Jharkhand High Court
Manoj Kumar vs Smt. Meera Agarwal And Anr. on 10 August, 2005
Equivalent citations: I(2006)DMC140, [2005(4)JCR340(JHR)], 2005 AIR - JHAR. H. C. R. 2319, (2006) 1 HINDULR 414, (2005) 4 JCR 340 (JHA), (2006) 3 CIVLJ 183, (2006) 1 DMC 140, (2006) 1 JLJR 351, (2006) 3 CURCC 351
Author: Altamas Kabir
Bench: Altamas Kabir, R.K. Merathia
JUDGMENT Altamas Kabir, C.J.
1. In this Letters Patent Appeal directed against the order dated 22nd June, 2004 passed by a learned Single Judge of this Court in F A No. 105 of 2003 filed on behalf of the appellant under Section 28 of the Hindu Marriage Act, a question has arisen as to whether the instant appeal is maintainable or not having regard to the amended provisions of Section 100-A of the Code of Civil Procedure.
2. The appellant herein filed Matrimonial Case No. 13 of 1994 in the Court of the District Judge, Palamau at Daltonganj under Section 13 of the Hindu Marriage Act for dissolution of marriage and for other reliefs against the respondent No. 1 on the ground of desertion and cruelty. The respondent No. 1 appeared and contested the suit and made several counter allegations against the appellant in her written statement contending that in view of the said allegations, it was impossible for her to live with the appellant as his wife. She also claimed interest pendente lite and permanent alimony as per the provisions of the Hindu Marriage Act, 1955.
3. The trial Court by its judgment and decree dated 7th September, 2002 decreed the suit and dissolved the marriage and further decreed that the respondent No. 1 was entitled to receive maintenance at the rate of Rs. 1000/- per month since after 17th August, 2001 till the date of decree, and final alimony at the rate of Rs. 3000/- per month till her remarriage and further amount of Rs. 1,00,000/- (Rupees one lakh) towards the property presented to the appellant at the time of marriage.
4. The appellant filed FA No, 105 of 2003 along with an application under Section 5 of the Limitation Act, for condonation of the delay in filing the appeal. The said application, being LA. No. 2677 of 2003 was dismissed by the learned Single Judge on 22nd June, 2004, as a result whereof, the said First Appeal also stood dismissed against the judgment and decree dated 7th September, 2002 passed by the learned District Judge, Latehar, in Matrimonial Case No. 13 of 1994. It is against the said order of the learned Single Judge that the instant appeal has been filed and at the time of admission, a question has arisen as to whether the same is maintainable having regard to the amended provisions of Section 100-A of the Code of Civil Procedure, read with clause 10 of the Letters Patent.
5. Appearing in support of the appeal, Mr. Lal urged that the appeal was maintainable as had been held by a Division Bench of this Court in the case of Ganesh Singh and Anr. v. Bishram Singh and Anr., 2003 (3) JCR 527 (Jhr) : 2003 (4) JLJR 134, in which relying on the earlier decision of the Hon'ble Supreme Court, it was held that the amended provisions of Section 100A does not affect the right of appeal under clause 10 of the Letters Patent in suits filed prior to 1st July, 2002 in view of the principle that a right of appeal is not an inherent right, but a conferred right and once it is conferred, it becomes a vested right which was preserved by operation of Section 6 of the General Clauses Act, unless taken away by retrospective amendment of the concerned statute conferring the right of appeal. Mr. Lal submitted that the Division Bench had occasion to consider several decisions of the Hon'ble Supreme Court, as also other High Courts in coming to the conclusion that while it was, no doubt, true that the intention of the Parliament in enacting Section 100-A of the Code of Civil Procedure was to abolish further appeals from first appellate decrees in addition to further appeals from second appellate decrees, it has also to be remembered that the Parliament did not include a provision like Section 97(3) of the Code of Civil Procedure while further amending the right of appeal. It was also observed that by not enacting a provision like Section 97(3) and by deleting Section 32(2)(g), the parliament had clearly indicated its intention not to affect the right that had accrued to a suitor prior to the coming into force of the amended provision of Act 22 of 2002 on 1st July, 2002. Mr. Lal submitted that the Division Bench had concluded on the note that Section 100-A of the Code of Civil Procedure did not affect the right of appeal under clause 10 of the Letters Patent in suits filed prior to 1st July, 2002 and that applying the said principle in the instant case, it must also be held that the present appeal which arises out of the suit filed prior to 1st July, 2002 is maintainable.
6. Mr. Lal also referred to the decision of the Hon'ble Supreme Court in the case of Shiv Shakti Co-operative Housing Society v. Swaraj Developers and Ors., wherein the scope of Sections 96, 100 and 115 of the Code of Civil Procedure was under consideration and it was observed that it was a fairly well settled position in law that the right of appeal is a substantive right, whereas no such right exists in making an application under Section 115. It was also observed that an appeal is essentially continuation of the original proceedings and the provisions applied at the time of institution of the suit are to be operative even in respect of appeals, because there is a vested right in the litigant to avail the remedy of an appeal.
7. Mr. Lal then referred to a decision of the Hon'ble Supreme Court in the case of P.S. Sathappan v. Andhra Bank Limited, , wherein the provisions of Section 100-A in relation to Section 104, CPC together with clause 10 of the Letters Patent was considered and it was observed that after the introduction of Section 100-A in the CPC, no Letters Patent Appeal would be maintainable on account of the specific exclusion provided by the Legislature, but the law which would prevail would be the law at the relevant time as mentioned in Section 100-A of the Code of Civil Procedure. Mr. Lal contended that applying the said principles to the facts of the case, the Hon'ble Supreme Court had held that the appeal under clause 15 of the Letters Patent, being an appeal provided by law for the time being in force, the finality contemplated by sub-section (2) of Section 104, CPC did not attach to an appeal passed under the said law. Several other decisions were also referred to by Mr. Lal which explain the principles enunciated in the decision referred to above and is not required to be dealt with specifically.
8. Having regard to the earlier Bench decision of this Court and its impact on appeals in respect of suits which have been filed prior to 1st July, 2002, and the subsequent view expressed by the Hon'ble Supreme Court in the case of P.S. Sathappan, (supra), we have once again given serious thought to the provisions of Section 100-A, CPC in relation to appeals under Clause 10 of the Letters Patent. When the earlier matter was decided by the Division Bench, the learned Judges did not have the benefit of the observations made by the Hon'ble Supreme Court in P.S. Sathappan's case. Relying on the principles which had earlier been explained by the Hon'ble Supreme Court in Garikapati Veeraya v. N. Subbiah Choudhury, that a vested right of appeal could not be taken away except by an express enactment or intendement, it was held that the right of appeal having accrued at the very initial stage when the suit itself was filed, such right remained unaffected even by the provision of Section 100-A which was introduced by way of amendment in the Code of Civil Procedure in 2002. Subsequently, however, the effect of introduction of Section 100-A came to be considered once again in PS. Sathappan's case and it was sought to be explained that where the Legislature intended to specifically exclude a Letters Patent Appeal, it had expressly done so in Section 100-A of the Code of Civil Procedure introduced in the Code by the amending Act of 2002 by providing that notwithstanding anything contained in any Letters Patent, or in any instrument having the force of law, or in any other law for the time being in force, no further appeal would lie from an order of the learned Single Judge of the High Court passed in an appeal from an appellate decree or order. In our view, this has the effect of reversing the view expressed in Garikapati's case (supra). The Hon'ble Supreme Court went on to observe that it is the settled law in the event of a conflict between a special law and a general law, special law must always prevail and that, accordingly, if there was any conflict between the Letters Patent and the Code of Civil Procedure, then the provision of the Letters Patent would always prevail, unless there was a specific exclusion like Section 100-A.
9. In other words, when a specific provision for exclusion of appeal was inbuilt in the Statute itself, the provision of the Letters Patent in respect of appeals would prevail. The aforesaid legal principle also fell for decision of a Full Bench of this Court in the case of Satya Narayan Agarwal and Anr. v. State Bank of India and Ors., 2005 (3) JCR 1 (Jhr)(FB), wherein the aforesaid issue fell for re-consideration and following the decision in the case of P.S. Sathappan, (supra), the Full Bench were of the view that in view of the provisions of Section 100-A of the Code of Civil Procedure, an appeal from the judgment and decree of a learned Single Judge in a First appeal from money suit was not maintainable and was barred.
10. There can be no dispute that the intention of the legislature in introducing Section 100-A in the Code of Civil Procedure was to minimize the delay in the finality of a decision by excluding the right to prefer a second appeal in High Court from the order passed by a learned Single Judge in an appeal from an original or appellate decree. Applying the decision rendered in Ganesh Singh's case (supra) would have an opposite effect, which can no longer be applied and followed. Consequently, following the decision of the Hon'ble Supreme Court, in P.S. Sathappan's case and that of the Full Bench of this Court in Satya Narayan. Agarwal, we are inclined to hold that by virtue of introduction of Section 100-A in 'the Code of Civil Procedure, the right to appeal provided under clause 10 of the Letters Patent stood exclusively excluded and the instant appeal is, therefore, not maintainable.
11. The appeal is, accordingly, dismissed. There will, however, be no order as to costs.
R.K. Merathia, J.
12. I agree.