Iqbal Begum vs Chote Miyan

N.Y. Hanumanthappa, J.—This Letters Patent Appeal under Clause 15 of the Letters Patent has come up for orders of this Court on the objection taken by the Registry as to the maintainability of the appeal filed against the orders of the learned single Judge in CMP No. 11368 of 1999 dated 2-7-1999 setting aside the orders passed in CRPNo.3230 of 1997 dated 12-11-1998, and restoring the revision petition to its file and directing the same to be listed for final hearing.

Before going into the maintainability of the appeal, it is necessary to set out a few facts leading to the filing of the appeal:

The appellant herein who is the landlady of the schedule premises in question filed RCC No.227 of 1994 on the file of II Additional Rent Controller, Hyderabad seeking eviction of the respondent-tenant herein on the ground of wilful default in payment of rents. The RCC was dismissed by the Rent Controller and the appeal filed in RA No.562 of 1995 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad was also dismissed. Thereafter, the appellant filed CRP No.3230 of 1997. It appears that on 12-11-1998 when the revision petition came up for hearing before a learned single Judge, the learned advocate representing the respondent-tenant has consented that the tenant would vacate the premises without demanding any amenities and accordingly the CRP was disposed of granting six months time to vacate the premises and directing the respondent to file an undertaking to the effect that he would vacate the premises after the expiry of six months before the Rent Controller. It appears that as the tenant failed to file the undertaking as directed, CCNo.273 of 1999 was filed and in that a show-cause notice was issued to the respondent. The case of the respondent is that he had not consented for vacation of the premises and it is only through the show-cause notice in the contempt case, he came to know about the disposal of the revision petition with certain directions. Therefore, he filed CMP No.11368 of 1999 under Order IX, Rule 13 CPC requesting to set aside the ex parte decree passed on 12-11-1998 in the CRP. He also filed a petition seeking condonation of delay in filing the petition to set aside the ex parte order. Subsequently, however, the delay condonation application was withdrawn by the respondent-tenant. A learned single Judge of this Court heard the matter in detail and by an elaborate order dated 2-7-1999 entertained the CMP No.l 1368 of 1999 treating the same as the one filed u/s 151 CPC and set aside the order dated 12-11-1998 and restored the CRP to its file and directed the same to be listed for final hearing before an appropriate Bench. Aggrieved by which, the present appeal is filed. That is how the appellant has sought to invoke the jurisdiction of this Court under Clause 15 of the Letters Patent.

Sri Lakshmareddy, learned Counsel appearing for the appellant submits that the procedure followed by the learned single Judge in treating the application filed under Order IX, Rule 13 CPC as the one filed u/s 151 CPC thus invoking the inherent the inherent powers of the Court is quite illegal and arbitrary. Secondly, the learned Judge erred in not noticing that the matter had already been disposed of on merits and the application under Order IX, Rule 13 CPC was not maintainable. Thirdly, the learned Judge ought not to have entertained the application just a few days before the expiry of the time limit that was granted by this Court for vacating the premises, lastly, it was contended that the order dated 2-7-1999 passed by the learned single Judge is in the nature of a judgment and, therefore, an appeal under Clause 15 of the Letters Patent is maintainable. He, therefore, sought for overruling of the objection taken by the Registry as to the maintainability of the appeal and to hear the appeal on merits.

In order to have a proper appreciation of the issue involved, Clause 15 of the letters Patent may be extracted below:

"15. Appeal from the Courts of original jurisdiction to the High Courts in its appellate jurisdiction :--And we do further ordain that an appeal shall He to the said High Court of Judicature at Madras (Hyderabad) 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 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 Government of India Act, and that notwithstanding anything'' herein before 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 the 1st 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 declared that the case is a fit one for appeal;....."

From the above, it is clear that appeal under Clause 15 of the Letters Patent shall lie to the appellate jurisdiction of the High Court from the judgment of one Judge of the High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act. The Letters Patent jurisdiction is not attracted and available if the judgment is passed by the High Court 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. It is also not attracted and available if the order is made under the revisional jurisdiction of the said High Court and it is also not attracted in respect of a sentence or order made or passed in the 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. It is, therefore, clear that if the order complained of is not a judgment, the appellate jurisdiction of the High Court under Clause 15 of the Letters Patent is not attracted and available, subject of course to the other provisions of Clause 15 of the Letters Patent as detailed above, and the appeal is not maintainable.

Though the learned Counsel for the appellant has contended that the learned single Judge has erred in treating the application filed under Order IX Rule 13 CPC as the one filed u/s 151 CPC and ought not to have entertained the application just few days before the expiry of the time limit granted for vacation of the premises etc., we are not inclined to go into those aspects, because the main issue to be considered is as to the maintainability of the appeal and to see whether the order against which the jurisdiction of the High Court under Clause 15 of the Letters Patent is invoked is a judgment or not. As already observed above, if the order complained of is not a judgment, the appellate jurisdiction of the High Court under Clause 15 of the Letters Patent is not attracted and available and in such an event the appeal is not maintainable. The contention of the learned Counsel for the appellant is that the order passed by the learned single Judge dated 2-7-1999 in the miscellaneous petition is in the nature of a judgment and, therefore, the present appeal under Clause 15 of the Letters Patent is maintainable. In support of his contention, he relied upon a decision of the Hon''ble Supreme Court in Shah Abulal Khinji v. Jayaben D. Kama and another, AIR 1987 SC 1786.

The contention of the learned Counsel for the appellant has no merit. We have also carefully gone through the judgment of the Supreme Court relied upon by the learned Counsel and we are of the view that the decision has neither relevancy nor application to the facts on hand. The case before the Supreme Court arose out of the judgment of the Division Bench of the Bombay High Court. The facts of the case are that the plaintiff-appellant therein 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 in respect of the suit property and injuncting the defendant from disposing of the suit property during the pendency of the suit. The learned single Judge of the Bombay High Court dismissed the application. The appeal filed was also dismissed on the ground that the order of the learned single Judge was not a judgment as contemplated by Clause 15 of the Letters Patent of the High Court. The matter was carried in appeal before the Supreme Court.

Order XLIII of CPC provides appeals from orders. Under clause (s), an order passed under Rule 1 of Order XL of the CPC relating to appointment of a receiver is also appellable. While dealing with Order XLIII read with Section 104 CPC, the Hon''ble Supreme Court in the above decision held that although the Letters Patent is a special law, certain provisions of the Code of CPC in the matter of procedure do apply to appeals against the decision of a trial Judge of the High Court to a larger Bench i.e., to internal appeals. It was also held that there is no inconsistency between the Letters Patent jurisdiction and Section 104 read with Order 43, Rule I of CPC and Section 104 read with Order 43, Rule 1 creates a forum for appeal against orders falling under various clauses of Order 43, Rule I to a larger Bench of the High Court without at all disturbing, interfering with or overriding the Letters Patent Jurisdiction. This was not the situation in the present case on hand. The learned Judge has only set aside the order passed in the CRP and restored the revision petition to its file only on the ground that the tenant-respondent has approached the Court with a complaint that he had not consented for allowing the CRP on the condition of vacating the premises within a period of six months and that he had not authorised his advocate on record to do so. Therefore, there is no order adverse to the interest of the appellant or has caused any prejudice as the main CRP is restored and posted for hearing. Had the CRP been dismissed, the situation would have been different. Further, in the case before the Supreme Court, the trial Judge of the Bombay High Court was dealing with a suit under the original civil jurisdiction, whereas in the instant case, the learned single Judge of this Court was dealing with a rent control matter in exercise of the revisional jurisdiction. Therefore, we are of the view that the decision of the Supreme Court has no application to the case on hand. Under Clause 15 of the Letters Patent, there is a bar to entertain any Letters Patent Appeal against any order passed in a revision petition by the High Court under its revisional jurisdiction.

Now, we may refer to the interpretation given by the Supreme Court with regard to the word "Judgment" appearing in Clause 15 of the Letters Patent of the High Court which has been the subject-matter of judicial interpretation by the Supreme Court in Khimji''s case supra. The Supreme Court in the said case, after referring to the decisions of the Privy Council, its own decisions and the decisions of the High Courts of Calcutta and Madras, has in extenso dealt with the scope, ambit, meaning and purport of the word "Judgment" appearing in Clause 15 of the Letters Patent and held 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 treated as a judgment but only those orders would be judgment which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. (Paras 106, 115)."

"In order to determine whether an order passed by a trial Judge can be said to be a ''Judgment'' the following considerations must prevail with the Court:-

That the trial Judge being a senior Court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment; otherwise the appellate Court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The Courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings. (Para 119)."

As already stated, in the case before the Supreme Court, the learned trial Judge of the Bombay High Court has passed the order in exercise of the original civil jurisdiction., Herein, the teamed single Judge has passed the order in a miscellaneous petition in exercise of the revisional jurisdiction. Therefore, appeal under Clause 15 of the Letters Patent is not maintainable and haired by the Letters Patent. Even otherwise also, the order of the learned single Judge cannot be treated as a ''judgment'' as it has not decided any controversy which had affected valuable rights of the appellant, nor it has contained the traits and trappings of finality. In order to treat an order as a ''Judgment'' within the meaning of the Letters Patent, a controversy must have been decided affecting the valuable rights of the parties. By the order under challenge, the learned single Judge has simply set aside the earlier order passed allowing the revision petition, as the respondent-tenant has filed an affidavit stating that he has not consented for vacation of the premises within a period of six months as was reported by the then learned advocate appearing for him. Under those circumstances, the learned Judge thought it fit to set aside the earlier order and restored the petition to its file and directed the matter to be listed for final hearing. By any stretch of imagination, it cannot be said to be judgment which had decided matters of moment or affected vital and valuable rights of the parties and worked out any serious injustice to the appellant. Since the matter is restored to file, the appellant will have an opportunity to putforth all his contentions in the CRP before the learned single Judge. Even otherwise, it cannot be said that the discretion exercised by the learned single Judge in treating the application as one u/s 151 CPC is incorrect and ex facie legally erroneous or causes grave and substantial injustice to the appellant. However, we are of the view that the learned single Judge would have been appreciated had it been stated in the order that he is reviewing the earlier order in the CRP, instead of treating the application as the one u/s 151 CPC.

For the reasons aforesaid, we are of the view that the order of the learned single Judge which is interlocutory in nature passed in exercise of the revisional jurisdiction under the provisions of the A.P. (Lease, Rent and Eviction) Control Act, 1960, cannot be regarded as a "judgment" within the meaning of Clause 15 of the Letters Patent of the High Court so that the appeal can be maintained under the Letters Patent. We, therefore, uphold the Office objection. Consequently, the appeal is rejected as not maintainable. However, all other contentions arc kept open and the appellant would be at liberty to urge the same before the appropriate Forum.