P.C. Misra, J.
1. Appellants in this appeal were plaintiffs in a suit (O.S. No. 126/75-1) in the Court of Munsif, Bhadrak. The suit was dismissed on merits by judgment dated 12.12.1977 passed by the learned trial Court against which they preferred Title Appeal No. 2/78 in the Court of Subordinate Judge, Bhadrak. The said appeal was posted to 3.4.1980 for hearing on which day the Advocate appearing for the appellants filed an application praying for an adjournment on the ground of illness of their Advocate of Cuttack, who had been engaged to argue the appeal. The appeal was adjourned to 7.5.1980 on which day the appellants also applied for adjournment on the very same stand. The court reluctantly allowed adjournment on payment of cost of Rs. 100/- and the appeal was posted to 9.5.1980 for hearing. On that day also adjournment was applied on the ground of continuous illness of Advocate of Cuttack. The learned lower Appellate Court did not allow any further adjournment and dismissed the appeal for default of the appellants. The appellants thereafter filed an application under Order 41, Rule 19 of the Code of Civil Procedure, (hereinafter referred to as the 'Code') praying for restoration of the appeal which was registered as Misc. Case No. 116/80. The said Misc. Case was heard on merits and was dismissed by the subordinate Judge by his Order dated 14.4.1981. The said Court did not believe the plea of illness of the Advocate of Cuttack and held that the ground of illness of the Advocate is not sufficient to allow the prayer for restoration specially in view of the fact that were other Advocates on record appearing for the appellants. It is also held that the cost awarded for adjournment having not been paid by the appellants, they are not entitled to any indulgence of the Court. Against the aforesaid order passed in the Misc. Case the present appellants filed Misc. Appeal No. 113 of 1981 under Order 43, Rule 1 of the. Code in this Court. Notice of Admission and Hearing was issued to the respondents where after the appeal was taken up for hearing and final disposal. By order dated 1.2.1983 the appeal was dismissed by one of the learned single Judge by one of the learned single Judge of this Court on the ground that the plea of illness of the appellants' Counsel on the date fixed for hearing of the appeal having been disbelieved by the lower appellate Court, there are no grounds for interference. The present appellants have there-after filed this appeal under Clause 10 of the Letters Patent.
2. At the hearing of this appeal, a preliminary objection was taken by the learned Counsel appearing for the respondents that this appeal is not maintainable in law and therefore, there is no necessity of going into the merits of the appeal. For the sake of convenience the aforesaid preliminary point was heard along with the merits of the appeal.
3. The maintainability of the appeal was challenged on two grounds namely, (i) Clause 10 of the Letters Patent as applicable to the High Court of Orissa does not permit an appeal against an appellate order passed by a single Judge to a larger Bench and assuming that an appeal is permissible under the Letters Patent, the same is barred by Sub-section (2) of Section 104 of the Code, which provides that no appeal shall lie from any order passed in appeal under Sub-section (1) of the same section, and (ii) that even if appeal under the Letters Patent was maintainable unaffected by the bar in Sub-section (2) of Section 104 of the Code, the legal position has undergone a change by introduction on Section 100-A of the Code by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) which has come into force with effect from 1.2.1977 and it bars any further appeal against the appellate judgment or order passed by a single Judge. Both the aforesaid points require careful consideration.
4. In support of the contentions that no appeal lies under Clause 10 of the Letters Patent against the appellate judgment of the learned single Judge passed in an appeal under Order 43, Rule 1 of the Code and that the bar of further appeal against the said judgment under Section 104(2) of the Code, the learned Counsel appearing for the respondents mainly relied on the decision of the Hon'ble Supreme Court reported in AIR 1981 SC 1786 (Shah Babulal Khimji v. Jayaben D. Kania and another), and the decisions of some other High Courts where the same has been followed. Since the facts and circumstances dealt with and decided by the Hon'ble Supreme Court were different in some respects, we would proceed to examine the scope of Clause 10 of the Letters Patent with reference to the facts of this case and then proceed to the law as laid down by the Hon'ble Supreme Court in the aforesaid decision which, according to the learned Counsel for the appellants, has no application whatsoever in the facts of this case.
5. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948. Clause 10 of the Letters Patent of the Patna High Court which has been made applicable to Orissa (omitting the immaterial portions) is as follows : -
'An appeal shall lie.....from the judgment not (being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of the appellate jurisdiction by a Court subject to the superintendence of High Court .... and not being an order made in exercise of revisional jurisdiction.....) of one Judge of the said High Court ......and notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from the judgment of one Judge to the said High Court in exercise of appellate jurisdiction 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 where the Judge who passed the judgment declares that the case is a fit one for appeal....'
The aforesaid provision in the Letters Patent consists of two parts: the first part permits an appeal from the judgment of one Judge of the High Court not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in excercise of the appellate jurisdiction by a Court subject to the superintendence of the High Court. Thus an appeal shall lie against a judgment of the single Judge of the High Court passed either in exercise of original jurisdiction or appellate jurisdiction with the exception that no appeal shall lie if the single Judge passes the judgment in exercise of his appellate jurisdiction in respect of a decree or order made in exercise of its appellate jurisdiction by a Court subject to the superintendence of the High Court. The further exception in the first part is that no appeal shall lie against an order made by the single Judge in excercise of revisional jurisdiction. This means that no appeal shall lie against an order passed by the single Judge in a second appeal or in a revision. The second part however, permits an appeal against the judgment of a single Judge made in exercise of appellate jurisdiction, in respect of a decree or order passed by a Court subject to the superintendence of the High Court in exercise of its appellate jurisdiction only where the Judge, who passed the judgment declares that the case is a fit one for appeal.
6. To sum up, three categories of appeals are permissible under Clause 10 of the Letters Patent from the judgment of a single Judge to a larger Bench and they are :
(i) Judgment of single Judge passed in exercise of original jurisdiction;
(ii) judgment of a single Judge passed in exercise of appellate jurisdiction against a judgment passed by a Court subject to the superintendence of the High Court in exercise of its original jurisdiction; and
(iii) against judgment of a single Judge passed in exercise of its appellate jurisdiction against the judgment passed by a Court subject to the superintendence of the High Court in exercise of its appellate jurisdiction.
Only in the third category of appeal, a certificate of the Judge who passed the judgment that the case is a fit one for appeal is necessary in order to prefer an appeal to a larger Bench whereas for the first two categories of appeals, no such leave from the single Judge, who passed the judgment is necessary.
7. As already stated, this appeal under Clause 10 of the Letters Patent is directed against a judgment passed by a single Judge of this Court in exercise of his appellate jurisdiction under Order 43, Rule 1 of the Code in respect of an order passed by the Subordinate Judge in a Misc. Case under Order 41, Rule 19 of the Code. The order impugned in this appeal is not an order passed in exercise of the original jurisdiction by the single Judge. The order being one passed by the learned single Judge in exercise of appellate jurisdiction under Order 43, Rule 1 of the Code, it would fall under the second category of cases as enumerated above. The restriction spelt out in the first part of Clause 10 does not permit further appeal if the order/judgment appealed against before the single Judge is passed by a Court subject to the superintendence of the High Court was passed in exercise of appellate jurisdiction and not original jurisdiction. In other words if the order which was challenged in the miscellaneous appeal before the single Judge is construed as one passed by the subordinate Judge in exercise of his appellate jurisdiction, then also an appeal shall lie to the larger Bench with the leave of the single Judge, such an appeal would be one permissible under the third category as per the clarification made above. Therefore, a plain reading of Clause 10 of Letters Patent suggests that an appeal shall lie against the judgment of a single Judge passed in an appeal under Order 43, Rule 1 of the Code irrespective of whether the order impugned before him was passed in exercise of original jurisdiction or appellate jurisdiction, by the subordinate Court, the only difference being that in one case leave of the single Judge to the effect that it is a fit one for appeal is necessary whereas in the other no such leave would be required.
8. Before we enter into discussion as to whether the judgment impugned before the learned single Judge was passed by the subordinate Court in exercise of its Original Jurisdiction or Appellate Jurisdiction, the argument of Mr. Mukherjee, learned Counsel appearing for the respondents as regards the interpretation of Clause 10 of the Letters Patent with reference to the decision of the Hon'ble Supreme Court referred to above need be noticed. In the aforesaid case, the Hon'ble Supreme Court was mainly deciding a controversy as to whether the order impugned in the Letters Patent appeal was a judgment within the meaning of Clause 15 of the Letters Patent of the High Court of Bombay. Clause 15 of the Letters Patent as applicable to Bombay High Court and Clause 10 of the Letters Patent as applicable to this Court are in identical words. In that case the plaintiff-appellants had filed a suit in the original side of Bombay High Court for specific performance of contract and prayed for an interim relief by appointing a receiver in respect of the suit property and injuncting the defendants from disposing of the said property during the pendency of the suit. The single Judge after hearing the notice of motion dismissed the application for appointment of receiver and also the one praying for interim injunction. Thereafter an appeal under Clause 15 of Letters Patent as applicable to Bombay High Court was preferred and the larger Bench dismissed the appeal as not maintainable on the ground that the order impugned (of a single Judge) was not a judgment as contemplated by Clause 15 of the Letters Patent of the High Court. Against the said decision of the larger Bench, an appeal was preferred before the Hon'ble Supreme Court on special leave. The Hon'ble Supreme Court after hearing the parties at a great length held that the appeal before the High Court (in the larger Bench) was maintainable and the High Court should have entertained and decided the same on its merit. The substantial questions of law raised in the appeal before the Hon'ble Supreme Court were as to the scope, ambit and meaning of the word 'judgment' appearing in Clause 15 of the Letters Patent of Bombay High Court. In that connection, their Lordships analysed the scope of an appeal under the Letters Patent against the judgment of a single Judge exercising original jurisdiction emphasis being given as to whether the order passed by the learned single Judge amounts to a 'judgment' within the meaning of relevant clause of the Letters Patent. In this connection, their Lordships also examined the applicability of the Civil Procedure Code to the appeals under the Letters Patent which we will deal with later on. As already stated the appeal before a larger Bench in the High Court of Bombay was against an order passed by the single Judge in exercise of his original jurisdiction, refusing to appoint a receiver and passing an order of injunction prayed for by the plaintiffs before him. Orders passed under Order 39, Rules 1 and 2 as well as under order 40 Rule 1 of the Code are both appealable under Clauses (r) and (s) respectively of Order 43, Rule 1 of the Code. The question whether an appeal shall lie against the judgment of a single Judge passed in exercise of his appellate jurisdiction under Order 43, Rule 1 of the Code was not for consideration by the Hon'ble Supreme Court in the aforesaid case. In the context of the facts of that case, their Lordships in para 40 of the judgment held that Clause 15 of the Letters Patent of Bombay reveals two essential ingredients; (i) that an appeal shall lie against any order passed by the trial Judge to a larger Bench of the same High Court; and (ii) that where the trial Judge decides an appeal against the judgment or decree passed by the District Courts in the mufusil, further appeal shall lie only where the Judge concerned declares it to be a fit one for appeal to a Division Bench. However, their Lordships in the said para observed that 'the Letters Patent contemplate only these two kinds of appeals and no others' 'which observation is obviously with reference to the facts of that case. In view of the analysis made above our conclusion is that a judgment passed in an appeal under Order 43, Rule 1 of the Code is covered by the first part of the Clause 10 of the Letters Patent and is, therefore, appealable.
9. The further question that arises for consideration in this connection is as to whether Sub-section (2) of Section 104 of the Code offers a bar to an appeal under Letters Patent against an appellate judgment passed by a single Judge exercising appellate jurisdiction under Order 43, Rule 1 of the Code. It is well known that the remedy of an appeal is a creation of Statute. Section 104 of the Code deals with appeal from orders. Every order passed by a Court exercising civil jurisdiction is not appealable except those which have been specified in Section 104 of the Code. Apart from the orders specified in different clauses of Sub-section (1) of Section 104 of the Code, it also provides than an appeal may lie against an order which is appealable by any express provisions provided in the body of the Code of Civil Procedure or by any law for the time being in force, even though such order may not be appealable under Sub-section (1) of Section 104 of the Code. The corresponding section of the former Code of Civil Procedure, 1882 did not provide any exception as to the orders under other laws. Consequently there was a conflict of opinion as to which provision was to prevail. The said defect was remedied by introduction of saving clause. Letters Patent is a law for the time being in force within the meaning of Sub-section (1) of Section 104 of the Code. The introduction of the saving clause in the said section makes it clear that an appeal may lie from an order under Letters Patent whether or not the order is appealable Under Section 104(1) of the Code. Justice Amarendra Nath Sen in a separate judgment delivered in the aforesaid case (AIR 1981 SC 1786) while agreeing with the view expressed by Justice S. Murtaza Fatal Ali and Justice A. Varada Ranjan has observed as follows :
'This right of appeal under Clause 15 of the Letters Patent is in no way curtailed or affected by Sec. 104 of the C.P.C. and Sec. 104 seeks to confer the right of preferring an appeal in respect of the various orders mentioned therein. In other words, by virtue of the provisions contained in Sec. 104(1), a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therin, even though such orders may or may not be appealable under Clause 15 of the Letters Patent as a judgment and the right of appeal under Clause 1 5 of the Letters Patent remains clearly unimpaired.'
Thus Sec. 104 of the Code, which makes various orders mentioned therein to be appealable also recognised that apart from the orders made appealable under the Code, there may be other orders appealable by any law for the time being in force.
10. We would proceed to decide as to whether Sub-section (2) of Sec. 104 of the Code bars any further appeal against the appellate judgment of a single Judge, The single Judge in this case passed the impugned judgment in exercise of its appellate jurisdiction Under Section 104 read with Order 43, Rule 1 of the Code. Sub-section (2) of Sec. 104 of the Code provides that no appeal shall lie from any order passed in appeal under this section. The clause 'under this section' evidently refers to the appeals provided under Sub-section (1) of that section. The learned Counsel appearing for the appellants has urged that Sub-section (2) of Sec. 104 of the Code bars a second appeal from the appellate judgment passed in an appeal under Sub-section (1) of Sec. 104 of the Code and the restrictions in Sub-section (2) would not extend to appeals provided by any other law. The aforesaid question was the subject-matter of discussion by the Hon'ble Supreme Court in Shah Babulal Khimji's case (AIR 1981 SC 1786) in which various decisions on the point were analysed. The judicial opinion in several cases that the appeals under the Code of Civil Procedure and those under the Letters Patent are of two separate compartments having different spheres of their own was held to be based on a total misinterpretation and misconstruction of the true nature and object of the Code of Civil Procedure and the Letters Patent. Their Lordships observed that there is no inconsistency whatsoever between the Letters Patent and Sec. 104 read with Order 43, Rule 1 of the Code and followed the view taken by various other decisions including that of the Privy Council and concluded the point saying that there is nothing to show that the Letters Patent in any way excludes or overrides the application of Sec. 104 read with Order 43, Rule 1 of the Code or to show that the provisions would not apply to internal appeals within the High Court. These observations of their Lordships have been enterpreted by some High Courts to mean that Sec. 104(2) of the Code bars further appeals from the appellate judgment of a single Judge passed in appeal preferred Under Section 104 of the Code. The discussion made in the aforesaid judgment in our view does not warrant a conclusion that the restriction in Sec. 104(2) of the Code also applies to appeals preferred under any other law which in this case is Letters Patent. As already stated, the question for consideration by the Supreme Court in the aforesaid case was as to whether the order passed by a Single Judge dismissing an application for appointment of receiver and also for interim injunction in exercise of his original jurisdiction amounts to a judgment within the meaning of Clause 15 of the Letters Patent of High Court of Bombay and is appealable there under. Since similar orders are appealable under Order 43, Rule 1 read with Sec. 104 of the Code, the further question that arose for consideration in the said case was as to whether the aforesaid provisions of the Code would apply to the original trial by the trial Judge or the proceeding of the trial Judge exercising original jurisdiction would be governed by the Letters Patent alone. It is for that reason that their Lordships analysed the conflicting decisions of the different Courts and ultimately held that there is no inconsistency between Sec. 104 read with Order 43, Rule 1 of the Code and the appeals under Letters Patent and that there is nothing to show that the Letters Patent in any way excludes or overrides the application of Sec. 104 read with Order 43, Rule 1 of the Code or to show that these provisions would not apply to internal appeals within the High Court. In the separate judgment pronounced by Justice Amarendra Nath Sen it has been clearly observed that right of appeal under Clause 15 of the Letters' Patent is in no way curtailed or affected by Sec. 104 of the Code which confers the right of preferring an appeal in respect of the orders specified therein, even though such orders may or may not be appealable under Clause 15 of the Letters Patent as a 'judgment' and the right of appeal under Clause 15 of the Letters Patent remains clearly unaffected and inimpaired. His Lordship has quoted with approval an observation of an earlier decision of the same Court reported in AIR 1962 SC 256 (The Union of India v. The Mahindra Supply Co.) which runs as follows:
'The intention of the legislature in enacting Sub-section (1) of Sec. 104 is clear : the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by Sec. 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right of appeal against judgments (which did not amount to decrees) under the Letters Patent, was therefore not affected by Sec. 104 (1) of the Code of Civil Procedure, 1908'.
The observation of his Lordship in para 152 of the judgment may be useful in this connection, the relevant portion of which is quoted below:
'An order which is appealable under the Code or under any other statute becomes appealable as the statute confers a right on the litigant to prefer an appeal against such an order. Such an order may or may not be appealable as 'judgment' under Clause 15 of the Letters Patent. An order which may be appealable under Clause 15 of the Letters Patent as 'judgment' becomes appealable as Letters Patent confers on the litigant a right of appeal against such an order as 'Judgment'. 'An order appealable under the Letters Patent may or may not be appealable under the Code. A right of appeal is a creature of statute. A litigant does not have an inherent right to prefer an appeal against an order unless such a right is conferred on the litigant by law. Certain orders become appealable under the Code, as the Code makes such order appealable. Other statutes may confer a right of appeal in respect of any order under the Statute. The Letters Patent by Clause 15 also confer a right to prefer an appeal against a 'judgment'. An order which satisfies the requirements of 'judgment' within the meaning of Clause 15 becomes appealable under the Letters Patent'.
We have failed to notice any observation of their Lordships in the aforesaid judgment to justify a conclusion that even if a judgment passed by the single Judge becomes appealable under the Letters Patent, the same would be barred by the provisions of Sub-section (2) of Sec. 104 of the Code. In this connection, a reference is necessary to be made to Sec. 4(1) of the Code which is in the following words :
'4. Savings - (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law the time being in force.'
Its plain language provides that when anything in the Civil Procedure Code is in conflict with anything in the special or local law or with any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law, the Code will not (in the absence of any specific provision to the contrary) prevail so as to override such inconsistent provisions in the special or local law. Referring to Sec. 4 of the Code their Lordships in para-21 of the aforesaid judgment of the Supreme Court have observed as follows :
'......... Sec. 4(1) of the Code of Civil Procedure, 1908,which is a saving provision clearly provides that in the absence of any specific provision to the contrary the provisions of the Code does not limit or affect any special or local law. Thus, the test contained in Sec. 4 is not applicable in the instant case because even if the Letters Patent of the High Court be deemed to be a special law as contemplated by Sec. 4, the provisions of Sec. 104 do not seek to limit or affect the provisions of the Letters Patent.'
In the separate judgment by Justice Amarendra Nath Sen his Lordship has alone made a reference to Sec. 4 of the Code and has observed as follows :
'The special power and jurisdiction of the High Court under Clause 15 to entertain an appeal from any judgment is in no way affected and is fully retained; and in addition to the said power a High Court may be competent to entertain other appeals by virtue of specific statutory provisions. Sec. 4 of the Code cannot, therefore, be said to be in conflict with the provisions contained in Clause 15 of the Letters Patent and Sec. 4 of the Code does not limit or otherwise affect the power and jurisdiction of the High Court under Clause 15 of the Letters Patent.'
11. Learned Counsel appearing for the respondents has relied on four decisions of different High Courts in which the decision in AIR 1981 SC 1786 (supra) has been interpreted as laying down the law that when an appeal is heard by a learned single Judge, further appeal cannot be entertained in view of the bar in Sub-section (2).of Sec. 104 of the Code. The earliest of such decision is AIR 1986 Gujarat 156 (Madhusudan Vegetable Products Co. Ltd., Ahmedabad v. Rupa Chemicals Vapi and others) where their Lordships quoted paragraphs 60, 61 and 62 of the judgment of the Hon'ble Supreme Court and reached the aforesaid conclusion. In the context of the subject under discussion what their Lordships of the Supreme Court in paragraph 62 of the judgment observed must refer to the provisions contained in Sub-section (1) of Sec. 104 of the Code. The observation of the Lokur Judge extracted in para 61 of that Section 104 of the Code does not control Clause 15 of the Letters Patent was dissented from for that reason.
12. In the decision reported in AIR 1987 MP 172 (Firm Chhunilal Laxman Prasad v. M/s. Agarwal and Co., and others) their Lordships held that the clear language of Sub-section (2) of Sec. 104 of the Code does not permit an appeal against an order passed by a single Judge of the High Court in exercise of its appellate jurisdiction Under Section 104 read with Order 43, Rule 1 of the Code and it has been so held by the Supreme Court in the above mentioned case. Paragraphs of the judgment extracted below gives the reasons in support of the aforesaid conclusion:
'5. The effect of the aforesaid decision is that if an order has been passed by a learned single Judge of the High Court either appointing a receiver or granting or refusing injunction under Order 39, Rules 1 and 2 in some original proceedings. Letters Patent appeal would lie against that order treating it to be a judgment. The Supreme Court, however, does not go a step further and say that if the order passed by the High Court was not an original order, but had been passed in exercise of its appellate jurisdiction Under Section 104 read with Order 43, Rule 1, C.P.C. even then a Letters Patent appeal would lie. Indeed such an argument is not open on the clear language of Sub-section (2) of Sec. 104, C.P.C., which has been held by the Supreme Court to be applicable to a Letters Patent appeal. Sub-section (2) of Sec. 104 provides that no appeal shall lie from any order passed in appeal under this section.'
With due respect to the learned Judges, we have failed to draw such an inference from the judgment of the Supreme Court under reference.
All the discussions made in the aforesaid judgment of the Supreme Court were for an answer as to whether or not Sec. 104 would apply to internal appeals in the High Court. In our view, the conclusion reached by their Lordships in Madhya Pradesh High Court would not be consistent with the observation of the Hon'ble Supreme Court that the right of appeal under Clause 15 of the Letters Patent is no way curtailed or affected by Sec. 104 of the Code.
13. The next decision relied upon is that of Bombay High Court reported in AIR 1989 Bombay 72 (Pandey Mishra and Company v. Anil Upendra Pitale and others). Their Lordships of the Bombay High Court have relied upon the decision of the Supreme Court reported in AIR 1981 SC 1786 (supra) and also followed the interpretation by the same Court in the decision reported in AIR 1989 Bombay 68 (Krishna Yeshwant Shirodkar v. Suhhas Krishna Patil and others). In either of the aforesaid decisions, the observations of their Lordships of the Supreme Court that right of appeal under the Letters Patent is no way curtailed or affected by Sec. 104 of the Code has been taken note of. The latest decision on the interpretation of the decision of the Supreme Court is by the High Court of Andhra Pradesh reported in AIR 1990 AP 19 (Chantasala Seshamma and other v. Collapalli Rajarantnam and another). There has been practically no discussion on the point except following the view expressed by other High Courts, some of which are we have already discussed with reference to the decision of the Supreme Court.
We are, therefore, of the clear view that the bar in Sub-section (2) of Sec. 104 would not apply to an appeal under the Letters Patent against the judgment of a single Judge passed in appeal under Order 43, Rule 1 of the Code.
14. The next point for consideration is as to whether Sec. 100-A of the Code which was introduced by Act. 104 of 1976 offers any bar for maintainability of this appeal. Sec. 100-A of the Code is quoted below for ready reference :
'Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal.'
The object of the section evidently is to minimise delay in the finality of decisions. Before the Amendment Act of 1976 appeals lay under Letters Patent against the decision of a single Judge in a second appeal. After the introduction of Sec. 100-A, no further appeal will lie from any decree or order of a single Judge in second appeal notwithstanding anything contained in the Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force. The plain language of this section means that there would be no appeal from the decree or order of the single Judge in second appeal under the provisions of Letters Patent with which we are concerned in this case. The learned Counsel appearing for the respondents has, however, urged that Sec. 100-A as has been interpreted by different High Courts does not permit an appeal against the appellate judgment passed by a single Judge in an appeal Under Section 104 of the Code. The earliest decision in point of time relied on for the purpose is one reported in AIR 1978 Andhra Pradesh 97 (P. Ranga Reddy and Ors. v. Golla Sambasivrao and others). In that case the trial Court dismissed the suit on the ground that it is not maintainable as opposed to public policy embodied in Sec. 23 of the Contract Act and opposed to the provisions of the Motor Vehicles Act. In appeal that decision of the trial Court was set aside and the matter was remanded to the trial Court for fresh disposal on other issues. Defendants 1 and 3 of that suit preferred an appeal in the High Court under Order 43, Rule 1 read with Sec. 104 of the Code. That appeal was allowed by the High Court. In an appeal filed under the Letters Patent against the judgment of the single Judge, the question for consideration before their Lordships was whether it is an appeal from the appellate decree or order within the meaning of Sec. 100-A of the Code so as to bar further appeal there from. Their Lordships were of the view that the single Judge of that Court while disposing of the Civil Miscellaneous Appeal under Order 43, Rule 1 of the Code exercised appellate jurisdiction against the appellate decree or order, because the judgment and decree of the lower appellate Court allowing the appeal and remanding the matter were the subject-matters of the appeal before the single Judge of the High Court. Their Lordships came to the conclusion that having regard to the language employed in Sec. 100-A of the Code, no further appeal lies from the judgment of the single Judge of the High Court passed in Civil Miscellaneous Appeal from an order of remand passed by the lower appellate Court while exercising appellate jurisdiction. Their Lordships proceeded on the basis that the order of remand was passed in exercise of appellate jurisdiction by the Court subordinate to the High Court and, therefore, the said order must be construed as an appellate order against the appeal under Order 43, Rule 1 of the Code. It is for that reason their Lordships further deduced that the Civil Miscellaneous Appeal filed in the High Court and heard by a single Judge was in effect and substance not a first appeal, but a second appeal from the judgment of the lower Court rendered in the first appeal. The aforesaid analysis led the learned Judges of that case to reach the conclusion that the cases comprised under the second part of the relevant clause of the Letters Patent were appealable, but for the amended Sec. 100-A of the Code as it is precisely a third appeal before a Fourth Court which is sought to be abolished by the amended provision of the Code.
15. The next decision relied on by the learned Counsel for the respondents is a Full Bench decision of Kerala High Court reported in AIR 1981 Kerala 129 (Fr. Abraham Mathews and Anr. v. Illani Pillai and others). Their Lordships of the Full Bench at the first instance observed that according to practice obtained in that Court no further appeal has till now been sought to be filed against the decision of a learned single Judge of that Court in Civil Miscellaneous Appeal preferred Under Section 104 of the Code. Their Lordships further observed that the legislature could not have intended that the exercise of the jurisdiction Under Section 104 of the Code by a learned single Judge of the Court would be amenable to the scrutiny in a further appeal there from to a Division Bench and that the exercise of the same jurisdiction by a Court subordinate to the High Court cannot be subjected to a further appeal on account of the bar Under Section 104, Sub-section (2) of the Code. Interpreting Under Section 100-A of the Code their Lordships held that the expression 'from an appellate decree or order' may mean from an appellate decree as also from an appellate order or it may mean from an appellate decree or from any order passed by a Court in exercise of its original as well as appellate jurisdiction. An identical view was taken by the Gujarat High Court in a decision reported in AIR 1986 Gujarat 156 {supra). The maintainability of a Letters Patent appeal against the judgment of a single Judge passed in an appeal under Order 43, Rule 1 of the Code was under examination in the said case. The maintainability of the appeal was challenged as in the present case on both counts i.e. (i) because of the bar Under Section 104(2) of the Code, and (ii) by virtue of the introduction of Sec. 100-A of the Code. We have already dealt with a portion of the judgment discussing on the applicability of Sec. 104(2) of the Code which was raised as the first point for consideration before us. So far as the bar Under Section 100-A of the Code is concerned, their Lordships followed the view of the Full Bench of Kerala High Court referred to above and further added that the appellate decree or order occurring in Sec. 100-A of the Code must mean 'appeal before the learned single Judge of the High Court either against the appellate decree as per Sec. 100 of the Code or against the original order of the subordinate Court under Order 43, Rule 1 of the Code,' as the Code does not contemplate any appeal before High Court from the appellate orders passed by the lower Courts. Having given due consideration to the views expressed by the learned Judges of the aforesaid High Courts, we are unable to subscribe our views to the interpretation given to Sec. 100-A of the Code. Sec. 100-A of the Code prohibits further appeals in certain cases even though such further appeals might be permissible in any Letters Patent for any High Court or in any other law for the time being in force. Omitting the non-obstante clause in Sec. 100-A of the Code it reads thus : .
'...... where any appeal from the appellate decree or order is heard or decided by a single Judge of a High Court no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal'.
The latter part of the section prohibits further appeal from the judgment, decision or order or decree of the single Judge passed in any appeal, but the first part of section qualifies the nature of the appeal. The appeal referred to in the latter part of the Section must be an appeal from the appellate decrees or order so as to bar further appeal. The clause 'no appeal from the appellate decree or order' has been interpreted to include original orders passed by an appellate Court, which according to us, violates the plain meaning of the language used. The word 'appellate' is an adjective to the words 'decree' or 'order' occurring in the said section. Therefore, natural meaning of the clause 'appellate decree or order' occurring in the first part of the section is that the decree or order must relate to the subject of the appeal. Any order passed by the appellate Court unconnected with the subject of appeal cannot be construed as an 'appellate order' for the simple reason that while exercising appellate jurisdiction an appellate Court is also authorised under the Code to pass interlocutory orders under various provisions of the Code exercising original jurisdiction. The single Judge though exercising appellate jurisdiction in respect of an order appealable under Order 43, Rule 1 of the Code is possessed of jurisdiction to pass an order of injunction or for appointment of a receiver under Order 39, Rules 1 and 2 and under Order 40, Rule 1 of the Code respectively in exercise of original jurisdiction by virtue of Sec. 107(2) of the Code. The single Judge dealing with the prayer for grant of injunction or for appointment of receiver in such an appeal does not dispose of any part of the subject- matter of appeal. Irrespective of the order passed by the single Judge disposing of an original application for appointment of receiver or for injunction, the appeal remains pending till its disposal. Thus the order of the single Judge in such matters cannot be said to be relating to the subject of appeal and therefore cannot be termed as an appellate order. The powers of an appellate Court as enumerated in Sec. 107 of the Code include the power to remand a case. Thus an order of remand by the appellate*1 Court can only be passed in exercise of appellate jurisdiction which also relates to the subject of appeal. Thus as was the case in the decision reported in AIR 1978 Andhra Pradesh 97 (supra) the order of remand passed by subordinate appellate Court which was the subject matter of scrutiny in a Civil Miscellaneous Appeal before the single Judge of the High Court, may be described as an appellate order, for which reason no further appeal shall lie from the judgment of the single Judge of the High Court either confirming or setting aside the appellate order of the subordinate appellate Court.
16. The Full Bench decision of the Kerala High Court placed reliance on the marginal note to Sec. 108 of the Code for interpretation of the expression 'appellate decree or order' occurring in Sec. 100-A of the Code. In our opinion, a marginal note in the section of a Statute is merely an abstract of the provision contained in the section and it does not furnish any clue to the meaning or purpose of the section far less the different clauses contained therein. As early as in the year 1904 in the case of Lord Macnaghtan in Dalraj Kunwar v. Jagatpal Singh (ILR 26 Allahabad 393), their Lordships considered it well settled that marginal notes cannot be referred to for the purpose of construction of the section as marginal notes are not part of an Act of the Parliament. The aforesaid view was approved in a decision reported in AIR 1950 SC 134 (The Commissioner of Income Tax, Bombay v. Ahmedbhai Umarbhai, Bombay), and followed in a subsequent case reported in AIR 1979 SC 289 (The Board of Muslim Wakfs, Rajasthan v. Radha Kishan and others). Their Lordships concluded by saying that the weight of authority is in favour of the view that the marginal note appended to a section cannot be used for construing the section.
17. Therefore, the reasonings adopted in the Full Bench decision of the Kerala High Court do not appeal to us. The Gujarat High Court in the decision reported in AIR 1986 Gujarat 156 {supra) did not accept the submission that an appeal from original order is not covered under the relevant clause of Sec. 100-A of the Code for the reason that the Code does not contemplate any appeal before the High Court from appellate orders passed by the lower Courts. The said reasoning ignores the express provision in Sec. 104 of the Code which provides that an appeal shall lie from the orders specified in the section besides where appeal is provided by any law for the time being in force. The provision contained in Sub- sec. (2) of the said section no doubt offers a bar for further appeal against an order passed in appeal under this section. But any other law in force may provide an appeal to the High Court from appellate orders. As an illustration, it may be noted that the Assistant Commissioner of Endowments has been clothed to decide certain disputes under Section 41 of the Orissa Hindu Religious Endowment Act, 1951. Any person aggrieved by an order passed Under Section 41 of the said Act by the Asst. Commissioner of Endowments may prefer an appeal to the Deputy Commissioner of Endowments (previously to the Commissioner of Endowments), Under Section 44(1) of the said Act. Sub-section (2) of the said section provides that any party aggrieved by the order of the Deputy Commissioner of Endowments passed under Sub-section (1) may which in 30 days of the date of the order prefer an appeal to the High Court. Thus even though the Code does not permit an appeal against appellate order passed by the lower Courts, an appeal may lie under the provisions of any other law in force before the High Court, with due respect to the learned Judges of the aforesaid High Courts, we beg to differ from the reasonings given and also the conclusion reached as regards the interpretation of Sec. 100-A of the Code.
18. Their Lordships of Andhra Pradesh High Court in the above noted decision referred to Clause 40 of the Bill (seeking to introduce Sec. 100-A in the Code of Civil Procedure), which state the objects and reasons for introduction of Sec. 100-A in the Code. Various High Courts including the Supreme Court [vide (1973) 1 SCC 813 : The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management and others], have held that the statement of objects and reasons must be excluded from consideration when construing an Act of the legislature unless two constructions are reasonably possible to be placed on the section, in which event, the construction which furthers the policy and object of the Act has to be preferred. The Supreme Court in two earlier decisions (AIR 1963 SC 704 : Gujarat University and Anr. v. Shri Krishna Ranganath Mudholkar and others), and AIR 1963 SC 1241 (State of West Bengal v. Union of India), also pointed out that the statement of objects and reasons accompanying a Bill, when introduced in Parliament cannot be used to determine the true meaning and effect of the substantive provisions of the Statute.
Their Lordships however held that the same can be used for the limited purpose of understanding the background and antecedents of the state of affairs leading to legislation. But the Courts cannot use the statement as an aid to the construction of the enactment. Looking to the background and the scheme of legislation, their Lordships of the Andhra Pradesh High Court expressed the view that Sec. 100-A of the Code envisaged abolition of all third appeals before a fourth Court. The appeal preferred Under Section 104 read with Order 43, Rule 1 of the Code against an order passed by a subordinate Court is a First Appeal before the High Court and, therefore, further appeal against the appellate judgment of the High Court passed by a single Judge will be a second appeal before a third Court and not a. third appeal before a fourth Court. All the aforesaid discussions lead to the irresistible conclusion that Sec. 100-A does not bar an appeal against the judgment of a single Judge passed in an appeal Under Section 104 read with Order 43, Rule 1 of the Code.
We, therefore, hold that the objections taken on both grounds against the maintainability of the appeal have no merit and we hold that this appeal is maintainable.
19. Coming to the merits of the matter, we find that the Subordinate Judge, Bhadrak dismissed the appeal i.e. Title Appeal No. 2/70 on 9.5.1989. While dismissing the appeal for default the learned lower appellate Court observed that the illness of an Advocate may be a sufficient ground to allow time, but the appellants in the said appeal could engage some other advocate of the local bar for arguing the appeal. In the application under Order 41, Rule 19 of the Code very same plea was taken that the appellant had engaged a senior counsel, namely, Sri S. C. Mohapatra (as he then was) from Cuttack Bar to argue his appeal, but his sudden illness prevented him from going to Bhadrak for arguing the appeal. The appellant No. 2 was examined as a witness on behalf of the appellants who stated that he had come to Cuttack and contacted Sri Mohapatra who expressed his inability to go to Bhadrak on the ground of his illness. The learned Court did not accept the statement of the said witness on the ground that he did not make any request nor Sri S. C. Mohapatra wrote to the Court indicating his illness. Such a procedure according to us is not provided in the Code. Law does not require that apart from the petition to be submitted to the Court, the lawyer who was ill would himself certify about his illness. That apart, there is nothing on record to disbelieve the testimony of P.W. 1, who had come to Cuttack, talked with Sri Mohapatra and filed an application for time after hearing from him that he was ill. It was stated by the said witness that the entire records relating to the appeal was made over to Sri Mohapatra with all instructions to argue the appeal and Sri Mohapatra retained the same and agreed to argue the appeal at Bhadrak. It is not the case that Sri Mohapatra while expressing his inability to argue the case on the date fixed on the ground of his illness returned the brief to the appellants. It is extremely embarrassing for a litigant to withdraw a case from an Advocate if the latter was ill on a particular date. That apart, having passed on instructions to a senior counsel like Sri Mohapatra, it might be otherwise impossible for a litigant to engage a senior advocate who can get ready in the appeal in a short time which was available then. The learned Subordinate Judge while observing that it is within the discretion of a litigant to request one of his lawyers to conduct the case in preference to others further observed that the absence of the advocate so preferred may be a ground for adjournment if it is shown that the lawyer to whom he had entrusted the brief was one above average calibre. Evidently in this case the appellants had engaged two of the local lawyers and the memo of appeal was drafted in consultation with Sri Mohapatra. It is, therefore, reasonable to assume that the appellants had reposed confidence on Sri Mohapatra who was a senior counsel then practising in the Orissa High Court and was enjoying a wide reputation for his efficiency in the profession. Once the illness of Sri Mohapatra during the relevant period is believed it certainly affords a sufficient ground to explain the default committed by the appellants. We, therefore, conclude that the appeal should be restored setting aside the order of dismissal.
20. In the Misc. Appeal the learned single Judge dismissed the appeal after hearing both sides on the sole ground that the Subordinate Judge has disbelieved the plea of illness of the appellants' Counsel on the date fixed for hearing of the appeal. The appeal before the learned single Judge was a Miscellaneous First Appeal where it was available for the Court to go into the evidence on record and arrive at any conclusion. Thus, in our view the judgment passed in the said appeal cannot be sustained. .
21. For the reasons aforesaid, this appeal is allowed and the judgment of the learned single Judge confirming the order passed by the Subordinate Judge is set aside and Title Appeal No. 2/78 is restored to file. Since the respondents have been put to harassment and expenses, we allow a cost of Rs. 300/- to be paid by the appellants to the respondents as a condition precedent for restoration of the appeal within four weeks from the date of this judgment, failing which the order of dismissal of the Misc. Appeal shall stand. Since the Title Appeal has become very old, the lower appellate Court should dispose of the appeal expeditiously.