeal from an appellate decree. But against the judgment of a single Judge exercising powers in appeal from an appellate decree, an appeal under the Letters Patent only lies if the Judge declares that the case is a fit one for appeal, and not otherwise…..”\n<\/p>\n
5. Some other authorities laying down the same rule are : Ramji Singh v. Mst. Chhulghana Kuer, AIR 1958 Pat 655 (FB), Smt. Dassi v. Dhani Ram, AIR 1969 Punj & Har 25, Ambujam v. T. Section Ramaswamy, AIR 1973 Delhi 46. Not a single decision taking a contrary view was cited before us.\n<\/p>\n
6.    An argument was,  however,  made that in view of the provisions of Section 60 of the Jammu & Kashmir Constitution Act, 1996, hereinafter the Constitution Act, dealing with appeals, which have been specifically saved under Section 102 of the Constitution of Jammu and Kashmir, hereinafter the Constitution, an appeal from an appellate decree of a single Judge of the High Court would lie to a Division Bench, provided Judge who passed the decree declares that the case is a fit one for appeal, but not otherwise; no matter whether the decree against which an appeal is to be filed, has been passed by the single Judge on first or on second appeal. Section 60 reads as under :–\n<\/p>\n
“60. Procedure in appeals. — (1) Except as otherwise provided by any enactment for the time being in force and subject to any rules made in this behalf, the jurisdiction of the High Court of Judicature may be exercised by a single Judge of the Court or by a Bench of two or more Judges of the Court,<\/p>\n
(2) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree or from any order against which an appeal is permitted by any law for the time being in force passed or made by a single Judge of the High Court shall lie to a bench consisting of two other Judges of the High Court.\n<\/p>\n
(3) Unless such an appeal is prohibited by any enactment for the time being in force, an appeal from an appellate decree made by a single Judge of the High Court shall lie to a bench consisting of two other Judges of the High Court, where the Judge who passed the decree declares that the case is a fit one for appeal,”\n<\/p>\n
7. Taken all by itself, this section no doubt supports the contention that in all cases where an appeal is to be taken from an appellate decree of a single Judge, his declaration that the case is a fit one for appeal, would be a condition precedent for its maintainability. This is what unmistakably flows from Sub-section (3). This section has, however, to be read along with some other provisions in order to arrive at a right conclusion. The first to be noticed is Section 102 of the Constitution which reads:–\n<\/p>\n
  “102. Saving of existing jurisdiction of the High Court. — Subject to the provisions of this Constitution and to the provisions of any law for the time being in force, the jurisdiction of and the law administered in the 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 the 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.”\n<\/p>\n
It starts with the expression “subject to the provisions of this Constitution and the provisions of any law for the time being in force…..” Obviously, therefore, provisions of Section 60 would apply, unless there is anything to the contrary, contained either in the Constitution itself, or in any other law for the time being in force. Existing law in Clause (b) of Section 2 of the Constitution has been defined to mean, “any law, Ordinance, order, bye-law, rule, notification or regulation passed, made or issued before the commencement of this constitution by the Legislature or other competent authority or person having power to pass, make or issue such law, Ordinance, order, bye-law, rule, notification or regulation.” All such laws, subject to its other provisions, have been saved by the Constitution under Section 157. Admittedly, there is nothing in the Constitution contrary to Sub-section (3) of Section 60 of the Constitution Act. The question which, therefore, falls for determination is as to whether or not there is anything to the contrary contained in any other existing law. At this stage, the other provision to be noticed is Section 5 of the Constitution Act, This section reads as under:–\n<\/p>\n
  “5. Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation to the State and its government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations, orders and Ordinances by virtue of his inherent authority.”\n<\/p>\n
This   section,    before   its   repeal   by   the J. & K.   Constitution   (Amendment)    Act (No. XVIII,  2008), re-affirmed the existence of the plenary powers of His Highness  to  make  laws,   or  to  issue  orders, executive  or judicial,  in  relation to the State   of   Jammu   and   Kashmir,    which were deemed to be inherent in him by virtue    of    his    being    the Ruler of the State.     This  section on its  plain  terms, had  overriding  effect not only  over the other laws, but also over the other provisions   of   the   Constitution   Act    itself. This is distinctly    borne    out    from    its opening    words    “Notwithstanding    anything  contained in this or any other Act …..” The truism, that His Highness was the fountain head of all the legislative and executive powers in relation to the State of Jammu & Kashmir, has been acknowledged in judicial decisions as well. In Anchal Singh v. Government, AIR 1951 J & K 1, the Court while interpreting Section 3 of Regulation (I) (i) of 1991, which is substantially the same as Section 5 of the Constitution Act, observed as follows (at p. 2):–\n<\/p>\n
  “At the outset it is necessary to determine the question whether the service of the applt. was at the pleasure of His Highness personally or was it at the pleasure of His Highness Government. His Highness is undoubtedly the source of all legislative, executive and governmental authority in the State, In legal theory, he personifies the State and constitutes its Government…..”\n<\/p>\n
To the same effect are the observations made in a Bench decision of this Court reported as State of J. & K. v. G. S. Baroca, AIR 1978 J & K 64,<\/p>\n
8. The Constitution Act came into force on September 7, 1939. The Letters Patent were granted in favour of the High Court of Jammu and Kashmir, by the His Highness on August 28, 1943 i.e. nearly 4 years thereafter. Clause 12 of the Letters Patent brought two significant changes in Section 60 of the Constitution Act, in that, it enlarged the right of appeal in two ways. In the first place it extended the right not only to decrees passed by him, but also to all judgments passed by a single Judge, which under Sub-section (3) of Section 60 was restricted to decrees only. What effect, if at all, it had on Sub-section (2), it is not necessary to discuss herein, as Sub-section   (2)     deals with decrees  and orders passed by a single Judge on original side with    which we  are not presently  concerned. It is only pertinent to point out that the expression    “judgment”    occurring in Clause 12 is of much wider amplitude    as    compared    to    the    expression “decree”. Almost all the High Courts in the    country    have    accepted    the    well known meaning  assigned  to the  expression  “Judgment”  by  the  High Court  of Calcutta in the famous case of the Justices of the Peace for Calcutta v. Oriented Gas Co.  ((1872)  8 Beng LR 433),  according  to which,  “judgment” means  “a decision which affects the merits of the question    between the parties by determining  some right or liability.     It may be either final, or preliminary, or interlocutory,    the   difference   between   them being,  that  a final  judgment determines the whole cause or suit    and    a    preliminary or interlocutory judgment determines only a part of it,     leaving other matters    to    be    determined”.    An order holding  a document inadmissible in evidence, or rejecting the prayer of a person to be brought on record as legal representative of a party dying during the pendency of an appeal, for example,    is no doubt  a judgment within the meaning of Clause 12,     even though such an order is not a decree. On the other hand, every    order    dismissing    an  appeal on merits is a judgment within the meaning of the said  clause.  Viewed thus,     every decree is a judgment, though every judgment may not be a decree. Pari ratione, no order passed by a Judge of this High Court in his criminal appellate or revisional  jurisdiction,  is  appealable     under Clause 12, because it is not a judgment deciding any right or liability within the meaning  of this Clause     (Muniswami v. Rajaratnam,   AIR   1922   Mad   495).    The other change which Clause 12 brought in Sub-section   (3)  was  that an  appeal  against a judgment of a single Judge of the High Court could be filed as of right,    when the same was passed by him in an appeal against a decree or order of a Court Subordinate     to  the High Court passed by it in its original jurisdiction,    which under Sub-section  (3) could not be filed without his leave. To this extent, therefore, provisions of Clause 12 are contrary to the provisions of     Sub-section  (3)  of Section 60    within the meaning of Section 102 of the Constitution.    There can be no manner of doubt that the Letters Patent (Jammu and Kashmir)    are “law for the time being in force” within the meaning of Section 102, for they clearly fall within the definition of the expression “existing law” given in Clause (b) of Section 2 of the Constitution and have been saved under Section 157. My answer to question No. 1 would be, therefore, in the affirmative.\n<\/p>\n
9. The order passed in Satya Jyoti’s case (L. P. A. No. 3 of 1978, D\/- 14-3-1979) (J & K) (supra) is no doubt brief and does not deal exhaustively with the point at issue. It merely says:\n<\/p>\n
  “We have heard the learned counsel for the appellant. Learned counsel has not been able to convince us that right of appeal is available to him under Letters Patent. Nor can he invoke Section 96 of C. P. C. to his aid as that section cannot be said to be applicable to the said case. There is nothing in the High Court rules which could indicate that any right of appeal is available to the applicant in the present case. The appeal is dismissed in limine.” <\/p>\n
If this order is interpreted to lay down the rule, that even in a case which a single Judge of the High Court has decided on first appeal, a declaration by him that the case (sic) would be a condition precedent for the maintainability of an appeal under Clause 12, then with due respect to the learned Judges who constituted the Bench, the law laid down in the aforesaid judgment, in my opinion, does not appear to be correct and my answer to the second question, in the premises, will be in the negative.\n<\/p>\n
10. Since the present appeal is clearly maintainable, the record of the case will be sent back to the Division Bench for its decision on other points.\n<\/p>\n
Dr. Anand, J.\n<\/p>\n
 11. I have gone through the lucid judgment prepared by my learned brother Kotwal, J. I entirely agree with the law expressed by his Lordship that no declaration under Clause 12 of the Letters Patent is needed where an appeal is to be preferred against a judgment passed by a single Judge of the High Court, in a first appeal from a decree or order and that the judgment in Satya Jyoti’s case (L. P. A. No. 3 of 1978, D\/- 14-3-1979) (J & K) does not lay down the correct law. Support for these views is also available from the High Court Rules, 1975.\n<\/p>\n
12.    Rule 47 reads thus :\n<\/p>\n
  “An appeal under the Letters Patent from the judgment of a Judge sitting alone passed in a cause, not being an appeal from an appellate decree or order, shall be posted before a bench of two Judges for preliminary hearing.”\n<\/p>\n
13.    Rule  49  reads  thus :\n<\/p>\n
  “An application for a certificate under Clause 12 of the Letters Patent in the case of the judgment of a single Judge deciding a second appeal shall be made orally before him immediately after the judgment is delivered. No subsequent application for the purpose shall be entertained unless for special reason shown by an application supported by an affidavit the Judge is satisfied that circumstances existed rendering the immediate application impossible.”\n<\/p>\n
14. From a plain reading of Rule 49 (supra), it is obvious that a declaration by a single Judge to the effect that the case is a fit one for further appeal is required only where the single Judge has passed a judgment in a second appeal i.e. while hearing an appeal from an appellate decree or order of a subordinate court.\n<\/p>\n
15. Rule 47 provides that when an appeal is preferred under the Letters Patent, from a judgment of a single Judge passed in a cause, other than an appeal from an appellate decree or order, no declaration of fitness is required from the single Judge. However, such an appeal has to be posted, before the Bench of two Judges, for preliminary hearing. The expression “in a cause” in Rule 47, would also include a first appeal heard by a single Judge of the court.\n<\/p>\n
16. Thus, the answer to the first question referred to the Full Bench for its opinion would be in the affirmative, while the answer to the second question would  be  in  the  negative.\n<\/p>\n
Mufti Baha-Ud-Din Farooqi,  Ag. C.J. (Minority view) <\/p>\n
17. The facts have been stated in detail in the judgment proposed to be delivered by Kotwal, J. I need not repeat them. The point that really arises for determination is whether an appeal lies to the High Court from the judgment of a single Judge hearing a civil appeal in respect of a decree or order of a subordinate court without the case being declared to be fit for appeal by such judge. The presently existing jurisdiction of the High Court is regulaled by Section 102 of the Constitution of Jammu and Kashmir, (shortly the ‘State Constitution’).\n<\/p>\n
Section 102 reads :\n<\/p>\n
  “Saving of existing Jurisdiction of the High Court. — Subject to the provisions of this Constitution and to the provisions of any law for the time being in force, the jurisdiction of the law administered in the 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 sitting 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.”\n<\/p>\n
18. This section saves the jurisdiction conferred on this court by the Jammu and Kashmir Constitution Act of 1996 which was in force immediately before the commencement of the State Constitution. Section 60 of the Jammu & Kashmir Constitution Act, 1996 (shortly the ‘1996 Act’) provided as under :\n<\/p>\n
“(1) Except as otherwise provided by any enactment for the time being in force and subject to any rules made in this behalf the jurisdiction of the High Court of Judicature may be exercised by a single Judge of the Court or by a Bench of two or more Judges of the Court.\n<\/p>\n
(2) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree or from any order against which an appeal permitted by any law for the time being in force passed or made by a single Judge of the High Court shall lie to a Bench consisting of two other Judges of the High Court.\n<\/p>\n
(3) Unless such an appeal is prohibited by any enactment for the time being in force, an appeal from an appellate decree made by a single Judge of the High Court shall lie to a Bench consisting of two other Judges of the High Court, where the Judge who passed the decree declares that the case is a fit one for appeal.”\n<\/p>\n
19. On a plain reading of this section it follows that unless such an appeal is barred by any law for the time being in force, an appeal would lie to the Division Bench from the judgment of a single Judge hearing a civil appeal in respect of a decree or order of a subordinate court if the judgment amounts to a decree and the Judge who has passed the judgment declares that the case is fit one for appeal. Needless to add that the word ‘decree’ has been defined in Section 2(2) of the Code of Civil Procedure and it is in that sense that this word has been used here.\n<\/p>\n
20. The 1996 Act came into force on 2nd of September, 1939. Thereafter, on 28-8-1943, the then ruler granted Letters Patent to the High Court. Clause 12 of the Letters Patent reads:\n<\/p>\n
  “And we do further ordain that an appeal shall lie to the said High Court of Judicature 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 pass ed or made in the exercise of power of superintendence of one Judge of the said High Court or one Judge of any Division Court 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, consistently with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in respect of a decree or order made in 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 the Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors and be heard by our Board of Judicial Advisors for report to us.”\n<\/p>\n
21. This Clause undoubtedly confers an unqualified right of appeal to the High Court from the judgment of a single Judge hearing a civil appeal in respect of a decree or order of a Subordinate court. Accordingly, in the matter of appeal from the judgment of a single Judge hearing a civil appeal in respect of a decree or order of a Subordinate Court, the provisions of Letters Patent are directly in conflict with the provisions of Section 60 of the 1996 Act. The question is: which of the two provisions should prevail in the matter?\n<\/p>\n
22. It has been contended that the then ruler possessed plenary powers of legislation in respect of the State and the powers were so wide in amplitude that he could make a provision contrary to the provisions of 1996 Act and that Clause 12 was one of such provisions. For this, reliance has been placed upon Section 5 of the 1996 Act, Section 5 reads:\n<\/p>\n
  “5. Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation to the State and its government are hereby declared to be and to have always been inherent in and possessed find retained by His Highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations, orders and ordinances by virtue of his inherent authority.”\n<\/p>\n
23. There can be hardly any doubt that this section saved the inherent powers of the then ruler as a source of legislative, executive and governmental authority in the State, His powers of legislation were wide enough to enable him to make provisions contrary to 1995 Act. The provisions so made could take effect over the provisions of 1996 Act. But it does not mean that by an executive enactment the then ruler could amend or override the provisions of 1996 Act. The question that necessarily arises is whether the Letters Patent is an executive enactment or a legislative enactment? If the answer be that it is a legislative enactment, then, there can be no doubt that the provisons of Clause 12 would override the provisions of Section 60 of the 1996 Act. On the other hand, if it is held that the Letters Patent is an executive enactment, then, the provisions of Clause 12 shall have to be read subject to the provisions of Section 60 of 1996 Act.\n<\/p>\n
24. In Venkataramaiya’s Law Lexicon (2nd Edition) the meaning of Letters Patent is given as “Letters by which the king makes his grants, whether of lands, honours, franchises or anything else”. In Wharton’s Law Lexicon (14th Edition) it is given as “Writings of the sovereign, sealed with the Great Seal of England whereby a person or public company is enabled to do acts or enjoy privileges which he or it could not do or enjoy without such authority”. Accordingly the letters patent is an executive enactment and not a legislative enactment. The decision in the case of Benoari Lal Sarma v. Empreor (AIR 1943 Cal 285) (SB) supports this view. In that case the question arose whether Section 38 of the Interpretation Act in terms applied, to the Letters Patent? It was held that Section 38 did not apply in terms to the Letters Patent, the principle underlying Section 38 could however apply in construing the provisions of the Letters Patent. The reason given was that Letters Patent was not a legislative enactment In this view, the provisions of Clause 12 must be treated as subordinate to the provisions of Section 60 of the 1996 Act. It necessarily follows that there is no unqualified right of appeal to the High Court from the judgment of a single Judge hearing a civil appeal in respect of a decree or order of a subordinate court. The appeal is subject to the conditions specified in Section 60 of the 1996 Act. Thus, the jurisdiction of the High Court to hear an appeal from the judgment of a single Judge hearing a civil appeal in respect of a decree and order of the subordinate courts is limited. The scope of such jurisdiction cannot be extended by Rule 47 and Rule 49 of the High Court Rules. The rules are intended for the convenient transaction of the business of the court and cannot confer any jurisdiction which is not already there.\n<\/p>\n
25. For the reasons stated above I regret my inability to agree with the opinion of Anand and Kotwal, JJ. and say that my reply to the first question would be that Clause 12 of the Letters Patent must be read subject to Section 60 of 1996 Act and, so read, there is no unqualified right of appeal to the High Court from the judgment of a single Judge hearing a civil appeal in respect of a decree or order of a subordinate court. The right is subject to the conditions set out in Section 60 of the said Act. It necessarily follows that the view taken by this court in the case of Satya Jyoti (L. P. A. No. 3 of 1978, D\/- 14-3-1979) (J & K) was correct inasmuch as that case did not satisfy the conditions of Section 60 of the 1996 Act, Accordingly my reply to question No. 2 would be in the affirmative.\n<\/p>\n
 ORDER OF THE COURT<\/p>\n
26. In accordance with the judgment of the majority, question No. 1 is replied in the affirmative and question No. 2 in the negative.<\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court Smt. Kamla Devi vs Balbir Singh on 18 November, 1980 Equivalent citations: AIR 1981 J K 70 Author: Kotwal Bench: M B Farooqi, A S Anand, I Kotwal JUDGMENT Kotwal, J. 1. Two questions have been referred to the Full Bench for its opinion. These are: (1) Whether an appeal under Clause […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-38954","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nSmt. 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