Jammu & Kashmir High Court - Srinagar Bench
Union Of India & Ors vs Ranjeet Kour & Ors on 5 October, 2009
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR COD No. 276 of 2009 LPA No. 176 of 2009 IA No. 277 of 2009 LPA No. 121 of 2009 IA No. 191 of 2009 LPA No. 149 of 2009 IA No. 234 of 2009 Union of India & ors Petitioners Ranjeet Kour & ors Respondents !Mr. S. A. Makroo, Advocate ^Nemo Honble Mr. Justice Barin Ghosh, Chief Justice Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 05/10/2009 :J U D G M E N T:
In these three Letters Patent Appeals, filed beyond the prescribed period of limitation, condonation application in LPA no. 149/2009 only has been allowed by the Court order dated July 16, 2009. The issue involved being common to all the three LPAs., the same are taken up for consideration together with the pending condonation petitions.
Motor Accidents Claims Tribunal, Anantnag (hereinafter referred to as the Tribunal), constituted in terms of Section 165 of the Motor Vehicles Act, 1988, made and published an award. Section 173 of the Motor Vehicles Act, 1988, grants a right to any person aggrieved by an order of a Claims Tribunals to prefer an appeal to the High Court. The claimants before the Tribunal, being aggrieved by the award made and published by the Tribunal, preferred an appeal before this Court. The said appeal has been heard and decided by a learned Single Judge of this Court. Being aggrieved by the said decision of the learned Single Judge, the appellants seek to prefer an appeal under the Letters Patent applicable to this Court. The question is whether the same is entertainable or not.
Until very recently, such appeals were being entertained, inasmuch as Section 100-A of the Code of Civil Procedure applicable to this State, inserted by Act no. XI of 1983 with effect from August 15, 1983, provided as follows:
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. In terms of Section 100-A, the bar imposed in entertaining an appeal under the Letters Patent was restricted to the decision of the learned Single Judge in an appeal from an appellate decree or appellate order. By the Civil Laws (Amended) Act, 2009 (Act No. VI of 2009), which came into force on May 29, 2009, Section 100-A of the Code of Civil Procedure applicable to this State has been substituted by the following:
Notwithstanding anything contained in any Letters Patent of the High Court or in any instrument having the force of law or in any other law for the time being in force in the State, 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. By reason of the substituted Section 100-A of the Code, an appeal under the Letters Patent is not available from a decision of a Single Judge rendered on an appeal from original decree or order as well as on an appeal from appellate decree or order. The present appeals were filed after May 29, 2009. The question is whether, in view of substitution of Section 100-A of the State Code, the appeals are entertainable in exercise of powers granted by Letters Patent.
The learned counsel appearing in support of the appeals, drew our attention to the judgment of the Honble Supreme Court rendered in the case of Garikapati Veeraya v. N. Subbiah Choudhry, reported in AIR 1957 SC 540, for the proposition that the legal pursuit of a remedy; suit, appeal and second appeal, are really steps in a series of proceedings, all connected by an intrinsic unity and are, therefore, to be regarded as one legal proceeding and, accordingly, the right of appeal vests in the parties on and from the date the lis commences, i. e., from the date the suit is instituted. It was contended that as on the date claimants approached the Tribunal, the parties before the Tribunal had not only a right to prefer an appeal before the High Court against the award to be made by the Tribunal, but had also a right to prefer an appeal under Letters Patent, and, despite the change made in the law by substituting Section 100-A of the Code, such right has not been affected. When we drew attention of the learned counsel for the appellants to paragraph 23 of the judgment, where the Honble Supreme Court has observed that right of appeal can be taken away only by a subsequent enactment, if it so provides expressly, or by necessary intendment and not otherwise, the learned counsel for the appellant drew our attention to the judgment of the Honble Supreme Court rendered in the case of Kamla Devi v. Khushal Kanwar, reported in AIR 2007 SC 663, where the Honble Supreme Court has observed that Section 100-A of the Central Code has no retrospective effect. It was submitted that, in view of such pronouncements of the Honble Supreme Court, the right of preferring appeal under the Letters Patent, as was prevalent prior to May 29, 2009, stood reserved for the appellants, inasmuch as the lis before the Tribunal commenced much prior to May 29, 2009.
There cannot be any dispute that an appeal is a continuation of original proceeding. All rights pertaining thereto stands crystalised on the date of filing of the suit. At the same time, as has been expressly held by the Honble Supreme Court in the case of Garikapati Veeraya (supra), such right can be interfered with, but such interference must be expressed or can be culled out by necessary intendment. The learned counsel for the appellants submitted that though Section 100-A of the Central Code has been substituted, but still then the Honble Supreme Court has opined in the case of Kamla Devi (supra) that the said Section has no retrospective effect and, accordingly, it must be taken that there is no expressed or implied taking away of the right to prefer an appeal under Letters Patent by the substitution effected on May 29, 2009.
When the Legislature substitutes a provision by another, it is settled that the intendment thereof is to bring in the substituted provision from the day one. The Legislature by the substitution effected on May 29, 2009, brought in the substituted Section 100-A in the State Code with effect from August 15, 1983. The claim before the Tribunal was presented much after August 15, 1983. By reason of such substitution, the right, as stood crystalised on the date of presentation of the claim before the Tribunal, stood crystalised in the manner the substituted provision granted. In the event, before such substitution, the right flowing from Letters Patent in relation to the subject matter not affected by the inserted provisions of Section 100-A of the State Code had been excercised, the matter would have had squarely come within the four corners of the judgment rendered by the Honble Supreme Court in the case of Garikapati Veeraya (supra), inasmuch as, while substituting Section 100-A, the Legislature did not provide what should be done to the Letters Patent Appeals preferred and pending decision. In those circumstances, the Honble Supreme Court in the case of Kamla Devi (supra) pronounced and clarified, at paragraph 23 of the judgment, that Section 100-A of the Central Code has no retrospective effect so as to bring within its fold even the appeals preferred prior to coming into force of the Act.
In the circumstances, we are of the view that, in view of the law discussed above, these appeals are not entertainable under the Letters Patent in view of the bar created by Section 100-A of the Code of Civil Procedure.
Having thus concluded, we refuse to exercise our discretion to allow the applications for condonation of delay in preferring LPA nos. 176/2009 and 121/2009. The condonation applications are, accordingly, dismissed. Consequently, the connected appeals are also dismissed. LPA no. 149/2009, too being not entertainable, is dismissed in limine.
(Mohammad Yaqoob Mir) (Barin Ghosh)
Judge Chief Justice
Srinagar
05.10.2009