Punjab-Haryana High Court
The Oriental Insurance Company Limited vs Banti Devi And Others on 8 August, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 08.08.2011
LPA No. 384 of 2003
The Oriental Insurance Company Limited .....Appellant
Vs.
Banti Devi and others .....Respondents
CORAM: - HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present: - Mr. R. K.Bashamboo, Advocate
for the appellant.
HEMANT GUPTA, J.
This order shall dispose of LPA No.384 of 2003 arising out of order passed by the learned Single Judge of this Court on 17.02.2003 granting Rs.50,000/- as compensation to the claimants.
Earlier the present letters patent appeal was found to be not maintainable vide order dated 11.05.2005, but the Hon'ble Supreme Court vide its order dated 10.01.2011 set aside the said order and remitted the matter to this Court to decide it afresh, as the judgment in P.S. Sathappan (Dead) by Lrs. Vs. Andhra Bank Ltd. and others (2004) 11 SCC 672 was not brought to the notice of the High Court.
Learned counsel for the appellant at the outset admitted that, in fact, the aforesaid judgment has been noticed by this Court in its order dated 11.05.2005 and also by the Full Bench of Seven Judges in Balbir Kaur Vs. Bhim Singh 2005 (1) PLR 848, which was relied upon by this Court in its order dated 11.05.2005. Since the matter has been remitted back by the Hon'ble Supreme Court, we are re-examining the issue. LPA No. 384 of 2003 2
Section 173 of the Motor Vehicles Act, 1988 contemplates that an appeal against the Award rendered by the Motor Accident Claims Tribunal. In the said Act, there is no provision of further intra court appeal. Prior to substitution of Section 100 A of the Code of Civil Procedure (for short 'the Code') w.e.f. 01.07.2002 vide Code of Civil Procedure (Amendment) Act, 2002, a letters patent appeal would be maintainable against an order passed by the learned Single Judge of this Court in exercise of the appellate jurisdiction under Clause X of the Letters Patent. But as per the amended provision of Section 100 A inserted in the Code, no further appeal is maintainable notwithstanding anything contained in any Letters Patent. The said substituted Section reads as under:
"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 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 Balbir Kaur's case (supra), a Seven Judges' Full Bench of this Court has held that the Letters Patent Appeal would not be maintainable against the judgment and order passed by the learned Single Judge, while exercising the appellate jurisdiction. The said issue before the Full Bench arose in proceedings under the Hindu Marriage Act, 1955.
The argument raised by the learned counsel for the appellant is that the substituted provision of Section 100 A of the Code would not be applicable to an appeal under special Statute, such as Motor Vehicles Act, 1988 in terms of Section 4 of the Code, which provides that nothing in this Code shall be deemed to limit or affect any special or local law in force. It is, thus, contended that in terms of Section 100 A of the Code, an appeal LPA No. 384 of 2003 3 arising out of appellate decree passed under the Code alone would not be maintainable, but not in respect of appeal arising out of a special Statute.
In P.S.Sathappan's case (supra), the question arose in respect of an appeal filed before the substitution of Section 100 A of the Code in the year 2002. In the aforesaid case, the letters patent appeal was dismissed on 22.08.1997 by the Madras High Court in terms of sub-clause (2) of Section 104 of the Code. The majority view of the Full Bench is that right of appeal conferred by Clause X of Letters Patent can be taken away by an express provision in an appropriate Legislation. It was held that the bar under Section 104(2) did not apply to Letters Patent Appeals and the Letters Patent Appeal cannot be ousted by implication, but can be taken away by an express provision in an appropriate Legislation. It was held to the following effect:
"22. Thus, the unanimous view of all Courts till 1996 was that Section 104 (1) C.P.C. specifically saved Letters Patent Appeals and the bar under Section 104(2) did not apply to Letters Patent Appeals. The view has been that a Letters Patent Appeal cannot be ousted by implication, but the right of an Appeal under the Letters Patent can be taken away by an express provision in an appropriate Legislation. The express provision need not refer to or use the words 'Letters Patent' but if on a reading of the provision, it is clear that all further Appeals are barred then even a Letters Patent Appeal would be barred."
Still further, noticing the case reported as Subal Paul Vs. Maline Paul (2003) 10 SCC 361, it was held that Section 299 of the Indian Succession Act, 1925, provides an appeal to the High Court and such right of appeal is not under Section 104 of the code and the further appeal against an order passed by learned single Judge exercising appellate jurisdiction is maintainable under Letters Patent. The said question has also arisen prior to substitution of Section 100 A of the Code. It was held that the bar under Section 104(2) would not apply if an Appeal was provided in any other law LPA No. 384 of 2003 4 for the time being in force. Considering Section 4 of the Code, the Court proceeded to observe as under:
"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 not lie' or 'order will be final' are not sufficient. In such case, i.e. where there is an express saving, there must be an express exclusion. Sub-clause (2) of Section 104 does not provide for any express exclusion. In this context reference may be made to Section 100A. The present Section 100A was amended in 2002. The earlier Section 100A, introduced in 1976, reads 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 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."
It is thus to be seen that when the Legislature wanted to exclude a Letters Patent Appeal is 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 in the CPC. Thus, now a specific exclusion was provided. After 2002, 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 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."
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."
Since in the aforesaid case, the right of appeal arose prior to substitution of Section 100 A, therefore, it was found that the appeal is LPA No. 384 of 2003 5 maintainable. Following the aforesaid view in Balbir Kaur's case (supra), it has been held that Letters Patent Appeal against an order passed by the appellate jurisdiction of this Court would not be maintainable.
The present appeal has been filed under Clause X of the Letters Patent. The provisions of Section 100 A of the Code has been given overriding effect notwithstanding anything contained in any Letters Patent or any other instrument having the force of law or "in any other law for the time being in force". Thus, it is apparent that the said provisions override not only Section 4 of the Code but also all other laws which are in force. Section 100 A of the Code does not restrict its applicability to the appeals arising under the Code of Civil Procedure alone.
Thus, we are of the opinion that an appeal under the Letters Patent would not be maintainable, when an original or appellate decree or order is heard and decided by the learned Single Judge of this Court.
Consequently, the present appeal is dismissed as not maintainable with no order as to costs.
(HEMANT GUPTA) JUDGE (VIJENDER SINGH MALIK) JUDGE 08.08.2011 Preeti/Vimal