P.S. SA THAPPAN (DEAD) BY LRS v. ANDHRA BANK LTD. AND ORS.

It was also sought to be· argued that if such be the interpretation of G Section 104 CPC, it may create an anomalous situation and may result in discrimination in as much as an appeal under the Letters Patent will be available against an order passed by the High Court on its original side, whereas such an appeal will not be available in a case where the order is .... passed by the High Court in its appellate jurisdiction. A similar argument was H

270 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A urged before this Court in South Asia Industries (P) Ltd. (supra) but the same was repelled in the following words:-

"The arguments that a combined reading of els. I 0 and I I of the Letters Patent leads to the conclusion that even the first part of cl. I 0 deals only with appeals from Courts subordinate to the High Court B has no force. As we have pointed out earlier, cl. I I contemplates conferment of appellate jurisdiction on the High Court by an appropriate Legislature against orders of a Tribunal. Far from detracting from the generality of the words "judgment by one Judge of the said High Court", cl. I I indicates that the said judgment takes in one passed by a single Judge in an appeal against the order of a c Tribunal. It is said, with some force, that if this construction be accepted there will be an anomaly, namely that in a case where a single Judge of the High Court passed a judgment in exercise of his appellate jurisdiction in respect of a decree made by a Court subordinate to the High Court, a further appeal to that Court will not lie unless the said Judge declares that the case is a fit one for appeal, whereas, if in exercise of his second appellate jurisdiction, he passed a judgment in an appeal against the mder of a Tribunal, no such declaration is necessary for taking the mattef on further appeal to the said High Court. If the express intention of the Legislature is clear, it is not pem1issible to speculate on the possible reasons that actuated the Legislature to make a distinction between the two classes of cases. It may, for ought we know, the Legislature thought fit to impose a limitation in a case where 3 Courts gave a decision, whereas it did not think fit to impose a limitation in a case where only one Court gave a decision". F We find ourselves in respectful agreement with the reasoning of this Court in the aforesaid decision. The same reasoning would apply in respect of the submission that if it is held that Section I04(2) did not b~r a Letters Patent Appeal an anomalous situation would arise. in as much as ifthe matter were to come to the High Court a further Appeal would be permitted but if G it went to the District Court a further Appeal would not lie .. An Appeal is a creature of a Statute. If a Statute permits an Appeal, it will lie. If a Statute does not permit an Appeal, it will not lie. Thus for example in cases under the Land Acquisition Act, Guardian and Wards Act and the Succession Act a further Appeal is permitted whilst under the Arbitration Act a further Appeal H is barred. Thus different statutes have differing provisions in respect of

P.S. SATHAPPAN v: ANDHRA BANK LTD. [S.N. VARIAVA, J.] 271

Appeals. There is nothing anomalous in that. A District Court cannot be A compared to a High Court which has special powers by virtue of Letters Patent. The District Court does not get a right to entertain a further Appeal as it does not have "any law for the time being in force" which permits such an Appeal. In any event we find no provisions which permit a larger Bench of the District Court to sit in Appeal against an order passed by a smaller B Bench of that Court. Yet in the High Court even, under Section I 04 read with Order 43 Rule 1 C.P.C., a larger Bench can sit in Appeal against an order of a Single Judge. Section I 04 itself contemplates different rights of Appeals. Appeals saved by Section 104( 1) can be filed. Those not saved will be barred by Section 104(2). We see nothing anomalous in such a situation. Consequently the plea of discrimination urged before us must be rejected. c Under these circumstances, the Order of the High Court cannot be sustained. It is hereby set aside. The appeals are accordingly allowed with no order as to costs. The matters are remitted back to the High Court for decision on merits.

ORDER

In view of the Majority judgment, the order of the High Court is set aside and these appeals are allowed with no order as to costs. The matters are remitted back to High Court for decision on merits.

G.N. Appeals allowed.