LAXMI NARAYAN NAYAK Vs. RAMRATAN CHATURVEDI

JUDGEMENT

(1.) The only question for decision by us is whether an appeal under Cl. 10 of the Letters Patent is tenable against an interlocutory order passed in an election petition by a single Judge which amounts to a 'judgment' within the meaning of that expression used in Cl. 10. This question has to be answered on the assumption that the right of appeal under Clause 10 of the Letters Patent subsists notwithstanding the enactment of M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam (29 of 1981) abolishing the right of such appeals since this enactment has been held to be constitutionally invalid by a Full Bench of this Court in Balkrishna Dass v. Perfect Pottery Co. Ltd. AIR 1985 Madh Pra 42. In case it is held that such an appeal is tenable, the appeal has to be heard and decided on merits by a Division Bench which will also decide whether the impugned interlocutory order passed in the election petition amounts to a 'judgment' within the meaning of that expression used in Cl. 10 of the Letters Patent. On the other hand, if the conclusion reached by us is that no such appeal is tenable under Cl. 10 of the Letters Patent against an interlocutory order passed in an election petition by a single Judge even if the order amounts to a 'judgment' within the meaning of that expression used in Cl. 10 of the Letters Patent, then the further question of considering the appeal on merits would not arise.

(2.) This appeal is against an interlocutory order dated 28-8-1985 passed by Gupta, J. in a pending election petition. The appellant's contention is that the impugned order amounts to a 'judgment' and is, therefore, appealable under Cl. 10 of the Letters Patent notwithstanding S. 116-A of the Representation of the People Act, 1951, providing for an appeal to the Supreme Court against final decision in an election, petition at the conclusion of the trial. This appeal came up for motion hearing on 25-9-1985 before a Division Bench consisting of myself and Adhikari, J. Reliance was"placed on behalf of the appellant on two decisions of the Gujarat High Court in Chhotalal Jivabhai v. Vadilal Mehta (1971) 12 Guj LR 850 and Indulal v. Prasannadas, AIR 1972 Guj 92 and a decision of the Madras High Court in Kadiravan v. Thirumaiai Kumar ILR (1970) 2 Mad 183 in support of the contention that an appeal lies under Cl. 10 of the Letters Patent against an interlocutory order passed in an election petition by a single Judge which amounts to a 'judgment' within the meaning of that expression used in Cl. 10. The question of tenability of such an appeal had been raised earlier in Amolakchand Chhajed v. Bhagwandas LPA No. 12 of 1973, decided on 23rd November 1973, before a Full Bench of this court but that question was left open after mentioning its importance and intricacy and referring to the decisions of the Gujarat and Madras High Courts in Chhotalal Jivabhai v. Vadilal Mehta, Indulal v. Prasannadas and Kadiravan v. Thirumali Kumar. The Division Bench, therefore considered it appropriate to refer the question of tenability of such an appeal to a Full Bench instead of deciding it itself. Accordingly, this question was referred by the Division Bench for being decided by a larger Bench. A Full Bench was then constituted consisting of myself, C.P. Sen, J., and B. M. Lal, J., to decide the question of tenability of the appeal under Cl. 10 of the Letters Patent assuming that the right of appeal under Cl. 10 of the Letters Patent survives in view of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (AIR 1985 Madh Pra 42) (supra). At the commencement of hearing of this question before the Full Bench on 28-10-1985 it was felt by one of us (B. M. Lal, J.) that the basic question of survival of right of appeal under Cl. 10 of the Letters Patent in all matters after the Constitution of India came into force and the changes in law were made from time to time also requires consideration in the present case. Obviously the consideration of this basic question could have involved, considering even the correctness of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (supra) at least impliedly, decided by a Bench of three Judges. It was, therefore, considered appropriate that the matter should be heard by a Bench of more than three Judges if this larger question had also to be considered. The matter was, therefore referred to a larger Bench. This is how the matter came to be heard by this Bench of five Judges. However, at the commencement of the hearing before us, it was decided unanimously that it would be inappropriate for this Court to consider this larger or basic question about survival of the right of appeal under Cl. 10 of the Letters Patent in all matters at a time when the question of correctness of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (supra) is before the Supreme Court in a pending appeal and consideration by us of this basic question could involve consideration of the correctness of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (supra).

(3.) Accordingly, we have confined the hearing to the only question referred by the Division Bench regarding tenability of an appeal under Cl. 10 of the Letters Patent against an interlocutory order passed by a single Judge in a pending election petition which amounts to 'judgment' within the meaning of Cl. 10 of the Letters Patent. Our decision is also, therefore, confined only to this point.