Patna High Court
Balbhadra Singh @ Balbhadra Nr. Singh vs Ram Binod Singh And Ors. on 3 November, 2004
Equivalent citations: AIR2005PAT87, 2005(52)BLJR2208, AIR 2005 PATNA 87, (2005) 26 ALLINDCAS 519 (PAT), 2004 (3) BLJR 2208, 2005 (26) ALLINDCAS 519, 2004 BLJR 3 2208, (2004) 4 PAT LJR 879, (2005) 1 BLJ 77, (2005) 2 CIVLJ 443, (2005) 4 CURCC 149
JUDGMENT Nagendra Rai, A.C.J. and S.N. Hussain, J.
1. The maintainability matter of the appeal has been placed for orders.
2. We have heard learned counsel for the appellant. This appeal is directed against the order dated 15.7.2004, passed by a learned single Judge of this Court allowing the appeal filed by the respondents against the order dated 24.6.1999, passed by the 3rd Additional District Judge, Vaishali at Hajipur, in Probate Case No. 32 of 1966 recalling his earlier order of substitution dated 9.12.1975.
3. According to the office note, the appeal is not maintainable in view of the provisions contained in Section 100-A of the Code of Civil Procedure (for short 'the Code').
4. The matter arises out of a probate case, where the appellant was an objector. In the probate case, on 9.12.1975, the Court below expunged the name of the sole applicant Ram Bakshis Singh, who died on 15.7.1975 and substituted his heirs, who claimed to be legatees under the registered Will in question. The objector filed an application for recalling the said order, which was done by the impugned order in appeal before the learned single Judge.
5. The appeal was filed under Section 299 of the Indian Succession Act (for short 'the Act'), which runs as follows :-
"299. Appeals from orders of District Judge.-Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals."
6. Section 100-A of the Code brought by way of recent amendment runs as follows :- ' "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."
Thus, according to the amended provisions of the Code, in case an 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 notwithstanding anything contained in any Letters Patent for any High Court or in any instrumerit having the force of law or in any other law for the time being in force. As stated above, the appeal was filed under Section 299 of the Act.
7. Learned counsel for the appellant has relied upon the following judgments of the Supreme Court in support of his submission and submitted that as the appeal was filed under Section 229 of the Act and not under the Code and the provision of the Act does not prevent filing of further appeal, the Letters Patent Appeal is maintainable inspite of insertion of Section 100-A of the Code by the new amendment :-
(i) Vanita M. Khanolkary. Pragna M. Pal, AIR 1998 SC 424.
(ii) Chandra Kanta Sinha v. Oriental Insurance Co. Ltd., 2001 (3) PLJR 167 (SC).
(iii) Sharda Devi v. State of Bihar, 2002 (2) PLJR 168 (SC); and
(iv) Subal Pual v. Malina Paul, 2003 (3) PLJR (SC).
8. Thus, the only question for consideration is as to whether an appeal is maintainable or not in view of the newly added provision of Section 100-A of the Code.
9. In case of Vanita M. Khanolkar, (supra), which was a judgment rendered by two Hon'ble Judges of the Apex Court, the question for consideration was whether the order passed by the learned Single Judge under original jurisdiction under Section 6 of the Specific Relief Act was appealable before a Division Bench under Clause 15 of the Letters Patent of the Bombay High Court or not. Section 6(3) of the Specific Relief Act clearly bars any appeal or revision against any order passed by the Court under Section 6 of the said Act. Dealing with the said matter, the Apex Court held that the statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Unless the concerned statutory provision expressly bars Letters Patent Appeal, the power of the High Court under the Letters Patent would not be excluded. Paragraph 3 of the said judgment runs as follows :-
"3. Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under letters patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contended by learned counsel for the respondents that if Clause 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of Clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned single Judge of the High Court exercising original jurisdiction of the Court. Only on that short ground the appeal is required to be allowed."
10. In the case of Chandra Kanta Sinha, (supra), the matter arose out of a claim case filed under the Motor Vehicle Act and an order was passed by the learned single Judge of the High Court in a miscellaneous appeal. In that case, the question for consideration was whether Letters Patent Appeal against the order of the learned single Judge was maintainable or not. The Apex Court held that the appeal was maintainable.
11. In the Sharda Devi's case (supra), the question for consideration was as to whether from an order in appeal filed against an Award of the Court below, a Letters Patent Appeal would be maintainable or not. A Bench consisting of three Hon'ble Judges, having considered the matter, held that Section 54 of the Land Acquisition Act does not exclude the appeal under the Letters Patent of the Patna High Court, otherwise, there would be a conflict between Section 54 of the Land Acquisition Act and the provision of the Letters Patent.
12. In Subal Paul' case (supra), the question for consideration was as to whether a Letters Patent Appeal would lie against the judgment of a learned single Judge of the High Court filed under Section 299 of the Act. In other words, the question, which is involved in the instant appeal, was subject-matter of consideration before a Bench consisting of three Hon'ble Judges. It appears that the said case related to the period prior to insertion of Section 100-A of the Code. The maintainability matter was raised with reference to the provision of Section 104 of the Code, according to which, an appeal is provided with regard to certain orders specified therein and it was provided in sub-section (2) thereof that no appeal shall lie from any order passed in an appeal under this section. In that case, the contention of the appellant was that the appeal before the High Court would be treated to be an appeal under Section 104 of the Code, read with Order XLIII and as such second appeal was barred and, accordingly, the appeal under the Letters Patent was also barred.
13. Dealing with the said matter, the Apex Court considered as to what is the nature of the order passed under Section 299 of the Act and in paragraph 31 it concluded that the order passed under Section 299 of the Act would be a judgment within the meaning of Section 2(9) of the Code. Paragraph 31 of the said judgment runs as follows :-
"31. The orders passed under Section 299 of the Act may be an interlocutory order determining the rights of the parties or a final order. When a final order is passed in a contentious suit, as would be evident from the provisions contained in Section 295 of the Act, the procedures of the Code of Civil Procedure are required to be followed. Therefore, a final order passed between the parties adjudicating upon the rights and obligations which are binding between the parties thereto and are enforceable, although may not be, stricto sensu a decree within the meaning of Section 2(2) of the Code of Civil Procedure but it is beyond any civil that the same would be a judgment within the meaning of Section 2(9) thereof."
It was further held that a right of appeal of a party in a contentious proceeding is to be found in the provisions of Section 299 of the Act and not in Section 104 of the Code and according to Section 299 of the Act, only the procedure as provided in the Code would apply and the Apex Court having discussed its several judgments, including the judgments referred to above, held that as the Indian Succession Act expressly did not bar further appeal, the order passed by the learned single Judge would be appealable to Letters Patent Bench.
14. According to the learned counsel for the appellant, the said judgment is the settler of the point involved in this appeal and as such this Letters Patent Appeal is maintainable.
15. As stated above, there the question of what would be effect of Section 100-A of the Code was not considered by the Apex Court, on the other hand, from the reading of the judgment (paragraph 20), it appears that the Apex Court stated that Section 104 of the Code recognises appeals provided under special statute. It does not, therefore, bar any further appeal also, if the same is provided for under any other Act, for the time being in force. However, in the same paragraph it is observed, "whenever the statute provides such a bar, it is so expressly stated, as would appear from Section 100-A of the Code of Civil Procedure". The settled law, as appears from the judgment of the Apex Court, is that right to hear appeal under the Letters Patent is the constitutional power of the High Court and no exclusion can be inferred unless the statute concerned has expressly barred appeal under the Letters Patent or further appeal. However, in none of the cases aforementioned, the effect of Section 100-A of the Code was under consideration. Section 100-A of the Code, as quoted above, provides, inter alia, that 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. So, in view of this non-obstante clause, after the new amendment, even if there is no express prohibition limiting the Letters Patent Appeal or there is a provision of a Letters Patent Appeal, further appeal is barred from the judgment or order passed by a learned single Judge in exercise of the first appellate jurisdiction.
16. As held by the Supreme Court in the case referred to above, the order passed in a proceeding under Section 299 of the Act is in the nature of judgment and once the same is passed by a learned single Judge of the High Court in an appeal under Section 299 of the Act, it is also a judgment of the High Court and in that view of the matter further appeal under the Letters Patent is excluded after the aforesaid amendment. The judgment heavily relied upon by learned counsel for the appellant, in our view, has not considered the effect of Section 100-A of the Code, on the other hand, it has only noticed the same as that was not an issue before the Apex Court. The said amendment in the Code has changed the situation and the very object of the provision of Section 100-A of the Code is that once the matter has been decided by the High Court in exercise of the jurisdiction under any law and inspite of there being any provision in any Letters Patent or in any other instrument having the force of law, or in any other law for the time being in force further appeal against the judgment or decree passed by the learned single Judge against the judgment and order passed by the Court below is not maintainable.
17. The said view finds support from a decision of the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, reported in AIR 2003 SC 189, where the vires of the new amended provision of the Code were challenged and the said provision of Section 100-A of the Code was held to be valid. In paragraph 15 of the said judgment, it was observed as follows :-
"15. Section 100-A deals with two types of cases which are decided by a single judge. One is where the single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated where, however, an appeal is filed before the High Court against the decree of a trial Court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a single Judge or by a Division Bench of the High Court where the regular first appeal so filed is heard 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 further regular 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 work load 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."
18. Thus, in our view, the present Letters Patent Appeal is not maintainable.