Mohd. Saud & another
Vs Dr.(Maj.) Shaikh Mahfooz & Others
WITH CIVIL APPEAL
NOS. 9323-9324 OF 2010
(Special Leave
Petition (Civil) Nos.13684-13685 of 2009)
JUDGMENT
Markandey Katju, J.
CIVIL APPEAL NOS.
9321-9322 OF 2010
[arising out of
Special Leave Petition (Civil) Nos.2515-2516 of 2009]
1. Leave granted.
2. These appeals have
been filed against the impugned judgments of the Orissa High Court dated
24.9.2008 in LPA No.7 of2008 and dated 25.10.2008 in LPA No.8 of 2008.
3. Heard learned counsel
for the parties and perused the record.
4. The facts have been
mentioned in the impugned judgment of the High Court and hence we are not
repeating the same here.
5. The short question in
the case is whether a Letters Patent Appeal (for short `LPA') is maintainable
before the Division Bench against the judgment of the learned Single Judge of
the High Court. Dated 6.8.2008. Since there was conflict of opinion between different
Division Benches of the High Court on the point whether the LPA was
maintainable in view of the amendment of Section 100ACPC the Full Bench was
constituted, and by the impugned judgment tit was held that the LPA was not
maintainable in view of Section100-A CPC.
6. It may be mentioned
that the proceedings arose out of an interim order dated 9.9.2005 passed by the
Additional District Judge, Fast Track Court No.III, Bhubaneswar in Civil Suit
No.498 of 2004.
The Civil Suit is
still pending, but against the aforesaid interim order dated 9.9.2005 a first
appeal under Order 43 Rule 1 being FAO No.386 of 2007 was filed before a
learned Single Judge of the High
Court who decided it
on 6.8.2008. Against the judgment of this learned Single Judge dated
6.8.2008 the LPA was filed. It has been held to be not maintainable by the
impugned judgment.
7. Before deciding the
question involved in this case we may refer to the relevant provisions in the
C.P.C.
8. Section 100-A of the
Code of Civil Procedure (hereinafter called `the Code') was inserted by
Amendment Act 104 of 1976. The said Section initially read as follows: Section
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 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."
The said Section was
amended by Amendment Act 46 of 1999 as follows :
Section 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,
a. Where any appeal from
an original or appellate decree or order is heard and decided.
b. Where any writ,
direction or order is issued or made on an application under Article 226 or
Article 227 of the Constitution, by a single Judge of a High Court, no further
appeal shall lie from the judgment, decision or order of such single
Judge." This amendment was however not given effect to. Again Section
100-A of the Code was amended by Act 22 of 2002 and the amended Section reads
as
Follows:-
Section 100-A : No
further appeal in certain cases :
Notwithstanding
anything contained in any Letters Patent for any High Court or in any
instrument having the force of law or in any other law for the time being in
force, where any appeal from an original, or appellate decree or order is heard
and decided by a single Judge of a High Court, no further appeal shall lie from
the judgment and decree of such single Judge."
9. The Full Bench by the
impugned judgment has held that after the introduction of Section 100-A with
effect from 1.7.2002, no Letters Patent Appeal shall lie against the judgment
or order passed by a learned Single Judge in an appeal. The Full Bench has held
that the decision of the Division Bench of the High Court in Birat Chandra Dagra
vs. Taurian Exim Pvt. Ltd. & Anr. (vide page 5) 2006(11) OLR344 does not
lay down the good law while the decision of Division Bench in V.N.N. Panicker
vs. Narayan Patil & Anr. 2006(2) OLR 349lays down the correct law. The Full
Bench has further held that after the amendment of Section 100-A w.e.f.
1.7.2002 no LPA shall lie against the order or judgment passed by a learned
Single Judge even in an appeal arising out of a proceeding under a Special Act.
(a)
10.
It has been held in a catena of decisions of this Court that an appeal is a
creature of a statute and not an inherent right vide Garikapati Veeraya vs. N.
Subbiah Choudhry & Ors. AIR 1957 SC540. This right of appeal can
be taken away or curtailed by a subsequent enactment vide in Kamal Kumar Dutta
& Ors. vs. Ruby General Hospital & Ors. 2006 (7) SCC 613.
10. The validity of
Section 100-A C.P.C. has been upheld by the decision of this Court in Salem
Advocate Bar Association, Tamil Nadu vs. Union of India AIR 2003 SC 189.
11. The Full Benches of
the Andhra Pradesh High Court vide Gandla Pannala Bhulaxmi vs. Managing
Director, APSRTC & Anr. AIR 2003 AP 458, the Madhya Pradesh High Court in
Laxminarayanvs. Shivlal Gujar & Ors. AIR 2003 MP 49,
12. and of Kerala High
Courtin Kesava Pillai Sreedharan Pillai vs. State of Kerala & Ors. AIR2004
Ker 111 have held that after the amendment of Section 100-A in2002 no litigant
can have a substantive right for a further appeal against the judgment or order
of the learned Single Judge of the High Court passed in an appeal. We
respectfully agree with the afore said decisions.
13. In Kamala Devi vs.
Khushal Kanwar & Anr. AIR 2007 SC 663,this Court held that only an LPA
filed prior to coming into force of the Amendment Act would be maintainable.
14. In the present case
the LPA was filed after 2002 and hence in our opinion they are not
maintainable.
15. Learned counsel for
the appellant, however, submitted that Section 100-A does not bar a LPA against
a judgment of the learned Single Judge who had decided an appeal under Order 43
Rule 1against an interlocutory order of the District Judge. He submitted that Section
100-A after its amendment in 2002 requires that the judgment of learned Single
Judge should be a judgment and decree of such Single Judge. He further
submitted that in the present case the learned Single Judge was hearing an
appeal against an inter locutory order of the learned Additional District Judge
and hence when the learned Single Judge decided the appeal he was not passing
any decree because the suit was still pending.
16. Learned counsel
submitted that there is a difference in the language of Section 100A as initially
inserted in 1976, and the language of the provision as substituted in 2002.
While the former barred an L.P.A. even against a judgment, decision or order of
a learned single Judge which was not a decree, the latter bars only a judgment
which is also a decree. Since the judgment of the learned Single Judge dated
6.8.2008 was not a decree he submitted that the L.P.A. against that judgment
was not barred.
17. While at first glance
this argument may appear plausible but when we go deeper into it, we will
realize that it has no merit.
18. It would be strange
to hold that while two appeals will be maintainable against interlocutory
orders of a District Judge, only one appeal will be maintainable against a
final judgment of the District Judge.
19. It may be noted that
there seems to be some apparent contradiction in Section 100-A as amended in
2002. While in one part of Section 100-A it is stated "where any appeal
from an original or appellate decree or order is heard and decided by a Single
Judge of a High Court", in the following part it is stated "no
further appeal shall lie from the judgment and decree of such Single
Judge". Thus while one part of Section 100-A refers to an order, which to
our mind would include even an interlocutory order, the later part of the
Section mentions judgment and decree.
20. To resolve this conflict
we have to adopt a purposive interpretation. The whole purpose of introducing
Section 100-A was to reduce the number of appeals as the public in India was
being harassed by the numerous appeals provided in the statute. If we look at
the matter from that angle it will immediately become apparent that the LPA in
question was not maintainable because if it is held to be maintainable then the
result will be that against an interlocutory order of the District Judge there
may be two appeals, first to the learned Single Judge and then to the Division
Bench of the High Court, but against a final judgment of the District Judge
there can be only one appeal. This in our opinion would be strange, and
against the very purpose of object of Section 100-A, that is to curtail the
number of appeals.
21. It is well settled
that the modern method of interpretation is purposive vide Directorate of
Enforcement vs. Deepak Mahajan & Anr. (1994) 3 SCC 440, Hindustan Lever
Ltd. vs. Ashok Vishnu Kate & Ors. (1995) 6 JT 625 (vide page 631) and
Workmen of American Express International Banking Corporation
vs. Management of American Express International Banking Corporation (1985) 4
SCC 71.
22. We are of the opinion
that the apparent contradiction in Section100A as amended in 2002 was only due
to bad drafting, and not much can be made out of it once we understand the
purpose of Section 100A.
23. For the reasons given
above we are of the opinion that the Full Bench of the High Court has taken a
correct view. Thus there is no force in these appeals, which are accordingly
dismissed. No costs.
CIVIL APPEAL NOS.
9323-9324 OF 2010
[arising out of
Special Leave Petition (Civil) Nos.13684-85 of 2009]
24. Leave granted.
25. These appeals have
been filed against the order of the learned Single Judge dated 6.8.2008 in
first appeal from order no.386 of 2007of the Orissa High Court. The appeal
before the learned Single Judge arose out of an interlocutory order passed by
the learned Additional District Judge, Fast Track Court-III in a suit which is
still pending.
26. In our opinion,
though the judgment of the learned Single Judge is a final judgment, it is in
another sense an interlocutory order as it is well settled that an appeal is a
continuation of the original proceedings. Since the original order of the
learned Additional District Judge was an interlocutory order, hence the appeal
against that order and the judgment of learned Single Judge in that sense was
also interlocutory.
27. It is well settled
that this Court does not ordinarily interfere under Article 136 of the
Constitution with interlocutory orders.
28. For the reasons given
above, we dismiss these appeals without going into the merits of the case.
However, we direct the learned Additional District Judge to decide the suit
expeditiously. No costs.
....................................J. (MARKANDEY KATJU)
....................................J. (T. S. THAKUR)
NEW
DELHI;
25
OCTOBER, 2010
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