Kerala High Court
Kesava Pillai vs State Of Kerala on 18 September, 2003
Equivalent citations: AIR2004KER111, 2004(1)KLT55
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair, R. Basant
JUDGMENT K. Padmanabhan Nair, J.
1. Is an appeal from a judgment, decree or order passed by a Judge of this Court on an appeal against the Order or Decree of a Court or Tribunal maintainable despite Section 100A of the Code of Civil Procedure as amended by Act 22 of 2002? This is the core of the controversy before this Bench in these two appeals from first Appeals filed under Section 5(ii) of the Kerala High Court Act read with Order XLII-A of the Code of Civil Procedure.
2. A.F.A. 83 of 2002 arises from the judgment of a learned Single Judge in Land Acquisition Appeal No. 467 of 1999 of this Court. This appeal was filed against the judgment of the Subordinate Judge, Kottarakkara in L.A.R. 24 of 1989 under Section 54 of the Land Acquisition Act. The trial court found that all claimants are entitled to a share in the amount of compensation. One of the claimants, who claimed exclusive right over the entire compensation, filed the Land Acquisition Appeal. Since the value of the subject matter of the appeal was below Rupees One Lakh, the appeal was heard and disposed of by a learned Single Judge of this Court as provided under Section 3(13)(b) of the Kerala High Court Act. The learned Single Judge did not accept the appellant's case as such but modified the decree and judgment passed by the trial court. Dissatisfied with the judgment rendered by the learned Single Judge, the appellant before the learned Single Judge has filed A.F.A. 83 of 2002.
3. A.F.A. 87 of 2002 is filed against the judgment of the learned Single Judge dated 13.6.2002 in M.F.A. 1345 of 1996. Late Velayudhan filed O.P. (MV) 2134 of 1993 claiming compensation on account of the injuries sustained by him in a road accident involving a motor vehicle. During the pendency of the O.P. (M.V.) Velayudhan died, and his legal representatives were impleaded. The Motor Accidents Claims Tribunal awarded Rs. 11,306/- as compensation as against the claim of Rs. 60,000/-. Dissatisfied with the compensation awarded by the Tribunal, the legal representatives of the deceased claimant filed an appeal before this Court as provided under Section 173(1) of the Motor Vehicles Act. Since the value of the subject matter of that appeal was below Rs. 1,00,000/- the same was also heard and disposed of by a learned Single Judge. The compensation awarded was enhanced to Rs. 35,000/- with interest at the rate of 9%. The insurer has filed A.F.A. 87 of 2002 challenging the judgment of the learned Single Judge.
4. In A.F.A. No. 83 of 2003, the Registry has raised an objection that the appeal is not maintainable in view of the Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of 2002). The learned counsel appearing for the appellant relied on a decision reported in State of Kerala v. Kiriyan Varghese, 2001 (2) KLT 416 (FB). The Division Bench noted the fact that the decision of the Full Bench in Kiriyan Varghese's case (supra) is in conflict with the decision of another Full Bench in Premavally v. State of Kerala, 1998 (1) KLT 882 (FB). In view of the conflict between the two decisions, the Division Bench referred the matter to a larger Bench. Accordingly, the matter was placed before this Bench.
5. The question that arose for consideration in Kiriyan Varghese's case (supra) was whether the appeals arising under the provisions of the Land Acquisition Act could be heard by a Single Judge in the absence of such a provision in Section 54 of the Land Acquisition Act and whether a further appeal to the Division Bench under Section 5(ii) is maintainable against the decision rendered by the Single Judge. Though the subsequent Full Bench disagreed with the principles laid down in Premavally's case (supra), it was found that the decision rendered by a Single Judge disposing of an appeal under the provisions of the Land Acquisition Act is subject to a further appeal to the Division Bench in view of the provisions contained in Section 5(ii) of the High Court Act. Those two cases were decided prior to the amendment of Section 100A of the Code of Civil Procedure. So, it is not necessary to resolve the other conflict between these two Full Bench decisions for deciding the question of maintainability of these two appeals.
6. A.F.A. 83 of 2002 arises under the pro visions of Land Acquisition Act. Section 26(2) of the Land Acquisition Act provides that every award passed shall be deemed to be a decree and the grounds of every such award shall be deemed to be a judgment as defined in the Code of Civil Procedure. Section 54 of the Land Acquisition Act deals with appeals. It reads as follows:-
"54. Appeals in proceedings before Court.-Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order XLIV thereof".
A reading of Section 54 makes it clear that an appeal shall lie in any proceedings under the Land Acquisition Act to the High Court. But once such an appeal is filed, the same is governed by the normal procedure prescribed under the provisions of the High Court Act. In view of the provisions contained in Section 3(13)(b) of the High Court Act, such appeals can be heard by a Single Judge if the value does not exceed one lakh rupees. If the value of the subject matter of the appeal exceeds one lakh rupees, such appeals are to be heard by a Bench of two Judges.
7. A.F.A. 87 of 2002 arises from a proceedings filed before the Motor Accidents Claims Tribunal claiming compensation. Section 173 of Motor Vehicles Act deals with appeals against awards passed by the Motor Accidents Claims Tribunal. It reads as follows:-
"173. Appeals. (1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees".
An appeal filed under Section 173 of the Motor Vehicles Act also lies to the High Court. In view of the normal procedure prescribed under Section 3(13)(b) of the High Court Act, an appeal filed under Section 173 of the Motor Vehicles Act also will be heard by a Single Judge if the value of the subject matter of the appeal is below Rupees One Lakh and in other cases by a Bench of two Judges.
8. The Kerala High Court Act, 1958 regulate the business and exercise of powers of High Court in the State of Kerala and, therefore, regulate the practice and procedure of the High Court. Section 3(13) (b) of the High Court Act provides that an appeal from original decree or order in any suit or other proceeding, where the amount or value of the subject matter of the suit or other proceeding does not exceed one lakh rupees are to be heard by a Single Judge. When the learned Single Judge passes a judgment or order disposing an appeal filed under Section 54 of the Land Acquisition Act or Section 173 of the Motor Vehicles Act, what is passed is a decree or order by the Single Judge under Section 3(13) of the High Court Act. An appeal is maintainable against such decree or order to a Bench of two Judges in view of the provisions contained in Section 5(ii) of the High Court Act and not because of the provisions of the special enactments. Section 5(ii) of the Kerala High court Act reads as follows:-
"5. Appeal from judgment or order of Single Judge.- An appeal shall lie to a Bench of two Judges from -
(i) xx xx xx
(ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court".
The question to be considered in these appeals is whether Section 100A as amended by Act 22 of 2002 will prevail over the provisions contained in Section 5(ii) of the High Court Act.
9. Section 100A of the Code of Civil Procedure was introduced in the Code of Civil Procedure by Section 38 of the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), which came into force with effect from 1.2.1977. The Section inserted read 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".
Clause 40 of the Objects and Reasons it is stated as follows:-
"Under the Letters Patent, appeals lie, in certain cases, against the decision of a Single Judge in a Second Appeal. Such appeal, in effect, amounts to a third appeal. For the purpose of minimising delay in the finality of adjudications, it is not desirable to allow more than two appeals. In the circumstances, new Section 100A is being inserted to provide that there should be no further appeal against the decision of a Single Judge in a second appeal".
Section 100A was introduced in the Code of Civil Procedure for the first time with an intention to abolish the third appeal.
10. Section 100A was substituted by Section 10 of the 38 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), which came into force with effect from 1.7.2002. It 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,-
(a) where any appeal from an original or appellate decree or order is heard and decided,
(b) where any writ, direction or order is issued or made on an application under Article 226 or Article 227 of the Constitution, by a Single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge".
11. The object and reasons for amendment reads as follows:
"Justice Malimath Committee examined the issue of further appeal against the judgment of Single Judge exercising even a first appellate jurisdiction. The Committee recommended for suitable amendments to Section 100-A of the Code with a view to provide that further appeal in this regard shall not lie. The Committee also recommended for suitable enactment by Parliament for abolition of appeal to a Division Bench against the decision and order rendered by a Single Judge of the High Court in a proceeding under Article 226 or 227 of the Constitution. Clause 10 seeks to substitute a new Section 100-A with a view to provide for no further appeal in the above cases".
The legislature wanted to take away the further appeals not only from an original decree or order, but even the right of appeal conferred on the litigant against the decisions rendered by a Single Judge while disposing of a Writ Petition filed under Article 226 or 227 of the Indian Constitution. The purpose was to avoid a system of entertaining a second appeal in the High Court in all categories of cases.
12. Section 100A was again amended by Section 4 of the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) which came into force with effect from 1.7.2002. At present 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 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 Clause 3(j) of the Objects and Reasons contained in the Act 22 of 2002 it is stated as follows:-
"(j) appeals to Division Bench of the High Courts in Writs under Articles 226 and 227 of the Constitution shall be restored. Section 10 of the Code of Civil Procedure (Amendment) Act, 1999 abolished appeals against judgments of a Single Judge of the High Court in all cases".
13. Section 100A begins with the words '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, a second appeal from a judgment rendered by a Single Judge except under Articles 226 and 227 of the Constitution of India is barred. A clause beginning with 'notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force' is appended to a section in the beginning with a view to give the enacting part of the Section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause. It is equivalent to say that in spite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation. It is well settled position of law that the non-obstante clause is used as a legislative device to modify the ambit of the provision of law mentioned in the non-obstante clause. In Aswini Kumar v. Anbinda Bose (AIR 1952 SC 369) it was held that the enacting part of a statute must, where it is clear, be taken to control the non-obstante clause where both cannot be read harmoniously. In Madhav Rao Scindia v. Union of India (AIR 1971 SC 530) the Apex Court observed that "the non-obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute". The principle laid down in Aswini Kumar's case (supra) and Madhav Rao Scindia's case (supra) were followed in A.G. Varadarajulu v. State of Tamil Nadu (AIR 1998 SC 1388). It was held as follows:-
"It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section".
So, the intention of the legislature is clear. The Parliament wanted to abolish the procedure of filing intra-Court appeal under Section 5(ii) of the High Court Act against any judgment or order of a Single Judge except in the case of Writ Petitions filed under Arts. 226 and 227 of the Constitution of India.
14. In Salem Advocate's Bar Assn. v. Union of India, 2002 (3) KLT 920 (SC) = (2003) 1 SCC 49, the Apex Court held as follows:-
"Section 100-A 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 depending upon the value of the case, the appeal from the 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 a 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 provide 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 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 is 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 100-A".
It is observed by the Apex Court that a further right of appeal to the litigants who filed appeals having a value of less than one lakh rupees will increase the workload of the High Court. It is to be noted that in view of the amendment to Section 100A of the Code of Civil Procedure when an appeal filed against the original decree and judgment of Civil Court is heard and decided by a Single Judge, there is no provision to file an intra-Court appeal to the Bench of two Judges under Section 5(ii) of the High Court Act. (See Rajalakshmi Associates (A Firm) and Ors. v. Sree Meenakshi Papers (A Firm) and Ors., 2003 (2) KLT 225 = 2003 (1) KLJ 832).
15. The intention of the legislature is to abolish an intra-Court appeal to the Bench of two Judges of the very same High Court from a decision rendered by a Single Judge. Since a litigant who files an appeal against the decree and judgment of the Civil Court is denied the opportunity of filing a further appeal we are of the view that no prejudice will be caused to a litigant who files an appeal under a special statute also by taking away the right of intra-Court appeals to a Bench of two Judges.
16. The learned counsel appearing for the appellants in both the appeals have argued that the wording of Section 100A of the Code of Civil Procedure shows that it deals only with further appeals from an original or appellate decree or order passed under the Code of Civil Procedure and not under the provisions of special enactments like Land Acquisition Act or Motor Vehicles Act. It is argued that the words "original decree or orders" used in Section 100A refer only to a decree passed under the provisions of the Code of Civil Procedure by a Civil Court and not under an award passed under the Land Acquisition Act or the Motor Vehicles Act.
17. In L.I.C. Ltd. v. State of Karnataka (1985 Supp. SCC 476) the Apex Court held as follows:
".......... where however; the Central and the State legislation cover the same field then the Central legislation would prevail. It is also well settled that where two Acts, one passed by Parliament and the other by a State Legislature, collide and there is no question of harmonising them, then the Central legislation must prevail".
In Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262, the Apex Court held as follows:
"Special or local laws would remain functional only as long as there is no specific provision to the contrary legislated by Parliament - The moment such law comes into conflict with Central legislation it becomes inapplicable and is deemed to be repealed."
It was further held:-
"Incorporation of the Civil Procedure Code (Amendment) Act in the statute-book is by virtue of conferment of power under Entry 13 List III of the Seventh Schedule of the Constitution. The Constitution is the parent document and is supreme which has a binding effect on all and by virtue of the provisions of the Constitution, parliamentary supremacy in regard to the adaptation of laws if within the area of operation as provided under List I or List III is recognised".
In view of the principles discussed above, it is clear that the provisions contained in Section 100A of the Code of Civil Procedure will prevail over the provisions contained in Section 5(ii) of the Kerala High Court Act regarding a further appeal to a Bench of two Judges from the decision of a Single Judge, We have already found that a decision rendered by single Judge is to be treated as a decree, judgment or order passed by the Single Judge under Section 3(13)(b) of the Kerala High Court Act and not as one rendered under the Land Acquisition Act or Motor Vehicles Act. We do not find any justification in limiting the applicability to Section 100A to the appeals filed under the provisions of the Code of Civil Procedure alone.
18. The learned counsel appearing for the appellants has argued that the right of appeal is a substantive right and the same accrues to a party on the date of the starting of the lis. It is argued that the right of appeal accrues to a party on the date on which the reference is made by the Land Acquisition Officer to the Court or the date on which a party files a claim petition. It is argued that the right of appeal is a vested right and it cannot be taken away by an amendment to the procedure. As we have already stated, the statute only provides for one appeal to the High Court. A Second Appeal was possible only in view of the provision contained in Section 5(ii) of the High Court Act. That right was taken away by the Amendment Act 22 of 2002. Since such an appeal was possible only in view of the provision contained in Section 5(ii) of the High Court Act, we are of the view that the amendment of Section 100A of the Code of Civil Procedure, no litigant can have a substantive right for a further appeal after 1.7.2002 on the ground that the proceedings from which that appeal arises was initiated prior to 1.7.2002.
19. We therefore hold that no further appeal under Section 5 (ii) of the Kerala High Court Act is maintainable from the judgment, decree or order passed by a Single Judge under Section 3 (13(b) of the High Court Act after 1.7.2002 in view of the amended Section 100A of the Code of Civil Procedure inserted by Act 22 of 2002. So, both the appeals are only to be dismissed as not maintainable.
In the result, A.F.A. Nos. 83 of 2002 and 87 of 2002 are dismissed in limine.