Supreme Court of India
VINITA M. KHANOLKARversusPRAGNA M. PAI AND ORS.
- Citation
- 1997 INSC 771
- Decided
- 28 November 1997
- Disposal
- Appeal(s) allowed
Holding
An appeal to the Division Bench is maintainable because Section 6(3) of the Specific Relief Act does not expressly exclude appeals under the Letters Patent, and a statutory bar cannot override the High Court’s constitutional jurisdiction.
Summary
The case concerned an appeal to the Division Bench of the Bombay High Court against an order dated 15 November 1994 passed by a Single Judge in a suit for dispossession under Section 6 of the Specific Relief Act. The respondents argued that Section 6(3) of the Act barred any appeal or revision against such orders, rendering the appeal non‑maintainable. The appellant contended that, because the order was rendered by a High Court judge exercising original jurisdiction, Clause 15 of the Letters Patent of the Bombay High Court provided a right of appeal notwithstanding the statutory provision. The Supreme Court held that a statutory bar cannot override the constitutional jurisdiction of the High Court unless the statute expressly excludes appeals under the Letters Patent, which Section 6(3) does not do. Consequently, the appeal was deemed maintainable and was allowed, setting aside the earlier order and restoring the appeal to the High Court’s file. No costs were awarded and the Court expressed no view on the merits of the dispute.
Issues considered
- Whether Section 6(3) of the Specific Relief Act, 1963 bars an appeal to the Division Bench of the High Court against an order passed by a Single Judge exercising original jurisdiction under Section 6.
- Whether Clause 15 of the Letters Patent of the Bombay High Court provides a right of appeal notwithstanding the statutory bar in Section 6(3).
Legislation cited
Subjects
Specific Relief ActSection 6appealLetters PatentHigh Court jurisdictionstatutory barconstitutional poweroriginal jurisdictionDivision Bench
Judgment
VINITA M. KHANOLKAR A
v.
PRAGNA M. PAI AND ORS.
NOVEMBER 28, 1997
[S.B. MAJMUDAR AND K. VENKATASWAMI, JJ.] B
Specific Relief Act, 1963: Section 6(3)
Suit. against dispossession-Order passed under section 6- Bar of appeal
against. c
Letters Patent of Bombay High Court.
Clause I 5-0rder passed by a Single Judge-Appeal before Division
Bench-Permissibility of
D
.Proceedings under section 6 of Specific Relief Act-Order passed by a
Single Judge of the High Court in exercise of its original jurisdiction-Appeal
before Division Bench-Held maintainable-Held a statutory provision
barring an appeal cannot cut across the constitutional power of High Court
-Power flowing from the paramount charter under which High Court
functions would not get excluded unless the statutory enactment expressly E
excludes appeals under letters patent-Held no such bar was discernible
from Section 6 (3) of Specific Relief Act.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8422 of 1997.
From the Judgment and Order 11.7.97 of the Bombay High Court in F
A.No. 960 of 1994.
G.B. Sathe and D.N. Hungod for the Appellant.
D.N. Mishra for Mis. J.B.D. & Co., for the Respondents.
G
The following Judgment of the Court was delivered :
Leave granted. We have learned counsel for the parties.
The short question is whether an appeal would lie before a Division
Bench of the High Court against an order of the learned Single Judge rendered H
593
594 SUPREME COURT REPORTS (1997] SUPP. 5 S.C.R.
A by him in proceedings under sec. 6 of the Specific Relief Act, 1960 (hereinafter
refer to as 'the Act'). Learned Single Judge passed an order dated 15.11.1994
in Suit No. 411/93 decreeing the suit in terms thereof. When an appeal was
carried to the Division Bench of the High Court against the said order, it was
contended on behalf of the respondents that the appeal was not maintainable
B in view of sub-sec (3) of sec. 6 of the Act. The said provision certainly bars
any appeal or revision against any order passed by the court under sec. 6
of the Act. To that extent the decision of the Division Bench cannot be found
fault with. However, one contention canvassed by learned counsel for the
appellant requires closer scrutiny. He submitted that even if an appeal would
not lie under sub-sec. °C3) of sec. 6 of the Act by itself against. any order
C passed by the court under sec. 6 of Act, this was an order passed by learned
Single Judge of the High Court exercising original jurisdiction. Therefore,
under clause 15 of the Letters Patent which is a charter under which the High
Court of Bombay functioned, the said provision for appeal would not have
been whittled down by the statutory provisions of sec. 6(3) of the Act. Clause
15 of the Letters Patent is extracted hereunder:-
D
"15. Appeal from the Courts of original jurisdiction to the High Court
in its appellate jurisdiction ........ And we do further ordain that an
appeal shall lie to the said High Court of Judicature at Madras Bombay,
Fort William in Bengal from the judgement (not being a judgement
passed in the exercise of appellate jurisdiction in respect of a decree
E
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, and not
being a sentence or order passed or made in exercise of the power of
superintendence under the provisions of section 107 of the Government
F of India Act, or in the exercise of criminal jurisdiction) of the one
Judge of the said High Court or one Judge of any Division Court,
pursuant to section I 08 of the Government of India Act, and that
notwithstanding anything hereinbefore provided, an appeal shall lie to
the said High Court from a Judgement of one Judge of the said High
Court or one Judge of any Division Court, pursuant to section I08 of
G the Government of India Act, on or after the first day of February 1929
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 judgement declares that the case is a fit one for appeal but that
H the right of appeal from other judgments of Judges of the said High
VINITA M. KHANOLKAR v. PRAGNA M. PAI 595
Court or of such Division Comt shall be to us, Our heirs or successors A
in Our or Their privy Council, as hereinafter provided."
Now it is well settled that any statutory provision barring an appeal or
revision cannot cut across the constitutional power of High Court. Even the
power flowing from the paramount charter under which the High Court
functions would not get excluded unless the statutory enactment concerned B
expressly excludes appeals under letters patent. No such bar is discernible
from sec.6(3) of the Act. It could not be seriously contended by learned
counsel for the respondents that if clause 15 of the Letters Patent is invoked
then the order would be appealable. Consequently, in our view, on the clear
language of clause 15 of the Letters Patent which is applicable to Bombay
High Court, the said appeal was maintainable as the order under appeal was C
passed by learned Single Judge of the High Court exercising originaljurisdiction
of the court. Only on that short ground the appeal is required to be allowed.
The judgement and order of the High Court in appeal No. 960194 are set aside
and the appeal is restored to !he file of the High Court for being proceeded
further in accordance with law. As the appeal of 1994 is being restored to the D
file of the High Court, the High Court is requested to decide the appeal as
expeditiously as possible.
The appeal is accordingly allowed. No costs. We make it clear that we
express no opinion on the merits of the controversy between the parties.
TN.A Appeal allowed.
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