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A.R. Lakshmanan, J.—L.P.A. No. 53 of 1993 was filed by the Employees'' State Insurance Corporation (hereinafter referred to as the
Corporation) against the judgment and decree of a learned single Judge of this Court dated December 16, 1991 in C.M.A. No. 554 of 1985
dismissing the appeal filed by the Corporation against the order of the Principal District Judge, Coimbatore, in E.S.I. O.P. No. 283 of 1983.
L.P.A. No. 179 of 1993 was filed by the Proprietor of Madras Type Foundry against the judgment and decree of a learned single Judge of this
Court dated October 24, 1991 in C.M.A. No. 469 of 1984 dismissing the appeal filed against the order of the First Additional District Judge, City
Civil Court, Madras, in E.S.I. O.P. No. 26 of 1983.
L.P.A. No. 148 of 1995 was filed by the Corporation against the judgment and decree of a learned single Judge of this Court dated September
7, 1994 in C.M.A. No. 933 of 1986 dismissing the appeal filed against the order of the First Additional Judge, City Civil Court, Madras, in E.S.I.
O.P. No. 59 of 1983.
L.P.A. No. 257 of 1995 was filed by the Corporation against the judgment and decree of a learned single Judge of this Court dated April 3,
1995 in C.M.A. No. 908 of 1986 allowing the appeal filed by Devi Designers and Decorators, Madras-41 against the order of the First
Additional Judge, City Civil Court, Madras, in E.S.I. O.P. No. 14 of 1985.
When these appeals were taken up for hearing, Mr. S. R. Sundaram, learned counsel appearing for the respondent in L.P.A. No. 53 of 1993,
raised a preliminary objection to the maintainability of the Letters Patent Appeals under Clause 15 of the Letters Patent.
On February 18, 1997, when L.P.A. Nos. 148 and 257 of 1995 came up for hearing before us, we passed the following order :
Both the Letters Patent Appeals were filed by the Employees'' State Insurance Corporation by its Regional Director against the order in C.M.A.
No.933 of 1986 dated September 7, 1994 and C.M.A. No. 908 of 1986 dated April 3, 1995. When the appeals were listed for hearing, learned
counsel for the respondent in both the appeals filed a memo raising an objection about the maintainability of the Letters Patent Appeals under
Clause 15 of the Letters Patent and that the learned counsel for the respondent intends to raise the above issue as a preliminary issue by virtue of
Section 82 of the Employees'' State Insurance Act. In the memofiled in L.P.A. No. 257 of 1986, apart from raising the lea of maintainability under
Clause 15 of Letters Patent, another objection has also been raised by the counsel for the respondent stating that the appellant/Employees'' State
Insurance Corporation has not obtained leave to prefer the above appeal from the learned single Judge in pursuance of Rule 28 of the Appellate
Side Rules, since it is a question of law of public importance, we issue notice to the Additional Solicitor General, Southern Region, Madras, Mr. G.
Masilamani, and also to the Presidents of the Madras Bar Association, the Madras High Court Advocates Association requesting them to assist
the Court in deciding the question of maintainability of the Letters Patent Appeal under Clause 15 of the Letters Patent against the order passed by
the learned single Judge of this Court in an appeal filed u/s 82 of the Employees'' State Insurance Act. We also request the learned Senior Counsel
who are willing, to assist the Court.
Post the appeals on February, 27, 1997.
The Employees'' State Insurance Act, 1948 (Act 34 of 1948) (hereinafter referred to as the Act) was enacted by the Dominion Legislature and
was assented to by the Governor General of India on April 19, 1948. u/s 1(3) of the Act, that Act was brought into force by notification in the
Official Gazette. From Volume 18 of the Civil Court Manual published by the Madras Law Journal, it is found that Chapters 1, 2, 3 and 8 of the
Act came into force on September 1, 1948 in all the Provinces in India and Section 77 to 79 and 81 of Chapter 6 came into force in the whole of
India except Jammu and Kashmir on September 1, 1952. It is, however, not possible to ascertain when Section 82 of the Act was brought into
force.
In this case, we are concerned with Section 82 of the Act and Clause 15 of the Letters Patent. Section 82 of the Act reads thus :
Appeal : (1) Save as expressly provided in this Section, no appeal shall lie from an order of an Employees'' Insurance Court.
(2) An appeal shall lie to the High Court from an order of an Employees'' Insurance Court if it involves a substantial question of law.
(3) The period of limitation for an appeal under this Section shall be sixty days.
(4) The provisions of Sections 5 and 12 of the Limitation Act, 1963 (36 of 1963) shall apply to appeals under this Section.
Clause 15 of the Letters Patent reads thus :
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 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 the exercise of the power of
superintendence under the provisions of Section 17 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 made (on or after February 1, 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 of such Division Court shall be to us. Our Heirs of successors in our or their Privy Council, as hereinafter provided.
u/s 82 of the Act, an appeal shall lie to the High Court from an order of an Employees'' Insurance Court if it involves a substantial question of
law. The period of limitation shall be sixty days for an appeal. Section 82(2) of the Act has been operative in this country almost for the last more
than forty years. Numerous appeals under this provision have come before this Court during this period of nearly more than forty years and the
appeals therefrom under Clause 15 of the Letters Patent have been filed by both the Employers and the Corporation alike and have been heard
and disposed of without any objection taken to their maintainability.
In this connection, we are reminded of the observations made by P. V. Rajamannar, C.J., when presiding over a Full Bench of this Court on
November 12, 1948. That judgment is reported in In Re: S.M. Nathaniel and Others, says the learned Chief Justice at page 269 as under :
It was a matter for surprise that the objection to the maintainability of the appeal based on an attack on the validity of Act XXVI of 1943 should
have been taken on behalf of the Government. Section 411-A had been inserted by that Act and has remained in force for nearly five years,
without any objection being taken to its validity. Several appeals including appeals by the Madras Government have been preferred and disposed
of on the footing that the new section had been validly inserted in the Code. There was no apparent reason why after the lapse of such a long
period the Provincial Government should have suddenly raised this objection. Apart, however, from the lapse of time, there is one circumstance
which calls for particular comment. Before the passing of the Act, the Provincial Government was consulted, and it was also at the desire and with
the consent of this Provincial Government among other Governments that the impugned legislation was undertaken by the Central Legislature.
Having practically invited the Central Legislature to pass the Act in question, it was not proper on their part to have now raised this objection.
Presumably the Provincial Government was aware of what had taken place before the passing of the Act. But the learned Advocate General was
unable to explain why in spite of that, the Government now insisted on taking this objection to the maintainability of the appeals. He did not say that
in the opinion of the Provincial Government such a right of appeal as has been conferred by Sec. 411-A should not have been conferred. If that
were not so, I fail to see why this objection was taken.
The novelty of a point is no reason to refuse to consider it and render our decision on it. We, therefore, decided to hear the views of the
members of the bar on this important question of law raised by the learned counsel for the employer and the respondent in one of the appeals filed
by the Corporation. We requested Mr. G. Subramaniam, learned Senior Counsel, who happened to be present in the Court Hall at that time, to
assist us to decide the above question. We directed the Registry to notify Mr. G. Masilamani, Additional Solicitor General, Southern Region, the
Madras Bar Association, the Madras High Court Advocates Association and the Women Lawyers Association to be present at the hearing and
address argument. We have heard submissions from the learned counsel who have entered appearance in these batch of appeals, as also from Mr.
G. Masilamani, learned Additional Solicitor General, Southern Region, Mr. G. Subramaniam, learned Senior Counsel, Mr. S. Gopalaratnam,
learned Senior Counsel on behalf of the Madras Bar Association and Mr. A. Krishna Rao.
Mr. G. Masilamani, Learned Additional Solicitor General, Southern Region, submitted that an appeal under Clause 15 of the Letters Patent
was competent in the instant case. He drew our attention to the following decisions in support of his argument. They are reported in The National
Sewiong Tread Co. Ltd., v. James Chadwick Bros. Ltd., 1953 2 MLJ 215 Shah Babulal Khimji Vs. Jayaben D. Kania and Another, ;
Upadhyaya Hargovind Devshanker Vs. Dhirendrasinh Virbhadrasinhji Solanki and Others, ; General Manager (H), Hazaribagh Area of Central
Coal Fields Ltd., v. Anjan Banerjee, 1990 ACJ 551 and M. Lakshmi Narayanan and others Vs. The Chairman, Oil and Natural Gas Commission
and others, .
The judgment in National Sewiong Tread Co. Ltd., v. James Chadwick Bros. Ltd., (supra) was rendered by three Judges of the Supreme
Court of India. That was an appeal from the judgment of the High Court of Judicature at Bombay, in Appeal No. 95 of 1950 arising from the
order dated August 28, 1950 of the said High Court exercising its Ordinary Original Civil Jurisdiction in Miscellaneous No. 2 of 1950. The Bench
reversed the judgment of S. C. Shah, J., in Civil Miscellaneous No. 2 of 1950 and restored the order of the Registrar of Trade Marks refusing to
register the appellants trade mark. The two questions that were canvassed before the Supreme Court and that fell for determination were, (i)
whether the judgment of Shah, J., was subject to appeal under Clause 15 of the Letters Patent of the Bombay High Court; and (ii) whether Shah,
J., was right in interfering with the discretion exercised by the Registrar in refusing registration of the appellants'' trade mark. In the instant case, we
are concerned with question No. 1 alone.
Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court
being seized as such of the appellate jurisdiction conferred by Section 76, it has to exercise that jurisdiction in the same manner as it exercises its
other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Clause 15 of
the Letters Patent (Bombay), there being nothing contrary in the Trade Marks Act. The Supreme Court while considering the question as to
whether the judgment of a single Judge disposing of the appeal u/s 76 of the Trade Marks Act is subject to further appeal under Clause 15 of the
Letters Patent (Bombay), held as follows :
The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of an appeal (under Section 76 of the Act
against the decision of the Registrar) in the High Court, indeed Section 77 of the Act provides that the High Court can if it likes make rules in the
matter. Obviously after the appeal has reached the High Court it has to be determined according to the rules of practice and procedure of that
Court and in accordance with the provisions of the character under which that Court is constituted and which confers on it power in respect to the
method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already
established, then that appeal must be regulated by the practice and procedure of that Court. Section 76 of the Trade Marks Act confers a right of
appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred
by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is
exercised by a single Judge his judgment becomes subject to appeal under Clause 15 of the Letters Patent (Bombay), there being nothing to the
contrary in the Trade Marks Act. Section 108 of the Government of India Act, 1915, conferred power on the High Court which that Court could
exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915, or
whether conferred on it by any subsequent legislation. The power to make rules given by Section 108 of the Government of India Act, 1915, still
subsists and it has not been affected in any many manner whatever either by the Government of India Act, 1935, or by the Constitution of India,
1950. The reference in Clause 15 of the Letters Patent to Section 108 should be read as a reference to the corresponding provisions of the
Government of India Act, (Section 223) and the Constitution of India, 1950 (Article 225). India Electric Works Ltd. Vs. Registrar of Trade
Marks, , overruled.
The appeal in Shah Babylal Khimji v. Jayaben D. Kania (supra) was directed against the order of a Division Bench of the Bombay High Court,
by which the appeal filed by the appellant against the order of the trial Judge was dismissed on the ground that the appeal was not maintainable as
the order impugned was not maintainable as the order impugned was not a judgment within the meaning of Clause 15 of the Letters Patent of the
High Court of Bombay. In the case, the appellant/plaintiff has filed a suit on the Original Side of the Bombay High Court for specific performance
of a contract and prayed for an interim relief by appointing a Receiver of the suit property and injuncting the defendant from disposing of the suit
property during the pendency of the suit. The learned single judge after hearing the notice of motion dismissed the application for appointment of
receiver as also for interim injunction. Thereafter, the plaintiff filed an appeal before the Bombay High Court which dismissed the appeal as being
non-maintainable on the ground that the order of the learned single Judge impugned was not a judgment as contemplated by Clause 15 of the
Letters Patent of the High Court. Hence the above appeal by Special Leave.
The Supreme Court observed as follows :
Whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the
meaning of the Letters Patent. Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which
decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. An order of the
trial Judge refusing to appoint a receiver or to grant an ad interim injunction is undoubtedly a judgment within the meaning of the Letters Patent both
because Order 43, Rule 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality
and would therefore be a judgment within the meaning of Clause 15 of the Letters Patent.
In Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadarshinhji Solanki, (Supra) the question that arose for consideration before the
Supreme Court was, whether a Letters Patent Appeal lies to a Division Bench of the High Court of Gujarat from an interlocutory order passed by
a single Judge of that High Court in the course of the trial of an election petition filed under the provisions of the Representation of the People''s
Act, 1951, or not, the Supreme Court held as follows :
Clause 15 of the Letters Patent of the High Court of Gujarat (omitting the unnecessary portions) reads as follows :
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 from the judgment (not being a judgment passed in the exercise of appellate 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 .....
The relevant part of Clause 15 of the Letters Patent which is referred to above provides for an appeal against a judgment passed by a single
Judge of a High Court to the same High Court and the scope of the said appellate power has been explained by this court in Shah Babylal Khimji
v. Jayaben D. Kania (supra). An appeal no doubt lies under that clause from an order of a single Judge of the High Court exercising original
jurisdiction to the High Court itself irrespective of the fact that the judgment is preliminary or final or that it is one passed at an inter-preliminary or
final or that it is one passed at an interlocutory stage provided it satisfies the conditions set out in the above decision but the said provision cannot
be extended to an election petition filed under the Act. Conferment of the power to try an election petition filed under the Act does not amount to
enlargement of the existing jurisdiction of the High Court. The jurisdiction exercisable by the single Judge under the Act is a special jurisdiction
conferred on the High Court by virtue of Article 329(b) of the Constitution. Having regard to the history of the legislation and the limited nature of
the appeal expressly provided in Section 116-A of the Act, it should be held that any other right of appeal (excluding that under the Constitution is
taken away by necessary implication. We, therefore, find it difficult to subscribe to the view that when once the jurisdiction to try an election
petition is conferred on the High Court, all other powers incidental to the ordinary original jurisdiction exercised by a single Judge of a High Court
would become applicable to an election petition filed under the Act.
In General Manager (H), Hazaribagh Area of Central Coalfields Ltd. and Another Vs. Anjan Banerjee and Another, the question raised is as
to whether a Letters Patent Appeal lies to the High Court in terms of Clause 10 of the Letters Patent of the Patna High Court before a Division
Bench from the decision of a learned single Judge of that Court when the same arises out of a decision of a Tribunal or Court constituted under a
self-contained code. It is to be noticed that the provision in Clause 10 of the Letters Patent of the Patna High Court is parimateria with Clause 15
of the Letters Patent of the Bombay High Court and similar provision for the Letters Patent of different High Courts. From a bare perusal of the
aforementioned provisions, it is clear that an appeal lies before a Division Bench of the Patna High Court from a Judgment of a single Judge, if an
order has been passed in terms of Section 108 of the Government of India Act, 1915. It is not in dispute that in that case, the exception provided
for in Clause 10 of the Letters Patent of the Patna High Court is not applicable.
In the case of Municipal Corporation of Delhi v. Kuldip Lal Bhandari, 1969 A.C.J. 276 , it was held that an appeal lies to a Division Bench in
terms of Clause 10 of the Letters Patent from a judgment of a single Judge passed u/s 110-D of the Motor Vehicles Act, as the same comes within
the purview of the word ''judgment'' within the meaning of Clause 10 of the Letters Patent. It was held in that case that while hearing an appeal, the
High Court acts as a Court and not as a Tribunal.
Similarly, the Punjab and Haryana High Court in the case of Shanti Devi v. General Manager, Haryana Roadways, 1971 A.C.J. 247 held that
a Letters Patent Appeal will be maintainable before the Division Bench against the judgment passed by learned single Judge of the High Court in
terms of Clause 10 of its Letters Patent.
In General Manager (H), Hazaribagh Area of Central Coalfields Ltd. and Another Vs. Anjan Banerjee and Another, the Patna High Court had
held as follows :
Section 108 of the Government of India Act reads as follows :
Each High Court may by its 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.
It is well known that the said provision is saved by reason of Section 8 of the General Clause Act as also in terms of the provisions of the
Interpretation Act, and rules of the High Court can now be framed in terms of the provisions of Article 225 of the Constitution of India. It is,
therefore, clear from the aforementioned authoritative pronouncements of the Supreme Court that a right of appeal provided for under Clause 10
of the Letters Patent cannot be curtailed, unless the same is excluded either by a charter or by statutory provisions. There is no doubt that a right of
appeal provided for u/s 110-D of the Act is restricted, but while an appeal is maintainable and is decided in terms of Section 110-D of the said
Act, there can be no doubt that the same becomes a judgment within the meaning of Clause 10 of the Letters Patent.
In this view of the matter, the Division Bench of the Patna High Court held that the appeal decided in terms of Section 110-D of the Act becomes
a judgment within the meaning of Clause 10 of the Letters Patent and therefore, a right of appeal provided under Clause 10 of the Letters Patent
cannot be curtailed in as much as the same is excluded either by a charter or by statutory provisions. The Bench has also held that in terms of
Section 110-D of the Act, neither a finality has been given to an appellate order nor the right of further appeal has been curtailed in any manner.
In M. Lakshmi Narayanan v. The Chairman, Oil and Natural Gas Commission, (supra), a Letters Patent Appeal was filed under Clause 15 of
the Letters Patent against an order dismissing the Contempt Application. The Letters Patent Appeal was dismissed by our Bench (AR.
Lakshmanan and A. Raman, JJ.) by observing as follows :
The question for consideration is, as to whether the appeal is maintainable under Clause 15 of the Letters Patent. The proceeding in question is
one arising out of Contempt of Courts Act. In these proceedings there is no other matter decided or dealt with which can be said to fall outside the
purview of the Contempt of Courts Act. We have, therefore, no hesitation to hold that the present appeal is not maintainable. Three other Division
Benches of this Court have also taken the same view, and they are reported in Vidya Charan Shukla v. Tamil Nadu Olympic Association, 1991 2
L.W. 29; K. Karthikeyan v. The State Bank of Mysore L.P.A. No. 112 of 1995 dated April 6, 1995 and T. Marappan v. The Executive
Engineer, 1996 (2) L.W. 117, in the last cited decision, one of us (AR. Lakshmanan, J.) was a party to the Division Bench.
For the fore-going reasons, the Letters Patent Appeal is dismissed as not maintainable.
Mr. G. Subramaniam, learned Senior counsel, took up the position that an appeal under Clause 15 of the Letters Patent was not competent in
the instant case. He drew our attention to the following points, which he formulated before making his submissions :
(a) The Appellate Court has to decide if the remedy o appeal is available in a given case;
(b) No appeal is available against the order made under Clause 13 of the Letters Patent or Section 24 of the Code of Civil Procedure;
(c) A remedy by way of appeal is a creature of statute;
(d) A special law will over-ride a general law; and
(e) In the instant case, Section 82 of the Act has provided for only one appeal and after one appeal, the right gets exhausted.
In support of his above contention, he cited some decisions, which we will deal within the paragraphs infra.
The decision reported in Vijay Prakash D. Mehta and Another Vs. Collector of Customs (Preventive), Bombay, was cited by Mr. G.
Subramaniam, learned senior counsel for the proposition that the right of appeal contemplated under Sec. 129-A and 129-E of the Customs Act,
1962 is a conditional one and the legislature in its wisdom has imposed that condition of depositing duty demanded or penalty levied. Although
Section 129-E does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant
to deposit the duty or penalty, pending the appeal failing which the Appellate Tribunal is fully competent to reject the appeal. The proviso,
however, gives power to the Appellate Authority to dispense with such conditions in cases of undue hardships. It is a matter of judicial discretion
of the Appellate Authority. That discretion must be exercised on relevant materials honestly, bona fide and objectively. Once that position is
established it cannot be contended that there was any improper exercise of the jurisdiction by the Appellate Authority. Right to appeal is neither an
absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi judicial adjudications. The right to
appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of
natural justice would be violative of any right-constitutional or statutory without any right of appeal, as such. If the statute gives a right to appeal
upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant.
In the decision reported in Shantha V. Pai Vs. Vasanth Builders, Madras, a Division Bench of this Court dismissed an appeal u/s 19(1) of
Contempt of Courts Act, 1971 filed against an order of the trial Court refusing to commit the condemner for alleged Contempt of Court. The
Division Bench consisted of Mr. A. S. Anand C.J., and Nainar Sundaram, J (as they then were) held that the order of the trial Court refusing to
commit the condemner is not appealable as of right. The Bench observed as follows :
Except to the extent of the field occupied by Sec. 19(1) of the Act, an appeal would be competent under Clause 15 of the Letters Patent,
provided it satisfies the conditions prescribed in Clause 15 of the Letters Patent itself. A Letters Patent Appeal under Clause 15 would not lie
against any order passed in exercise of the contempt jurisdiction by the High Court where the trial Judge refuses to take cognizance of an
application seeking to punish the opposite party for Contempt of Court or where it rejects the application after being satisfied that its order had not
been flouted and was of the opinion that no vindication of its order was called for by committing the alleged condemner for Contempt of Court.
Since in the instant case, the Court after a detailed discussion, came to the conclusion that his order had not been violated or flouted by the
respondent and in exercise of his proper judicial discretion, refused to commit the respondent for the alleged Contempt of Court, such an order of
refusal is not a ""judgment"" within the meaning of Clause 15 of the Letters Patent and as such, is not appealable under clause 15.
In the decision reported in Rajagopal R. v. M. P. Chellamuthu & 3 others 1993 2 L.W. 225 the Letters Patent Appeal was filed against the
order made in a Contempt Application filed by the first respondent directing respondents 2 to 4 to permit the first respondent to quarry sand in
Amaravathi river and a preliminary objection was raised by the first respondent with regard to the maintainability of the L.P.A. contending that in as
much as by the order under appeal, respondents 2 to 4 had been discharged and nobody was punished under the provisions of the Act, the appeal
filed against such an order was not maintainable u/s 19(1) of the Contempt of Courts Act. It was further contended that if an appeal against the
order made in contempt application would not lie u/s 19(1) of the Act, it does not follow that Clause 15 of the Letters Patent could be invoked and
therefore, the present appeal filed under Clause 15 of the Letters Patent is also not maintainable. The said Division Bench consisted of K. A.
Swami C.J., and T. Somasundaram J., held as follows :
In as much as by the order under appeal, the learned single Judge has declared that the first respondent is entitled to quarry sand in the area in
question for a period of 3 1/2 months and directed Respondents 2 to 4 to permit the 1st respondent, to quarry sand for a period of 3 1/2 months
from May 1, 1993, such an order is a judgment for the purpose of Clause 15 of the Letters Patent and that the order under appeal satisfied the
conditions prescribed in Clause 15 of the Letters Patent. In those circumstances, we have no hesitation in holding that the present appeal is
maintainable under Clause 15 of the Letters Patent.
In Lie decision reported in State of Maharashtra Vs. Mahboob S. Allibhoy and another, , the Supreme Court has held that no appeal is
maintainable against an order dropping proceedings for contempt or refusing to initiate a proceedings for contempt or refusing to initiate a
proceedings for contempt is apparent not only from sub-section (1) of Section 19 but also from sub-section (2) of Section 19 indicates that the
reliefs provided under clauses (a) to (c) can be claimed at the instance of the person who has been proceeded against for contempt of Court.
Resham Singh Pyara Singh Vs. Abdul Sattar, was cited by Mr. G. Subramaniam, learned senior counsel. In that case, the Supreme Court held
that no appeal shall lie from any order passed in appeal u/s 104(2) CPC. This decision was cited for the proposition that when an appeal was filed
against the order of the City Civil Court, Bombay to the learned single Judge under Order 43, Rule 1(r) as provided in sub-section (1) of Section
104 by operation of sub-section (2) of Section 104, no further appeal shall lie from any order passed in appeal under this Section.
To the same is the judgment of a Division Bench of the Bombay High Court reported in The charity commissioner, Maharashtra State,
Bombay Vs. Rahandrasigh Anandrao Jadhao and Another, .
In the decision reported in Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, , the Supreme Court held that an order for transfer of
a suit made under Clause 13 of Letters Patent, is not a judgment within the meaning of Clause 15 and therefore, is not appealable. The order
neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An
order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on preliminary ground.
Mr. G. Subramaniam, learned senior counsel also relied on the decision reported in M/s. New Kenilworth Hotel (P) Ltd. Vs. Orissa State
Finance Corporation and others, , in order to say that the judgment in Shah Babylal Khimji v. Jayaben D. Kania, (supra) was distinguished by the
Supreme Court in this judgment. We have already referred to the judgment reported in Shah Babylal Khimji v. Jayaben D. Kania, (supra). In the
present case cited M/s. New Kenilworth Hotel (P) Ltd., v. Orissa State Finance Corporation & Others (supra) the plaintiff filed the suit for
declaration that the steps taken by the respondents u/s 29 of the State Financial Corporation Act were illegal and permanent injunction restraising
them from disturbing its possession. Pending suit, they sought ad interim injunction not to dispossess them from the hotel. The trial Court by order
dated July 12, 1994 granted status-quo whereby the appellant remained in possession of the suit premises. On appeal filed by the respondents, the
learned single Judge vacated the status-quo order by order dated May 18, 1995. Aggrieved, the appellant filed Letters Patent Appeal and the
Division Bench held that the appeals are not maintainable. The plaintiff preferred a further appeal by special leave.
Learned counsel for the appellant/plaintiff contended that under Clause 10 of the letters patent an appeal would lie against the judgment of the
learned single Judge to the Division Bench. It is further contended that though the order granting status-quo by the trial Court was vacated by the
High Court, it is a judgment within the meaning of Section 2(9) of the CPC. Therefore, the bar under Sec. 104(2) of CPC, is not attracted by
operation of Section 104 of the Code. In support of the said contention the counsel for the appellant relied on some judgments. The Supreme
Court held as follows :
It is settled legal position that right of appeal is a creature of the statute. Against an interlocutory order, an appeal has been provided under Sec.
104(1) of the Code read with Order 43, Rule 1. In respect of interim injunction, it is covered by Order 43, Rule 1 (r). In this case, the order of
status quo was passed in an application filed under Order 39, Rule 1 of the Code. Therefore, it is not in dispute that it is an order passed by the
Civil Court under Order 39, Rule 1(r) appealable under Order 43, Rule 1 (r) of the Code. Sub- section (2) of Section 104 specifically prohibits
Second Appeal against such an order postulating that No appeal shall lie from any order passed in appeal under this Section."" In Resham Singh
Pyara Singh v. Abdul Sattar, (supra) a Bench of this Court consisting of K. Ramaswamy and B. L. Hansaria, JJ has held that against an appellate
order of a learned single Judge of a High Court passed by the Civil Court, a Letters Patent Appeal would not lie by reason of the bar created by
sub-section (2) of Section 104 of the Code.
The Supreme Court also construed Clause 10, Letters Patent which reads as under :
An appeal shall lie from the judgment (not being a judgment passed in exercise or appellate jurisdiction in respect of a decree or order made in
exercise of the appellate jurisdiction by a Court subject to the superintendence of High Court and not being an order made in exercise of revisional
jurisdiction of one Judge of the said High Court and in 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 ........
By construing Clause 10 of the Letters Patent as above, the Supreme Court observed that the main part of Clause 10 clearly indicates that an
appeal would lie from the judgment not being a judgment passed in exercise of the appellate jurisdiction. Thereby the judgment from an appellate
jurisdiction stands excluded under the first part of Clause 10 of the Letters Patent itself. Therefore, the Supreme Court held that the Division Bench
of the High Court was right in holding that the Letters Patent Appeal would not lie against an order of the learned single Judge.
The above decision of the Supreme Court was rendered on January 20, 1997 dealing with an order made by a single Judge of the Orissa High
Court in the exercise of Appellate Jurisdiction under See. 104(1) read with Order 43 of the CPC. As it was not an original order under See.
104(2) of the Code, any further appeal is not made available. It was only this position and this provision of law, in which the learned Judges of the
Supreme Court had to draw the attention of the Additional Solicitor General of India. It has to be noted that the order of the single Judge will not
be a judgment within the meaning of Tuljaram Rao v. M. K. R. Alagappa Chettiar, ILR Mad. 1 and as an order made in exercise of powers under
the CPC., any further appeal stood barred under See. 104(2). In our opinion there is no conflict between the two decisions of the Supreme Court
reported in Shah Babylal Khimji v. Jayaben D. Kania, (supra) and the one reported in M/s. New Kenilworth Hotel (P) Ltd., v. Orissa State
Finance Corporation & Others, (supra), as contended by Mr. G. Subramaniam.
Mr. Krishna Rao, learned counsel for the respondents in one of the appeals submitted that the Letters Patent Appeal is not maintainable. He
cited the decision reported in Umaji Keshao Meshram v. Radhikabai, 99 L.W. 37 wherein the question fell for determination in the appeal before
the Supreme Court was ""whether an appeal lies under Clause 15 of the Letters Patent of the Bombay High Court to a Division Bench of two
Judges of that High Court from the judgment of a single Judge of that High Court in a petition filed under Art. 226 or 227 of the Constitution of
India ?"". The Letters Patent Appeal was dismissed as being not maintainable by reason of the judgment given by the Full Bench of the Bombay
High Court which was challenged before the Supreme Court. The Supreme Court held thus :
We are afraid, the Full Bench has misunderstood this scope and effect of the powers conferred by these Arts. (226 and 227). These two Articles
stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their sources and origin are different and the
models upon which they are patterned are also different. Under Art. 226 the High Courts have power to issue directions, Orders and Writs to any
person or authority including any Government. Under Art. 227 every High Court has the power of superintendence over all Courts and Tribunals
throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By
no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warrant or prohibition or certiorari he equated with the
power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred
upon every High Court by Art. 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of
these authorities and according to law. The orders, directions and writs under Art. 226 are not intended for this purpose and the power of
superintendence conferred upon the High Courts by Art. 227 is in addition to that conferred upon the High Courts by Art. 226, though at the first
blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature on superintendence in as much as at times the end result is
the same, the nature of the power to issue these writs is different from the supervisory and superintending power under Art. 227. The powers
countered by Arts. 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by
two different processes does not mean that these two processes are the same.
It was further held as follows :
Consequently, where a petition filed under Art. 226 of the Constitution is according to the rules of a particular High Court heard by a single Judge
an intra court appeal will lie from that judgment if such a right of appeal is provided in the charter of that High Court, whether such charter be
Letters Patent or a statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-court appeal and,
therefore, the decision of a single Judge of that High Court given in a petition under Art. 226 would be appealable to a Division Bench of that High
Court. It is equally well settled law that a proceeding under Art. 227 is not an original proceeding.
In the decision reported in Obedur Rehman and Another Vs. Ahmedali Bharucha and Others, a Division Bench of the Bombay High Court
held that See. 104(2) applies also to Letters Patent Appeals and therefore, Letters Patent Appeals against order of single Judge dismissing appeal
filed u/s 104 against order refusing to grant temporary injunction was liable to be dismissed as not maintainable under See. 104(2).
In the course of his submissions, Thiru Gopalaratnam drew our attention to the decision rendered by a Full Bench of four learned Judges of our
High Court, consisting of Mr. Justice Kernan, Mr. Justice Muthusami Ayyar, Mr. Justice Parker, and Mr. Justice Wilkinson, reported in Kamaraju
v. The Secretary of State of India, ILR Mad. 309. He pointed out that in that case which arose under the Madras Forest Act, 1882, the appellant
having filed a second appeal, S.A. No. 786 of 1885, against the decision of the District Court, Madurai, in an appeal filed before it under the terms
of Sec. 10 of the Forest Act, the State (respondent) took a preliminary objection, that the appeal did not lie. On September 15, 1886, the Bench,
Collins, C.J., and Kernan, J., referred the case to the Full Bench for deciding among others, the following question : ""Is there an appeal ? "". At
page 312 the learned Judge of the Full Bench have observed as follows :
The decision of the District Court passed on appeal from the decision of the Forest Settlement Officer is clearly a decree within the meaning of the
C.P.C., and the second appeal is not taken away by express enactment. It remains to consider whether the second appeal has been taken away
by necessary implication on the part of the legislature. The presumption is against the taking away of a substantive right of a very valuable nature by
mere implication, and it may be fairly contended that had the legislature so intended, it would have expressly said so.
After an elaborate discussion on that question, the Full Bench returned the answer to the question, at page 314 as follows :
On the first question referred to us, we would therefore reply to the Division Bench that a second appeal does lie to the High Court from a
decision of the District Court under See. 10 of the Forest Act.
Mr. Gopalaratnam next cited the judgment reported in National Telephone Company Ltd., v. His Majesty''s Postmaster General, 1913 AC
546 and invited our attention to the passage in Lord Haidane''s speech at page 552 which reads thus :
When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the
procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.
Learned Senior Counsel Mr. Gopalaratnam next read to us the decision of the Privy Council reported in Secretary of State for India v.
Chellikani Rama Rao ILR Mad. 617 and relied on Lord Shaw''s observations contained in page 624 reading :
What happened in the present case was that the claim was rejected. An appeal by the respondents was thereupon made to the District Court and
a decision was pronounced. It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were
incompetent, these being excluded, by the terms of the statute just quoted. In their Lordship''s opinion this objection is not well founded. Their view
is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country with
regard to whose procedure, orders, and decrees the ordinary rules of the CPC apply. This is in full accord with the decision of the Full Bench,
Kamaraju v. The Secretary of State for India in Council, ILR 1888 Mad. 309 a decision which was given in 1888 and has been acted on in
Madras ever since.
The next case cited to us was the decision reported in AIR 1936 93 (Privy Council) and he drew our attention to the observation of Sir
George Rankin at page 95 Col. 2, where the observations in Secretary of State for India v. Chellikani Rama Rao (supra) quoted and relied on.
The case next cited was the decision of the Judicial Committee reported in Adaikappa Cheitiar v. Chandrasekhara Thevar, 1948 1 MLJ 41
wherein it has been held at page 44 as follows :
The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Court are governed by
the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arise
under a special statute which does not in terms confer a right of appeal.
Learned senior counsel next relied on the decision of the Apex Court reported in National Sewiong Tread Co. Ltd., v. James Chadwick Bros.
Ltd. (supra). The said decision was also cited by the learned Addl. Solicitor General to which we have already made reference in the paragraphs
supra. That was a decision of the Apex Court in a case which arose under the Trade Marks Act, 1940. He drew our attention to the following
passage at page No. 222 of the report which is as follows :
The rights created by the Trade Marks Act are civil rights for the protection of persons carrying on trade under marks which have acquired
reputation. The statute creates the Registrar, a tribunal for safeguarding these rights and for giving effect to the rights created by the Act, and the
High Court as such without more has been given appellate jurisdiction over the decisions of this Tribunal. It is not easy to understand on what
ground it can be said that the High Court while exercising this appellate jurisdiction has to exercise it in a manner different from its other appellate
jurisdiction. It seems to us that this is merely an addition of a new subject matter of appeal to the appellate jurisdiction already exercised by the
High Court.
Mr. Gopalaratnam, learned senior counsel invited us to apply the above passage to the case presently under discussion. He next drew our
attention to the new Act, Act 43 of 1958, having by Section 108(3), expressly recognising an appeal under Clause 15 of the Letters Patent, in
contrast to the terms of Sec. 76(1) of the Trade Marks Act, 1940, which, it was, that came up for consideration before the Supreme Court in
National Sewiong Tread Co. Ltd., v. James Chadwick Bros. Ltd., (supra) case referred to above. Our attention was drawn to two other decisions
of the Supreme Court reported in Hanskumar Kishanchand Vs. The Union of India (UOI), and Collector of Varanasi Vs. Gauri Shankar Misra
and Others, of which Hanskumar Kishan Chand v. Union of India, (supra) was decided by three Judges and Collector Varanasi v. Gauri Shankar,
(supra) was decided by a Constitution Bench of 5 Judges. Hanskumar Kishan Chand v. Union of India, (supra) decision was dissented by the
decision made in Collector Varanasi v. Gauri Shankar, (supra). The Supreme Court held that the High Court functions as a Court while acting
under See. 19(1)(f) and not as designated person. AIR 1916 PC 21 was relied on by the Supreme Court. The Supreme Court stated that their
conclusion in this regard receive support from the decision of the Judicial Committee in AIR 1916 PC 21 referred to earlier.
The decisions reported in Penugonda Radhakrishnamurthy Vs. V.A.Y. Ethirajulu Chetty and Co. and Others, , Kevelchand Daga v.
Girdhardoss 1961 2 MLJ 528 and Union of India (UOI) Vs. Mohindra Supply Company, were also cited which arose under the Indian
Arbitration Act. Act 10 of 1940, by way of contrast, holding that an appeal under Clause 15 of Letters Patent did not lie under certain
circumstances. The decision in Penugonda Radhakrishnamurthy v. Ethirajulu Chetty, (supra) was by a Division Bench consisting of Sir Alfred
Lional Leach, Chief Justice and Mr. Justice Shahabuddin. That was an appeal from the Judgment of Kuppusami Ayyar, J., setting aside the order
of the Principal Judge of the City Civil Court under the provisions of See. 39 of die Indian Arbitration Act, 1940. Two applications had been filed
in the City Civil Court for an order extending the time allowed to the Umpire for the passing of his award. The Umpire awarded the first
respondent a sum of Rs. 600, but the award was not made within the time allowed by law. The City Civil Court refused the applications on the
ground that by granting them the opposite party would lose valuable rights. The first respondent then appealed to the High Court. Learned single
Judge considered that application for extension of time should have been granted and allowed the appeal. Accordingly, he sent the case back to
the City Civil Court to decide the other points raised in the proceedings. A preliminary objection has been taken before the Division Bench and it
was contended that the Letters Patent Appeal does not lie by reason of sub-section (2) of See. 39 which says that no second appeal shall lie from
an order passed in an appeal under the Section, although nothing in the Section shall affect or take away the right to appeal to His Majesty in
Council. The Bench accepted the said contention as sound. The Bench observed as follows :
It is true that Clause 15 of the Letters Patent, if it stood alone, would allow the appeal; but Clause 44 of the Letters Patent says that the provisions
are subject inter aria to the legislative powers of the Governor-General in legislative Council. The Indian Arbitration Act is an Act of the Central
Legislature and the provisions of Section 39 must prevail. The Appeal is dismissed with costs.
This judgment of the Division Bench was over ruled in the decision reported in Kevelchand Daga v. Girdhardoss, above referred to, rendered
by a Full Bench of our High Court consisting of Mr. P. V. Rajamannar, Chief Justice, Mr. Justice Veeraswami and Mr. Justice Venkatadri,
wherein it was held thus :
An appeal under Clause 15 of the Letters Patent (Madras) would normally lie from an order of a single Judge of the High Court provided the
order is a judgment within the meaning of that Clause. Clause 44 of the Letters Patent is in general terms and provides that the provisions of the
Letters Patent are subject to the legislative powers of the Governor-General. It only provides that in the exercise of such legislative power all the
provisions of the Letters Patent may in all respects be amended and altered. It is no doubt true that the term ""Second Appeal"" in Section 39(2) of
the Arbitration Act is not used in the narrow and technical sense of a second appeal u/s 100 of the CPC but means a further appeal, that is
numerically a second appeal. But the further appeal contemplated is to the Court of a higher grade. Hence an appeal under Clause 15 of the
Letters Patent from one Judge of the High Court to two or more Judges of the same High Court cannot fall within the category of ''Second
Appeal'' mentioned in Section 39(2) of the Arbitration Act. There is thus nothing in Section 39(2) of the Arbitration Act either in express terms or
by necessary implication, which amends or alters Clause 15 of the Letters Patent restricting the right of appeal conferred thereunder. Hence an
appeal under Clause 15 of the letters patent would lie from the judgment of a single Judge of the High Court setting aside an order of the City Civil
Court under the provisions of Section 39 of the Arbitration Act read with Clause 44 of the Letters Patent does not have the effect of barring such
appeal.
The above Full Bench judgment was disapproved by the Supreme Court in Union of India v. Mohindra Supply Company (supra), referred to
above.
Learned Senior counsel Mr. Gopalaratnam also brought to our notice pages 28 & 29 of journal portion of 1991 1 L.W., where the provisions
of Clause 15 of the Letters Patent as it stood on various dates is given.
For consideration of any question as the present, we have to start with the Full Bench decision of our High Court reported in T. V. Tuljaram
Rao v. M. K. R. V. Alagappa Chettiar, (supra) wherein an objection has been taken that no appeal lies against the order of a Judge on the original
side declining to frame additional issue for which one of the parties asked. The Full Bench held that an order of a single Judge refusing to frame an
additional issue not applicable as a judgment. It was held by the Full Bench as follows :
An order of a single Judge on the Original Side, refusing to frame an issue asked for by one of the parties is not a judgment within Clause 15 of
the Letters Patent and is not appealable. Per Chief Justice : (Sir Arnold White).
An adjudication is a judgment within the meaning of the clause if its effect, whatever its form may be and whatever may be the nature of the
application in which it is made, is to put an end to the suit or proceeding as far as the Court before which the suit or proceeding is pending is
concerned or if its effect, if not complied with, is to put an end to the suit or proceeding. It is not necessary that the decision must affect the merits
by determining some right or liability. An adjudication based on a refusal to exercise discretion, is appealable if the effect of the adjudication is to
dispose of the suit so far as the Court making adjudication is concerned.
V. Krishnaswami Ayyar, J.
The word ''judgment in Clause 15 must be so construed as to include the various kinds of judgments dealt with in other clauses of the Letters
Patent. It must be understood as including preliminary or interlocutory judgments but not preliminary or interlocutory orders.
The same has stood the test all these days and has received universal acceptance, when it gives us the answer to the question what is the meaning
of the word ''judgment'', found in Clause 15 of the Letters patent. To put it shortly, a judgment is that adjudication, whatever its form may be and
whatever may be the nature of the application in which it is made, if its effect be to put an end to the suit or proceeding so far as the Court before
which such suit or proceeding is pending is concerned.
It has been the practice all along to file L.P. Appeals, against orders on the original side appointing a receiver or issuing a temporary injunction
and the like. There always used to be an under current of protest that ''no right of either party has been finally adjudicated, when a Court takes the
property in custodia legis, by appointing a receiver or is putting a party to the action under a temporary restraint.''
In the decision reported in M/s. V/O. Tracto Export, Moscow v. M/s. Tarapore and Co., 82 L.W. 361, it has been held by a Division Bench
of our High Court thus :
For more than half a century our High Court, under Clause 15 of Letters Patent, has been entertaining appeals from orders, made on applications
for injunction or for appointment of Receiver pendente lite in the exercise of Original and Appellate jurisdiction and we are having scores of
appeals from interlocutory orders granting or refusing injunction by single Judges of the Court in the exercise of the Special Original Jurisdiction of
the Court under Art. 226 of the Constitution. In Palaniappa v. Krishnamurthy, this Court recently followed the decision in T. V. Tuljaram Row v.
M. K. R. V. Alagappa Chettiar, (supra), the preliminary objection to the maintainability of the appeal is, therefore, not sustainable.
In the decision reported in Tarapore & Co. v. Tracto Export, Moscow, (supra), the Supreme Court granted Special Leave to one of the
parties after excusing the delay. The civil appeal by M/s. Tracto Export, Moscow and the civil appeal filed by M/s. Tarapore & Co., Madras who
had lost before a Division Bench of this Court were heard by the Supreme Court, and the Supreme Court on November 26, 1968 allowed the
appeal filed by the Tracto Export, Moscow and dismissed those of the plaintiff, the Supreme Court held thus :
Ordinarily Supreme Court does not interfere with interim orders. But where legal principles of great importance affecting international trade are
involved and the orders of Court, if allowed to stand are bound to have their repercussion on our international trade, the Supreme Court will
interfere the interim orders of Court below.
In the result, the Supreme Court allowed C.A. No. 2305 and 2306 of 1968 filed by M/S Tracto Export, Moscow and set aside the temporary
injunction granted by the trial Judge. The other appeals filed by M/s. Tarapore Co., were also dismissed.
As already noticed, the Supreme Court in the decision reported in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, has been pleased
to hold that in addition to appeals which will strictly come within the scope of the decision reported in T. V. Tuljaram Rao v. M. K. R. V.
Alagappa Chettiar, (supra) under Clause 15 of the Letters Patent, appeals against orders, which are provided for u/s 104(1) of CPC., read with
Order 43 are also available to a party. In other words, the stringent requirements of T. V Tuljaram Rao v. M. K. R. V. Alagappa Chettiar, (supra)
are waived so far as regards appeals from orders are concerned. Here one must not lose sight of the definition of the terms, ''decree'', ''judgment''
and ''order'', contained in Section 2 of CPC., we have already dealt with a latest decision of the Supreme Court reported in M/s. New Kenitworth
Hotel (P) Ltd., v. Orissa State Finance Corporation & Others (supra) which dealt with an order made by a single Judge of the Orissa High Court
in the exercise of appellate jurisdiction, under Sec. 104(1) read with Order 43 of the Code. In our opinion there is no conflict between the two
decisions of the Supreme Court, as contended by Mr. G. Subramaniam, Learned Senior Counsel, viz., Shah Babylal Khimji v. Jayaben D. Kania,
(supra) and M/s. New Kenilworth Hotel (P) Ltd., v. Orissa State Finance Corporation & Others (supra).
Before concluding we would like to make a reference to the decision of the Supreme Court reported in South Asia Industries Private Ltd. Vs.
S.B. Sarup Singh and Others, which will make a very instructive reading. That case arose under the Delhi Rent Control Act, Sec. 43 of that Act,
made the judgment of a single Judge of the High Court, bearing an appeal under Sec. 39 of the Rent Control Act, final. The learned Judge after
making reference to the decision reported in National Sewiong Tread Co. Ltd., v. James Chadwick Bros. Ltd., (supra) as also the other cases
decided by the judicial committees, to which we have made reference earlier, says in para-11 as follows :
A statute may give a right of appeal from an order of a Tribunal or a Court to the High Court without any limitation thereon. The appeal to the
High Court will be regulated by the practice and procedure obtaining in the High Court. Under the rules made by the High Court in exercise of the
powers conferred on it under Sec. 108 of the Government of India Act, 1915, an appeal u/s 39 of the Act will be heard by a single Judge. Any
judgment made by the single Judge in the said appeal will under Clause 10 of the Letters Patent, be subject to an appeal to that Court. If the order
made by a single Judge is a judgment and if the appropriate legislature has, expressly or by necessary implication, not taken away the right of
appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a single Judge under Clause 10 of the Letters Patent to the High
Court. It follows that, if the Act had not taken away the Letters Patent Appeal, and appeal shall certainly lie from, the judgment of the single Judge
to the High Court.
It is our considered view that our present case is the fittest illustration. It will have to be noticed that under our Act 34 of 1948, there is no
provision similar in wording as was found by the Supreme Court in the above judgment in Section 43 of Delhi Rent Control Act, where under the
Supreme Court held that Letters Patent Appeal will not be available.
In the decision reported in Smt. Asho Devi Vs. Dukhi Sao and Others, a Full Bench of the Patna High Court opined that the Letters Patent
Appeal from the first appellate judgment of a learned single Judge is controlled by the provisions of Section 100 of CPC. The said decision of the
Full Bench was reversed by the Supreme Court in the decision reported in Smt. Asha Devi Vs. Dukhi Sao and Another, .
For all the foregoing reasons, we are of the view that the appeal under Clause 15 of the Letters Patent of the High Court is competent against
the judgment of a learned single Judge of the High Court rendered under Sec. 82 of the Employees'' State Insurance Act, 1948 (Act 34 of 1948).
We therefore hold that all these L.P. As are maintainable in law and the preliminary objections raised by the respondents are over-ruled. Post all
these L.P. As for final disposal before a Division Bench of the Court to dispose of the same on merits. We place on record our deep appreciation
for the valuable assistance rendered by Mr. G. Masilamani, Additional Solicitor General for Southern States, Mr. S. Gopalaratnam, learned senior
counsel and Mr. G. Subramaniam, learned Senior Counsel in disposing of the above appeals on the issue raised therein.