K.M.S. KUMARAPPA CHETTIAR Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) THIS is an appeal against the refusal of leave to file a Letters Patent Appeal against the judgment of a single Judge in second appeal. The appellant was the respondent in C. M. S. A. No. 31 of 1946 which was board by Satyanarayana Rao J. The appeal was allowed and on the motion of the counsel who appeared for the appellant herein for leave to file a Letters Patent Appeal against his judgment leave was refused. As against the refusal, this appeal is now filed. Notice of this appeal was ordered to the respondent and to the President of the Madras Advocates Association probably, for the reason that this involves a matter of interest to the legal profession and the litigant public. An objection is taken that no appeal lies against the refusal of leave by the second appellate Judge. The learned counsel for the appellant argues that he is entitled to file an appeal as this is an appeal against the judgment of a single Judge under Clause 15, Letters Patent and the order refusing leave is not part of the judgment itself in second appeal and is independent of it and that therefore the appeal lies. It is an accepted principle of law and also laid down by the Privy Council that a right of appeal in every matter must be given by the enacted law or equivalent authority and does not lie unless given by any express legislative enactment. We have had to consider whether the appellant is entitled to file an appeal under any legislative enactment and the only provision relied upon by the appellant is Clause 15, Letters Patent. It Was further argued that so far as the granting or refusing of leave was concerned the Judge should use independent discretion and such discretion must be exercised judicially and that in this case there was no such exercise of that independent discretion and therefore the appellant was entitled to have the question examined whether the learned Judge was right in refusing to grant leave to file a Letters Patent Appeal. Mr. K. Bhashyam on behalf of the Advocates Association argued that the order granting or refusing leave is not a judgment or part of the judgment passed 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 and only judgment that are passed in the exercise of the 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 are appeasable; and that the order declaring that the case is not a fit one for appeal is not part of that judgment and in any event not a judgment passed in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subordinate to the superintendence of the said High Court and as such the order refusing or granting leave in so far as it is concerned is a judgment by itself of a single Judge against which there is a right of appeal under Clause 15 of the Letters Patent. The second contention of Mr. Bhashyam is that this restriction as regards the right of appeal as against the judgment of a single Judge in a second appeal was introduced by an amendment of 3rd November 1927 and of 12th December 1928 and since being an amendment restricting the right of appeal which existed prior to the amendment, Courts should view with favour the right of the appellants to file an appeal since the original right has been restricted by way of an amendment.

(2.) AS regards the first contention, the learned counsel pointed out that there are two Bench decisions against the maintainability of the appeal, namely, the cases in A. Ramanayya v. T. Kotayya, 57 M.L.J. 398: A.I.R. 1930 Mad. 75 and in the matter of M. Govindarao : AIR1936Mad134 . Apart from this, we are unable, to agree with the contention of the learned advocate that the order granting or refusing leave, that is, the order declaring whether the case is a fit one or not for appeal is not 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 or is independent of the judgment passed in a second appeal.

(3.) THE other contention of Mr. Bhashyam that this condition was introduced by way of an amendment to what was originally an unrestricted right of appeal does not appeal to us since His Majesty thought it fit to introduce the amendment with a view to alter the then existing law and this argument far from being in favour of the appellant would support the respondent's contention that the intention is clear that the existing law was to be altered and the unrestricted right of appeal must be restrained by a certain condition, the condition being a declaration by the Judge that the case is a fit one for appeal. Obviously, the object of this amendment is to prevent unnecessary appeals after the case was heard by two subordinate Courts and a Judge of the High Court has applied his mind as to the correctness or otherwise of the judgment of the Courts below. The language of the amendment is clear and if it was the intention of the framers of the amendment provision similar to that contained in Section 75(3), Provincial Insolvency Act, would have been introduced where the power to grant leave is conferred both on the original Court and on the appellate Court. In Ex parte Stevenson, 1892 1 Q. B. 609: 61 L. J. Q. B. 492, which was a case under the Housing of the Working Glasses Act 1890, the Judge at Chambers refused to grant leave under Schedule II, Clause 26 (a) of the said Act, it was held by the Court of Appeal that in the absence of the leave no appeal lay. We are in agreement with the following observations of Fry L. J. in that case: