1995 JTR(SC) 1180
1997 1 BomCR(SC) 133 ; 1996 1 CTC 185 ; 1995 4 CurCC(SC) 350 ; 1996 1 ICC 665 ; 1995 8 JT 559 ; 1996 1 RRR 421 ; 1995 6 Scale 672 ; 1996 1 SCC 49 ; 1995 Supp5 SCR 483
SUPREME COURT OF INDIA
B.L.Hansaria : K.Ramaswamy
Resham Singh Pyara Singh
Versus
Abdul Sattar
Case No. : .
Date of Decision : 11/20/95
Advocates Appeared: Bhandari Reema : Kumar Sushil : Shroff M.N. : Wadhwani R.P.
Act Referred :CIVIL PROCEDURE CODE : S.104, O.43 R.1(r)
(A) The Special Leave Petitions are evaluated under the framework of Order 43 Rule 1 read with Rule 1(r) of Order 39 of the Civil Procedure Code, alongside Section 104 of the Code. The provisions contemplate appeals from orders passed under Order 39, and Section 104 further specifies that no appeal shall lie from any order passed in appeal under this Section, rendering the order of the Single Judge nonappealable. The court examined the scope of Letters Patent Appeal against interlocutory orders passed by a Single Judge, distinguishing the present factual matrix from the earlier precedent of Shah Babulal Khimji.
(B) Key legal principles include that an order passed in appeal under Order 43 Rule 1(r) is not appealable under Section 104, and that Letters Patent Appeal is not maintainable against such orders. The doctrine of preclusion applies when a further appeal is expressly barred by the Code.
Facts of the case:
The petitioner entered into an agreement for purchase of land in 1973 and obtained an injunction against the construction of a boundary wall. Subsequent suits were filed regarding possession and trespass, leading to an order demarcating exclusive possession. A Letters Patent Appeal was filed against the Single Judges order, which was rejected on the ground that Letters Patent Appeal did not lie.
Findings of Court:
The division bench held that the order of the Single Judge was not appealable under the Code, and that the provisions of Order 43 Rule 1(r) read with Section 104 preclude any further appeal from such orders.
Issues:
Whether Letters Patent Appeal lies against an interlocutory order of a Single Judge passed under Order 43 Rule 1(r) of the Civil Procedure Code.
Ratio Decidendi:
The court held that since the appeal filed against the City Civil Court order was entertained by the Single Judge under Order 43 Rule 1(r), no further appeal lies from the order passed in appeal under Section 104, rendering the Letters Patent Appeal untenable.
Result:
The Special Leave Petitions are dismissed.
(A) The Special Leave Petitions are evaluated under the framework of Order 43 Rule 1 read with Rule 1(r) of Order 39 of the Civil Procedure Code, alongside Section 104 of the Code. The provisions contemplate appeals from orders passed under Order 39, and Section 104 further specifies that no appeal shall lie from any order passed in appeal under this Section, rendering the order of the Single Judge nonappealable. The court examined the scope of Letters Patent Appeal against interlocutory orders passed by a Single Judge, distinguishing the present factual matrix from the earlier precedent of Shah Babulal Khimji.
(B) Key legal principles include that an order passed in appeal under Order 43 Rule 1(r) is not appealable under Section 104, and that Letters Patent Appeal is not maintainable against such orders. The doctrine of preclusion applies when a further appeal is expressly barred by the Code.
Facts of the case:
The petitioner entered into an agreement for purchase of land in 1973 and obtained an injunction against the construction of a boundary wall. Subsequent suits were filed regarding possession and trespass, leading to an order demarcating exclusive possession. A Letters Patent Appeal was filed against the Single Judges order, which was rejected on the ground that Letters Patent Appeal did not lie.
Findings of Court:
The division bench held that the order of the Single Judge was not appealable under the Code, and that the provisions of Order 43 Rule 1(r) read with Section 104 preclude any further appeal from such orders.
Issues:
Whether Letters Patent Appeal lies against an interlocutory order of a Single Judge passed under Order 43 Rule 1(r) of the Civil Procedure Code.
Ratio Decidendi:
The court held that since the appeal filed against the City Civil Court order was entertained by the Single Judge under Order 43 Rule 1(r), no further appeal lies from the order passed in appeal under Section 104, rendering the Letters Patent Appeal untenable.
Result:
The Special Leave Petitions are dismissed.
M.N.SHROFF, R.P.VADHVANI, RIMA BHANDARI, SUSHIL KUMAR
(1) THESE Special Leave Petitions arise from the order dated 13/10/1995 of the division bench of the Bombay High court in LPA Stamp No. 26774 of 1995 and the order dated 13/9/1995 in appeal from Order No. 826 of 1994.
(2) THE petitioner claims to have entered into an agreement on 21/6/1973 to purchase certain lands from A.H. Wadia Charity Trust. In 1975, when one Mohd. Amin and others attempted to construct a boundary wall in the said land, he claimed to have filed Suit No. 298 of 1975 in the City Civil court, Bombay and had an injunction against them restraining them from interfering with his possession and construction of the boundary wall. When the petitioner had attempted to repair the existing road on the land and open drainage, the respondent filed Suit No. 493 of 1990 in the City Civil court, Bombay for injunction. The respondent claimed to be in possession of the land admeasuring 1947 sq. mts. On its basis, the petitioner claimed that they were attempting to trespass into his land. Consequently, the appellant filed Suit No. 3670 of 1994 on 16/6/1994 and also sought ad interim injunction to restrain the respondent from committing trespassing into his land. Initially, interim injunction was granted on 28/6/1994. When the appeal was filed against that order, the learned Single Judge of the High court directed the Commissioner to demarcate the lands in exclusive possession and enjoyment of the petitioner within the compound wall by order dated 13/9/1995. Against that order, the petitioner filed Letters Patent Appeal contending that the order of the learned Single Judge amounts to granting temporary mandatory injunction to break the compound wall and removing article etc. By the impugned order dated 13-(sic)-1995, the division bench rejected the same on the ground that LPA would not lie against the order of the learned Single Judge. Thus these SLPs.
(3) IT is contended for the petitioner that as per the law laid down by this court in Shah Babulal Khimji v. Jayaben D. Kania, LPA would lie to the division bench against the interlocutory order of the Single Judge and, therefore, the view of the High court is not correct in law. We find no force in the contention.
(4) ORDER 43 Rule 1 Civil Procedure Code provides an appeal from the orders passed underOrder 39 Rule I etc. as stated in sub-rule (r), which provides as under:
"(R) an order under Rule I, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX."
(5) SECTION 104 Civil Procedure Code provides for an appeal from the orders provided in Order 43 save as otherwise expressly provided in the body of this Code or by any law for the time being in force and from no other orders. Ss. (2 envisages that
"(2 No appeal shall lie from any order passed in appeal under this Section".
(6) IT would, therefore, be clear that when an appeal was filed against the order of the City Civil court, Bombay to the learned Single Judge under Order 43 Rule l(r) as provided in Ss. (1 of Section 104 by operation of Ss. (2 of Section 104, no further appeal shall lie from any order passed in appeal under this section. In Khimji case the suit was filed on the original side of the High court and the learned Single Judge on the original side passed an interlocutory order. Against the orders of the learned Single Judge, though it was an interlocutory order, since the appeal would lie to the division bench under the Letters Patent, this court held that against the interlocutory orders passed by the Single Judge, Letters Patent Appeal would be maintainable. That ratio, therefore, is clearly inapplicable to the facts in this case.
(7) THE Special Leave Petitions are accordingly dismissed.