GHANTASALA SESHAMMA Vs. GOLLAPALLI RAJARATNAM

JUDGEMENT

(1.) A very important question is again canvassed before us in this L.P.A. before admission. The question is: Whether a Letters Patent Appeal lay to a Division Bench against an appellate order of a single Judge in an appeal under Order 43, Rule 1, C.P.C. read with Section 104(1), CPC and whether Sec. 104(2), CPC was a bar to the maintainability of a Letters Patent Appeal under Clause 15 of the Letters Patent?

(2.) In Amruthappa v. Abdul Rasool, (1987) 2 APLJ (HC) 27 , Jagannadha Rao, J. considered this question and he referred the judgments of various High Courts including the Bombay and Allahabad High Courts. One very important decision referred to by the learned Judge is Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786. The matter was argued before the learned Judge by a senior counsel and looks as though it is argued thoroughly and the learned Judge, after considering all' the decisions and particularly relying on the ratio laid down in the Shah Babulal Khimji's case (supra), held that such a L.P.A. does not lie. In L.P.A. No. 14/88 a similar question was considered by us and by our order dated 16-2-1988. We agreed with the view taken by, Jagannatha Rao, J.

(3.) In the present L.P.A. the learned counsel for the appellants submits that the Supreme Court did not in so many words lay down that a L.P.A. does not lie under those circumstances; but on the other hand there are observations to the effect that a L.P.A. under those circumstances is maintainable. His submission again made us to go through the whole gamut of the reasoning given by the Supreme Court in Shah Babulal Khimji's case (supra). In that case the main judgment was delivered by Fazal Ali, J. (for himself and on behalf of A. Varadarajan, J.) and all the decisions rendered earlier by the Madras and Allahabad High Courts were also referred to and a careful reading of the judgment does not leave any doubt. However as contended by the learned counsel for the appellants, in certain passages there are indications that an appeal under Letters Patent Act lies. But these observations have to be understood in the background of the question that was considered by their Lordships viz., whether an appeal lies against an order by a single Judge of the High Court exercising original jurisdiction. But the question before us is different. So far this question is concerned, the ultimate conclusion of their Lordships is that a L.P.A. does not lie in view of the bar of S.104(2), C.P.C.