Division Bench found the Letters Patent Appeal not maintainable under Clause 10 of Letters Patent. Dismissed appeal for non-prosecution, clarifying merits remained open.
Appeal dismissed for non-maintainability.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1446 of 2018
In
CIVIL REVIEW No.283 of 2018
======================================================
... ... Appellant/s
Versus
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Narayan Singh, Sr. Advocate For the Respondent/s : Mr. ======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
6 03-12-2019 Heard learned counsel for the parties.
The appellants have prayed for the following relief:
“It is, therefore, prayed that your Lordships will be graciously be pleased to admit this Appeal, issue Notices to the Respondents and after hearing the parties be further pleased to allow this Appeal and set aside the order dated 19.09.2018 passed in Civil Review No. 283 of 2018.”
We noticed that the impugned order was passed by the
Patna High Court L.P.A No.1446 of 2018(6) dt.03-12-2019 2/4
learned Single Judge in Civil Review No. 283 of 2019 arising out of Second Appeal No. 73 of 1986 against which no appeal is maintainable.
On 15th May, 2019, this Court in the present appeal has already expressed its opinion with regard to the maintainability of the present appeal under Clause 10 of the Letters Patent. Thereafter, since none appeared, matter was adjourned only to obtain report of the Registry with regard to the listing of the appeal before the Court. The Registry has given its report of non-maintainability of the appeal. Subsequently, when the matter came up for hearing on 20th June, 2019, since none had appeared on behalf of the appellants, appeal was dismissed for non-prosecution, though, it stood reiterated that the appeal was not maintainable.
Having heard Shri Narayan Singh, Sr. Advocate, we recall that part of the order dated 20th June, 2019, whereby the appeal was dismissed for non-prosecution. But, however, on the issue with regard to maintainability of the appeal, we are afraid, in view of the law laid down by the Apex Court in Shah Babulal Khimji Versus Yayaben D. Kania and another: AIR,
1981 Supreme Court, 1786 and most specifically in para-120 which is reproduced as under:-
Patna High Court L.P.A No.1446 of 2018(6) dt.03-12-2019 3/4
“Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the Trial Judge amounts to a judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments:
(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant
(2) An order rejecting the plaint.
(3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure.
(4) An order rescinding leave of the Trial Judge granted by him under clause 12 of the Letters Patent.
(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under S. 80, bar against competency of the suit against the defendant even though the suit is kept alive.
(6) An order rejecting an application for a judgment on admission under order 12 Rule 6.
Patna High Court L.P.A No.1446 of 2018(6) dt.03-12-2019
4/4
(8) An order varying or amending a decree.
(9) An order refusing leave to sue in forma pauperis.
(10) An order granting review.
(11) An order allowing withdrawal of the suit with liberty to file a fresh one.
(12) An order holding that the defendants are not agriculturists within the meaning of the special law.
(13) An order staying or refusing to stay a suit under s. 10 of the Code of Civil Procedure.
(14) An order granting or refusing to stay execution of the decree.
(15) An order deciding payment of court fees against the plaintiff.”
The present appeal in its form not being maintainable,
is dismissed.
We clarify that we have not adjudicated the issue on merits and as such, it shall be open for the appellants to take steps, assailing the impugned order in accordance with law.
(Sanjay Karol, CJ)
( Anil Kumar Upadhyay, J)
spandey/- U
3 issues framed by the court
Whether the appeal filed under Clause 10 of the Letters Patent is maintainable.
Whether an order dismissing an appeal for non-prosecution adjudicates merits when not maintainable.
Whether the appellants can challenge the impugned order on merits in future.
Colour shows how this judgement treated each authority
Shah Babulal Khimji Versus Yayaben D. Kania and anotherReferred¶32
Shah Babulal Khimji Versus Yayaben D. Kania and another: AIR 1981 Supreme Court 1786 · Who else cites this
Mahanth Sudama Das Chele
Sri Ram Janki Math
Krishna Chandra Prasad Gupta
Bihar State Religious Trust Board
Sanjay Karol
Anil Kumar Upadhyay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
