Full Judgment Text
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PETITIONER:
SOUTH ASIA INDUSTRIES PRIVATE LTD.
Vs.
RESPONDENT:
S. B. SARUP SINGH AND OTHERS
DATE OF JUDGMENT:
18/01/1965
BENCH:
RAO, K. SUBBA (CJ)
BENCH:
RAO, K. SUBBA (CJ)
DAYAL, RAGHUBAR
BACHAWAT, R.S.
RAMASWAMI, V.
CITATION:
1965 AIR 1442 1965 SCR (2) 755
CITATOR INFO :
RF 1966 SC1888 (4)
RF 1986 SC1272 (88)
R 1987 SC 203 (20)
RF 1987 SC2323 (2)
RF 1989 SC 922 (10)
ACT:
Letters Patent for the High Court of Lahore, cls. 10, 11-
Delhi Rent Control Act, 1958 (Act 59 of 1958), ss. 39, 43-
Single Judge decisions-Appeal under Letters Patent-Whether
taken away by legislature-"Final" meaning of- Appeal under a
statute if includes Letters Patent Appeal.
HEADNOTE:
The respondents filed an application before the Controller
under s. 14 of the Delhi Rent Control Act for the eviction
of the appellant. The Controller allowed the petition and
an appeal by the appellant was dismissed by the Rent Control
Tribunal, against which a second appeal was filed in the
High Court under s. 39 of the Act. This second appeal was
dismissed by the Single Judge and when a further appeal
under cl. 10 of the Letters Patent came up for disposal
before a Division Bench, it was dismissed as not
maintainable. In appeal
HELD : (i) An 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 s. 108 of the Government of
India Act, an appeal under s. 39 of the Delhi Rent Control
Act will be heard by a Single Judge. Any judgment made by
the Single Judge in the said appeal will, under cl. 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 cl. 10 of the Letters
Patent to the High Court. [765 D-E]
National Sewing Thread Co. Ltd. v. James Chadwick & Bros.
Ltd. [1953] S.C.R. 1028, National Telephone Co. Ltd. v.
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Postmaster-General (1913) A.C. 546, R.M.A.R.A. Adaikappa
Chettiar v. Ra. Chandrasekhara Thevar, (1947) I.A. 264,
Secretary of State for India v. Chelli kanil Rama Rao,
(1916) I.L.R. 39 Mad. 617, Maung Ba Thaw V. Ma Pin, (1934)
L.R. 61 I.A. 158 and Hem Singh v. Basant Das, A.I.R. 1936
P.C. 93, relied on.
(ii) The expression "final" may have a restrictive meaning
in other contexts, but in s. 43 of the Act such a
restrictive meaning cannot be given and it indicates that no
further appeal is contemplated against the order passed on
appeal against the order of the Tribunal. [766 G-H; 768B]
Maung Ba Thaw v. Ma Pin,, (1934) L.R. 61 I.A. 158, Kydd v.
Liverpool Watch Committee, (1908) A.C. 327 and Secretary of
State v, Hindustan Co-operative Insurance Society Ltd.,
A.I.R. 1931 P.C. 149 referred to.
(iii) An appeal under s. 39(1) of the Act and an appeal
under cl. 10 of the Letters Patent do not form part of a
single appeal. They are in law and in fact different
appeals--one given by the statute and the other by the
Letters Patent. The expression "appeal" in s. 39 of the Act
does not take in a Letters Patent Appeal under cl. 10 of the
Letters Patent. [769 F-H]
757
Union of India v. Mohindra Supply Company, [1962] 3 S.C.R.
497 and Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd.
[1964] 1 S.C.R. 270, relied on.
Radha Mohan Pathak v. Upendra Patowary, A.I.R. 1962 Assam 71
and Hanskumar Kishanchand v. Union of India, [1959] S.C.R.
1177, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 726 of 1964.
Appeal from the judgment and order dated December 11, 1963
of the Punjab High Court (Circuit Bench at Delhi) in L.P.A.
No. 85-D of 1963.
A. V. Viswanatha Sastri, Veda Vyasa, P. N. Chaddha, S. K.
Mehta and K. L. Mehta, for the appellant.
Gopal Singh, for respondents Nos. 1 and 2.
Gurcharan Singh Bakshi and Gopal Singh, for respondents Nos.
3 to 5.
The Judgment of the Court was delivered by
Subba Rao, J. This appeal by certificate raises the question
whether an appeal lies under cl. 10 of the Letters Patent
for the High Court of Lahore, to a Division Bench of the
Punjab High Court against a judgment passed by a single
Judge of the said High Court in a second appeal under s. 39
of the Delhi Rent Control Act, 1958 (Act No. 59 of 1958),
hereinafter called the Act.
The facts relevant to the question raised may be briefly
stated. The respondents are the owners of plot No. 5,
Connaught Circus, New Delhi. Messrs. Allen Berry & Co.
Private Ltd. took a lease of the same under a lease deed
dated March 1, 1956. Messrs. Allen Berry & Co. assigned
their interest under the said lease deed to South Asia
Industries (Private) Ltd., the appellant herein.
Thereafter, the respondents filed an application before the
Controller, Delhi, under s. 14 of the Act for the eviction
of the appellant from the said premises on the ground that
Messrs. Allen Berry & Co. unauthorizedly assigned the said
premises in favour of the appellant. The Controller, by his
order dated October 10, 1962, allowed the petition. On
January 23, 1963, the appeal filed by the appellant against
the said order was dismissed by the Rent Control Tribunal,
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Delhi. Against the said order of the Tribunal the appellant
filed an appeal in the High Court of Punjab under S. 39 of
the Act. The said second appeal was dismissed on May 10,
1963, by Harbans Singh, J. The appellant filed an appeal
against the judgment of the learned
758
single Judge to a Division Bench of the said High Court
under cl. 10 of the Letters Patent. That appeal came up for
disposal before a Division Bench of the High Court, which
dismissed the same on the ground that it was not
maintainable. Hence the present appeal.
Mr. A. Viswanatha Sastri, learned counsel for the appellant
raised before us the following points : (1) Section 39 of
the Act confers a right of appeal from an order of the Rent
Control Tribunal to the High Court and, therefore, when once
that appeal reaches the High Court, it has to exercise the
jurisdiction in the same manner as it exercises other
appellate jurisdiction, that is to say the judgment of a
single Judge in that appeal becomes subject to an appeal to
the High Court under cl. 10 of the Letters Patent. (2)
Section 43 of the Act is only a bar to initiate collateral
proceedings for the purpose of questioning the order of’ the
Tribunal and it does not make the judgment of a single Judge
in an appeal under s. 39 of the Act final; and, that apart,
a letters patent appeal is not a separate appeal to the High
Court but is only, in effect, the continuation of the same
appeal in the High Court.
The arguments of M/s. Gopal Singh and Gurcharan Singh
Bakshi, learned counsel for the respondents, may be
summarized thus : The Act confers a special jurisdiction on
the High Court to entertain an appeal; and the judgment in
such an appeal does not attract cl. 10 of the Letters
Patent. That apart, the first part of cl. 10 of the Letters
Patent on which the appellant relies only provides for an
appeal against the judgment of a single Judge made in the
exercise of the High Court’s original jurisdiction; and even
if is wide enough to comprehend a judgment made in appellate
jurisdiction, it should be an appeal against the order of a
Court. In the instant case the Tribunal functioning under
the Act is not a Court and, therefore, the judgment passed
by a single Judge of the High Court against the judgment of
such a Tribunal is not subject to Letters Patent appeal
under the said clause. In any view, S. 43 of the Act makes
the judgment of a single Judge made in an appeal final and,
therefore, to that extent, cl. 10 of the Letters Patent has
been modified by the appropriate Legislature.
Let us at the outset consider the relevant provisions
uninfluenced by judicial decisions. At this stage it will
be convenient to read the material provisions of the Letters
Patent governing the Punjab High Court.
759
.lm15
Clause 11. And we do further ordain that the High Court of
Judicature at Lahore shall be a Court of Appeal from the
Civil Courts of the Provinces of the Punjab and Delhi and
from all other Courts subject to its superintendence, and
shall exercise appellate jurisdiction in such cases as were,
immediately before the date of the publication of these
presents subject to appeal to the Chief Court of the Punjab
by virtue of any law then in force, or as may after that
date be declared subject to appeal to the High Court of
Judicature at Lahore by any law made by competent
legislative, authority for India.
Clause 10, before its amendment by Letters Patent of 1928,
read as follows :
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"And we do further ordain that an appeal shall lie to the
said High Court of Judicature at Lahore, from the judgment
(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, 1915, 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 13 of the said recited
Act, and that an appeal shall also lie to the said High
Court from die judgment (not being a sentence or order as
aforesaid) of two or more Judges of the said High Court, or
of such Division Court, whenever such Judges are equally
divided in opinion, and do not amount in number to a
majority of the whole of the Judges of the said High Court,
at the time being; but that the right of appeal from other
judgments of the 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."
After the amendment in 1928, cl. 10 reads
"And we do further ordain that an appeal shall lie to the
said High Court of Judicature at Lahore 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
/6S-2
760
revisional jurisdiction, and not being a sentence or order
passed or made in the exercise of the power of superin-
tendence, under the provisions of S. 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 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 Govern-
ment of India Act, made 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."
The first part of cl. II of the Letters Patent says that
the High Court shall be a Court of appeal from civil courts
of the Provinces of Punjab and Delhi and from all other
Courts subject to the superintendence of the High Court; the
second part thereof empowers the High Court to exercise
appellate jurisdiction in such cases as were immediately
before the date of the publication of the Letters Patent
subject to appeal to the Chief Court of Punjab by virtue of
any law then in force, or as may after that date be declared
subject to appeal to the High Court of Judicature at Lahore
by any law made by competent legislative authority for
India. The second part does not make a distinction between
appellate jurisdiction over Courts and that over Tribunals
which are not Courts. If a law made by a competent
legislative authority declares a case to be subject to
appeal to the High Court of Judicature, the said High Court
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acquires jurisdiction to entertain the same and dispose of
it in accordance with law. If the High Court entertains an
appeal in terms of cl.11 of the Letters Patent, cl. 10
thereof is attracted to such an appeal. Under S. 108 of the
Government of India Act, 1915, the High Court may by its own
rules provide, as it thinks fit, for the exercise by one or
more Judges or by a Division Court constituted by two
761
or more Judges of the High Court, of original and appellate
jurisdictions vested in the Court; and under cl. (2) thereof
the Chief Justice of each High Court shall determine what
Judge in each case is to sit alone, and what Judges of the
Court, whether with or without the Chief Justice, are to
constitute the several Division Courts. If in exercise of
the jurisdiction under s. 108 of the Government of India
Act, 1915, an appeal filed in a High Court is posted before
a single Judge of that Court and a judgment is delivered
therein by that Judge, one has to look to cl. 10 of the
Letters Patent whether a further appeal lies to the High
Court against the said judgment. Before the amendment of
cl. 10 of the Letters Patent in 1928, from the judgment of a
single Judge of the said High Court or one Judge of any
Division Court an appeal lay to the said High Court; but
there were certain exceptions to that rule. If the judgment
was made by a single Judge in exercise of the powers of
superintendence under s. 107 of the Government of India Act,
1915, or in exercise of criminal jurisdiction, no further
appeal lay from his judgment. There were no further
exceptions such as that the said judgment should have been
in an appeal against an order of a Court. A plain reading
of the said clause indicates that except in the 3 cases
excluded an appeal lay against the judgment of a single
Judge of the High Court to the High Court in exercise of any
other jurisdiction. As the clause then stood, it would
appear that an appeal lay against the judgment of a single
Judge of the High Court made in exercise of second appellate
jurisdiction without any limitation thereon. The effect of
the amendment made in 1928, so far as is relevant to the
present enquiry, is the exclusion of the right of appeal
from a judgment passed by a single Judge sitting in second
appeal unless the Judge who passed the judgment grants a
certificate that the case is a fit one for appeal. The
amended clause, presumably for the purpose of artistic
drafting, practically leaves the first part as it was and in
the second part introduces a limitation in the matter of a
further appeal against the judgment of such a single Judge.
Looking at the first part of the amended clause excluding
the exceptions, it is obvious that its wording is general.
Thereunder an appeal lies from the judgment of one Judge of
the said High Court, whether the said judgment is made in
exercise of appellate, revisional or criminal jurisdiction
or where the judgment is made in a first appeal or second
appeal against the order of a Court or a Tribunal. Four
exceptions are carved out from the general rule. Apart from
the three exceptions to the general rule already noticed in
the context of the unamended clause, the amended
762
clause introduces another exception noticed supra. The
result is that under the first part of cl. 10 of the Letters
Patent an appeal lies from the judgment of a single Judge of
the High Court passed by him in exercise of his original
jurisdiction or in exercise of first appellate jurisdiction,
whether the appeal is against the order of a Court or not;
and in the case of second appellate jurisdiction, if the,
appeal is against the order of a Tribunal, which is not a
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Court. But in the case of a judgment made in a second
appeal against the decree or order of a Court subordinate to
the High Court, no further appeal lies unless the said Judge
declares that the case is a fit one for appeal. It is not
permissible, by construction, to restrict the scope of the
generality of the provisions of cf. 10 of the Letters
Patent. The argument that a combined reading of cls.10 and
11 of the Letters Patent leads to the conclusion that even
the first part of cl. 10 deals only with appeals from Courts
subordinate to the High Court has no force. As we have
pointed out earlier, cl. 11 contemplates conferment of
appellate jurisdiction on the High Court by an appropriate
Legislature against orders of a Tribunal. Far from
detracting from the generality of the words "judgment by one
Judge of the said High Court", cl. 11 indicates that the
said judgment takes in one passed by a single Judge in an
appeal against the order of a Tribunal. It is said, with
some force, that if this construction be accepted, there
will be an anomaly, namely, that in a case where a single
Judge of the High Court passed a judgment in exercise of his
appellate jurisdiction in respect of a decree made by a
Court subordinate to the High Court, a further appeal to
that Court will not lie unless the said Judge declares that
the case is a fit one for appeal, whereas, if in exercise of
his second appellate jurisdiction, he passed a judgment in
an appeal against the order of a Tribunal, no such
declaration is necessary for taking the matter on further
appeal to the said High Court. If the express intention of
the Legislature is clear, it is not permissible to speculate
on the possible reasons that actuated the Legislature to
make a distinction between the two classes of cases. It may
be, for ought we know, the Legislature thought fit to impose
a limitation in a case where 3 Courts gave a decision,
whereas it did not think fit to impose a limitation in a
case where only one Court gave a decision.
This Court in National Sewing Thread Co. Ltd. v. James
Chadwick & Bros. Ltd.(.’) construed cl. 15 of the Letters
Patent for the Bombay High Court, corresponding to cl. 10 of
the Letters
(1) [1953] S.C.R. 1028,1044.
763
Patent for the Lahore High Court. There the question was
whether a Letters Patent appeal lay from a judgment of a
single Judge of the Bombay High Court to a Division Bench of
that High Court against the decision of the Registrar of
Trade Marks under the Trade Marks Act, 1940. Section 76(1)
of the said Act provided that "an appeal shall lie from any
decision of the Registrar under this Act or the rules made
thereunder to the High Court having jurisdiction"; and the
Act did not make any provision in, regard to the procedure
to be followed by the High ’Court in the appeal, or as to
whether the order passed in the appeal was appealable. Two
points were raised before this Court, namely, (1) the
provisions of the first part of cl. 15 of the Letters Patent
for the Bombay High Court could not be attracted to an
appeal preferred to the High Court tinder s. 76 of the Trade
Marks Act. 1940. and (2) the said clause would have no
application in a case where the judgment could not be said
to have been delivered pursuant to s. 108 of the Government
of India Act’, 1915. On the first question, this Court held
that the High, Court being seized as such of the appellate
jurisdiction conferred by s. 76 of the Trade Marks Act,
1940, it had to exercise that jurisdiction in the same
manner as it exercised its other appellate jurisdiction and
when such jurisdiction was exercised by a single Judge, his
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judgment became subject to appeal tinder cl. 15 of the
Letters Patent of the Bombay High Court there being nothing
to the contrary in the Trade Marks Act. On the second
question. this Court held thus
"We are therefore of the opinion that 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 difference between that case and the present one is that
the single Judge in that case passed a judgment in a first
appeal against the order of the Registrar, while in the
present case the single Judge passed an order in a second
appeal. But that will not make any difference in the
construction of the first part of cl. 10 of the Letters
Patent for the High Court of Lahore, corresponding to cl. 15
of the Letters Patent for the High Court of Bombay. Another
difference is that while under the last part of cl. II of
the Letters Patent for the Lahore High Court there are the
words "or as may after that date be declared subject to
764
appeal to the High Court of Judicature at Lahore by any law
made by competent legislative authority for India", the said
words are absent in the corresponding cl. 16 of the Letters
Patent for the Bombay High Court. Notwithstanding the said
omission this Court in the said case held that the appeal
under the Trade Marks Act was an addition of a new subject-
matter of appeal to the appellate jurisdiction already
exercised by the High Court and that the rules made under S.
108 of the Government of India Act, 1915, applied to the
same. It is contended that in that case it was not argued
that the Registrar was not a Court, and therefore, the
Supreme Court assumed that the Registrar was a Court and on
that assumption held that the first part of cl. 15 of the
Letters Patent of the Bombay High Court was attracted. We
do not see any justification for this argument. One of the
contentions raised before the Court was that the Trade Marks
Act created a new Tribunal and conferred a new appellate
jurisdiction on the High Court. This Court rejected that
contention with the following words :
"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."
The entire judgment proceeded on the basis that the
Registrar was only a tribunal. It is not possible to
visualize that both the Advocates as well as the Judges of
this Court missed the point that the tribunal was not a
Court and, therefore, applied the first part of cl. 15 of
the Letters Patent of the Bombay High Court. Indeed, the
question of applicability of s. 108 of the Government of
India Act, 1915, to the appeal in that case would not have
arisen if it was an appeal against the order of a civil
Court. We, therefore, cannot countenance the argument that
this Court assumed that the Registrar was a Court in
applying cl. 15 of the Letters Patent of the Bombay High
Court in the appeal in question in that case. This decision
therefore covers the question now raised before us.
The relevant rule applicable to the present case has been
stated by this Court in the aforesaid decision thus;
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"Obviously after the appeal had 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 charter under which that
765
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 estab-
lished, then the appeal must be regulated by
the practice and procedure of that court."
This principle was laid down by the Judicial Committee in a
number of decisions : see National Telephone Co., Ltd. v.
Postmaster-General(1); R.M.A.R.A. Adaikappa Chettiar V. Ra.
Chandrasekhara Thevar (2) ; Secretary of State for India v.
Chellikani Rama Rao(3); Maung Ba Thaw v. Ma Pin (4 and Hem
Singh v. Basant Das(5).
The following legal position emerges from the said discus-
sion : 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 S. 108 of the
Government of India Act, 1915, an appeal under 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 cl. 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 cl. 10 of the Letters
Patent to the High Court. It follows that, if the Act had
not taken away the Letters Patent appeal, an appeal shall
certainly lie from the judgment of the single Judge to the
High Court.
In the view we have expressed it is not necessary to
consider the, question whether the tribunal is a court or
not, for, as we have pointed out earlier, it is not germane
to the question of maintainability of the Letters Patent
appeal.
The next question is whether the right of appeal conferred
by cl. 10 of the Letters Patent, Lahore, has been taken away
by a law made by the appropriate Legislature. It is
conceded that the appropriate Legislature can take away that
right : see cl. 37 of the Letters Patent, Lahore. It is
argued by the learned
(1) [1913] A.C. 546. (2) [1947] 74 I.A. 264.
(3) (1916) I.L.R. 39 Mad. 617. (4) (1934) L.R. 61 I.A. 158.
(5) A.I.R. 1936 P.C. 93.
766
counsel for the respondents that S. 43 of the Act has that
effect. The relevant provisions of the Act may now be
noticed.
Section 39. (1) Subject to the provisions of
subsection (2), an appeal shall lie to the
High Court from an order made by the Tribunal
within sixty days from the date of such order.
(2) No appeal shall he under sub-section
(1), unless the appeal involves some
substantial question of law.
Section 43. Save as otherwise expressly
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provided in this Act, every order made by the
Controller or an order passed on appeal under
this Act shall be final and shall not be
called in question in any original suit,
application or execution proceeding.
A combined reading of the said two sections may be stated
thus Subject to the right of appeal to the High Court on a
substantial question of law, the order passed by the High
Court on appeal is final and it shall not be called in
question in any original suit. application or execution
proceeding. Mr. Viswanatha Sastri contends that the last
sentence, in s. 43 of the Act gives colour to the expression
"final". According to him, finality is only with reference
to collateral proceedings, such as, suits, applications and
execution proceedings.
The expression "final" prima facie connotes that an order
passed on appeal under the Act is conclusive and no further
appeal lies against it. The last sentence in S. 43 of the
Act, in our view, does not restrict the scope of the said
expression; indeed, the said sentence imposes a further bar.
The expression "final" in the first part of s. 43 of the Act
puts an end to a further appeal and the words "shall not be
called in question in any original suit, application or
execution proceeding" bar collateral proceedings. The
section imposes a total bar. The correctness of the
judgment in appeal cannot be questioned by way of appeal or
by way of collateral proceedings. It is true that the
expression "final" may have a restrictive meaning in other
contexts, but in S. 43 of the Act such a restrictive meaning
cannot be given, for Ch. VI of the Act provides for a
hierarchy of tribunals for deciding disputes arising
thereunder. The Act is a self contained one and the
intention of the Legislature was to provide an exhaustive
code for disposing of the appeals arising under the Act.
The opening words of S. 43 of the Act "save as otherwise
expressly provided in this Act emphasize the fact that the
767
finality of the order cannot be questioned by resorting to
something outside the Act. Some of the decisions cited at
the Bar defining the expression "final" may usefully be
referred to. In Maung Ba Thaw v. Ma Pin() the Judicial
Committee had to consider whether an appeal lay to the Privy
Council against the order of the High Court under s. 75(2)
of the Provincial Insolvency Act, 1920. The said Act
provided by S. 4(2) that subject to the provisions of the
Act and notwithstanding anything contained in any other law
for the time being in force, the decision of the District
Court under the Act was final; but under S. 75 (2), however,
there was a right of appeal to the High Court from the
decision of the District Court. The judicial Committee held
that in a case where the Act crave a right to appeal to the
High Court, an appeal from the decision of the High Court
lay to the Privy Council under, and subject to, the Code of
Civil Procedure. It reiterated the principle that where a
Court is appealed to as one of the ordinary Courts of the
country, the ordinary rules of the Code of Civil Procedure
applied. It will be notice at once that the order of the
District Court was final subject to the provisions of the
said Act and under the said Act a right of appeal was given
to the High Court. The order of the High Court in the
appeal was not made, final. Therefore, the Judicial
Committee held that an appeal lay to the Privy Council
against the order of the High Court. This decision,
therefore, does not really help the appellant. In Kydd v.
Liverpool Watch Committee(1) the facts were as follows :
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Under S. 11 of the Police Act, 1890 (53) & 54 Vict. c. 45),
there was an appeal to quarter Sessions as ’to the amount of
a constable’s pension. The duty of the quarter session was
stated thus :
"that Court, after inquiry into the case, may
make such order in the matter as appears to
the Court just, which order shall be final."
Lord Loreburn, L.C. construed the said section
thus
"Where it says, speaking of such an order,
that it is to be final, I think it means there
is to be an end of the business at quarter
sessions...........
The Judicial Committee again in Secretary of State v.
Hindustan Co-operative Insurance Society Ltd.(3) construed
the expression "final" and held that the expression was
intended to exclude any further appeal. There, under S. 71
of the Calcutta Improvement
(1) (1934) L.R. 61 I.A. 158. (2) [1908]A.C. 327, 331-332.
(3) A.I.R. [1931] P.C. 149.
768
Act, 1911, a limited right of appeal to the High Court was
given from an award of the Tribunal and it provided that,
subject to that right only, the award should be final.
Their Lordships held that the provision for finality was
intended to exclude any further appeal. No further citation
is called for. As we have stated, the expression "final" in
S. 43 of the Act indicates that no further appeal is
contemplated against the order passed on appeal against the
order of the Tribunal.
To escape from this construction a larger scope is sought to
be given to the expression "appeal to the High Court". It
is said that the expression "appeal" in ss. 43 and 39 of the
Act means an appeal to the High Court and not to a single
Judge and that the said appeal is finally disposed of only
by the final judgment of the High Court. It is said that
whatever may be the internal arrangement in disposing of
that appeal, there is only one appeal till it is finally
disposed of. This argument is plausible, but it has not
found favour with this Court. This Court in Union of India
v. Mohindra Supply Company (1) considered the question
whether S. 39(2) of the Indian Arbitration Act, 1940, has
taken away the right of appeal under the Letters Patent.
Section 39(2) of the said Act reads as follows :
"No second appeal shall lie from an order
passed in appeal under this section, but
nothing in this section shall affect or take
away any right to appeal to the Supreme
Court."
It was argued, as it is argued before us, that the second
appeal under the section referred to an appeal to a superior
Court and not to appeals "inter-Court" and, therefore, s.
39(2) of the Arbitration Act did not operate to prohibit an
appeal under the Letters Patent against the order of a
single Judge. This Court held that the expression "second
appeal" included an appeal under the Letters Patent. This
decision ruled that a Letters Patent appeal is not a part of
the appeal filed in the High Court against the award of the
Arbitrator, but is a fresh appeal against the order of the
single Judge. This Court in Ladli Prasad Jaiswal v. Karnal
Distillery Co., Ltd.(2) held that the expression "Court
immediately below" in Art. 133 (1) (a) of the Constitution
took in a single Judge of the High Court. There, the judg-
ment of the District Judge was reversed by the single Judge
of the High Court. Against the order of the single Judge of
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the High Court in appeal from that of the Subordinate Judge
a letters patent appeal was preferred to a Division Bench of
the High
(1) [1962] 3 S.C.R. 497.
(2) [1964] 1 S.C.R. 270.
769
Court and the said Division Bench affirmed the judgment of
the single Judge. The question arose whether the single
Judge was. a Court immediately below the Division Bench.
For the respondent it was contended that the judgment of the
High Court against which the appeal was preferred affirmed
the decision of the Court immediately below and that the
appeal did not involve any substantial question of law and,
therefore, the High Court was not competent to grant a
certificate under Art. 133(1) (a) of the Constitution. For
the appellant it was urged that the appeal against the
judgment of the single Judge to a Division Bench under cl.
10 of the Letters Patent was a "domestic appeal" within the
High Court and in deciding whether the decree of a Division
Bench in an appeal under the Letters Patent from a decision
of a single Judge exercising appellate jurisdiction affirmed
the decision of the Court immediately below, regard must be
had to the decree of the Court subordinate to the High
Court, against the decision of which appeal was preferred to
the High Court. This Court came to the conclusion that the
expression "Court immediately below" in Art. 133 (1) (a)
must mean a Court from the decision of which the appeal has
been filed in the High Court, whether such a Judge was a
single Judge of the High Court or a Court subject to the
Superintendence of the High Court. It will be seen that if
a Letters Patent appeal was only a continuation of the
appeal filed from the decree of the District Judge by a
domestic arrangement, this Court would have held that the
judgment in the Letters Patent appeal was not a judgment of
affirmation but one of reversal of the judgment of the
District Court. This decision, therefore, recognizes that
an appeal disposed of by a single Judge of the High Court
and the appeal from the judgment of the single Judge to a
Division Bench thereof are different appeals. Apart from
these decisions, on principle we do not see any
justification to hold that an appeal under s. 39(1) of the
Act and an appeal under cl. 10 of the Letters Patent form
part of a single appeal. They are in law and in fact
different appeals-one given by the statute and the other by
the Letters Patent. We cannot, therefore, accede to the
argument advanced by the learned counsel for the appellant
that the expression "appeal" in S. 39 of the Act takes in a
Letters Patent appeal under s.110 of the Letters Patent.
Learned counsel for the respondents further contended that
s. 39 of the Act conferred a special jurisdiction on the
High Court as persona designate and therefore, the decision
of the single Judge in appeal is not a "judgment" within the
meaning of
770
cl. 10 of the Letters Patent. In support of this view
reliance was placed, inter alia, on Radha Mohan Pathak v.
Upendra Patowary(1) and Hanskumar Kishanchand v. The Union
of India(2) But, in the view we have expressed on the
construction of S. 39 read with s. 43, of the Act, it is not
necessary to deal with that question in this appeal. We
shall not be understood to have expressed our opinion on
this question one way or other.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed
(1) A.I.R. 1962 Assam 71.
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(2) [1959] S.C.R. 1177.
771