Orissa High Court
V.N.N. Panicker vs Narayan Pati And Ors. on 21 July, 2006
Equivalent citations: 102(2006)CLT479, 2006(II)OLR349
Author: M.M. Das
Bench: L. Mohapatra, M.M. Das
JUDGMENT M.M. Das, J.
1. This Letters Patent Appeal has been filed against the order dated 9.9.2005 passed by the learned Single Judge in FAO No. 298 of 2005.
2. Dipika English Medium School Society, a society registered under the Societies Registration Act being represented through its Principal Secretary has filed Civil Suit No. 131 of 2005 which is pending before the learned Civil Judge (Sr. Division), Rourkela. It appears from the prayer made in the plaint that the plaintiff has claimed for a declaratory decree declaring that the defendants 1 to 10 are not entitled to interfere in the management and administration of the plaintiff's school and further declaring that the constitution of the Managing Committee of the said school amongst defendants 1 to 10 on 25.7.2005 is illegal and unlawful and not binding on the plaintiff. A consequential relief in the form of permanent injunction restraining the defendants 1 to 10 from interfering with the management and administration of the school and from dealing with the Bank Accounts as per the schedule given in the plaint and from forcibly evicting the plaintiff from the school premises has also been sought for.
3. Along with the plaint, a petition under Order 39, Rules 1 and 2 of the Code of Civil Procedure was also filed by the plaintiff praying for an ad interim injunction restraining the opp-parties 1 to 4 who were defendants in the suit, from interfering with the management and administration of the school and from taking possession of moveable and immoveable assets of the said school from the plaintiff-petitioner. The said application was registered as CMA No. 43 of 2005. The said interim application was taken up for hearing by the trial Court and after hearing the learned Counsel for the parties and considering the materials available on record, the learned trial Court allowed the said Misc. Case filed by the plaintiff, restraining the opp-parties 1 to 8 by way of an ad interim order of injunction, from interfering with the management and administration of the plaintiff-school and from taking possession of the moveable and immovable assets of the said school and further from dealing with the Bank Accounts as described in the schedule of the Misc. Case Petition, They were also restrained from forcibly evicting the plaintiff from the premises and were directed that till disposal of the suit, the opp-parties 9 and 10 in the said Misc. Case who happen to be the senior Headmistress of the primary section of the said school and the Principal of the school respectively, would operate the Bank Account in question, in accordance with law under guidance of the old Managing Committee of the school and under the control of the plaintiff-society.
4. Being aggrieved by the said interim order of injunction, the defendant No. 1 preferred FAO No. 298 of 2005 before this Court. The said appeal has been disposed of by the learned Single Judge by his order dated 9.9.2005 with the following directions and observations:
Accordingly, while confirming the first part of the impugned order, I direct that opposite parties 9 and 10, i.e., the Senior Headmistress of the said School and the Principal of the School respectively shall carry on the day-to-day work of the school, and shall operate the bank account in question in accordance with law but then shall not take any policy decisions. This Court also feels that it would be just and proper that the aforesaid opposite parties 9 and 10 seek guidance from the Managing Director, Rourkela Steel Plant, if any exigency arises and I so direct. The direction that they shall act under the guidance of the old managing committee is set aside.
With the aforesaid observations/directions, the appeal is disposed of. The trial Court is directed to dispose of Civil Suit No. 131 of 2005 as expeditiously as possible, preferably within a period of six months hence, if there is no other impediment. The parties are directed to cooperate with the trial Court.
5. This letters patent appeal has been filed by the plaintiff who was the respondent in the FAO, against the order dated 9.9.2005 passed by the learned Single Judge.
6. The question of maintainability of this letters patent appeal was raised by the learned Counsel for the respondent and, as such, we have heard the matter at length on the question of the maintainability of the letters patent appeal.
7. The plaintiff who was the respondent No. 1 in the FAO being aggrieved by the directions and observations given by the learned Single Judge while disposing of the said FAO has preferred this Letters Patent Appeal under Clause 10 of the Letters Patent (Patna) Act.
8. Mr. Patnaik, learned Counsel for the respondent No. 1 relying upon Section 100A C.P.C. as amended with effect from 1.7.2002 submitted that the Letters Patent Appeal is not maintainable.
9. Mr. A.P. Bose, learned Counsel appearing for the appellant submitted that notwithstanding the provisions of Section 100A C.P.C. as it stands, the appeal is maintainable. In support of his submission, he relied upon the decision of the Supreme Court in the case of P.S. Sathappan (dead) by L. Rs. v. Andhra Bank Ltd. and Ors. and further submitted that a Division Bench of this Court in LPA No. 26 of 2005 Birat Chandra Dagra v. Taurian Exim Pvt. Ltd. and Anr. 2006 (II) OLR 344 disposed of on 20.4.2005, relying upon the above decision of the Supreme Court has held that the Letters Patent Appeal is maintainable.
10. Mr. Patnaik, learned Counsel for the respondent No. 1 submitted that the ratio of the decision in the case of P.S. Sathappan (supra) so far as it relates to the maintainability of the appeal will not be applicable to the facts of the present case for the simple reason that the impugned order of the trial Court which was under challenge in the FAO before the learned Single Judge was passed after the amendment/insertion of Section 100A C.P.C. which was given effect to from 1.7.2002 and, therefore, an appeal under the Letters Patent Appeal would be barred as per Section 100A C.P.C. as it stands.
11. In the case of P.S. Sathappan (supra), the Supreme Court has held as follows:
An appeal provided under the Letters Patent of the High Court is an appeal provided by a law for the time being in force. As such, an appeal is expressly saved by Section 104(1). Sub-clause (2) of Section 104 cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading Sub-clause (2) by ignoring the saving clause in Sub-section (1) would lead to a conflict between the two sub-clauses. Read as a whole and on well established principles of interpretation it is clear that Sub-clause (2) can only apply to appeals not saved by Sub-clause (1) of Section 104. The finality provided by Sub-clause (2) only attaches to orders passed in appeal under Section 104, i.e. those orders against which an appeal under 'any other law for the time being in force' is not permitted. Section 104(2) would not thus bar a Letters Patent Appeal. Effect must also be given to legislative intent of introducing Section 4 C.P.C. and the words 'by any law for the time being in force' in Section 104(1). As appeals under 'any other law for the time being in force' undeniably include a Letters Patent Appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in Sub-clause (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. However, when Section 104(1) specifically saves a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in Section 104(2) that a Letters Patent Appeal is also prohibited. 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 cases, 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. 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 in Section 4 in the C.P.C. Thus, now a specific exclusion was provided. 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 Appeal. Applying the above principle to the facts of this case, the appeal under Clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an appeal passed under such law.
(Emphasis supplied)
12. Thus, we are of the view that maintainability of the Letters Patent Appeal against an order of the Learned Single Judge passed in an appeal under Section 104 C.P.C. depends on the facts as to when the original order appealed against before the learned Single Judge, was passed. If the same was passed before amendment/insertion of Section 100A C.P.C. which specifically bars a Letters Patent Appeal, the said bar will not stand on the way of maintaining such an appeal. In the present case, however, as already noted above, the order impugned before the learned Single Judge in the FAQ was passed in the year 2005, by which time, Section 100A C.P.C. was already inserted thereby creating a bar for filing the Letters Patent Appeal.
13. Applying the ratio of the decision in the case of P.S. Sathappan (supra), we have no hesitation in coming to the conclusion that by virtue of Section 100A C.P.C. no Letters Patent Appeal would be maintainable if the order of the learned trial Court which was appealed against, in an appeal, filed under Section 104 C.P.C. was passed after the amendment/insertion of Section 100A C.P.C. which came into force with effect from 1.7.2002. In the present case, the order impugned before the learned Single Judge which was passed by the learned trial Court being much after the said date, i.e., 1.7.2002, we hold that this Letters Patent Appeal is not maintainable.
The LPA is, therefore, dismissed.
L. Mohapatra, J.
14. I agree.