MUNICIPAL CORPORATION OF BRIHANMUMBAI AND ANR.versusSTATE BANK OF INDIA

A     MUNICIPAL CORPORATION OF BRIHANMUMBAI AND ANR.
                             v.
                    STATE BANK OF INDIA

                               DECEMBER 2, 1998

B       [DR. A.S. ANAND, CJ., B.N. KIRPAL AND V.N. KHARE, JJ.]


         Bombay Municipal Corporation Act, 1888: Sections 217(1) and 2 J8D-
    Scope of

C       Code of Civil Procedure 1908: Section JOO-A (As introduced by
    Amendment Act 1976)-0bject and scope of

         . Letters Patent Appeal-Appeal against the decision of a single judge
    of High Court in second appeal-Permissibility of-Position before and after
    insertion of section JOO-A in Code of Civil Procedure.
D
          Appeal preferred by respondent before Additional Chief Judge of Small
    Causes Court under section 217 of the Bombay Municipal Corporation Act-
    Order passed in-Second appeal filed in High Court under section 218 D(J)
    by respondent-Second appeal partly allowed by a single Judge of the High
    Court-Letters Patent appeal filed by appellant against order of Single
E   Judge-Dismissed by High Court as non maintainable-Appeal preferred
    before this· Court-Held jurisdiction exercised by the Chief Judge of Small
    Causes Court under section 217(1) is appellate jurisdiction-The proceedings
    under section 217(1) are appellate proceedings in a second forum and not
    original proceedings in a first forum-The appeal filed by the respondent
F   under Section 218D of the Act was a second appeal against the appellate
    order made by the Additional Chief Judge, Small Causes Court-Since an
    appeal under Section 217(1) of the Act is a first appeal in a second forum!
    court and an appeal under Section 2 J8D of the Act is the second appeal in
    the third forum/court, no further appeal would be competent before the fourth
    forum/court in view of Section JOOA of the Code of Civil Procedure-The
G   view taken by the Division Bench of the High Court under the circumstances
    suffers from no error.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6060 of
    1998.
            From the Judgment and Order dated 13.1.98 of the Bombay High Court
H                                       288
           MUNICIPAL CORPN. OF BRIHANMUMBAI v. S.B.I.                      289
in L.P.A. No. 191of1997.                                                           A
      Bhimrao N. Naik, Pallav Sisodia, (D.N. Mishra,) for Manik Karanjawala
for the Appellants.

     Rafique Dada, Chirag Balsara, Jaideep Verma, R.N. Karanjawala, Mrs.
Nandini Gore, Ms. Yasmin Godrej and Mrs. Manik Karanjawala for the                 B
Respondent.

     The following Order of the Court was delivered :

     Leave granted.
                                                                                   c
      This appeal by special leave calls in question an order of the Division
Bench of the High Court of Bombay Dated 13th January, 1998 dismissing the
Letters patent Appeal on the ground that the same was not maintainable. A
brief reference to the facts, at this stage, would be apposite.

      The respondent herein had preferred an appeal before the Additional          D
Chief Judge of Small Causes Court under Section 217 of the Bombay Municipal
Corporation Act. The learned Additional Chief Judge of the Small Causes
Court decjded the appeal vide order dated 8th February, 1996.

      Aggrieved by the order passed by the learned Additional Chief Judge,         E
Small Causes Court dated 8th February, 1996, the respondent filed a second
appeal in the High Court under Section 218-D(J) of the Act. The learned
single Judge of the Bombay High Court on 31-1-1997 allowed that appeal
partly. The appellant questioned the order of the learned single Judge dated
3 Jst of January, 1997 through a Letters Patent Appeal. An objection was
raised before the Division Bench of the High Court regarding the maintainability   F
of the Letters Patent Appeal on the ground that against an order of dismissal
of the second appeal by the High Court, no further appeal could lie either
under Letters Patent or any other law. Reliance was also placed on Section
100-A of the Code of Civil Procedure. The objection found favour with the
learned Division Bench and without going into the merits of the order of the       G
learned single Judge, the Letters Patent Appeal was dismissed as not
maintainable.

      We have heard Mr. Bhimrao N. Naik, learned senior counsel appearing
for the appellants and Mrs. Refique Dada, learned senior counsel' appearing
for the respondent.                                                                H
    290                      SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A         The Bombay Municipal Corporation Act, 1888 is a complete Code and
    contains provision for filing appeal etc. against order made under the Act.
    Section 217(1) of the Act provides:

            "217( I) Subject to the provisions hereinafter contained, appeals against
            any rateable value or tax fixed or charged under this Act shall be
B           heard and determined by the Chief Judge of the Small Causes Court.

          A bare reading of Section 217(1) of the Bombay Municipal Corporation
    Act, 1888 shows that the jurisdiction exercised by the Chief Judge of the Small
    Causes Court is appellate jurisdiction.

c           Section 218 provides for the period when the cause of complaint can
    be said to have accrued for filing of an appeal under Section 217 of the Act.
    It is, therefore, futile to contend that the proceedings under Section 217(1) are
    "original proceedings" in the first forum. The proceedings are appellate
    proceedings in a second forum and not original proceedings in a first forum.
D
          Against the appellate order of the learned Chief Judge of the Small
    Causes Court, an appeal is provided to the High Court under Section 218 D.
    Section 218 D provides :

            "Section 218 D. (I) An appeal shall lie to the High Court
E
            (a)   from any decision of the Chief Judge of the Small Cause Court
                  in an appeal under Section 217 by which a rateable value in
                  excess of two thousand rupees is fixed, and

            (b)   from any other decision of the said Chief Judge in an appeal
F                 under the said section, upon a question of law or usage having
                  the force of law or the construction of a document.

            (2)   The provisions of the Code of Civil Procedure, 1908, with respect
                  to appeals from original decrees shall so far as, they can be made
                  applicable, apply to appeals under sub-section (I) and orders
G                 passed therein by the High Court may on application to the said
                  Chief Judge be executed by him as if they were decrees made
                  by himself.

                Provided that no such appeal shall be heard by the High Court
            unless it is filed within one month from the date of the decision of the
H           Chief Judge."
           MUNICIPAL CORPN. OF BRIHANMUMBAI v. S.B.I.                     291
       Thus, according to Section 218 D, an appeal shall also lie to the High A
Court from any decision of the Chief Judge of the Small Causes Court in an
appeal under Section 217, 'upon a question of law or usage having the force
of law or the construction of a document'. That the respondent had taken
recourse to Section 218 D( 1) in filing an appeal against the appellate order of
the learned Additional Chief Judge of the Small Causes Court is not in
dispute. The appellant has not questioned the maintainability of the appeal B
filed by the respondent under Section 218 D of the Act before the learned
single Judge of the High Court before us. Thus, it is obvious that the appeal
filed by the respondent under Section 218 D of the Act was a second appeal
against the appellate order made by the Addi. Chief Judge, Small Causes
Court. Under the Bombay Municipal Corporation Act, no further appeal has C
been provided against the judgment of a learned Single Judge of the High •
Court deciding the second appeal under Section 218 D of the Act against an
appellate order of the Chief Judge of the Small Causes Court passed under
Section 217(1) of the Act. Section lOOA of the Code of Civil Procedure, which
was introduced by the Amendment Act, 1976 specifically bars any further D
appeal in such cases. That Section reads :

        "100 A. No further appeal in certain cases. - Notwithstanding anything
        contained in any Letters Patent for any High Court or in any other
        instrument having the force of law or in any other law for the time
        being in force, where any appeal from an appellate decree or order is     E
        heard and decided by a single Judge of a High Court, no further
        appeal shall lie from the judgment, decision or order of such single
        Judge in such appeal or from any decree passed in such appeal."

      This section has been introduced to minimise the delay in the finality
of a decision. Prior to the enactment of the above provision, under the Letters   F
Patent, an appeal against the decision of a single Judge in a second appeal
was, in certain cases, held competent, though under Section I 00 of the Code
of Civil Procedure there was some inhibition against interference with the
findings of fact. The right of taking recourse to such an appeal has now been
taken away by Section 1OOA of the Code of Civil Procedure (supra). Since,
an appeal under Section 217(1) of the Act is ajirst appeal in a second forum/     G
court and an appeal under Section 2 l 8D of the Act is the second appeal in
the third forum/court, no further appeal would be competent before the fourth
forum/court in view of Section !OOA of Code of Civil Procedure (supra).

     In the instant case, since an appeal from the appellate order was heard
and decided by a learned single Judge of the High Court, no further appeal        H
    292                      SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.·

A was maintainable from the judgment and order of the learned single Judge
    passed in that appeal. The view taken by the Division Bench of the High
    Court under the circumstances suffers from no error. This appeal has no
    merits and it is dismissed as such. No costs.

          Learned counsel appearing for the appellants at this stage, submitted
B   that the appellants could challenge the order of the learned single Judge
    against which the Letters Patent has been held to be not maintainable directly
    under Article 136 of the Constitution. It shall be open to the appellants to take
    recourse to such other proceedings as may be available to them in law to
    challenge that order but we express no opinion on that question or on the
C   merits of the order of the learned single Judge, since in this appeal that order
    has not been put in issue.

    T.N.A.                                                       Appeal dismissed.