# ASHO DEVI v. DUKHI SAO & ANR

- **Citation:** [1975] 1 S.C.R. 611
- **Court:** Supreme Court of India
- **Decided:** 1974-08-08
- **Case number:** Civil Appeal No. 1758 of 1967
- **Bench:** P. }Aganmohan Reddy, M. H. Beg, A. Alagiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/asho-devi-v-dukhi-sao-anr-6205
- **Pages:** 4

## Headnote

Letters Patent of the Patna High Court, Clause 10-Appeal under-Froni
Judg1nent of single Judge of the High Court in first appeal-Restrictions imposed
by S. 100, Code of Ci11if Procedure, 1908, whether applicable-Held, appeal lies on
both questions of fact and of law.
The plaintiff/appellant filed a money suit against the defendant for recovery of
Rs. 7 865 ·70 due from him on account of sale of grains and Rs. 1,512 ·90 as interest.
The defendant admitted the purchase of grain but denied stipulation of interest
contending that he had borrowed Rs. 6,000/- from the plaintiff for the marriage of
the grand-daughters at the rate of 12 annas per ~undred per month. The trial Co~rt,
after considering the evidence, decreed 'the suit. In a first appeal to the High
Court the single Judge allowed it and reversed the judgment and decree of the
trial ~ourt. Against this judgment of the single Judge the plaintiff preferred a
Letters Patent Appeal. The question, whether a Bench of the High Court in an
appeal from the judgment ~f a single Judge of that ~ourt in ~ first ~ppeal could
consider all matters which a stngle Judge could have decided and is not hm1ted by the
restrictions imposed bys. 100 of the Code of Civil Procedure, was referred to a Full
Bench. By majority, the Full Bench held that the findings of fact by the Single Judge
are binding on them and they cannot go into those questions in a Letters Patent
Appeal.
On appeal by certificate, this Court set aside the judgment of the full Bench
of the High Court and
HELD: (i) The lin1itations on the power of the Court imposed by Ss. 100 and
101 of the Code of Civil Procedure cannot be made applicable to an Appellate Court
hearing a Letters Patent Appeal from the judgment of a single Judge of that High
Court in a first appeal from the judgment and decree of the Court subordinate to the
High Court, for the simple reason that a single Judge of the High Court, is not a
Court subordinate to the High Court. In view of the decision of this Court in
Alapati Kasi Viswanathan v. A. Sivara1na Krishnayya and others and the consistent view held by almost all the High Courts on the question under consideration,
this appeal must succeed.[613 C, G; 614 BJ
A/apati Kasi Viswanathan v. A. Sivara111a Krishnayya and Ors. C. A, No.
232
of 1961 decided on January II, 1963 followed.
Ladhi Prasad Jaiswal v. Karna! Distillery Co. Ltd. and others [1964J 1 S.C.R. 270,
applied .
Umrao Chand v. Bindraban Chand I.L.R. 17, AIL 475 ; Mulpura Venkatara1nayyQ
v. Devabhaktuni Kesavanarayana A.I.R. 1963 A. P. 447 at p, 448 (F.B.) ; M/s.
Baldeo J?as Ram Narayana v. Smt. Maino Bibi and another 76 (C.W.N.) 996, at p.
1002; N1lkanth Mahaton and others v. Munshi Singh and others A.LR. 1965 Pat.
141 ; Maimoon Bivi and another v. 0. A. Khajee Mohindeen and another A.I.R. 1970
Mad. 200 at p. 203 ; Velji Bhimsey & Co. v. Bachoo,Bhaidas I.LR. 48 Born. 691 at p.
696; Pt .. Devi Charan.v. Durga Pershad & Ors. A.LR. 1967 Delhi 128 at p. 130 ; and
Bawa Singh v. Jagdtsh Chand and others A.LR. 1960 Punjab 573 at pp. 574-575
approved .
Ramsarup Singh v. Muneshwar Singh and others A.LR. 1964 Pat. 74 overruled.
Jugal Kishore Bhandani v. Union of India (1965) Bihar
L.~.R. 24, referred to.

## Text

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ASHO DEVI
v.
DUKHI SAO & ANR.
August 8, 1974
611
[P. }AGANMOHAN REDDY, M. H. BEG AND A. ALAGIRISWAMI, JJ.J
Letters Patent of the Patna High Court, Clause 10-Appeal under-Froni
Judg1nent of single Judge of the High Court in first appeal-Restrictions imposed
by S. 100, Code of Ci11if Procedure, 1908, whether applicable-Held, appeal lies on
both questions of fact and of law.
The plaintiff/appellant filed a money suit against the defendant for recovery of
Rs. 7 865 ·70 due from him on account of sale of grains and Rs. 1,512 ·90 as interest.
The defendant admitted the purchase of grain but denied stipulation of interest
contending that he had borrowed Rs. 6,000/- from the plaintiff for the marriage of
the grand-daughters at the rate of 12 annas per ~undred per month. The trial Co~rt,
after considering the evidence, decreed 'the suit. In a first appeal to the High
Court the single Judge allowed it and reversed the judgment and decree of the
trial ~ourt. Against this judgment of the single Judge the plaintiff preferred a
Letters Patent Appeal. The question, whether a Bench of the High Court in an
appeal from the judgment ~f a single Judge of that ~ourt in ~ first ~ppeal could
consider all matters which a stngle Judge could have decided and is not hm1ted by the
restrictions imposed bys. 100 of the Code of Civil Procedure, was referred to a Full
Bench. By majority, the Full Bench held that the findings of fact by the Single Judge
are binding on them and they cannot go into those questions in a Letters Patent
Appeal.
On appeal by certificate, this Court set aside the judgment of the full Bench
of the High Court and
HELD: (i) The lin1itations on the power of the Court imposed by Ss. 100 and
101 of the Code of Civil Procedure cannot be made applicable to an Appellate Court
hearing a Letters Patent Appeal from the judgment of a single Judge of that High
Court in a first appeal from the judgment and decree of the Court subordinate to the
High Court, for the simple reason that a single Judge of the High Court, is not a
Court subordinate to the High Court. In view of the decision of this Court in
Alapati Kasi Viswanathan v. A. Sivara1na Krishnayya and others and the consistent view held by almost all the High Courts on the question under consideration,
this appeal must succeed.[613 C, G; 614 BJ
A/apati Kasi Viswanathan v. A. Sivara111a Krishnayya and Ors. C. A, No.
232
of 1961 decided on January II, 1963 followed.
Ladhi Prasad Jaiswal v. Karna! Distillery Co. Ltd. and others [1964J 1 S.C.R. 270,
applied .
Umrao Chand v. Bindraban Chand I.L.R. 17, AIL 475 ; Mulpura Venkatara1nayyQ
v. Devabhaktuni Kesavanarayana A.I.R. 1963 A. P. 447 at p, 448 (F.B.) ; M/s.
Baldeo J?as Ram Narayana v. Smt. Maino Bibi and another 76 (C.W.N.) 996, at p.
1002; N1lkanth Mahaton and others v. Munshi Singh and others A.LR. 1965 Pat.
141 ; Maimoon Bivi and another v. 0. A. Khajee Mohindeen and another A.I.R. 1970
Mad. 200 at p. 203 ; Velji Bhimsey & Co. v. Bachoo,Bhaidas I.LR. 48 Born. 691 at p.
696; Pt .. Devi Charan.v. Durga Pershad & Ors. A.LR. 1967 Delhi 128 at p. 130 ; and
Bawa Singh v. Jagdtsh Chand and others A.LR. 1960 Punjab 573 at pp. 574-575
approved .
Ramsarup Singh v. Muneshwar Singh and others A.LR. 1964 Pat. 74 overruled.
Jugal Kishore Bhandani v. Union of India (1965) Bihar
L.~.R. 24, referred to.
CIVIL AppELLATE JURISDICTION : Civil Appeal No. 1758 of 1967.
Appeal from the Judgment and Decree dated the Ist September
1959 of the Patna High Court in First Appeal No. 146 of 1955.
'
612
SUPREME COURT REPORTS
(1975] l S.C.R.
S. C. Aggarwala, S.S. Bhatnagar and V. J. Francis, for the appellant.
D. Goburdhan, for respondents nos. 1-3.
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J.-The question in this appeal by certificate
is whether a Bench of the High Court of Patna in an appeal from the
judgment of a Single Judge of that Court in a first appeal can consider
all matters which a Single Judge could have decided and is not limited
by the restrictions imposed by s. 100 of the Cede of Civil Procedure.
A few facts may be stated in order to better cc mp re hrnd the question
posed before us. The plaintiff/appellant filed a
money suit
against the defendant for recovery of Rs. 7,865171-due frcm him on
account of sale of grains and Rs. 1,512191- as interest. 1he defendant
admitted the purchase of grain from the appellant but denied stipulation
of interest. The case of the defendant was that he had born wed
Rs. 6,000/- from the plaintiff for the marriage of the grand-daufhters
at the rate of 12 annas per hundred per month. The Trial Court,
after considering the evidence, decreed the suit. In a first appeal to
the High Court, the Single Judge allowed it and reversed 'he judgment
and decree of the Trial Court. In the judgment it was observed:
(a) "The court below seems to have been influenced by
the statement of the defendant in paragraph 5 of the
written statement where he averred that he sometimes
purchased grains from the plaintiff. But this statement is
of no consequence."
(b) "The non-examination of the defendant ar.d
ncnproduction of the account books were immaterial."
(c) "The three witnesses examined on her (appellant) behalf
have been found to be unreliable. She has adduced no
other evidence in support of the claim."
Against this judgment of the Single Judge the plaintiff prefeued a
Letters Patent appeal. In view of a sharp conflict of decisions on the
scope of clause 10 of the Letters Patent of the Patna High Court, the
question earlier set out was referred to a' Full Bench. In the Full
Bench, two Judges Narasimham, C.J., and R. K. Choudhary, J., took
the view that the findings of fact by the Single Judge are binding on
them and they cannot go into those questions in a Letters Patent
appeal. In this view they followed Ramsarup Singh v. Muneshwar
Singh and Others(!) as laying down the correct law. 1he view taken
in the Division Bench case of Jugal Kishore Bhadani v. Union of lndia(2\
to the contrary was held to be too wide. U. N. Sinha, J., gave a dis·
senting judgment. The view taken by him is, however, consistent with
the consensus of opinion of the other High Courts as also of this Court
which unfortunately was not brought to the notice of the learned
Judges of the Patna High Court probably because it dres not seem to
have caught the eye of any of the law reporters. Clause IO of the
Letters Patent of the Patna High Court is analogous to clause 15 of
-(I) A.I.R. 1964 Patna 76.
(2) (1965) Bihar L.J.R. 24.
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ASHO DEVI v. DUKHI SAO (Jaganmohan Reddy, !.)
613 .
other Chartered High Courts, namely, Calcutta, Madras, Bombay or
clause 10 of the Allahabad High Court. There is no dispute that an
appeal lies to a Division Bench of the High Court from the judgment
cif a Single Judge of that Court in appeal from a judgment and decree
of a court subject to the superintendence of the High Court. The
ouly question is whether the power of a Division Bench hearing a
Letters Patent appeal under clause JO of the Letters Patent of Patna
High Court or under the analogous provisions in the Letters Patent of
other High Courts is limited only to a question of Jaw under s. I 00 of
the Code of Civil Procedure or has it the same power which the Single
Judge has as a first Appellate Court in respect of both questions of
fact and of law. The limitations on the power of the Court imposed
by ss.100 and IOI of the Code of Civil Procedure cannot be made applicable to an Appellate Court hearing a Letters Patent appeal from the
judgment of a Single Judge of that High Court in a first appeal frem the
judgment and decree of the court subordiuace to the High courc, for
the scmple reaion that a Single Judge of the High Court is not a Court
subordinate.to the High Court. This Court iu Ladli Prasad Jaiswal
v. Karna/ Distillery Co. Ltd. & Others(!) had occasion to observe that
a Single Judge deciding a first appeal may be a Court immediately
below the Court hearing a Letters Patent appeal, but he is not a Court
subordinate to the High Court. As Jong ago as 1895, a similar question
arose under the provisions of Chapter XLII of Act No. XIV of 1882
which were analogous to the provisions ofss. JOO.and JOI· of the Cede
of Civil Procedure. A Bench of the Allahabad High Court ·consisting
of Edge, C.J., and Banerji, J., in Umrao Chand v. Bindraban Chand(2),
after noticing the contention that the appeal before them could not
be dealt with in a same way in which the first appeal to the High
Court might be dealt with would place the appeal under s. 10 of the
Letters Patent in the same position as an appeal to which Chapter
XVlI of the Code of Civil Procedure applies, held that no such limitation would apply because Chapter XVII limits the right of appeal from
a decree passed in appeal by a Court subordinate to the High Court.
They observed that the appeal to the High Court having been a first
appeal and not an appeal to which Chapter XVII of the Code of Civil
Procedure applies, the parties to the appeal are entitled to question not only the law, but the findings of fact of the Judge of that Court
from whose judgment or decree that appeal had been brought under
clause 10 of the Letters Patent. It would be otherwise, if the appeal '
to that Court had been an appeal to which Chapter XVII of the old
Code of Civil Procedure applied. To the same effect are the decisions
in Mu/pura Venkataramayya v. Devabhaktuni
Kesavanarayana(3);
Messrs Baldeo Das Ram Narayana v. S Ill. Maina Bibi & Another(")
which followed the decision of Andhra Pradesh High Court and
disagreed with the decision of the Patna High Court in Ramsarup Singh's
case (supra);Ni/kanth Mahaton and others v. Munshi Singh &Others(S);
Maimoon Rivi and another v. 0. A. Khajee Mohideen & Another(6);
Velji Bhimsey & Co. v. Bachoo Bhaidas (1), in which it was observed
(I) [1964] I, S.C.R. 270.
(2) I.L.R. 17, All. 475.
(3) AIR (1963) A.P. 447 at p. 448 (F.B.). (4) 76 C. W.N. 996 at p. 1002
(5) AIR (1965) Pat. 141.
(6) AIR (1970) Mad, 200 at p. 203.
(7) I.L.R. 48 Born. 691 at p. 696.
7-Ml85SupCl/75
GU
SUPREME COURT REPORTS
[197 5] 1 s.c.x.
that under clause 15 of the Letters Patent an appeal lies frcm that
decree, without any limitation being imposed upon the powers of tac
Appeal Court and the whole decree lies open before the Court; Pt;
Devi Charan v. Durga Pershad & Ors. (1) and Bawa Singh v. Jagdlst
Chand and others.(2) We may also mention thata five-Judges Bene•
of this Court in Alapati Kasi Viswanatha11 v. A. Sivarama Krishnay10
and Ors. (3)-an unreported judgment-had dealt directly witla
this question. Wanchoo, J., speaking for the Court observed :
"The first contention urged before us on behalf of the appellant is that the Letters Patent Bench was not authorised in law to
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reverse the concurrent findings of fact of the Subordinate Judge
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and the learned Single Judge of the High Court. It is submitted
that a Letters Patent appeal stands on the same footing as a
second appeal and it was therefore not open to the Letters Patent
C
Bench to reverse the concurrent findings of fact of the two eourts
below. We are of opinion that this contention is
not correct.
~
A Letters Patent appeal from the judgment of a learned
Single Judge in a first appeal to the High Court is not exactly
equivalent to a second appeal under s. 100 of the Code of Civil
Procedure, and therefore it cannot be held that a Letters Patent
appeal of this kind can only lie on a question oflaw and not other-
•
wise. The matter would have been different if the Letters
Patent appeal was from a decision of a learned Single Judge in
a second appeal to the High Court. In these circumstances
it will be open to the High Court to review even findings of fact in a Letters Patent appeal from a first appeal heard
by a learned Single Judge, though generally speaking the
Letters Patent Bench would be slow to disturb concurrent
a
findings of fact of the two courts below. But there is no doubt
that in an appropriate case a Letters Patent Bench hearing an
appeal from a )earned Single Judge of the High Court in a first
appeal heard by him is entitled to review even findings of fact.
The contention of the appellant therefore that the Letters Patent
Bench was not in law entitled to reverse the concurrent findings of
fact must be negatived."
f
In view of this decision and the consistent view held by almost all the
High Courts in this country on the question under consideration, thiil
appeal must succeed.
We accordingly set aside the judgment of the Full Bench of the
Patna High Court and remand the matter for being heard and disposed
of in accordance with law. In the circumstances of the case, we make
no order as to costs.
S.B.W.
Appeal allowed.
(!) AIR (1967) Delhi 128 at p. 130.
(2) A.I.R. (1960) Punjab 573 at pp. S7~57S.
(3) C.A. No. 232 of 1961 ckcidcd on Ianuary II, 1963.
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