Letters Patent Appeal (St.) No.33623 of 2002

21st October, 2002

Petitioner Counsel: Mr. ABHAY K. ABHYANKAR, M/s. Ashwin Ankhad & Associates

Cases Cited:
Umaji Keshao Meshram Vs. Smt. Radhikabai, AIR 1986 SC 1272 [Para 1,4]
Vanita M. Khanolkar Vs. Pragna M. Pai, AIR 1998 SC 424 [Para 5]

JUDGMENT

H. L. GOKHALE, J. :- Heard Mr. Abhyankar for the Appellants. This Letters Patent Appeal seeks to invoke the juridiction of a Division Bench of this Court under Clause 15 of the Letters Patent against an order passed by a learned Single Judge in a Writ Petition invoking his jurisdiction under Article 227 of the Constitution of India. The original proceedings were filed in the Court of Small Causes at Mumbai under the Bombay Rents Hotels and Lodging House Rates (Control) Act, 1947 and the order thereunder was challenged in Writ Petition No.5946 of 1988 by the Respondent herein invoking the jurisdiction under Article 227 of the Constitution of India. Such Petitions are assignable to a Single Judge under the Appellate Side Rules and that is how the learned Single Judge heard and decided the matter and passed the order on 12th june 2002. That order is sought to be challenged by invoking Clause 15 of the Letters Patent in this intra-Court Appeal. As far as Clause 15 of the Letters Patent is concerned, it has been well settled by the Apex Court in paragraph 103 of its judgment in the case of Umaji Keshao Meshram & ors. Vs. Smt. Radhikabai & anr. reported in AIR 1986 S.C. 1272 as under:-

"....an intra-Court appeal does not lie against the judgment of a single Judge of the Bombay High Court given in a petition under Art.227 by reason of such appeal being expressly barred by Clause 15 of the Letters Patent of that High Court."

2. Mr. Abhyankar, learned Counsel appearing for the Appellants, tried to canvass that by the Amendment Act, 1999, the powers under Clause 15 of the Letters Patent were sought to be reduced and again they have been restored by the Amending Act, 2002 amending the Code of Civil Procedure. He drew our attention to the Statement of Objects Amending Act, 2002 where in clause 3(k) thereof, it is stated as follows:-

"(k) appeals to Division Bench of the High Courts in writs under articles 226 and 227 of the Constitution shall be restored. Section 10 of the Code of Civil Procedure (Amendment) Act, 1999 abolished appeals against judgments of a single Judge of the High Court in all cases."

3. Thereafter, Mr. Abhyankar drew our attention to the new substituted Section 100A, which reads as follows:-

"100A. Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge".

4. A joint reading of these developments only means that whereas the powers of the High Court were likely to be reduced by the Amendment Act, 1999 in the matter of writ petition that amendment has been withdrawn and the new Section has come, which is as stated above. Now, when we see the new Section 100A, the idea is to reduce the powers in certain respects but not to the extent they were proposed under the 1999 Amendment. As far as Article 227 of the Constitution of India is concerned, as held by the Apex Court in Umaji K. Meshram's case (supra) the reference to Section 107 of Government of India Act, 1915 in Clause 15 of the Letters Patent must necessarily be read as a reference to Article 227 of the Constitution. So read, an Appeal under Clause 15 is clearly not maintainable against an order in exercise of the power under Article 227, since an Appeal against an order under Section 107 was specifically excluded under Clause 15. This position is not altered in any manner by the Amending Act, 2002.

5. Mr. Abhyankar then drew our attention to a decision subsequent to the Umaji K. Meshram's case viz. in the case of Vanita M. Khanolkar Vs. Pragna M. Pai reported in AIR 1998 S.C. 424. That judgment of the Apex Court is in the context of an order passed by a Single Judge under Section 6 of the Specific Relief Act and as to whether the order would amount to a judgment appealable under Clause 15 of the Letters Patent. That judgment does not deal with the question of an Appeal against an order under Article 227 of the Constitution of India.

6. The second submission of Mr. Abhyankar was that though the Petition was filed under Article 227, it was essentially a Petition under Article 226 of the Constitution. He has taken us through the Petition filed before the learned Single Judge. It invokes only the power of superintendence of the Single Judge under Article 227 and that being the position, it is difficult to accept this submission of Mr. Abhyankar. The LPA is, therefore, dismissed. There will be no order as to costs.

7. Since the LPA is being dismissed for the reason that it is not permissible under Clause 15 of the Letters Patent, we are not expressing any opinion on the merits of the order under challenge one way or the other.

Appeal dismissed.