VINITA M KHANOLKAR Vs. PRAGNA M PAI

JUDGEMENT

(1.) Leave granted. We have heard learned counsel for the parties.

(2.) 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 by him in proceedings under S. 6 of the Specific Relief Act, 1963 (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 in view of sub-sec. (3) of S. 6 of the Act. The said provision certainly bars any appeal or revision against any order passed by the court under S. 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. (3) of S. 6 of the Act by itself against any order passed by the court under S. 6 of the Act, this was an order passed by learned single Judge of the High Court exercising original jurisdiction. Therefore, under Cl. 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 S. 6(3) of the Act. Clause 15 of the Letters Patent is extracted hereunder:-

(3.) Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a 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 expressly excludes appeals under letters patent. No such bar is discernible from S. 6(3) of the Act. It could not be seriously contended by learned counsel for the respondents that if Cl. 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of Cl. 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned single Judge of the High Court exercising original jurisdiction of the Court. Only on that short ground the appeal is required to be allowed.