- (1.)MR. Savant appearing on behalf of the respondents has raised a preliminary objection as regards the maintainability of this appeal preferred against the order dt. 9th March, 1986 of Daud, J. , allowing the appeal under section 104 (1) of the Code of Civil Procedure, 1908, preferred by the original defendants 8 and 9-respondents 8 and 9 against the order under O. XXXIX, Rr. 1 and 2 of the Code passed by the learned Judge, City Civil Court. Bombay, upon the plaintiffs ---Appellants Notice of motion. In view of the Division Bench decision of this Court in (Obedur Rehman v. Ahmedali Bharucha)A. I. R. 1983 Bom. 120 and the recent Division Bench judgment in the case of (Krishna Yashwant Shirodkar v. Subhash Krishna Patil) Letters Patent Appeal No. 129 of 1987 disposed of on 10th Feb, 1988 reported in 1982 (2) Bom. C. R. 252 sitting in appeal we are bound to take the same view that the present appeal is barred under section 104 (2) of the Civil P. C. and therefore, the appeal is liable to fail without entering into the merits of the order passed by the learned Single Judge. The learned Counsel appearing for the plaintiffs appellant has submitted that in view of the decisions of the Supreme Court in the case of (Union of India v. Mohindra Supply Co.) A. I. R 1962 S. C. 256 and (Gulab Bai v. Puniya) A. I. R. 1966 S. C. 637, we ought to refer to a larger Bench the determination of the question as regards maintainability under Cl. 15 of the Letters Patent appeals against orders passed by a learned Single Judge in appeals provided under section 104 read with O. XLIII, R. 1 of the Code. He has also relied upon several other decisions of other High Courts in support of the submission that notwithstanding the bar under sub-section (2) of section 104 of the Code, right to prefer such an appeal under Clause 15 had been preserved under section 4 of the Code. In spite of very persuasive submissions made on behalf of the appellants, we are unable to accept the contention of the learned Counsel for the appellants that the Supreme Court decision in the case of ( Shah Babulal Khimji v. Jayaben) A. I. R. 1981 S. C. 1786, was contrary to the earlier Supreme Court decisions in the cases of Union of India v. Mohindra Supply Co. , A. I. R. 1962 S. C. 256 and Gulab Bai v. Puniya, A. I. R. 1966 S. C. 637. In the present case before us it is unnecessary for us to consider a situation in which the High Court is called upon to decide whether it ought to follow the later Supreme Court decision rendered by smaller number of Judges or the earlier Supreme Court decision given by a larger Bench, because the Supreme Court in the case of Shah Babulal Khimji v. Jayaben, A. I. R. 1981 S. C. 1786, among a very large number of cases had considered its earlier decision in Union of India v. Mohindra Supply Co. , A. I. R 1962 S. C. 256. Fazal Ali, J, who delivered the judgment upon consideration of the judicial precedents and the various provisions of law at page 1807 of the report had recorded the conclusions of the Court. He inter alia held that there was no inconsistency between section 104 read with O. XLIII, R. 1 and the appeals under the Letters Patent and there was nothing to show that the Letters Patent in any way excluded or overrode the application of section 104 read with O. XLIII, R. 1 or to show that these provisions would not apply to internal appeals within the High Court. Alternatively, by process of analogy, O. XLIII, R. 1 was held applicable to such appeals. Their Lordships further held that the concept of the Letters Patent governing only the internal appeals in the High Court and the Code of Civil Procedure having no application to such appeals was based on a serious misconception of the legal position.
(2.)SO far as this Court is concerned the point as to whether the ratio of the Supreme Court decision in Shah Babulal Khimji v. Jayaben, A. I. R. 1981 S. C. 1786, would apply to appeals preferred to the Division Bench against orders passed by a Single Judge in appeals taken under section 104 (1) of the Code is no longer res integra. Not only because they are binding upon us but also because we agree with the reasonings given by the Division Bench judgement of this Court, vide Obedur Rehman v. Ahmedali Bharucha, A. I. R. 1983 Bom. 120 and the recent Division Bench judgment in the case of Krishna Yeshwant Shirodkar v. Subhash Krishna Patil (Letters Patent Appeal No. 129 of 1987) delivered on 10th February, 1988 (reported in 1988 (2) Bom. C. R. 252) we hold that this Letters Patent Appeal is not maintainable against the order of the learned Single Judge upon an appeal preferred under section 104 (1) read with O. XLIII R. 1 of the Civil P. C. In the case of Obedur Rehman v. Ahmedali Bharucha, A. I. R. 1983 Bom. 120 : 1982 (1) Bom. C. R. it was clearly held that so far as Cl. 15 of the Letters Patent was concerned, the provisions of section 104 of the Code were attracted and were applicable to Letters Patent Appeals also because Letters Patent Appeals could not be said to be exceptions to the overriding provisions of the Code of Civil Procedure. Relying upon the case of Shah Babulal Khimji v. Jayaben, A. I. R. 1981 S. C. 1786 the Division Bench in paragraph 8 of their judgment had observed that the plain reading of section 104 (2) of the Code would show that no appeal shall lie from any order passed in appeal under the said section. The section was prohibitive and the provisions of the said section under the general principles of interpretation of statute must be constructed strictly. The order complained of in the Letters Patent Appeal was an order passed by the Single Judge in appeal governed by section 104 of the Code and therefore, the Letters Patent Appeal was certainly prohibited under sub-section (2) of section 104 of the Code. Similar view was taken by Jahagirdar and Sugla, JJ. , in the case of Krishna Yeshwant Shirodkar v. Subhash Krishna patil (supra ). Qazi and Vaze, JJ, in (Charity Commissioner, Maharashtra State v. Rajendrasingh) 1984 Mh. L. J. 806 had followed the decision in Obedur Rehman v. Ahmedali Bharucha, A. I. R. 1983 Bom. 120 and had held that no Letters Patent Appeal lies against an order of the Single Judge dismissing appeal preferred under O. XLIII, R. 1 and section 104 of the Civil P. C.
(3.)THE learned Counsel appearing on behalf of the appellant has relied upon the decision of a Division Bench of the Madras High Court in the case of (V. S. Boopathi Vijayaraghavan Chettiar v. C. S. B. B. Radha Rukmani Ammal) Letters Patent Appeal No. 6 of 1983 dt. 19th Jan. , 1984 reported in 1984 TLNJ 92 which had upheld the maintainability of an appeal under CI. 15 of the Letters Patent preferred against an order of the Single Judge passed in an appeal arising form the decision of the subordinate Court under O. IX, R. 13 of the Code. The Division Bench of the Madras High Court had declined to follow the Supreme Court decision in the case of Shah Babulal Khimji v. Jayaben, A. I. R. 1981 S. C. 1786 corresponding to (1981)4 S. C. C. 8 upon the view that earlier Supreme Court decision in the case Union of India v. Mohindra Supply Co. , A. I. R. 1962 S. C. 256, being by a large Bench ought to be preferred. A later decision of the Madras High Court in the case of (Rukmani v. H. N. Thirumalai Chettiar) A. I. R. 1985 Mad. 283, without practically giving any independent reasons had preferred to follow the earlier decision of the Madras High Court in the Letters Patent Appeal mentioned herein above. With respect, we are unable to follow the aforesaid two decisions of the Madras High Court not only because of the contrary view consistently taken by this Court on the question of maintainability of appeals under Clause 15 of the Letters Patent against orders passed in appeals under section 104 (1) of the Code but also because there is really no conflict of views between the earlier and the later Supreme Court decisions. We have already mentioned that the Supreme Court in the case of Shah Babulal Khimji v. Jayaben, A. I. R. 1981 S. C. 1786, had noticed and considered the decision in the case of Union of India v. Mohindra Supply Co. , A. I. R. 1962 S. C. 256. In the case of Union of India v. Mohindra Supply Co. , A. I. R. 1962 S. C. 256 the Supreme Court held that an appeal under Clause 15 against an order of a Single Judge in arbitration proceedings was barred under section 39 (2) of the Arbitration Act, 1940. In Mohindra Supply Cos case no doubt reference had been made to the language of section 104 of the Civil P. C. but in the said case of Union of India v. Mohindra Supply Co. A. I. R. 1962 S. C. 256, no pronouncement was made as regards the maintainability or otherwise of an appeal against an order made under section 104 (1) of the Code.