MEHTAB KAUR Vs. GOVERNMENT OF J&K

JUDGEMENT

(1.) THIS is an appeal under cl. 12 of the Letters Patent from a judgment of a learned single Judge of this Court passed in revision proceedings preferred by the appellant against an order of the Senior Subordinate Judge, Srinagar, affirming the order by which the appellant was held to be a non -agriculturist for the purposes of the Agriculturists Relief Act.

(2.) A preliminary objection has been taken on behalf of the respondent that the appeal is not competent as it is directed against an order in revision. The learned Judge in chambers has issued the certificate relying on Firm Shaw Hari Dial & Sons, Madras v. Sohnamal Beli Ram, AIR 1942 Lah 95 FB A, in which it has been held that an order determining the forum in which a suit is to be tried amounts to a judgment. It appeared to him, therefore, that the order passed by him was a judgment and not simply an order in revision. The relevant provision of cl. 12 of the Letters Patent reads as under: - 12. And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment not being a 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 not being order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence of one Judge of the said High Court or one Judge of any Division Court and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, consistently with the provisions of the Civil Procedure Code, made 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 judgment declares that the case is a fit, one for appeal; but the right of appeal from other judgments of the Judges of the said High Court or of such Division Court shall be to us, Our Heirs or successors and be heard by Our Board of Judicial Advisers for report to us." The language of this provision in the Letters Patent, though extremely involved, a careful perusal thereof would show that no appeal lies from a judgment of one Judge of this Court, if it is an order made in the exercise of revisional jurisdiction. In our view, though the order passed by the learned Judge in Chambers is a judgment, nevertheless it does not cease to be an order in revision. It also appears to us that AIR 1942 Lah 95 FB A, is clearly distinguishable. The order of the Judge of the single Bench of the Lahore High Court from which a Letters Patent appeal under cl. 10 which corresponds to cl. 12 of the Letters Patent of this Court was taken to a Division Bench of that Court was passed in appeal and not in revision and so far as judgments of a single Judge "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 superintendance of this Court, whether these amount to decrees or orders, are concerned, they consistently with the provisions of the Civil Procedure Code, are clearly appealable under provisions of cl. 12 the Letters Patent of this Court, if the single Judge grants the requisite certificate. We are further fortified in our view by the observations made by a Division Bench of the Madras High Court in Tirupuliswamy Naidu, In re, AIR 1955 Mad 287 B, wherein it was held that where jurisdiction that was invoked fell under S. 115, C.P.C. or under Art. 227 of the Constitution it was revisional jurisdiction and no appeal lay under the Letters Patent against an order of the single Judge. In the course of the judgment it was observed: "Under the Letters Patent an appeal lies against a decision of the single Judge of this Court only if it is a judgment which was not tendered in exercise of revisional jurisdiction." Sukhendu Bikash v. Hare Krishna De, AIR 1953 Cal 636 C and Byomkes Seth v. Bhut Nath, AIR 1921 Cal 217 D may also be referred to in this connection. Under these circumstances we uphold the objection raised by the Advocate -General and hold that no appeal lies in this case.

(3.) THE appeal is dismissed. Let the parties bear their own costs.