IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.705 of 2009 RAJIV MOUAR, S/O SRI BINOD KUMAR MOUAR, PROPRIETOR BAILEY ROAD SUPER SERVICE STATION, PATNA, RESIDENT OF MOUAR LANE P.S. SULTANGANJ, PATNA CITY TOWN AND DISTRICT PATNA .. PETITIONER Versus 1. APESTOLIC CARMEL, A SOCIETY OF SOUTH KANARA MANGLORE (INDIA) THROUGH THE PRINCIPAL, PATNA WOMEN‟S COLLEGE, BAILEY ROAD, P.O. G.P.O., P.S. KOTWALI, IN THE TOWN AND DISTRICT OF PATNA 2. PATNA WOMEN‟S COLLEGE, THROUGH IT‟S PRINCIPAL, BAILEY ROAD, P.O. G.P.O., P.S. KOTWALI, IN THE TOWN AND DISTRICT OF PATNA .. OPPOSITE 1ST PARTY 3. THE HINDUSTAN PETROLEUM CORPORATION LTD., GOVERNMENT OF INDIA UNDERTAKING REGISTERED UNDER THE INDIAN COMPANIES ACT HAVING IT‟S REGISTERED OFFICE AT LOK NAYAK BHAWAN, 6TH FLOOR, DAK BUNGLOW ROAD, PATNA, THROUGH IT‟S SENIOR REGIONAL MANAGER, THE CONSTITUTED ATTORNEY OF COMPANY .. OPPOSITE 2ND PARTY **** For the appellant .. Mr. Sukumar Sinha, Sr. Adv. With M/S Brajnandan Singh & Abinash Kumar, Advs. For opposite party no. 2 .. M/S Jashwir Singh Arora & Ajay Kumar, Advs. For opposite party no. 3 .. M/S Ranjit Sharan & Pankaj Maijorwar, Advs. **** /14/ 04.02.2011 This Miscellaneous Appeal is directed against the order, dated 29.06.2009, passed by the District Judge, Patna, 2 in Review Petition No. 118 of 2009 arising out of M.A. No. 22 of 2009, by which the order, dated 16.05.2009 passed in M.A. No. 22 of 2009 was set aside and the revision petition filed by third party was allowed. 2. The fact of the case in narrow compass is that the plaintiff-appellant file a Title Suit No. 309 of 2008 against the defendant-respondent second party with a prayer for direction to continue the supply of petrol as per the agreement to the retain outlet of the plaintiff and for a declaration that the plaintiff is authorized dealer of defendant respondent no. 2 and entitled to continue, as such, on the site, detailed in Schedule I, (part of plot no. 140, 141 and 144 with boundary specified) with a prayer that defendant opposite party no. 2 be restrained from creating any sort of disturbance in smooth running of the petrol business. 3. The case of the plaintiff is that the plaintiff is a dealer, appointed by the defendant Hindustan Petroleum Corporation Limited for a period of fifteen years by agreement, dated 14.10.2000, with option of extension for further period of five years and, hence, defendant is liable to allow this plaintiff to run it‟s petrol pump on existing site. Further case of that the Government of Bihar executed a 3 perpetual lease deed on 25.01.1946 in favour of Apostolic Carmel through Mother Mathew Dosic, the then Principal, Patna Women‟s College as a lessee, for a piece of land of 29.4 acres to establish a college and girls school at Patna with condition that lacy will not part with or transfer without permission. The Principal of the said college sought permission of the Chief Engineer, Public Works Department, Patna, for creation of a sub-lease in respect f the plot of the land measuring an area of 0.37 acres in favour of the predecessor in interest of defendant and constructed retail outlet of the petrol pump and in the beginning Surendra Naraian Sharma was dealer, the firm was known as Bailey Road Super Service Station is now proprietorship form and is proprietor firm. The plaintiff requested the college authority to extend the period of lease, but, the request was refused for which the plaintiff has filed a suit bearing Title Suit No. 508 of 2007 before the Sub Judge, IV, Patna, for declaration that the college authority (who are defendants 2 and 3 in said suit) are liable to extend the period of lease on the fact stated in the plaint. In the said suit Hindustan Petroleum Corporation Limited, the present defendant-respondent second party has filed written statement virtually admitting the claim of the 4 plaintiff, which is pending before the Sub Judge, IV, Patna, and status quo has been ordered to be maintained which is still continuing and it has been alleged by the plaintiff that the defendant has gone in collusion with defendants 2 and 3 of Title Suit No. 308 of 2007, i.e., the college authority, and taking step to stop the plaintiff from running petrol pump business and alleged that the company has absolutely no such right and the act of the Company is malafide. 4. However, in the said suit the plaintiff filed an application on 12.08.2008, under Order XXXIX Rules 1 and 2 read with Section 151 of the Civil Procedure Code praying therein to grant temporary injunction restraining the defendant from creating any sort of disturbance in smoothing running of the petrol pump business. 5. The plaint was admitted and summon was ordered to be issued, a show cause notice was issue in injunction matter with a direction maintaining the status quo in supplying the petrol. 6. However, on 04.05.2009 the Sub Judge rejected the injunction petition, dated 12.08.2009 as none appeared to press the injunction petition and vacated the order of status quo. 5 7. The said order, dated 04.05.2009, was delivered in M.A. No. 22 of 2009 before the District Judge, Patna. 8. The District Judge, Patna, by order, dated 16.09.2009, disposed of the said Miscellaneous Appeal at the admission stage itself without notice to the respondent as injunction petition was not disposed off on merits and allowed the appeal with a direction to the Sub Judge to dispose off the injunction petition, dated 12.08.2008 on merits within fifteen days and, further, ordered that order of status quo already granted by order, dated 14.08.2008, shall remain in force till the disposal of the injunction petition. 9. Against the said order of District Judge, dated 16.05.2009, a review petition was filed by the Apostolic Carmel, a society of Canara Mathew of India through Principal, Patna Women‟s College, on the ground that the order passed in the Miscellaneous Appeal was without notice to the other side and without applying the Provisions of Appeal and Evidence and without notice and after hearing the parties allowed the review petition, set aside the order, dated 16.05.2009, passed in M.A. No. 22 of 2009 and restored the Miscellaneous Appeal in it‟s original number and directed the 6 office to fix a date for hearing on the point of admission in the said Miscellaneous Appeal and ordered to inform the counsel about the date of hearing on the point of admission of the said M.A. No. 22 of 2009 on the ground that the said Miscellaneous Appeal was dismissed at the stage of admission as the said Miscellaneous Appeal was not disposed off in consonance with Order XLI Rules 11 and 12 of the Civil Procedure Code and, further, taken into consideration the fact that opposite party no. 1 has filed a Title Suit No. 508 of 2007 for the same cause of action and in the said suit applicant of this review petition were defendant no. 3 and in the said suit an ex parte injunction was obtained and again a Title Suit No. 309 of 2008 and held that there is settled principle of law and even a stranger may file an appeal or review and bring to the notice of the Court the error or illegality prevailing in the proceeding and, further, observed the Court can also suo moto rectify the error and taking into consideration the facts and circumstances held that the applicant can not be said to be stranger and rejected the plea that they have no right to file this review, hence, allowed the review petition. 10. Being aggrieved by this order of the District 7 Judge, dated 16.05.2009, i.e., the impugned order, initially a criminal revision petition was filed before Hon‟ble High Court which was later converted into Miscellaneous Appeal. The learned counsel for the appellant, however, contended that Apostolic Carmet and Patna Women‟s College through it‟s Principal are neither party to the suit nor party in the Appeal inMiscellaneous Appeal No. 22 of 2009 before the District Judge, who disposed off Miscellaneous Appeal on 16.05.2009 and, hence, the Apostolic Carmel and Patna Women‟s College through it‟s Principal are totally stranger and submitted that a stranger has no jurisdiction to file review petition and any order passed entertaining the review petition beyond jurisdiction has relied upon decision reported in A.I.R. 1978 Delhi, 122 (Bharat Singh Vrs. Firm Sheo Pershad Giani Ram & Ors.) at paragraph 31. 11. The learned counsel for the respondents, however, contended that the Miscellaneous Appeal is not maintainable as impugned order is an order passed in miscellaneous in appeal is not an appeasable order as Section 104(2) of the Civil Procedure Code bars second appeal and for which reliance has been placed upon A.I.R. 1994 Cal, 205 (Murari Kumar Saraf Vrs. Jagannath Shaw), A.I.R. 1975 8 Mad, 3 (C. Kalahasti Vrs. P.C. Munnuswami Chetti) and A.I.R. 1989 Bom, 68 (Krishna Yeshwant Shirodkar Vrs. Subhash Krishna Patil & Ors.). It has, further, been contended that impugned order has been passed correcting the mistake by remaining the earlier order which was illegal on two counts. The first contention is that the Court passed the order realizing his own mistake, order reviewing his own order on ground of self realizing the order is wrong, it amounts to pass the order under inherent jurisdiction under Section 151 of the Civil Procedure Code realizing the error committed and rectifying it‟s mistake and that once the learned Court come to know that he has done a mistake he becomes entitle to rectify his mistake and it has, further, been contended that a review can be made even on petition by a third party if the third party has got interest hence on the respective submissions of the parties since the plaintiff has raised an objection about the maintainability of the appeal. Second appeal is prohibited under Section 104(2) of the Civil Procedure Code and whereas the respondents have challenged the impugned order on ground and a stranger can not file a review and a review was not maintainable on a petition of stranger. However, having regard to the fact that on the 9 petition of respondents 1 and 2 the order passed on two counts that the District Judge withdrew the order of dismissal on grounds that he found the mistake inherent on the face of it and realized that a mistake has been committed in his inherent jurisdiction as the order was passed without hearing the other side and admitting the case and further the question for consideration whether the stranger can file a petition for review. 12. Hence on the respective submission of the parties the question for consideration whether this appeal is maintainable or barred under Section 104(2) of the Civil Procedure Code as the interim order passed in the review petition in a Miscellaneous Appeal is an order passed in Miscellaneous Appeal and secondly whether the District Judge can rectify his own mistake on the review petition filed by a stranger. 13. However, I proceed to consider 1st point and the facts which has the bearing on the point raised is that a suit was filed bearing Title Suit No. 309 of 2008 and in the said suit an injunction petition was filed which was rejected bearing M.A. No. 22 of 2009 and by order, dated 16.05.2009, allowed the appeal setting aside the order of the trial Court 10 passed in injunction petition with a direction to dispose of the injunction petition and against the said order a review petition was filed by stranger and said petition was allowed and against this order allowing the review petition the Miscellaneous Appeal has been preferred. 14. However, it is pertinent to mention that earlier a criminal revision was filed against the impugned order by which the District Judge, Patna, reviewed his own order. But, by order, dated 11.11.2009, the civil revision was converted into Miscellaneous Appeal under Order 43 Rule 11(w) of the Civil Procedure Code. 15. Hence, this Miscellaneous Appeal filed against the order allowing the review of the order passed in Miscellaneous Appeal No. 22 of 2009 preferred before the District Judge under Section 104 read with Order 43 Rule (1)(r) of the Civil Procedure Code against order refusing to grant injunction on petition under Order 39 Rules 1 and 2 of the Civil Procedure Code. The said Miscellaneous Appeal No. 22 of 2009 was allowed by order, dated 16.05.2009. In the said Miscellaneous Appeal a petition filed by a stranger, Apostolic Carmel and others for review of the order, dated 16.05.2009, passed in Miscellaneous Appeal No. 22 of 2009 11 and the said review petition allowed setting aside the order, dated 16.05.2009. Against the order passed in review this Miscellaneous Appeal No. 705 of 2009 preferred. The objection has been raised in view of Section 104(2) of the Civil Procedure Code that no second appeal is permitted against an order passed in a Miscellaneous Appeal as Section 104(2) of the Civil Procedure Code specially bars further appeal against an order passed on a review petition in Miscellaneous Appeal No. 22 of 2009 as is an order passed in appeal, but, filed under Section 104 of the Civil Procedure Code and for this proposition has relied upon a Bench decision reported in A.I.R. 1989 Bombay, 68 (supra). 16. However, the facts and circumstances of the case reported in A.I.R. 1989 Bombay, 68 (supra), the appellant filed a suit in the City Civil Court, Bombay, for injunction restraining the defendant from entering into suit premises and in the said suit an order was made for appointment of the receiver, against which an appeal was preferred under Order 43 Rule 1(3) of the Civil Procedure Code. By the appellate order the appointment of receiver passed by City Civil Court, Mumbai, was confirmed with a modification regarding who should be the agent of the 12 receiver against which an appeal was preferred and the objection raised that no appeal lies against an order passed in exercise of the jurisdiction of an appellate Court under Section 104 of the Code in view of the specific bar contained in Section 104(2) of the Civil Procedure Code. It was held that appeal against the appellate order is barred and while holding so the High Court of Mumbai considered the decision reported in A.I.R. 1964 Kerala, 23 (Chellappan s/o pathiramannel Krishnan & Anr. Vrs. K.P. Varughese & Anr.), A.I.R. 1941 Allahabad, 338 (Mt. Umatur Robab Vrs. Mahadeopd & Ors.) and A.I.R. 1975 Madras, 3 (supra) and it is relevant to quote paragraph 12 of the said judgment “Reference was made to the relevant provision of the Code and it was noticed that a court must pass order either in exercise of it‟s original jurisdiction or in exercise of it‟s appellate jurisdiction. If an appeal from an order is preferred to an appellate Court and during the course of the proceeding of that appeal from order and order is passed by the appellate Court the later order will necessarily be an order passed in appeal because it is an order passed in exercise of the appellate jurisdiction and if this is so then by virtue of the 13 provisions contained in sub section (2) of Section 104 of the Code, further, appeal from an order will be barred and hence the order, impugned, passed in exercise of the appellate jurisdiction then it shall deem to have been passed under Section 104(2) of the Civil Procedure Code.” 17. It is further observed that if the legislature wanted to restrict the ban imposed by Section 104(2) of the code, it can not be enlarged or reduced. 18. Further, reliance has been placed on A.I.R. 1994 Bombay, 20 (Shailesh Hari Lal Sah & Ors. Vrs. Matushree Textiles Ltd. & Ors.) and A.I.R. 1975 Madras, 3(supra). 19. In decision reported in A.I.R. 1975 Mad, 3 (supra) the plaintiff filed suit against the defendant seeking a relief of the injunction incidentally filed a petition under Order 39 Rule 1 of the Civil Procedure Code for order on temporary injunction and after hearing the petition was dismissed. A Miscellaneous Appeal was preferred for temporary injunction till the disposal of the appeal and the interim petition was allowed granting interim injunction. Against the order granting interim injunction in the Miscellaneous Appeal, second Miscellaneous Appeal was 14 preferred before the High Court and when the appeal was filed the office raises a query how the appeal was permissible as the order appealed against had itself been passed in an appeal and would, therefore, not filed within provisions of Order 43 Rule 1 of the Civil Procedure Code and the learned counsel for the appellant seems to have prevailed over the admission Judge on his contention that though the order appealed against was though passed by the appellate Court it was nevertheless an order passed under Order 39 Rules 1 and 2 of the Civil Procedure Code and, thus, as such, it was not be an order passed in appeal as contemplated under Section 104(2) of the Civil Procedure Code as the interim petition filed in the Miscellaneous Appeal was an independent petition pending the appeal, under the facts and circumstances it is relevant to quote paragraph 9 of the judgment A.I.R. 1975 Mad, 3 (supra) which is as follows : “9 : ….. Section 104, which is the relevant provision in the Code which makes provision for appeals from orders, provides inter alia that any order made under rules, from which an appeal is expressly allowed by rules, is appeal able. Order XLIII, Rule 1, Civil P.C. which enumerates the orders from which an appeal can be preferred 15 is referable to this provision in Section 104 and consequently, Order XLIII, Rule 1, Civil P.C. cannot confer greater rights than what is conferred by Section 104. As a matter of fact, Order XLIII, Rule 1, Civil P.C. itself reads as follows – “An appeal shall lie from the following orders under the provisions of Section 104”. (underlining mine). Inasmuch as reference is made to Section 104 in Order XLIII, Rule 1, Civil P.C. it necessarily follows that Section 104 has to be considered in its entire conspectus to decide the question whether an order referred to in Order XLIII, Rule 1 is an appeal able order when it has been passed by an appellate court. As Section 104(2) clearly lays down that no appeal would lie from any order passed in appeal, it necessarily follows that the fright of appeal given against the orders enumerate in Order XLIIII, Rule 1 will be subject to the stipulation contained in Section 104(2), Civil P.C. Moreover, Section 105 also makes it clear that unless otherwise expressly provided, no appeal shall lie from an order made by a Court in the exercise of its original or appellate jurisdiction. The use of the words „original or appellate jurisdiction‟ in Section 105 makes it abundantly clear that the court can only exercise either original or appellate jurisdiction, but, knot 16 exercise both at one and the same time. (Therefore, the contention of Mr. Shanmugham that even though the order in C.M. P. 49 of 1973 was passed by an appellate court, the order must nevertheless be construed to be one passed by the said court in the exercise of its original jurisdiction, cannot be countenanced, and it is clearly an untenable contention. It is only by virtue of the powers vested in it as an appellate court that the Additional City Civil Court passed the order in C.M.P. 49 of 1973 and consequently, the order will squarely fall within that class of orders which are contemplated in Section 104(2), Civil P.C. and which are expressly prohibited from being canvassed in further appeal. The fact that the order was passed in an interlocutory application will not make the order any the less an order passed in appeal. 20. In decision reported in A.I.R. 1964 Kerala, 23 (supra) the identical question arose held and come to the same conclusion and also held that the power given to the appellate Court under Section 107 of the Civil Procedure Code is only part of it‟s appellate jurisdiction and it can not be characterized as an original jurisdiction and, hence, hold the same view. 21. Further, in decision reported in A.I.R. 1939 17 Lahore, 65 (Lala Tara Chand Vrs. Firm Manku Lal Ram Chand) the same question arose in a Miscellaneous Appeal and preliminary objection was raised that the appeal does not lie for the reason being with the order under appeal was passed in an appeal filed under Section 104 read with Order 43 Rule 1 of the Civil Procedure Code and held that the objection must prevail. However, under the facts and circumstances of the case reported in Miscellaneous Appeal was preferred under Order 43 Rule 1(M) of the Civil Procedure Code and the Additional District Judge accepted the appeal set aside the decree passed on the alleged compromise under Order 41 Rule 23 of the Civil Procedure Code and remanded the case for the disposal on merits and the appeal was filed, again, the order under Order 43 Rule 1 of the Civil Procedure Code against the order on remand passed in appeal under Section 104 of the Civil Procedure Code and in that circumstance it was held that the appeal is barred under Section 104(2) of the Civil Procedure Code. 22. In decision reported in A.I.R. 1994 Cal, 205 (supra) the fact of the case that the plaintiff filed a petition for temporary injunction before the trial Court under Order 39 Rules 1 and 2 of the Civil Procedure Code in Title Suit No. 62 18 of 1990 and a Miscellaneous Appeal was preferred against the said order before the learned District Judge and in the said Miscellaneous Appeal a petition filed for an interim injunction which was refused by the District Judge and against the order passed by the learned District Judge an appeal was preferred. In the appeal the learned Advocate appearing for the opposite party raised an objection that order is appeal able order and no revision lie. However, taking into consideration Section 104 read with Order 43 Rule of the Civil Procedure Code also considering the provision of Section 107 of the Civil Procedure Code it has been held that no appeal shall lie from an order passed against an order passed in appeal in view of bar under section 104(2) of the Civil Procedure Code and it was held that for such situation civil revision under Section 115 of the Civil Procedure Code is attracted. 23. Hence, taking into consideration of the decisions, referred to above, and considering Section 104 of the Civil Procedure Code and the express direction contained in sub section (2) of Section 104 of the Civil Procedure Code that no appeal shall lie from an order passed in appeal under this Section was prima facie mean that order passed in appeal 19 can not be subjected to further appeal and there may have reason to check the litigation and there must be an end to an issue arose and the person aggrieved may raise the issue finally at the time of final disposal. However, this is the legal position then this Court as a Miscellaneous Appeal has no jurisdiction to entertain and embark on the merit of the appeal. 24. However, reverting back to the facts and circumstances of the present case at hand, Miscellaneous Appeal No. 22 of 2009 was preferred by the appellant against the order of refusal to grant injunction in T.S. No. 309 of 2008. The impugned order passed in said M.A. No. 22 of 2009 is an order passed in appeal under Order 43 Rule 1 read with Section 104 of the Civil Procedure Code further appeal against the order passed in Miscellaneous Appeal is barred under Section 104(2) of the Civil Procedure Code. Hence, having regard to the facts and circumstances, this Miscellaneous Appeal is