Hon'ble Arvind Kumar Tripathi (II),J.
These two Appeals arise out of a common judgment rendered by the learned single Judge in First Appeal No.186 of 2013 and First Appeal No.187 of 2013 that arose out of orders passed for grant of letters of administration under the provisions of Indian Succession Act, 1925.
The learned District Judge, Lucknow, granted letters of administration in favour of the appellant in relation to the estate of Late Smt. Maiki and others. Two sets of persons namely Chhote Lal on the one hand and Master and Jangali on the other filed applications for setting aside and revoking the letters of administration dated 6.1.1997.
The learned District Judge allowed the said applications and revoked the letters of administration vide order dated 16.11.2013.
The learned single Judge, before whom the two first appeals were filed before this Court, after having noticed the arguments, particularly in relation to the powers of revocation under Section 263 of the Indian Succession Act, 1925, assessed the rival contentions and came to the conclusion that the order of the learned District Judge did not require any interference and the appeals were, accordingly, dismissed. It is this judgment dated 19.9.2014 rendered by the learned single Judge of this Court which is under challenge in the present Special Appeals under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952.
The Stamp Reporter vide his report dated 28.11.2014 has submitted a report that the Special Appeals against the judgment arising out of such proceedings are not maintainable.
Sri A.P. Singh, learned Counsel for the appellants, submits that the aforesaid report of the Stamp Reporter is erroneous and he has relied on two decisions to advance his submissions. The first decision is in the case of Smt. Asha Devi Vs. Dukhi Sao and another, AIR 1974 SC 2048. The second decision is in the case of Gaudia Mission Vs. Shobha Bose and another, AIR 2008 SC 1012. On the strength of these decisions, Sri Singh submits that the Apex Court has held that a Letters Patent Appeal or a Special Appeal against the judgment of a learned single Judge of the High Court would be maintainable and in the instant case would amenable to the jurisdiction of Special Appeals under Chapter VIII Rule 5 of the Allahabad High Court Rules.
He submits that in both the above noted decisions, the matter was remitted back to the Division Bench of the High Court to decide the case on merits. Sri Singh submits by placing reliance on the said judgments that a regular appeal is maintainable in such proceedings keeping in view the provisions of Section 384 of the Indian Succession Act, 1925.
Opposing the said arguments, learned Counsel for the respondents Sri Gaur has invited the attention of the Court to the provisions of Chapter VIII Rule 5 and has heavily relied upon on the Full Bench decision of this Court in the case of Sheet Gupta Vs. State of U.P. And others, 2010 (28) LCD 1045, to contend that a Special Appeal against the judgment of a learned single Judge in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court is clearly barred.
Chapter VIII Rule 5 is extracted herein below for ready reference:-
"5. Special appeal.-- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of Appellate Jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction [or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of Appellate or Revisional Jurisdiction under any such Act] of one Judge.]"
A perusal thereof would clearly indicate that the exact bar as spelled out therein as involved herein, was not the subject matter of consideration in any of the decisions of the Apex Court which have been relied upon by the learned Counsel for the appellant. There was no issue framed in relation to the maintainability of a Special Appeal under Chapter VIII Rule 5 and both judgments have proceeded on a presumption and undisputed position before the Court as if a Special Appeal was maintainable against any judgment of a learned single Judge.
Secondly, it is to be noted that a Special Appeal is provided against the judgment of a learned single Judge of this Court if a judgment is rendered in the exercise of original jurisdiction by the High Court and not in an appellate jurisdiction. An order passed in testamentary proceedings in the original jurisdiction of the High Court is appealable under Chapter VIII Rule 5 but an order passed in appeal regularly instituted before the High Court against the order of a District Judge would not be further appealable in view of the bar contained under Chapter VIII Rule 5 of the Court.
This position has been clearly explained in the Full Bench judgment and paragraph No.14 thereof is extracted hereunder which is clearly binding on us:-
"14. Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:
1.The judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of the Court;
2.the order made by one Judge in the exercise of revisional jurisdiction;
3.the order made by one Judge in the exercise of the power of Superintendence of the High Court;
4.the order made by one Judge in the exercise of criminal jurisdiction;
5.the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by
(i) the tribunal,
(ii) Court or
(iii) statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;
6.the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of
(i) the Government or
(ii) any officer or
(iii) authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India."
It is true that the judgments, which have been relied upon by Sri Singh for the appellants, have not been referred to in the Full Bench judgment in the case of Sheet Gupta (supra) but in our opinion the issue of maintainability of a Special Appeal was not involved either in the case of Asha Devi (supra) or Gaudia Mission (supra) which may have any impact on the Full Bench judgment in the case of Sheet Gupta (supra). Thus, even if the same have not been noticed in the Full Bench decision referred to herein above, it is of no consequence, inasmuch as, as noted above, the issues in both matters were different.
To clarify it may be stated that the judgments of the Apex Court that have been relied upon by the learned Counsel for the appellants involved the issue of the scope of appellate powers as to whether the same powers are available when a concurrent jurisdiction is being exercise keeping in view the provisions of Section 96 and Section 100 of the Civil Procedure Code. The question was as to whether in a letters patent appeal or a Special Appeal, the powers of the Court are limited only to substantial questions of law or the powers are co-extensive as that of the subordinate court that had decided the matter. It is in this context that the aforesaid two decisions were rendered and they proceeded on the assumption of maintainability, and also contention of the parties that there was no dispute relating to the maintainability of a Special Appeal. The said decisions, therefore, in our opinion, do not come to the aid of the appellants for maintaining the present Special Appeal.
We are, therefore, of the clear view that the present Special Appeal is barred in view of the Full Bench decision in the case of Sheet Gupta (supra), and the report of the Stamp Reporter has to be upheld.
Both the Special Appeals are dismissed as being not maintainable.
Order Date :- 3.12.2014 Irshad