BERI, C.J. - (1.) THIS is an appeal under sec. 18 of the Rajasthan High Court Ordinance directed against the Judgment of a learned Single Judge dated 3-7-1973.
(2.) THE material facts which need to be recalled are these : Landlords instituted a suit for ejectment and recovery of rent on the ground of non-payment of rent for six months against the tenants of a property situate on Kacheri Road, Ajmer. An application was moved by one of the tenants under sec. 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act (hereinafter called "the Act") for the deposit of the arrears of rent. Arguments on the application were heard on May 24, 1968 and the trial Court directed the tenants to deposit arrears of rent together with interest by July 10, 1968 and the future rent by the 15th of every month. Time was extended upto 22-7-1968. An application was presented by the landlords on 7-3-1970 praying that the defence of the defendants be struck off under sec. 13(6) of the Act on the ground that none of the defendants had paid rent on the first date of hearing in accordance with the provisions of sec. 13(4) of the Act. THE trial Court accepted the application and ordered that the defence of defendant No. 1 against eviction be struck off and it further ordered that since the defendant No. 2 did not appear he would be deemed to be ex parte. THE trial Court thereafter decreed the plaintiff's suit for eviction and arrears of rent. An appeal was taken before the learned District Judge, who by his judgment dated January 15, 1972 allowed the appeal, set aside the judgment and decree passed by the trial Court and the order of striking off the defence of one of the defendants and remanded the case to the trial Court for deciding the suit afresh after taking the defendants' evidence. Against that judgment of the learned District Judge, Ajmer, an appeal bearing No.S.B. Civil Miscellaneous Appeal No. 90/72 was brought to this Court and the learned single Judge by his judgment dated July 3, 1973 allowed the appeal, set aside the order of the learned District Judge and remanded the appeal to the District Judge for fresh decision of the appeal in accordance with law. A preliminary objection has been raised by the learned counsel for the respondents (landlords) at the time of the admission of this appeal to the effect that the appeal is not competent in view of the language of sec. 18 of the Rajasthan High Court Ordinance. Mr. Jain, learned counsel for the appellant (tenant) submits that such an appeal is competent and he has placed reliance on Chittaranjan Mondal vs. Sankar Prosad Sahani (l), Union of India vs. Ainkumar Kaluram (2) and Anamik Pedda Narasanna vs. Anamik Guda Dakanna (3) and urged that in view of the fact that the appeal before the learned single Judge was against an order of remand sub-sec. 2 of sec. 18 of the Rajasthan High Court Ordinance does not apply. Let us read sec. 18 of the Rajasthan High Court Ordinance, - "18. Appeal to the High Court from Judges of the Court - (1) An appeal shall He to the High Court, 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 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 power of superin-tendeace under sec 43 or in the exercise of criminal jurisdiction) of one Judge of the High Court. (2) Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a Judgment of one Judge of the High Court 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 High Court where the Judge who passed the Judgment declares that the case is a fit one for appeal." No certificate of fitness having been granted under sec. 18(2) all that we are called upon to consider is: Whether the judgment under appeal was passed by the learned single Judge in exercise of an appellate jurisdiction in respect of a decree or order made in exercise of the appellate jurisdiction by a court subject to the superintendence of the High Court, not withstanding the fact that the appellate court merely remanded the case and set aside the decree passed by the lower Court. Our answer to the question is in the affirmative. There are clear authorities to support our view. While considering the language of Clause 10 of the Letters Patent Allahabad the Division Bench of the Allahabad High Court in Mst. Rafisul Nissa vs. Haji Mohammad Ishaq (4) observed that even if the order under appeal is a judgment passed by the Judge of the High Court in respect of an order passed by the Civil Judge under O.41 in exercise of his appellate jurisdiction, an appeal from the judgment is barred without leave. In another case, Vadapalli Krishnama-charyulu vs. Sidda Verraraju (5), the Division Bench of Andhra Pradesh High Court while interpreting Letters Patent (Madras) Clause 15 expressed the view that an appeal against an order of remand passed by the lower appellate court in exercise of its appellate jurisdiction is second appeal though described as civil m scellaneous appeal. A Letters Patent Appeal against judgment of a single Judge allowing such appeal cannot be entertained without the leave of the Judge who gave the judgment. Interpreting Clause 10 of the Madhya Pradesh Letters Patent, a Division Bench of the Madhya Pradesh High Court in Harbanssingh vs. The Trust Committee Shri Gurusingh Sabha Gurudwara Trust Marhatal (6) held that a Letters Patent Appeal against an order of a single Judge dismissing an appeal against an order of the District Judge refusing to record a compromise under O. 23, r. 3. Civil Procedure Code, on an application filed before him in a pending appeal is not competent unless leave of the single Judge had been obtained as required under Clause 10. Mr. Jain cited Chittaranjan's case (1). Here in an appeal against a decree for ejectment an application was made by the tenant for an injunction restraining the landlord from executing the decree and such application was dismissed by a single Judge of the High Court hearing the appeal the order of single Judge was held to be a 'judgment' within the meaning of Cl. 15 of the Letters Patent against which a letters patent appeal lay. The case is clearly distinguishable from the facts before us. In Kaniz Fatima vs. Khushia (7) the Division Bench was called upon to construe the meaning of the word 'judgment'. In this case the plaintiffs brought a suit for an adjudication that they were the owners of the land and that a certain will was a forged and take document and was, therefore, void against the plaintiffs. Certain proceedings took place in the revenue courts and the plaintiff eventually brought the suit. A preliminary objection was taken by the defendants in their written statement that the suit was barred under the provisions of the Land Revenue Act and the Big Landed Estates Abolition Act. A preliminary issue was framed. The learned Judge ultimately decided the matter holding that he had jurisdiction to try this case. An appeal was preferred against that judgment to the High Court. The learned single Judge held that the suit was maintainable. The question was whether it was a judgment or not. That was obviously a first appeal and not an appeal against the appellate jurisdiction exercised by a court subject to the superintendence of the High Court. The case does not help us, as its facts are clearly different. The next case relied upon by the learned counsel is Tapesar Raut vs. Ram Jatan (8). In this case a learned Single Judge had remanded the case to the lower appellate Court and it was urged that the order of remand was not a judgment within the meaning of them 'judgment" employed in clause 10 of the Letters Patent. In view of the fact that the learned Single Judge had set aside the decision of the lower appellate Court the Court held that it was a judgment and Letter Patent Appeal was maintainable. This case is clearly of a different a texture. In the case before us the learned Single Judge in exercise of his appellate jurisdiction has set aside the appellate decree of the District Judge who is subject to the superintendence of this High Court. It is a case clearly covered by sec. 18(2) of the Ordinance.
(3.) NARASANNA's case (3) does not support Mr. Jain. It was a case for recovery of certain lands. Second appeal was preferred by the plaintiff. The defendant-respondents made an application praying for an interim injunction that the appellants be restrained from obstructing them from cultivating lands pending second appeal. The learned Single Judge refused interim injunction. The question which arose for consideration was whether this was a judgment under cl. 15 of the Madras Letters Patent. The learned Judges held that it was not and no letters patent appeal was permissible without leave. We are in respectful agreement with the Andhra Pradesh, Allahabad and Madhya Pradesh views as they are plainly supported by the language of sec. 18 of the Rajasthan High Court Ordinance. The words which are important are "in exercise of his appellate jurisdiction" The remand order passed by the learned District Judge, Ajmer, was passed in exercise of his appellate jurisdiction and, therefore, notwithstanding the fact that the learned District Judge ordered the remand of a case an appeal against his order before a learned single Judge of this Court is an appeal covered by sec. 18(2) of the Rajasthan High Court Ordinance and unless the learned single Judge himself declares the case to be a fit one no appeal is competent. We uphold the preliminary objection that this appeal is not maintainable. It is accordingly dismissed. There will be no orders as to costs. ;