- (1.) THIS is a Letters Patent Appeal against an order of a learned Single Judge of this court dismissing a miscellaneous first appeal. The question is whether this Letters patent Appeal is competent under Clause 10 of the Letters Patent of this Court. The relevant facts are not in dispute. The respondent Trust Committee filed a suit for the ejectment of a tenant. That suit was decreed. The defendant filed an appeal before the Additional District Judge, Jabalpur. During the pendency of the appeal the defendant-appellant filed an application under Order 23, Rule 3 of the code of Civil Procedure for recording a compromise. This was dismissed by the additional District Judge. An appeal against that order refusing to record the compromise was filed in this Court. The appeal was allowed and the case was remanded for reconsideration. The Additional District Judge again refused to record the compromise. Again a miscellaneous appeal was filed in this court This appeal was dismissed by the learned Single Judge on 15th September 1970. Against this order of the learned Single Judge the present Letters Patent Appeal is sought to be filed without obtaining the leave of the learned Single Judge.
(2.) CLAUSE 10 of the Letters Patent of this Court is as follows:-- "10. Appeal to the High Court from judges of the Court.--And we do further ordain that an appeal shall lie to the said High Court of judicature at Nagpur 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 the appellate jurisdiction by a court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the powers of superintendence under the provisions of section one hundred and seven of the government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section one hundred and eight of the Government of India act, 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, pursuant to section one hundred and eight of the Government of India Act, made in the exercise of appellate jurisdiction in respect of 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 that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, our Heirs and Successors in Our or their Privy Council, as hereinafter provided," The point for consideration, therefore, is whether the order passed by the additional District Judge was in the exercise of appellate jurisdiction in which case the order passed by the learned Single Judge was against an order of the lower court which was itself passed in the exercise of appellate jurisdiction. In such a case a Letters Patent Appeal has been prohibited by the words in brackets in clause 10 of the Letters Patent reproduced above. The contention of learned counsel for the appellant was that the Additional District judge, when he passed the order refusing to record the compromise, was exercising original jurisdiction in hearing the application under Order 23, Rule 3 of the Code of Civil Procedure and was not exercising an appellate jurisdiction and that consequently the appeal from the order which was filed in this Court was a first appeal and the learned Single Judge was not exercising second appellate jurisdiction.
(3.) WE are unable to agree with this contention of learned counsel for the appellant. When the Additional District Judge was asked by an application to record a compromise in the appeal, his appellate jurisdiction was invoked and it was in Ms appellate jurisdiction that he would have entertained this application ha respect of the appeal which was pending before him. It is not possible to say that this application was made invoking the exercise of his original jurisdiction. Although under the Code of Civil Procedure an appeal against this order before the learned Single Judge was described as a first appeal from the order or a miscellaneous appeal from the order, yet the jurisdiction of this Court was being invoked and exercised in respect of an order which was itself passed in the exercise of appellate jurisdiction by the Additional District Judge. Consequently, a letters Patent Appeal was not competent unless permission of the learned Single judge was obtained. Admittedly, no such permission was obtained in. this case.;