Vinita M. Khanolkar Vs. Pragna M.Pai & Ors.
EmailAppeal: Civil Appeal No. 8422 of 1997
(Arising out of SLP (C) No. 14836 of 1997)
(From the Judgment and Order dated 11.7.1997 of the Bombay High Court in A.No. 960 of 1994)
(Arising out of SLP (C) No. 14836 of 1997)
(From the Judgment and Order dated 11.7.1997 of the Bombay High Court in A.No. 960 of 1994)
Petitioner: Vinita M. Khanolkar
Respondent: Pragna M.Pai & Ors.
Apeal: Civil Appeal No. 8422 of 1997
(Arising out of SLP (C) No. 14836 of 1997)
(From the Judgment and Order dated 11.7.1997 of the Bombay High Court in A.No. 960 of 1994)
(Arising out of SLP (C) No. 14836 of 1997)
(From the Judgment and Order dated 11.7.1997 of the Bombay High Court in A.No. 960 of 1994)
Judges: S.B.MAJMUDAR & K.VENKATASWAMI, JJ.
Date of Judgment: Nov 28, 1997
Appearances:
Mr. G.B.Sathe, Mr. D.N.Hungod, Advocates for the Appellant.
Mr. D.N.Mishra, Advocate for M/s. J.B.D. & Co. Advocates for the Respondents.
Head Note:
PRACTICE & PROCEDURE
Letters Patent – Section 15 – Bombay High Court read with Specif-ic Relief Act 1960 – Section 6(3) – Held though under section 6(3) appeal or revision is barred, yet under Section 15 Letters Patent appeal lies against an order passed by Single Judge to Division Bench – Appeal allowed.
Held:
Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get ex-cluded unless the statutory enactment concerned expressly ex-cludes appeals under letter patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contend-ed by learned counsel for the respondents that if clause 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the High Court exercising original jurisdiction of the Court. Only on that short ground the appeal is required to be allowed.(Para 4)
High Court – Constitutional power – statutory appeal is not barred.
Held –
JUDGEMENT:
O R D E R
1. Leave granted. We have heard learned counsel for the par-ties.
2. The short question is whether an appeal would lie before a Division Bench of the High Court against an order of the learned Single Judge rendered by him in proceedings under Section 6 of the Specific Relief Act, 1960 (hereinafter refer to as ‘the Act’). Learned Single Judge passed an order dated 15.11.1994 in Suit No. 411/93 decreeing the suit in terms thereof. When an appeal was carried to the Division Bench of the High Court against the said order, it was contended on behalf of the re-spondents that the appeal was not maintainable in view of sub-section (3) of Section 6 of the Act. The said provision certain-ly bars any appeal or revision against any order passed by the Court under Section 6 of the Act. To that extent the decision of the Division Bench cannot be found fault with. However, one contention canvassed by learned counsel for the appellant re-quires closer scrutiny. He submitted that even if an appeal would not lie under sub-section (3) of Section 6 of the Act by itself against any order passed by the Court under Section 6 of the Act, this was an order passed by learned Single Judge of the High Court exercising original jurisdiction. Therefore, under clause 15 of the Letters Patent which is a charter under which the High Court of Bombay functioned, the said provisions for appeal would not have been whittled down by the statutory provi-sions of Section 6(3) of the Act. Clause 15 of the Letters Patent is extracted hereunder:
“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 appel-late 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 a 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 Govern-ment of India Act, and that notwithstanding anything hereinbe-fore 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 judg-ments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs of successors in Our or Their Privy Council, as hereinafter provided.”
3. Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get ex-cluded unless the statutory enactment concerned expressly ex-cludes appeals under letter patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contend-ed by learned counsel for the respondents that if clause 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the High Court exercising original jurisdiction of the Court. Only on that short ground the appeal is required to be allowed.
4. The judgment and order of the High Court in appeal No. 960/94 are set aside and the appeal is restored to the file of the High Court for being proceeded further in accordance with law. As the appeal of 1994 is being restored to the file of the High Court, the High Court is requested to decide the appeal as expeditiously as possible.
5. The appeal is accordingly allowed. No costs. We make it clear that we express no opinion on the merits of the controversy between the parties.
1. Leave granted. We have heard learned counsel for the par-ties.
2. The short question is whether an appeal would lie before a Division Bench of the High Court against an order of the learned Single Judge rendered by him in proceedings under Section 6 of the Specific Relief Act, 1960 (hereinafter refer to as ‘the Act’). Learned Single Judge passed an order dated 15.11.1994 in Suit No. 411/93 decreeing the suit in terms thereof. When an appeal was carried to the Division Bench of the High Court against the said order, it was contended on behalf of the re-spondents that the appeal was not maintainable in view of sub-section (3) of Section 6 of the Act. The said provision certain-ly bars any appeal or revision against any order passed by the Court under Section 6 of the Act. To that extent the decision of the Division Bench cannot be found fault with. However, one contention canvassed by learned counsel for the appellant re-quires closer scrutiny. He submitted that even if an appeal would not lie under sub-section (3) of Section 6 of the Act by itself against any order passed by the Court under Section 6 of the Act, this was an order passed by learned Single Judge of the High Court exercising original jurisdiction. Therefore, under clause 15 of the Letters Patent which is a charter under which the High Court of Bombay functioned, the said provisions for appeal would not have been whittled down by the statutory provi-sions of Section 6(3) of the Act. Clause 15 of the Letters Patent is extracted hereunder:
“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 appel-late 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 a 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 Govern-ment of India Act, and that notwithstanding anything hereinbe-fore 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 judg-ments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs of successors in Our or Their Privy Council, as hereinafter provided.”
3. Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get ex-cluded unless the statutory enactment concerned expressly ex-cludes appeals under letter patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contend-ed by learned counsel for the respondents that if clause 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the High Court exercising original jurisdiction of the Court. Only on that short ground the appeal is required to be allowed.
4. The judgment and order of the High Court in appeal No. 960/94 are set aside and the appeal is restored to the file of the High Court for being proceeded further in accordance with law. As the appeal of 1994 is being restored to the file of the High Court, the High Court is requested to decide the appeal as expeditiously as possible.
5. The appeal is accordingly allowed. No costs. We make it clear that we express no opinion on the merits of the controversy between the parties.
