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CASE NO.:

Appeal (civil) 3880 of 2001

PETITIONER:

CHANDRA KANTA SINHA

Vs.

RESPONDENT:

ORIENTAL INSURANCE COMPANY LTD. & ORS.

DATE OF JUDGMENT: 12/05/2001

BENCH:

Syed Shah Mohammed Quadri & Y.K. Sabharwal

JUDGMENT:

SYED SHAH MOHAMMED QUADRI, J.

Leave is granted.

L...I...T.......T.......T.......T.......T.......T.......T..J

This appeal is directed against the judgment and order

of the Division Bench of the High Court of Judicature at

Patna in L.P.A.No.599 of 1998 dated July 2, 1998 holding

that the Letters Patent Appeal was not maintainable.

The short question that arises for consideration in this

appeal is : whether the Letters Patent Appeal No.599 of

1998 filed against the order of a learned Single Judge of

the Patna High Court passed in M.A.No.494 of 1996 dated

April 13, 1998, is maintainable.

The following resume of the facts will be helpful in

appreciating the question.

The appellant is the owner of a truck which met with an

accident, on February 1, 1996, resulting in the death of one

Pradeep Kumar. The parents of the victim filed a Claim Case

No.31 of 1996 under Section 140 of the Motor Vehicles Act,

1988. On October 15, 1996, the learned Trial Judge,

Madhubani, Bihar ordered that interim compensation of

Rs.50,000/- be paid to the claimants by the Insurance

Company within one month. Against that order, M.A.No.494 of

1996 was filed by the Insurance Company, which was allowed

by a learned Single Judge of the High Court on April 13,

1998. It was from that order that the Letters Patent Appeal

arose, which was held to be not maintainable by the Division

Bench of the High Court.

Mr.S.B.Sanyal, the learned senior counsel appearing for

the appellant, contended that under clause 10 of the Letters

Patent of Patna an appeal against the order of a learned

Single Judge would lie to the High Court which was

erroneously dismissed as not maintainable. He relied on a

decision of this Court in National Sewing Thread Co. Ltd.

Vs. James Chadwick & Bros. Ltd. (1953 S.C.R. 1028)

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Mr.Vishnu Mehra, the learned counsel appearing for the

respondents, relying on the judgment of this Court in New

Kenilworth Hotel (P) Ltd. vs. Orissa State Finance

Corporation & Ors. [1997 (3) SCC 462] argued that the

Letters Patent Appeal was not maintainable and the High

Court had rightly rejected the same.

It will be useful to refer to Clause 10 of the Letters

Patent, Patna, which, after omitting the words not necessary

for the present discussion, would read thus :

That an appeal shall lie to the said High Court 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) of one Judge of the said High Courtthat

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 (Article 225 of the Constitution of India) 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

It can thus be seen that for purposes of appeal, under

this clause, judgments of one Judge of the High Court of

Patna are classified in two groups. In the first group fall

judgments from which appeal will lie to the said High Court.

From this group two categories of judgments of one Judge of

the High Court are excluded (i) a judgment passed in

exercise of the appellate jurisdiction in respect of a

decree or order made in exercise of the appellate

jurisdiction by a court subject to the superintendence of

the said High Court, that is, where a judgment is passed by

a Judge of the High Court in second appeal, no Letters

Patent Appeal lies in the said High Court; and (ii) from an

order or judgment made in exercise of the revisional

jurisdiction. The second group takes in judgments of one

Judge passed in second appeal where the Judge who passed the

judgment declares that the case is a fit one for appeal.

But now Section 100A of the Code of Civil Procedure bars an

appeal under the Letters Patent from the judgment of one

Judge of a High Court passed in second appeal even with the

leave of the Judge who passed the judgment. In Municipal

Corporation of Brihanmumbai & Anr. vs. State Bank of India

[1999 (1) SCC) 123], the question before a three-Judge Bench

of this Court was whether the Letters Patent Appeal from the

judgment and order of Single Judge of the Bombay High Court

passed in an appeal under Section 218-D of the Bombay

Municipal Corporation Act, 1888, was maintainable. It was

held that the appeal under Section 218-D of the said Act was

a second appeal against the appellate order made by the

Additional Chief Judge, Small Causes Court. In view of

Section 100A CPC, Letters Patent Appeal against the judgment

of a Single Judge passed in the second appeal was not

maintainable. In National Sewing Thread (supra), the case

arose from the order of the Registrar of Trade Marks. The

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first appeal against the order of the Registrar was filed

under Section 76(1) of the Trade Marks Act, 1940 before the

High Court which was decided by a learned Single Judge. No

procedure was prescribed as to the hearing of the appeal

under that Act. The question that arose for consideration

was : whether the judgment of the learned Single Judge was

appealable to the Division Bench under clause 15 of the

Letters Patent, Bombay. It was held that the High Court had

to exercise its appellate jurisdiction under Section 76 of

the said Act in the same manner as it exercised its other

appellate jurisdiction and when such jurisdiction was

exercised by a Single Judge, his judgment was appealable

under clause 15 of the Letters Patent. Clause 10 of the

Letters Patent of Patna High Court has been the

subject-matter of consideration of a two-Judge Bench of this

Court (of which I was a member) in a recent case -- Employer

in Relation to Management of Central Mine Planning and

Design Institute Ltd. vs. Union of India & Anr. [JT 2001

(2) SC 87]. After noticing that clause 15 of the Letters

Patent of Calcutta, Bombay and Madras is in iisdem terminis

clause 10 of the Letters Patent of Allahabad, Patna, Punjab

& Haryana and Madhya Pradesh; the Court laid down as

follows : The above analysis of Clause 15 of the Letters

Patent will equally apply to Clause 10 of the Letters Patent

of Patna. It follows that an appeal shall lie to a larger

Bench of the High Court of Judicature at Patna from a

judgment of one Judge of the said High Court or one Judge of

any Division Court pursuant to Article 225 of the

Constitution of India. The following categories of judgment

are excluded from the appealable judgments under the first

limb of clause 10 of the Letters Patent :

(i) a judgment passed in exercise of appellate

jurisdiction in respect of a decree or order made in

exercise of appellate jurisdiction by a court subject to

superintendence of the said High Court; in other words, no

letters patent appeal lies to the High Court from a judgment

of one Judge of the High Court passed in second appeal;

(ii) an order made by one Judge of the High Court in

exercise of revisional jurisdiction; and

(iii) a sentence or order passed or made in exercise of

power under the provisions of Section 107 of Government of

India Act, 1915 (now Article 227 of the Constitution of

India) or in exercise of criminal jurisdiction.

Learned counsel for the respondents, however, argued

that clause 10 provides that an appeal shall lie to the said

High Court only from a judgment passed in exercise of the

appellate jurisdiction not being a judgment passed in the

exercise of the appellate jurisdiction and as the judgment

of the learned Single Judge was passed in the appellate

jurisdiction, a Letters Patent Appeal was not maintainable.

In our view, the contention of the learned counsel is based

on a mis- reading of clause 10. He has overlooked the vital

words, namely, 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 in the first limb of

clause 10. If those words are also read along with the

words relied upon by the learned counsel, it becomes clear

that the appellate jurisdiction mentioned therein refers to

a second appeal under Section 100 CPC (or under any

provision of an special Act) which is in respect of decree

or order made in exercise of appellate jurisdiction in the

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first appeal, filed under Section 96 CPC, (or under any

provision of an special Act) by a court subject to the

superintendence of the High Court. In other words, from a

judgment passed by one judge in second appeal, under Section

100 CPC or any other provision of an special Act no Letters

Patent Appeal will lie to the High Court provided the second

appeal was against a decree or order of a District Judge or

a subordinate judge or any other judge subject to the

superintendence of the High Court passed in a first appeal

under Section 96 CPC or any other provision of an special

Act. In New Kenilworth Hotel (P) Ltd. case (supra),

aggrieved by the order of the Trial Court passed under Order

39, Rules (1) and (2), an appeal under Section 104(1) CPC

read with Order 43, Rule 1(r) was filed before the High

Court which was disposed of by one Judge of the High Court.

From the order/judgment of one Judge, a letters patent

appeal (second appeal) was filed before the Division Bench

under clause 10 of the Letters Patent of Orissa High Court.

The Division Bench of the High Court held that the Letters

Patent Appeal was not maintainable. Having regard to the

provision of Section 104(2), the appeal before the Division

Bench was barred. On appeal to this Court it was held :

As held earlier, the right of appeal is a creature of

the statute and the statute having expressly prohibited the

filing of second appeal under sub- section (2) of Section

104, the right of appeal provided under clause 10 of the

Letters Patent would not be available.

Therefore, reliance on the judgment of this Court in New

Kenilworth Hotel (P) Ltd. case (supra) will be of no avail

to the respondents.

From the above discussion, it follows that the appeal

against the order of the learned Single Judge in M.A.No.494

of 1996 dated April 13, 1998 would lie before the Division

Bench under clause 10 of the Letters Patent. Letters Patent

Appeal No.599 of 1998 is, therefore, maintainable. The

order of the High Court under challenge is set aside. The

Letters Patent Appeal is restored to the file of the High

Court. The High Court will now decide the said letters

patent appeal on merits in accordance with law. The appeal

is accordingly allowed. There shall be no order as to

costs.