Full Judgment Text
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PETITIONER:
VINITA M. KHANOLKAR
Vs.
RESPONDENT:
PRAGNA M. PAI & ORS.
DATE OF JUDGMENT: 26/11/1997
BENCH:
S.B. MAJMUDAR, K. VENKATASWAMI
ACT:
HEADNOTE:
JUDGMENT:
THE 28TH DAY OF NOVEMBER, 1997
Present:
Hon’ble Mr. Justice S.B. Majmudar
Hon’ble Mr. Justice K. Venkataswami
G.B.Sathe, D.N. Hungod, Advs. for the appellant
D.N. Mishra, Adv. for M/s. J.B.D. & Co., Advs. for the
Respondents.
O R D E R
The following Judgment of the Court was delivered:
Leave granted. We have heard learned counsel for the
parties.
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 sec. 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 respondents that the appeal
was not maintainable in view of sub-sec. (3) of sec. 6 of
the Act. The said provision certainly bars any appeal or
revision against any order passed by the court under sec. 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 requires
closer scrutiny. he submitted that even if an appeal would
not lie under sub-sec. (3) of sec. 6 of the act by itself
against any order passed by the court under sec. 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
provision for appeal would not have been whittled down by
the statutory provisions of sec. 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
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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 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 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 106 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,
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
judgments of Judges of the said
High Court or of such Division
Court shall be to Us. Our heirs or
successors in Our or Their Privy
Council, as hereinafter provided."
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 excluded unless the statutory
enactment concerned expressly excludes appeals under letters
patent. No such bar is discernible from sec. 6(3) of the
act. it could not be seriously contended 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.
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
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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.
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.