TMI Blog2008 (10) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Judges of the Division Bench were of the view that the reasons given by another Division Bench of this Court in Satish Chander Sabharwal and Anr. v. State and Ors. 122 (2005) DLT 170 on the basis of which the judgment of the Supreme Court in Subal Paul v. Malina Paul Anr. AIR 2003 SC 1928 has been distinguished were not correct and, therefore, the matter requires consideration by a larger Bench. The learned Judges accordingly referred the following question of law for consideration by a larger Bench : Whether the Letters Patent Appeal against the judgement of single Judge of this Court in first appeal would be maintainable having regard to the provisions of Section 100A of the Code of Civil Procedure as amended by Amendment Act, 2002? 2. Mr. Arvind Nigam, learned counsel appearing for the appellant submitted that in almost identical facts the Supreme Court in the case of Subal Paul v. Malina Paul (supra) has held that a Letters Patent Appeal challenging the decision of a single Judge passed under Section 299 of the Indian Succession Act would be maintainable. Learned counsel cited several other judgments in support of this contention. The submission of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Delhi exercises ordinary original civil jurisdiction conferred by sub-Section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court. Section 15 contains a saving clause and reads as follows: 15 Savings Save as provided in Section 4, nothing in this Act shall affect the application to the High Court of Delhi of any provisions of the Constitution, and this Act shall have effect subject to any provision that may be made on or after the appointed day with respect to that High Court by the Legislature or other authority having power to make such provision. 5. Section 100A was introduced in the Code of Civil Procedure by Section 38 of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), which came into force with effect from 1.2.1977. The Section inserted read as follows : 100A. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an original decree or order, but even the right of appeal conferred on the litigant against the decisions rendered by a single Judge while disposing of a writ petition filed under Article 226 or 227 of the Indian Constitution. The purpose was to avoid a system of entertaining a second appeal in the High Court in all categories of cases. 7. Section 100A was again amended by Section 4 of the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) which came into force with effect from 1.7.2002. At present, Section 100A reads as follows : 100A. 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. In Clause 3(j) of the Objects and Reasons contained in Act 22 of 2002, it is stated as follows: (j) appeals to Division Bench of the High Courts in writs under Articles 226 and 227 of the Constitution shall be restored. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ick and Bros. Ltd. (supra). In the said case the question arose whether a Letters Patent Appeal under Clause 15 of the Letters Patent of the Bombay High Court was maintainable against the judgment of a single Judge exercising appellate jurisdiction under Section 76 of the Trade Marks Act, 1940. Holding that such an appeal was maintainable, the Supreme Court observed : (AIR p. 360 para.7) Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act. Referring to clause 44 of the Letters Patent, it was held that the provisions of the Letters Patent were subject to the legislative powers of the Governor-General-in-Legislative Council, and therefore, in the present-day context, subject to the legislative power of the appropriate legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion second appeal includes an appeal under the Letters Patent, it would be impossible to hold that notwithstanding the express prohibition, an appeal under the Letters Patent from an order passed in appeal under sub-section (1) is competent. 11. The question whether a Letters Patent Appeal would be barred was considered by a Constitution Bench in the case of Gulab Bai v. Puniya reported in AIR 1966 SC 637 . In this case, an application under Section 25 of the Guardians and Wards Act was rejected by a Civil Court. This decision was reversed in appeal by a single Judge of the Rajasthan High Court. Against the decision of the single Judge an appeal under Clause 18 of Rajasthan High Court Ordinance was filed. The question was whether such an appeal was not maintainable by virtue of Sections 47 and 48 of the Guardians and Wards Act. Section 47 permitted an appeal to the High Court whilst Section 48 gave finality. The finality prescribed under Section 48 was subject to the provisions of Section 47 and Section 622 of the earlier Code which corresponds to Section 115 of the present Code of Civil Procedure. The Court held that an appeal permitted by the relevant clause of the Lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bihar AIR 2002 SC 1357 it was observed that the Letters Patent is not an enactment, but a Charter of the High Court and that a non-obstinate clause contained in Section 54 of the Land Acquisition Act, 1894 could not cover the Charter of the High Court. 15. We may now refer to the decision of the three Judge Bench in Subal Paul v. Malina Paul (supra) on which strong reliance has been placed by the learned counsel appearing for the appellant. In this case, the learned Additional District Judge rejected the prayer for issue of probate. An appeal preferred under Section 299 of the Succession Act was allowed by a learned single Judge of the High Court and letters of administration were granted. In Letters Patent Appeal filed before the Bench, a preliminary objection was raised that no such appeal is maintainable being barred by Section 104 of the Code of Civil Procedure. The Bench overruled the objection and directed for hearing of the appeal. At this stage, the appellant moved the Supreme Court. The argument was that since the order passed by the District Judge in a contentious proceeding is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure, the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... happan vs. Andhra Bank Ltd. (supra). In this case the Constitution Bench was called upon to decide apparently conflicting views expressed in Gulab Bai vs. Punia (supra) on the one hand and New Kennilworth Hotel's case (supra) on the other. The majority of the Constitution Bench examined the scheme of Section 104 of the Code in the light of the other provisions, including Section 4 and held that Section 104(1) specifically saves letters patent appeal and the bar contained in Section 104(2) does not apply to such appeals. The decisions in the case of New Kenilworth Hotel (P) Ltd . and Resham Singh Pyara Singh were expressly overruled. However, it is important to note that the Constitution Bench emphasised that the legislature can exclude the Letters Patent Appeal. The majority judgment referred to Section 100A of the Code as amended in the year 2002 and observed as follows : (AIR page 5176/77 para 30) As stated hereinabove, a specific exclusion may be clear from the words of a statute even though no specific reference is made to Letters Patent. But where there is an express saving in the statute/section itself, then general words to the effect that an appeal would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in case of conflict, the former would prevail except when there is an exclusion of the special law like the one made by Section 100A. In paragraph 32 of the judgment, the Court observed as follows : (AIR page 5177) It was next submitted that clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, clause 44 permits amendment or alteration of Letters Patent, but then which legislation is not subject to amendment or alteration? CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar's case and Sharda Devi's case, a Letters Patent is the charter of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the constitutional powers of a High Court in para 9 of this judgment it had been suggested that a Letters Patent had the same status as the Constitution. In our view these observations merely lay down that the powers given to a High Court are the powers with which that High Court is constituted. These observations do not put Letters Patent on a par with the Constitution. 18. A plain reading of the above observations makes it clear that the right of appeal conferred by the Letters Patent can be taken away by the Parliament by enacting appropriate provision in the C.P.C. and the provisions contained in Section 100A of C.P.C. expressly barred a second appeal against a judgment and order in the first appeal passed by a single Judge. 19. The effect of Section 100A of the Code on the maintainability of Letters Patent Appeal against an appellate order under special Act fell for consideration in a recent judgment of a two Judge Bench in Kamal Kumar Dutta and another v. Ruby General Hospital Ltd. and others 2006 (7) SCC 613 . In this case the appeals were preferred to the Supreme Court against the order passed by a single Judge of the High Court in a matter under Sections 397 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 10-E, 10-F, 397 and 398 of the Act, it becomes clear that it is a complete code that applications under Sections 397 and 398 of the Act shall be dealt with by CLB and the order of CLB is appealable under Section 10-F of the Act before the High Court. No further appeal has been provided against the order of the learned Single Judge. Mr Nariman, learned Senior Counsel for the respondents submitted that an appeal is a vested right and, therefore, under clause 15 of the Letters Patent of the Calcutta High Court, the appellants have a statutory right to prefer appeal irrespective of the fact that no appeal has been provided against the order of the learned Single Judge under the Act. In this connection, learned counsel invited our attention to a decision of this Court in Garikapatti Veeraya v. N. Subbiah Choudhury 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 applicant 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament in its wisdom has taken away its power. Learned counsel for the respondents invited our attention to a letter from the then Law Minister. That letter cannot override the statutory provision. When the statute is very clear, whatever statement by the Law Minister made on the floor of the House, cannot change the words and intendment which is borne out from the words. The letter of the Law Minister cannot be read to interpret the provisions of Section 100-A. The intendment of the legislature is more than clear in the words and the same has to be given its natural meaning and cannot be subject to any statement made by the Law Minister in any communication. The words speak for themselves. It does not require any further interpretation by any statement made in any manner. Therefore, the power of the High Court in exercising the Letters Patent in a matter where a Single Judge has decided the appeal from the original order, has been taken away and it cannot be invoked in the present context. There are no two opinions in the matter that when CLB exercised its power under Sections 397 and 398 of the Act, it exercised its quasi-judicial power as original authority. It may not be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law. We have already explained the facts above and we have explained Section 100-A of the Code of Civil Procedure to indicate that the power was specifically taken away by the legislature. Therefore, the view taken by the Bombay High Court in Maharashtra Power Development Corpn . cannot be said to be the correct proposition of law. 26. In this connection, our attention was invited to a Constitution Bench decision in P.S. Sathappan v. Andhra Bank Ltd . In this case, the Constitution Bench observed as follows: (SCC p. 675) From Section 100-A CPC, as inserted in 1976, it can be seen that when the legislature wanted to exclude a letters patent appeal it specifically did so. Again from Section 100-A, as amended in 2002, it can be seen that the legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100-A no letters patent appeal would be maintainable in the facts of the present case. 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 100-A nor Section 104(2) barred a letters patent appeal. The words used in Section 100-A are not by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rules, 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. 22. A plain reading of the provisions of Section 100A of the Code of Civil Procedure makes it very clear that there is complete prohibition of filing a further appeal against a decree and order of a single Judge. The said legislative declaration prohibits preferring a further appeal against the judgment and decree of a single Judge if an appeal is provided in any other law for the time being in force. Thus, as prohibited by Section 100A, preferring a further appeal to a Division Bench against the judgment and decree of a single Judge is barred, not only under the Letters Patent of any High Court but also under any special enactment under which such appeal is provided. Section 15 of the Delhi High Court Act provides that the provisions of Act are subject to any provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court after July 1, 2002, no further appeal would be maintainable. To hold otherwise would run contrary to the plain intendment, as well as the object and underlying purpose of Section 100A. In introducing the amended provisions of Section 100A, the legislature was concerned as much with the existing backlog of cases as the accretion to the backlog that would accrue by the institution of fresh cases after the amended provisions were brought into force. Consequently, it would be unreasonable to attribute to the legislature the intendment that while seeking to bring into effect a provision which was intended to cure the delays of litigation, the legislature would have intended to exempt from its purview all cases which have filed prior to the date on which the amendment was brought into force. As noticed earlier a similar submission was expressly rejected by the Supreme Court in Kamal Kumar Dutta v. Ruby General Hospital (supra). 24. In the light of the foregoing discussion, we hold that after insertion of Section 100A in the Code of Civil Procedure no Letters Patent Appeal is maintainable against the judgment rendered by a single Judge in a first appeal arising out of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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