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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.