Himachal Pradesh High Court
Karodhan Devi And Others vs Prem Chand on 21 July, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
OSA No.2 of 2015.
Judgment reserved on: 13.07.2017.
Date of decision: July 21s t, 2017.
Karodhan Devi and others .....Appellants.
Versus
Prem Chand .....Respondent.
Coram r
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1Yes For the Appellants : Mr.G.D.Verma, Senior Advocate with Mr.B.C.Verma, Advocate.
For the Respondent : Mr.K.D.Sood, Senior Advocate with Mr.Dhananjay Sharma, Advocate.
Tarlok Singh Chauhan, Judge.
Brief facts of the case are that the respondent filed a suit for specific performance pertaining to land as per the details given in the plaint which was decreed by the learned trial Court vide judgment and decree dated 28.04.1999. On an appeal, the learned first appellate Court varied the findings of the learned trial Court and passed a decree for recovery of `10,680/- + `15,000/- =`25,680/- by way of damages alongwith interest thereupon @ 6% per annum from the date of filing the suit till the recovery thereof.
2. The respondent filed RSA No.176/2009 which has been admitted and is pending adjudication before the learned Single Judge.
During the pendency of the appeal, respondent filed an application under Order 39 Rule 1 and 2 CPC in which interim order was passed on Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 25/07/2017 23:57:30 :::HCHP 2 22.04.2009 and subsequently the said order was made absolute on 24.09.2010. The respondent thereafter filed an application under Order .
39 Rule 2-A CPC which was registered as CMP No.874 of 2011 wherein the allegations were made regarding disobedience of the aforesaid orders.
3. The learned Single Judge vide order dated 20.05.2015 allowed this application and directions were issued to the District Collector, Hamirpur, to attach the properties of the appellants (herein) with a further direction to the appellants to demolish the fresh/new construction raised by them during the pendency of the appeal when the interim orders were in operation. A period of three weeks' was granted for the aforesaid purpose, failing which they were ordered to be detained in civil imprisonment at the first instance for a period of one month.
4. It is against this order that the appellants have filed the instant appeal by invoking the provisions of Order 43 Rule 1 (r) CPC.
5. This Court on 10.08.2016 framed the following questions of law:-
"(i) Whether the Original Side Appeal will lie against such impugned order?
(ii) Whether any appeal will lie before a Division Bench against the order passed by a learned Single Judge, while exercising powers as second appellate Court?"
Questions No.(i) and (ii).
6. Since both these questions are intrinsically interlinked and interconnected, therefore, they are taken up together for consideration and are being disposed of by common reasoning.
7. We have heard the learned counsel for the parties, who have addressed arguments in length and placed reliance on various ::: Downloaded on - 25/07/2017 23:57:30 :::HCHP 3 judgments of the High Court as also the Hon'ble Supreme Court.
However, we find that most of the judgments as relied upon by the .
learned counsel for the parties are those which were delivered before the amendment of Section 100-A of the Code of Civil Procedure by the CPC Amendment Act 2002 (22 of 2002) with effect from 01.07.2002 and reads thus:
"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 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."
8. The vires of Section 4 of the Code of Civil Procedure (Amendment) Act, 2002 whereby Section 100-A was amended came to be challenged before the Hon'ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu versus Union of India (2003) 1 SCC 49 and it was held as under:-
"15. Section 100A 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 upon the value of the case, the appeal from 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 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 provided for the regular first 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 workload ::: Downloaded on - 25/07/2017 23:57:30 :::HCHP 4 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 in 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 100A."
9. In Geeta Devi and others versus Puran Ram Raigar and another (2010) 9 SCC 84, the Hon'ble Supreme Court held as under:-
"3. In our opinion, the Division Bench of the High Court has rightly held that the appeal against the order of the learned Single Judge dated 7-8-2006 did not lie in view of Section 100-A CPC. The learned Single Judge had decided Miscellaneous Appeal No.2777 of 2003 against the award of the Motor Accidents Claims Tribunal. In our opinion, this intra-court appeal in the High Court was not maintainable in view of Section 100-A CPC notwithstanding anything in the High Court Rules or the Letters Patent to the contrary. Hence, the appeal was rightly dismissed by the Division Bench of the High Court and this appeal is, therefore, dismissed.
4. However, dismissal of this appeal will not prevent the appellants from filing the SLP directly against the judgment of the learned Single Judge dated 7-8-2006 dismissing the miscellaneous appeal arising out of the impugned award dated 20-9-2003 passed by the Motor Accidents Claims Tribunal, Shahpura, District Jaipur in Claim Petition No.177 of 2002, if so advised and subject to all just exceptions including limitation. No costs."
10. The purpose of introducing Section 100-A was to reduce the number of appeals as the public at large was being harassed by many appeals available under the statute and this was so held by the Hon'ble Supreme Court in Mohd. Saud and another versus Dr.(Maj.) Shaikh Mahfooz and others (2010) 13 SCC 517.
11. The scope of Section 100-A thereafter came up for consideration before the Hon'ble Supreme Court in Kamal Kumar Dutta ::: Downloaded on - 25/07/2017 23:57:30 :::HCHP 5 and another versus Ruby General Hospital Ltd. and others (2006) 7 SCC 613 wherein it was held as under:-
.
"22. So far as the general proposition of law is concerned that the appeal is a vested right there is no quarrel with the proposition but it is clarified that such right can be taken away by a subsequent enactment either expressly or by necessary intendment. The Parliament while amending section 100A of the Code of Civil Procedure, by amending Act 22 of 2002 with effect from 1.7.2002, took away the Letters Patent power of the High Court in the matter of appeal against an order of learned single Judge to the Division Bench. Section 100A of the Code of Civil Procedure reads as follows:
"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."
23.Therefore, where appeal has been decided from an original order by a single Judge, no further appeal has been provided and that power which used to be there under the Letters Patent of the High Court has been subsequently withdrawn. The present order which has been passed by the CLB and against that appeal has been provided before the High Court under Section 10F of the Act, that is an appeal from the original order. Then in that case no further Letters patent appeal shall lie to the Division Bench of the same High Court. This amendment has taken away the power of the Letters Patent in the matter where learned single Judge hears an appeal from the original order. Original order in the present case was passed by the CLB exercising the power under Sections 397 and 398 of the Act and appeal has been preferred under section 10F of the Act before the High Court. Learned single Judge having passed an order, no further appeal will lie as the 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 in the floor of the House, cannot change ::: Downloaded on - 25/07/2017 23:57:30 :::HCHP 6 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 100A. 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 itself. It does not require any further interpretation by any statement made in any manner. Therefore, the power of the High Court in exercising Letters patent in a matter where a single Judge has decided the appeal from original order, has been taken away and it cannot be invoked in the present context. There is no two opinion in the matter that when the CLB exercises its power under Section 397 & 398 of the Act, it exercised its quasi-judicial power as original authority. It may not be a court but it has all the trapping of a court. Therefore, the CLB while exercising its original jurisdiction under Sections 397 & 398 of the Act passed the order and against that order appeal lies to the learned single Judge of the High Court and thereafter no further appeal could be filed."
12. In case of Mohd. Saud (supra), the Hon'ble Supreme Court while referring to various earlier judgments held that after amendment of Section 100-A CPC, no Letters Patent Appeal shall lie against the judgment or order passed by a learned Single Judge in an appeal and it was observed as under:-
"7. The Full Bench by the impugned judgment has held that after the introduction of Section 100-A with effect from 1.7.2002, no Letters Patent Appeal shall lie against the judgment or order passed by a learned Single Judge in an appeal. The Full Bench has held that the decision of the Division Bench of the High Court in Birat Chandra Dagra vs. Taurian Exim Pvt. Ltd. & Anr. (vide page 5) 2006(11) OLR 344 (Ori) does not lay down the good law while the decision of Division Bench in V.N.N. Panicker vs. Narayan Patil & Anr. 2006(2) OLR 349(Ori) lays down the correct law. The Full Bench has further held that after the amendment of Section 100-A w.e.f. 1.7.2002 no LPA shall lie against the order or judgment passed by a learned Single Judge even in an appeal arising out of a proceeding under a Special Act.::: Downloaded on - 25/07/2017 23:57:30 :::HCHP 7
10. In Kamala Devi vs. Khushal Kanwar & Anr . AIR 2007 SC 663, this Court held that only an LPA filed prior to coming into force of .
the Amendment Act would be maintainable. In the present case the LPAs were filed after 2002 and hence in our opinion they are not maintainable.
11. The Learned counsel for the appellant, however, submitted that Section 100-A does not bar a LPA against a judgment of the learned Single Judge who had decided an appeal under Order 43 Rule 1 against an interlocutory order of the District Judge. He submitted that Section 100-A after its amendment in 2002 requires that the judgment of learned Single Judge should be a judgment and decree of such Single Judge. He further submitted that in the present case the learned Sing le Judge was hearing an appeal against an interlocutory order of the learned Additional District Judge and hence when the learned Single Judge decided the appeal he was not passing any decree because the suit was still pending.
13. While at first glance this argument may appear plausible but when we go deeper into it, we will realize that it has no merit. It would be strange to hold that while two appeals will be maintainable against interlocutory orders of a District Judge, only one appeal will be maintainable against a final judgment of the District Judge.
14. It may be noted that there seems to be some apparent contradiction in Section 100-A as amended in 2002. While in one part of Section 100-A it is stated "where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court", in the following part it is stated "no further appeal shall lie from the judgment and decree of such Single Judge". Thus while one part of Section 100-A refers to an order, which to our mind would include even an interlocutory order, the later part of the Section mentions judgment and decree.
15. To resolve this conflict we have to adopt a purposive interpretation. The whole purpose of introducing Section 100-A was to reduce the number of appeals as the public in India was being harassed by the numerous appeals provided in the statute. If we look at the matter from that angle it will immediately become ::: Downloaded on - 25/07/2017 23:57:30 :::HCHP 8 apparent that the LPA in question was not maintainable because if it is held to be maintainable then the result will be that against .
an interlocutory order of the District Judge there may be two appeals, first to the learned Single Judge and then to the Division Bench of the High Court, but against a final judgment of the District Judge there can be only one appeal. This in our opinion would be strange, and against the very purpose of object of Section 100-A, that is to curtail the number of appeals."
13. The Hon'ble Supreme Court in its recent judgment in Vasanthi versus Venugopal (dead) through legal representatives (2017) 4 SCC 723 while considering the scope and ambit of Section 100-A observed as under:-
"10.The competing propositions have been duly addressed. The disputation pertaining to the maintainability of the LPA deserves attention at the threshold. Section 100-A of the CPC was inserted by the amendment Act 104 of 1976, which 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 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."
11. Though this Section was amended by the Amendment Act 46 of 1999, reference thereto is avoided as the said amendment was not given effect to.
12. This provision underwent another amendment by Amendment Act 22 of 2002, to be refashioned as hereinbelow.
"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."
13. This amended provision enforced w.e.f. 1.7.2002 predicated that notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in ::: Downloaded on - 25/07/2017 23:57:30 :::HCHP 9 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 would lie from the judgment and decree of such Single Judge.
14. The purport and purview of this amended provision fell for the scrutiny of this Court, amongst others in Kamla Devi v.Kushal Kanwar (2006) 13, SCC 295 and Mohd. Saud v. Sk.Mahfooz (2010) 13 SCC 517 wherein it was held in unambiguous terms that only Letters Patent Appeal, filed prior to the coming into force of the said amendment vide Act 22 of 2002 would be maintainable and as a corollary, by virtue of the bar contained therein, Letters Patent Appeal filed thereafter, would not be maintainable.
15. As the contextual facts in these decisions are inessential, having regard to the hyaline legal postulations as above, elaboration thereof is avoided. The dismissal of the LPA of the appellant/plaintiff, in the face of the above judicially adumbrated explication of Section 100-A of CPC by this Court, cannot thus be faulted with.
32. On an appraisal of the evidence on record, on the touchstone of the above legal propositions, we are thus of the considered view, that though the LPA preferred by the appellant/plaintiff is not maintainable in law, the respondents are not entitled to the benefit of the protection of Section 53A of the T.P. Act read with Section 16 of the Act, 1963."
14. It is, thus, no more res integra that a right of appeal, even if a vested one, could be taken away by law. Section 100-A in specific words states 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, irrespective of the fact whether the judgment and ::: Downloaded on - 25/07/2017 23:57:30 :::HCHP 10 decree is an appeal arising from an original decree or order or whether the appeal arises from an appellate Court decree or order.
.
15. Similar reiteration of law can be found in the judgment rendered by Hon'ble Division Bench of this Court in LPA No.4 of 2007, titled Birbal Kumar Negi and others versus Madan Lal and others, decided on 16.11.2012.
16. That apart, appeal of the instant kind would otherwise be barred under sub-section (2) of Section 104.
17. In view of the aforesaid discussion, the first substantial question of law is answered by holding that the instant Original Side Appeal is not maintainable and while answering question No.(ii), it is held that no appeal will lie before the Division Bench against an order passed by the learned Single Judge, while exercising the powers as second appellate Court.
18. Having said so, we are left with no other option, but to dismiss the appeal, as being not maintainable, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
( Tarlok Singh Chauhan), Judge.
(Chander Bhusan Barowalia), Judge.
July 21s t, 2017.
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