Udai Singh Solanki vs Securities and Exchange Board of India and Others

V.S. Kokje, J.—Heard on the question of maintainability as preliminary objection was raised by the respondents that this appeal is not maintainable for more than one reason.

This appeal has been preferred under Clause 18 of the Rajasthan High Court Ordinance; 1949. It is against the order passed by the learned Single Judge in an appeal against an order on application for temporary injunction passed by the Additional District Judge, Court No. 5, Jaipur City, Jaipur. The main question, therefore, is as to whether from the order passed by the learned Single Judge in a Miscellaneous Appeal under Order 43 Rule 1 CPC, an appeal under Clause 18 of the Rajasthan High Court Ordinance would lie or not?

Learned Counsel for the appellant relied on the decision of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, . Learned Counsel submitted that Clause 15 of the Letter Petent of the Bombay High Court gives restricted right of appeal, whereas Clause 18 of the Rajasthan High Court Ordinance has wider scope appeal. According to the learned Counsel the right of appeal given by the Rajasthan High Court Ordinance cannot be curtailed on defeated by Section 104(2) of the Code of Civil Procedure. Learned Counsel also relied on the decision of the Supreme Court in Vanita M. Khanolkar v. Pragna M. Pai and Ors. 1998 (7) SC 17, wherein it has been observed that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court and that the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under letters patent.

Learned Counsel for the respondents on the other hand relied on a D.B. decision of this Court in Ratan Kumari v. Dr. Chandra Mohan Prasad RLW 1989 (1) 158 and the decision of the Supreme Court in Resham Singh Pyara Singh Vs. Abdul Sattar, and M/s. New Kenilworth Hotel (P) Ltd. Vs. Orissa State Finance Corporation and others,

We need not go into the arguments raised on the basis of difference in the language of Clause 15 of the Letters Patent of Bombay High Court and Clause 18 of the Rajasthan High Court Ordinance because the point raised before us is exactly covered by the decision in New Kernilworth Hotel''s case (Supra). Clause 10 of the Letters Patent applicable to Orissa High Court has been reproduced in paragraph 6 of that judgment. It is substantially the same as Clause 18 of the Rajasthan High Court Ordinance, 1949. In New Kernilworth Hotel''s case (supra) the Supreme Court has laid down that the bar of Sub-section (2) of Section 104 would operate against the provisions of Clause 10 of the Letters Patent also. This is the view taken by the Division Bench of our High Court also. The right of appeal is a creature of the statute and the statute having expressly prohibited filing of second appeal u/s 104(2) no further right of appeal under Clause 18 of the Rajasthan High Court Ordinance would be available. When the right of appeal under Order 43 Rule 1 CPC itself is limited and hedged in by the condition that no further appeal would lie, no further right to appeal can be claimed.

In view of the above, we find that this appeal is not maintainable. It is hereby dismissed as not maintainable. All interim orders stand vacated.