TMI Blog2008 (9) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to the extent of 48%. He filed a Petition under Section 166 of the Motor Vehicles Act, 1988 being Case No. 26, of 1987 before the Motor Accident Claims Tribunal, Latur, which was contested and decided finally by the Tribunal vide its judgment and award dated 5th May 1989 awarding compensation of Rs. 51,000/- only with interest at the rate of 10% per annum from the date of the claim petition. This judgment of the Tribunal was impugned by the Claimant by filing First Appeal No. 638 of 1989 before this Court praying for enhancement of the compensation awarded. The owner-driver of the jeep died on 16th July, 1987 during the pendency of the Claim Petition before the Tribunal. 2. The Insurance Company had denied its liability and the present Appeal was only preferred against the respondent No. 1-owner of the vehicle. The Deputy Director of Health Services-original respondent No. 1, being owner of the jeep also preferred Appeal being First Appeal No. 637 of 1989 impugning the judgment of the Tribunal. First Appeal No. 637 of 1989 was dismissed by a learned Single Judge of this Court vide common judgment dated 12th February 2004. The Appeal filed by the Claimant (First Appeal No. 638 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d February 2008, the learned Counsel appearing for the respective parties relied upon different judgments of this Court as well as of the Supreme Court to argue for and against the very maintainability of the Letters Patent Appeal in view of the provisions of Sections 100A of the Code of Civil Procedure, 1908, Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the M.V. Act ) Clause 15 of the Letters Patent. The Division Bench of this Court noticed the view expressed by another Division Bench of this Court in the case of Asha d/o Bhalchandra Joshi v. National Insurance Co. Ltd.: 2008(2)BomCR76 , and the view of the other Benches and noticing the difference of opinion expressed in different judgments, directed the matter to be referred to a larger Bench for settling the legal issue involved in the present case with regard to the maintainability of the Letters Patent Appeal. 6. It will be useful to refer to the Order of Reference dated 22nd February 2008 which reads as under: 1. The learned Counsel, appearing for the appellant, stated that Full Bench Judgment of this High Court in the case of Laxminarayan v. Shivlal Gujar AIR2003MP49 was considered by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to limit or otherwise affect any special or local law, special judicial jurisdiction or power conferred or any special form of procedure prescribed under any other law. This section, upon its plain construction, indicates the purpose for incorporating such a provision. The Code of Civil procedure being a Code to control and regulate the proceedings before the Courts under various remedies and enforcing law makes a clear exception in regard to operation and effect of a specific provision contained in any other law unless some provision of Code specifically excludes an application of that other provision. General Rule is that wherever a special provision renders the general provision incapable to apply to a remedy, then the provisions of the Code will not limit or affect such special provision. 9. An appeal to be filed under a decree or order passed by the Court of competent jurisdiction in exercise of its original or appellate jurisdiction is again controlled by the specific provision of the Code. Under Section 96 of the Code, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re a Division Bench of the High Court from a judgment of the Single Judge deciding a matter in a Second Appeal. By the amending Act of 1999, the earlier Section 100A was substituted. Section 100A as introduced by Amending Act 46 of 1999, though attained the assent of the President on 30th December 1999, it was not enforced because of various factors. Clause (b) of Section 100A was subsequently deleted finally and as already noticed, by the amending Act of 2002, present Section 100A was introduced. Present Section 100A reads as under: 13. Section 100A. 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 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. The design behind frequent amendments of these provisions is obvious. Legislative attempt has been to reduce the number of Appeals which a litigant could prefer against an original or appellate decree. Where the Single Judge hears an appeal from an appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard by a Division Bench, the question of there being an intra-Court appeal does not arise. It is only in cases where the value is not substantial that the Rules of the High Court may provide for the regular first appeal to be heard by a single Judge. In such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily. We do not find that any prejudice would be caused to the litigants by not providing for intra-Court appeal, even where the value involved is large. In such a case, the High Court by Ryles, can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be found with the amended provision Section 100-A. 17. Of course, the application of Section 100A is stated to be prospective and would not affect the right and remedies of an Appellant who had filed the Appeal prior to 1st July, 2002. In other words, accrued right of appeal vested in a suitor was not affected. This view was also taken by a Full Bench of the Punjab and Haryana High Court in the case of Parashottam Dass v. State of Haryana. The Full Bench of this Court in the case of Rahul Sharad v. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Letters Patent of a High Court. The intention of the Legislature in taking away of right of appeal by abolishing an intra-Court appeal to a Bench of two Judges of the very High Court against a decision rendered by a Single Judge, is in no way prejudicial to the protected right of appeal of a litigant. The Scheme of Section 100A thus indicates that intra-Court appeal from an appellate jurisdiction of a Single Judge of the High Court is not permissible. 20. The Motor Vehicles Act, 1988 is considered and was enacted as social welfare legislation to provide adequate compensation to the people who sustained bodily injuries or to dependents of persons who are killed in vehicular accident expeditiously. This Act has been considered even as a self-contained Code as it provides methodology to be adopted for institution of claim petition, powers of the Tribunal and passing of an award and how such an award would be executed. The Tribunal is established for adjudicating such claims by a State Notification issued under the provisions of Section 165 of the Act. On receipt of an application for compensation claimed under Section 166 of the Act, the Claims Tribunal is expected to issue notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. Some of the provisions of the Code of Civil Procedure i.e. Orders V, VI, VII, IX, XI, XII, XIII, XIV, XVI, XVII, XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, XXVI, XXVII, XXVIII, XXIX, XXX, XXXII, XXXVII AND XXXIX are also applicable to the proceedings before the Tribunal. These provisions clearly indicate that the Tribunal has all trapping of a Civil Court may be in stricto sensu it is not a Court within the meaning of the provisions of Code of Civil Procedure. The provisions of the Code of Civil Procedure by and large are applicable in all matters to the proceedings before the Tribunal. The Tribunal in exercise of its power is obliged to determine all issues in controversy of fact and law in accordance with the provisions of the Code of Civil Procedure. As already noticed, even the provisions relating to amendment of pleadings additional evidence, service of summons and proceedings by an indigent person, all are applicable to the Tribunal. As early as in 1950, the Supreme Court in the case of The Bharat Bank Limited, Delhi v. The Employees of the Bharat Bank Limited, Delhi, and the Bharat Bank Employee's Union, Delhi reported in AIR 1950 SC 184, enunciated the principle th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d trapping, is the judicial power of the State or not, and the main and the basic test, however, is whether the adjudicating power which is the particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State's inherent power exercised in discharging its judicial function. 26. Applying this principle, it was held by the Supreme Court that the Tribunal constituted under the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952 was a Tribunal having the trappings of a Court. More so, in the case of State of Haryana v. Smt. Darshana Devi and Ors. reported in [1979]3SCR184 , the Supreme Court, while dealing with a case under the provisions of Motor Vehicles Act, 1939, stated that as under: The reasoning of the High Court in holding that Order XXXIII will apply to the Tribunals which have the trappings of the Civil Court finds our approval. We affirm the decision. 27. It is said that all Tribunals are not Courts, though all the Courts are Tribunals. The word Courts is used to designate those Tribunals which are set up in an organized State for the Administration of Justice. The Admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of its view the Tribunal had relied upon an earlier opinion expressed by Dua, J. that Section 110C of the M.V. Act by no means clothed the Tribunal with all the characteristics of a Civil Court. But in Darshana Devi's case AIR 1978 Punj and Har 265, Koshal, C.J. did not subscribe to the earlier view of Dua, J. but referred, with approval, to a Full Bench judgment of that Court in Shanti Devi v. General Manager, Haryana Roadways, Ambala, in which, Jain, J. speaking for the Full Bench had said (at p.72): The proceedings before the Claims Tribunal closely resemble the proceedings in a Civil Court and to use the language of their Lordships of the Supreme Court in Jugal Kishore's case 1967CriLJ1380a , the Claims Tribunal for all intents and purposes discharges the same functions and duties in the same manner as a Court of law is expected to do. In this view of the matter I hold that the proceedings before the Claims Tribunal are not in the nature of arbitration proceedings and that the Claims Tribunal while disposing of the claim acts as a Court. (Emphasis ours) Darshana Devi's case, in which the above view of Jain, J. was reiterated, went up to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Motor Accidents Claims Tribunal Delhi.... (Emphasis supplied) This pronouncement of the Supreme Court should now serve to put the controversy at rest. In view of this pronouncement, the view taken in State of Karnataka v. Subbanna AIR 1974 Kar 109 and in Revanappa's case AIR 1983 Kar 164 that such a Tribunal is not a 'Court' cannot continue to hold the field. 31. A Bench of this Court in Gurucharansing Hardayalsing Sethi v. Narhari Laxman Shinde and Ors. reported in (1996)98BOMLR184 observed that the Motor Accident Claims Tribunal is a persona designata and stated that it is a Court subordinate to High Court under Section 115 of the Code of Civil Procedure. The Court observed thus: Though amongst various High Courts there was difference of opinion as to whether the Motor Accident Claims Tribunal is persona designata or the Court subordinate to the High Court within the meaning of Section 115 Civil Procedure Code, but after the Apex Court in State of Haryana v. Smt. Darshana Devi and Ors. [1979]3SCR184 , observed that the Motor Accident Claims Tribunal has the trappings of the Civil Court, the later decisions of various High Courts are consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Patent) to the Division Bench of the same Court because of Section 100A of the Code of Civil Procedure, a fortiori, an order passed by the Single Judge in appeal under Section 173 of the Motor Vehicles Act from the order/award of the Motor Accident Claims Tribunal shall not be subject to intra-Court appeal in view of the bar created by Section 100A of the Code of Civil Procedure effective from 1st July, 2002. (Emphasis supplied) 34. In the light of the above judgment and consistent view taken by the Courts there can hardly be any doubt that the Tribunal does have trappings of a Court. It satisfies all the tests stated above. In any case, it has power to summon, record statements on oath, compel attendance of the witnesses, determine controversies by a public adjudicatory process and even has the power to punish the defaulters. It can get its award executed in accordance with the law. Besides all these, it is performing duties and functions of administration of justice under the power of the State and in fact under a Statute. At this stage itself, we may notice that the Division Bench of this Court in the case of Asha d/o Bhalchandra Joshi v. National Insurance Co. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal under the said provision. The ambit, scope and the powers thus have been outlined by the Legislature itself and may not be dependent on the provisions of other laws. 37. There is no provision in the entire M.V. Act which provides for further appeal from the judgment passed by the High Court in exercise of its appellate jurisdiction under Section 173 of the M.V. Act. Once the M.V. Act provides for a remedy of First Appeal and does not specify availability of any further right of appeal, it is obvious that the Legislature does not intend to give any further right of appeal within the provisions of the Act particularly in relation to intra-Court appeal. The right to appeal and in fact all remedial provisions do not emerge from any fundamental or vested right. It is a grant of a statute under which such right of appeal is available. In view of this settled principle, the absence of any provision providing a further appeal in terms of Section 173 of the Act would obviously lead to one inevitable conclusion that the special law (i.e. Motor Vehicles Act) in comparison to general laws (i.e. Code of Civil Procedure) does not contemplate maintainability of a second appeal agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal thus should be created by vested specific jurisdiction. (Halsbury Laws of England, Fourth Edition). 40. In the case of Garikapati Veeraya (supra), the Supreme Court in unambiguous terms stated the principle that right of appeal is a vested right which is created by a statute alone. This was reiterated by the Supreme Court in a more recent judgment and was followed with approval in Kamal Kumar Dutta (supra), where the Court held that right to prefer appeal is a statutory right and it could be exercised only in case of adverse decision and will be governed by the law prevailing at the time of commencement of the suit and comprise of successive rights of appeal from Court to Court which rarely constitute one proceeding. This legal right was also capable of being taken away either expressly or by necessary intendment by a subsequent Legislature. 41. In the case of Maria Cristina De Souza Sadder and Ors. v. Amria Zurana Pereira Pinto and Ors. AIR1979SC1352 , the Supreme Court held as under: It is no doubt well-settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced and such right or remedy will not be affec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l nor inherent right vested in a party. It is substantive statutory right regulated by the statute creating it. Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. [1999]2SCR728 , and Kashmir Singh v. Harnam Singh and Anr. AIR 2008 SCW 2417. Thus, it is evident that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction. It essentially should be provided by the law in force. In absence of any specific provision creating a right in a party to file an appeal, such right can neither be assumed nor inferred in favour of the party. On the bare reading of provisions of Section 173 and in absence of any other specific provision providing further appeal, it is difficult to accept the view that with the aid of any of the provisions or by general practice the appellate order passed under Section 173 by a Single Judge of this Court would be further appealable by intra-Court appeal. Right of Appeal Under Letters Patent: 44. It has been held that Letters Patent is a word of definite legal meaning. It is derived from the latin words literae patents. The Letters Patent are so called because they are open letters, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r heirs of successors in Our or Their Privy Council, as hereinafter provided. 46. Clause 15 of the Letters Patent is the provision which grants right of appeal to the aggrieved party against the judgment of the learned Single Judge of the Court to Letters Patent Bench. The exception carved out to this right of appeal is that 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 said 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 superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction. In other words, where the Clause grants right of appeal, it has inbuilt exception and limitation applicable to said right of appeal. It is also a settled proposition of law that a right to appeal can be regulated and/or restricted by the provisions of Section providing such right. 47. This legal right that is available to a party to prefer an appeal from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal was consequently, restored to the file of the High Court. Similarly, in the case of State of West Bengal and Ors. v. Kartick Chandra Das and Ors. AIR1996SC2437 , the Supreme Court again emphasised the principle that in absence of specific exclusion, the provisions of Sections 4 - 24 and Section 5 of the Limitation Act were applicable to the appeals filed under Clause 15 including those under the Contempt of Courts Act. In that case, it was not an issue whether an appeal would lie to the Division Bench or not as recorded in para 4 of the judgment that maintainability of the appeal was not disputed. It is also useful to notice that in that case, the appeal had been preferred against issuance of contempt notice by the Division Bench. The Supreme Court held that the Appellate Side procedure of the Calcutta High Court was applicable. 50. Lastly, reliance was also placed on the judgment of the Supreme Court in the case of P.S. Sathapan (Dead) by Lrs. v. Andhra Bank Ltd. and Ors. AIR2004SC5152 . In that case, the Court was primarily concerned with bar under Section 104(2) of the Civil Procedure Code and Clause 15 of Letters Patent of Madras High Court. The Apex Court again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary that the Section should expressly use the word Letters Patent but if on plain reading of the provision, it is clear that all further appeals are barred then even a Letters Patent Appeal would be barred. The judgments cited by appellant do not have any direct bearing on issue in hand. In the controversy before us inasmuch as the provisions of the Specific Relief Act, Section 104 of the Civil Procedure Code and the Limitation Act are not pari materia to the provisions of Section 19 of the Contempt of Courts Act. Section 19 of the Act reads as under: 52. 19. Appeals.- (1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt- (a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; (b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court. (2) Pending any appeal, the Appellate Court may order that- (a) the execution of the punis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be a finding on matters in issue between the parties and would decide such issues. Thus, the matter referred would be the one which decide the rights of the parties and in fact, is a substantial determination of rights of the parties to the lis before the Court of competent jurisdiction. As against this, a matter of contempt is primarily a matter between the Court and the contemnor and is not determination of any lis pending before the Court on which parties are litigating. An order of discharge in a contempt, thus, would not be a judgment and order within the meaning of Clause 15 of Letters Patent and an appeal against such an order is excluded under the language of Section 19 of the Contempt of Courts Act which unambiguously states that only orders of punishment for contempt are appealable. As far as this Court is concerned, as back as in Narendrabhai Sarabhai Hatheesing and Ors. v. Chinubhai Manibhai Seth AIR 1936 Bom 314, the Division Bench took the view that order of Court for breach of undertaking to Court is not a judgment. An Order of the Court refusing to commit a person for breach of an undertaking given to the Court and embodied in the order of the Court cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have. In that case the learned Chief Justice was considering an order refusing to set aside an order granting leave to sue to the plaintiff under Clause 12, Letters Patent. The Madras High Court has always given a more liberal interpretation to the expression judgment , and the leading case is the one reported in 35 Mad. 1, where we have the judgment of Sir Arnold White, and the opinion of that learned Chief Justice as to the true meaning of the expression judgment is If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. This High Court has always preferred to follow the Calcutta High Court rather than the Madras High Court : or, in other words, it has undoubtedly given a more restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if interlocutory, whether it was 'judgment' within the meaning of Clause 15, Letters Patent. What we are concerned with here is not the case of a 'judgment' given between parties in a litigation between parties but a 'judgment' given against a party which affects his rights. It would be clearly wrong to apply a definition given in its own context applicable to its own facts and circumstances to an entirely different set of facts and circumstances. The expression between the parties in the definition of Sir Richard Couch J. is not an integral part of that definition. Therefore, in my opinion, in deciding that an appeal lies from an order of committal, we are in no way deviating from the accepted definition of Sir Richard Couch to the extent that that definition deals with the essentials and fundamentals of the expression 'judgment' occurring in Clause 15, Letters Patent. As I have already pointed out, the order of Bhagwati J. affects the merits of the question by determining a right or liability. It is not between parties, but that it could not be because the contempt proceedings were between the Court and the appellant and not between the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in controversy in the suit. Similar view has been expressed by the Supreme Court in Shri Radhey Shyam v. Shyam Behari Singh [1971]1SCR783 . .... 61. Judgment by the Court is an affirmation of a relation between the particular predicate and a particular subject. It is always a declaration that a liability, recognised as within the jural sphere, does or does not exist. A judgment, as the culmination of the action, declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other. Gurdit Singh and Ors. v. State of Punjab and Ors. [1974]3SCR896 The principles which emerge from the consistent view taken by the Courts including the Supreme Court is, there has to be a conscious determination of rights and liabilities between the parties to a lis before the Court of competent jurisdiction. Undisputedly, contempt is a matter primarily between the Court and the contemnor. The proceedings of Contempt of Court would be initiated against the contemnor through any of the specified modes with or without consent of the specified authorities depending on the facts and circumstances of each case. The contempt jurisdiction vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Single Judge, in our opinion, is not appealable in view of the unambiguous language of Section 19 of the Contempt of Courts Act and an appeal is not maintainable even under Clause 15 of the Letters Patent. Although we have no hesitation in rejecting this appeal as being not maintainable, in the facts and circumstances of this case, Parties are left to bear their own cost. 63. Another facet of right of appeal under this Clause is that the provisions of Clause 15 are subject to legislative powers of the Governor-General in Legislative Council and also of the Governor-General in Council under Section 71 of the Government of India Act, 1915. Clause 44 of the Letters Patent specifically contemplates that the provisions of Letters Patent are subject to the exercise of legislative powers by the competent legislature. In other words, Clause 15 of the Letters Patent does not confer an absolute or unqualified right to appeal. This remedy is subject to the other laws enacted by competent Legislature. Viewed from that angle, the restrictions contemplated under Section 100A of the Code of Civil Procedure would be a relevant consideration which would control right of appeal as envisaged un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction. The best norm would be to give literal construction keeping the legislative intent in mind. 67. The Supreme Court in the case of Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers and Ors. reported in [2003]3SCR762 , while referring to the principles for interpretation of statutory provisions, held as under: 19. It is a well-settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse.) The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation would arise. In this regard, a Constitution Bench of five Judges of the Supreme Court in R.S. Nayak v. A.R. Antulay 1984CriLJ613 has held: ...If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the Statute would be self defeating. Recently, again Supreme Court in Grasim Industries Ltd. v. Collector of Customs, Bombay 2002(141)ELT593(SC) has followed the same principle and observed: Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for Court to take upon itself the task of amending or altering the statutory provisions. 70. Above stated principles clearly show that the Court can safely apply rudiments of plain construction to legislative intent and object sought to be achieved by the enactment while interpreting the provision of an Act. It is not necessary for the Court to implant or exclude words or overemphasiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by judicial decisions as a right which vests in a suitor at the time of institution of original proceedings. Any change in the law relating to appeals, after institution of original proceedings, which adversely touches this vested right is presumed not to be retrospective. 73. In the case of A.G. Varadarajidu and Anr. v. State of T.N. and Ors. reported in [1998]2SCR390 , the Supreme Court held as under: 16. It is well settled that while dealing with a non obstante Clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose reported in [1953]4SCR1 , Patanjali Sastri, J observed: The enacting part of a statute must, where it is clear, be taken to control the non obstante Clause where both cannot be read harmoniously. In the case of Iridium India Telecom Ltd. v. Motorola Inc. reported in AIR2005SC514 , the Supreme Court, while relying upon the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and which do not provide for a grant of specific right of second appeal, the same cannot be made available by a recourse to any general provision. It is an unquestionable proposition of law that right of appeal is a statutory right and not a general, natural, or a fundamental right. 76. In the absence of any provision granting such statutory right to prefer second appeal, the litigant cannot be permitted to rely upon the general provisions, if at all there is any, to prefer a second appeal. The award made by the Motor Accident Claims Tribunal under Section 168 of the Act even if it is treated as a decree and so is the judgment of the learned Single Judge passed in appeal, still the Court would not be able to take recourse to general provision of the Code and for that matter, it will hardly be of any consequence as to whether the proceedings before the Tribunal are at parity with the Civil Court or actual proceedings are before the Civil Court. Non availability of right of appeal under the statute would be a complete answer to non-maintainable of such an appeal. 77. Section 173 of the Motor Vehicles Act provides only for a restricted right of appeal and the same cannot be stre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters Patent thus would have to be read in conjunction with Clause 44 of the said Letters Patent and Section 100A of the Civil Procedure Code that too in light of the language of Section 173 of the Motor Vehicles Act. The cumulative reading and analysis of these provisions in consonance with the Rules of interpretation stated above, would lead to simple and one conclusion that the Letters Patent Appeal or an appeal, against the judgment of the learned Single Judge passed in exercise of its appellate jurisdiction against the appellate judgment passed by the Court subordinate to the High Court, would not be appealable. Where Section 100A constitutes a complete bar against right to prefer an appeal against an appellate decision, there appeal cannot be preferred with the aid of Clause 15 of the Letters Patent against such judgment. Thus, either way, the obvious conclusion would be that no intra-Court appeal is maintainable in the High Court against the judgment passed by the learned Single Judge in exercise of its appellate powers in terms of Section 173 of the Motor Vehicles Act. 80. Another aspect which would support the view which we are taking is that the whole object of introdu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... language of Clause 15 of the Letters Patent. This we have noticed only to elucidate the point that Clause 15 will have to be read with Clause 44 of the Letters Patent and thus giving precedent to Section 100A of the Code of Civil Procedure. The cumulative reading of all these provisions would thus show that Clause 15 of the Letters Patent cannot be treated as a provision granting independent right of appeal de hors the other relevant provisions noticed by us in this judgment. 82. The Supreme Court in the case of P.S. Sathappan (supra) clearly stated while referring to Clause 44 of the Letters Patent that provisions of Letters Patent were subject to legislative powers of the Governor-General-in-Legislative Council and, therefore, in the present-day context, subject to legislative power of the appropriate legislature. (Emphasis supplied). Now we would refer to the judgments, some of which were relied upon by either party before us in support and against the proposition formulated at the beginning of this judgment. 83. In the case of Kamal Kumar Dutta (supra), the Supreme Court was dealing with Sections 397 and 398 of the Companies Act and while holding that an appeal agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch single Judge. Therefore, it was pointed out that in view of the latest amendment in the Code of Civil Procedure, Letters Patent or intra Court appeal will not lie when the learned Single Judge has exercised appellate jurisdiction. In fact, this amendment seems to have been brought about on the recommendations of the Malimath Committee report that right to appeal should be curtained and only one appellate forum should be available. Therefore, in view of this recommendations, this amendment was brought about. In support of this contention learned senior Counsel invited our attention to the following decisions. (i) AIR2004SC5152 , P.S. Sathappan (dead) by Lrs v. Andhra Bank Ltd. and Ors. (ii) [2003]1SCR1092 , Subal Paul v. Malina Paul and Anr. (iii) AIR2003AP458 , Gandla Pannala Bhulaxmi v. Managing Director, APSRTC and Anr. (iv) (1987) 62 Company Cases 504, Rev. C.S. Joseph and Ors. v. T.J. Thomas and Ors. (v) AIR2004Ker111 , Kesava Pillai Sreedharan Pillai and etc. v. State of Kerala and Ors. 85. We have considered the rival submissions of the parties. The first question that we have to examine is whether the appeal against the order of the learned Single Judge lies before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the order of the learned Single Judge under the Act. 87. In this connection, learned Counsel invited our attention to a decision of this Court in the case of Garikapatti Veeraya v. N Subbiah Choudhury reported in (1957) SCR 488 and in that it has been pointed out that the appeal is a vested right. The majority took the view that the appeal is a vested right. It was held as follows: ...that the contention of the appellant was well-founded, that he had a vested right of appeal to the Federal Court on and from the date of the suit and the application for special leave should be allowed. The vested right of appeal was a substantive right and, although it could be exercised only in case of an adverse decision, it was governed by the law prevailing at the time of commencement of the suit and comprised all successive rights of appeal from Court to Court, which really constituted one proceeding. Such a right could be taken away only by a subsequent enactment either expressly or by necessary intendment. So far as the general proposition of law is concerned that the appeal is a vested right there is no quarrel with the proposition but it is clarified that such ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the matter that when the CLB exercises its powers under Sections 397 and 398 of the Act, it exercised its quasi-judicial power as original authority. It may not be a Court but it has all the trapping of a Court. Therefore, the CLB while exercising its original jurisdiction under Sections 397 and 398 of the Act passed the order and against that order appeal lie to the learned single Judge of the High Court and thereafter no further appeal could be filed. In this connection, our attention was invited to a decision in the case of Arati Dutta v. Eastern Tea Estate (P) Ltd. reported in [1988]1SCR1070 . This was a case in which the power was exercised by learned single Judge under Sections 397 and 398 of the Act and against that order appeal lay to the Division Bench of the High Court under Section 483 of the Act. In that context, their Lordships observed that mere absence of procedural rules would not deprive the litigant's of substantive right conferred by the statute. We have already explained above that earlier the power under Sections 397 and 398 of the Act was being exercised by learned Company Judge in the High Court and therefore, appeal lay to the Division Bench un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of appeals, etc., against the order made under the Act. In terms of Section 127(1) of the Act, the jurisdiction is exercised by the Chief Judge of Small Causes Court and the appeal against that order was preferred before the High Court under Section 218-D of the Act and the Court held that no Second Appeal could lie from that order observing as under: 9. Thus, according to Section 218-D, an appeal shall also lie to the High Court from any decision of the Chief Judge of the Small Cause 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 Cause Court is not in dispute. The appellant has not questioned the maintainability of the appeal 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 Additional Chief Judge, Small Cause Court. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 (4) ALT 448, The Court held as under: 16. A Full Bench of the Andhra Pradesh High Court in the case of Gandla Pannala Bhulaxmi v. APRTC and Anr. AIR2003AP458 , was seized with the question whether the right of appeal available under the Letters Patent is taken away by Section 100A of the Civil Procedure Code in respect of the matter arising under special enactments or other instruments having the force of law. That was a case where Letters Patents Appeal was preferred from the order of a Single Judge passed in an appeal under Section 173 of the Motor Vehicles Act. The Full Bench of the Andhra Pradesh High Court upon consideration of the amended provision of Section 100A and the judgment of the Supreme Court in the case of Vinita M. Khanolkar v. Pragna M Pal AIR 1998 SC 424 and another decision of the Supreme Court in Sharda Devi v. State of Bihar [2002]2SCR404 , held that Section 100A of the Code of Civil Procedure in clear and specific terms prohibits further appeal against the judgment and decree of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patents. 94. It was held that the Letters Patent which provides for further appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd had held that when the Legislature wanted to exclude the Letters Patent Appeal, it specifically did so and the words used in Section 100A were not by way of abundant caution. That is what the Supreme Court said in P.S. Sathappan (supra) (Para 30 of AIR): It is thus to be seen that when the legislature wanted to exclude a Letters Patent Appeal it specifically did so. The words used in Section 100A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The legislature was aware that it had incorporated the saving Clause in Section 104(1) and incorporated Section 4, Civil Procedure Code. Thus, now a specific exclusion was provided. 100-A: ...To be noted that here again the legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a Letters Patent App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from purely administrative or executive functions. It is the State's inherent judicial power which is discharged by the Courts and Tribunals, if the Company Law Board constituted under the Companies Act in its adjudicatory powers has the trappings of a Court and an appeal under Section 10F of the Companies Act from its order to the Single Judge is not amenable to further appeal (Letters Patent) to the Division Bench of the same Court because of Section 100A of the Code of Civil Procedure, a fortiori, an order passed by the Single Judge in appeal under Section 173 of the Motor Vehicles Act from the order/award of the Motor Accident Claims Tribunal shall not be subject to intra-Court appeal in view of the bar created by Section 100A of the Code of Civil Procedure effective from 1st July, 2002. 98. The Bench also noticed the distinction between the decree, order and the award. It held that decision of the Single Judge in Appeal under Section 173 of the Motor Vehicles Act is nothing but a judgment. We adopt the reasoning and have no hesitation in coming to the conclusion that the Award of the Tribunal and in any case the judgment of the learned Single Judge passed under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 100-A of the Code. 102. In the case of Kamla Devi v. Kushal Kanwar and Anr. (2006) 13 SCC 295, the Supreme Court, where the Appeal before the learned Single Judge under the provisions of the Indian Succession Act was filed in the year 1992 against the order passed by the learned Single Judge dated 13th February 1992, held that the Letters Patent Appeal would be maintainable as it was filed prior to coming into force of the Amending Act of 2002 Act. The Supreme Court also noticed the judgments in the case of Kamal Kumar Dutta (supra) and Subal Paul (supra). The main contention in these cases was with regard to retrospective or prospective operation of Section 100-A and also that for appeals filed prior to Amendment Act, it had not taken away the right of appeal provided the ingredients of Clause 15 of the Letters Patent were satisfied. Obviously, one of the relevant considerations would be as to when the right to file an appeal arose. As noticed in the case of Kamla Devi (supra), the judgment was passed on 13th February 2002 and appeal itself was filed at that time and, therefore, was controlled by the law prior to the amendment of 1st July, 2002. 103. Having noticed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the notice of the Bench so as to grant precedence to the provisions of Section 100A even after the provisions of Clause 15 of the Letters Patent were attracted in the present case. (d) The Bench treated the Motor Vehicles Act as a special law, however, no material was placed before the Bench to the effect that under the special statute the order passed by the Single Judge in exercise of its appellate jurisdiction under Section 173 was made appealable. In other words, no Second Appeal was provided under the Motor Vehicles Act. (e) The Full Bench of the Madhya Pradesh High Court in the case of Laxminarayan (supra) and this Court in the case of Rahul Sharad (supra) were primarily concerned with the retrospectivity and prospectively of the provisions of Section 100A which in fact already stand settled by the judgment of the Supreme Court in Bento De Sauza Egipsy v. Yvette Alvares Colaco (2004) 13 SCC 438, and Kamla Devi (supra) and the said provisions being prospective and appeals in the case before the Bench having been filed subsequent to 1st July, 2002 and as such they will be covered by the provisions of Section 100-A of the Code. (f) The view of the Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 12 of the Letters Patent. 105. Another aspect, which needs to be examined by us, is that the Division Bench in Asha's case (supra) in paragraph 33 noticed another judgment of a Division Bench of this Court in the case of Bhenoy G. Dembla and Anr. v. Prem Kutir P. Ltd. reported in 2004(2)BomCR280 , where the Division Bench had taken the view that keeping in view the provisions of Section 100-A of the Code of Civil Procedure and Section 10F of the Companies Act, 1956, an appeal from the judgment of the learned Single Judge in exercise of its appellate jurisdiction under Section 10-F of the Companies Act would not lie after 1st July, 2002. The Bench held that: ...There is no express conferment of a right of a further appeal to the Division Bench against the decision of a learned Single Judge. That being the position, an appeal to the Division Bench is clearly not maintainable against the decision of the Single Judge rendered after 1st July, 2002. 106. In our view, the most appropriate course of action in consonance with the judicial propriety and discipline would have been that the Division Bench dealing with Asha's case (supra) should have referred the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specific provisions of the Code of Civil Procedure as indicated in Section 169 of the Motor Vehicles Act and Rules 257 and 276 of the Maharashtra Motor Vehicles Rules framed under the Motor Vehicles Act. It has to entertain an application filed under Section 165 of the Act and has to exercise its adjudicatory powers required for the purpose permitting to file reply, give hearing and adequate opportunity to prove its case, then hear the arguments and decide the claim petition in accordance with law. 109. The entire adjudicatory process is thus primarily and substantially controlled by the provisions of the Code. It is difficult for us to come to the conclusion that the Tribunal is not having the trapping of Civil Court. Technically or grammatically speaking, the Tribunal may not be a Civil Court, but it has all the trapping of the Court and it pronounces an Award which is determination of rights of parties and which has all the ingredients of a judgment and an order as known under civil jurisprudence. 110. Now, we will proceed to deal with the judgment of the Supreme Court relied upon by the appellants. Heavy reliance was placed on the judgment in Subal Paul's case (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 299 of the Succession Act is a judgment, if not a decree, observing that- ...Whenever the statute provides such a bar, it is so expressly stated, as would appear from Section 100A of the Code of Civil Procedure. If a right of appeal is provided for under the Act, the limitation thereof must also be provided therein. A right of appeal which is provided under the Letters Patent cannot be said to be restricted. Limitation of a right of appeal, in absence of any provision in a statute cannot be readily inferred. 113. These dicta of the Supreme Court, have not been noticed by the Division Bench in Asha's case (supra). Reliance was also placed upon a judgment of the Supreme Court in Sharada Devi's case (supra). In that case, the Supreme Court was concerned with an appeal to a Division Bench against the judgment of a learned Single Judge of the High Court as in terms of Section 54 of the Land Acquisition Act. The Court noticed that the expression only occurring in Section 54 after non obstante Clause refers to forum of appeal i.e. an appeal would lie to the High Court, and not to any other Court and appeal would take within its sweep Letters Patent Appeal, while not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Letters Patent. There is no provision in the special i.e. M.V. Act providing further appeal against the appellate judgment passed by the learned Single Judge under Section 173 of the M.V. Act. 116. Thus, we proceed to record and answer propositions of law formulated by us in paragraph 5 of the judgment as follows: (a) Upon amendment of Section 100-A of the Code of Civil Procedure by Amending Act of 2002 with effect from 1st July, 2002, no Letters Patent Appeal would be maintainable against the judgment rendered by the learned Single Judge of the High Court under the provision of Section 173 of the Motor Vehicles Act, 1988. (b) Appeal against the judgment of the learned Single Judge in exercise of its appellate jurisdiction under Section 173 of the Motor Vehicles Act, 1988 even with the aid of Clause 15 of the Letters Patent is not maintainable, and in fact, in both these situations, the Appellate Court would have no jurisdiction to entertain and decide such an appeal. 117. Having answered the above questions of law, and in view of the fact that the Appeals themselves have been placed for decision before this Bench, we have no hesitation in holding that these ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
