Madhya Pradesh High Court
Sachish Chandra Jain And Anr. vs Shri Bhagwan And Ors. on 5 August, 2002
Equivalent citations: 2002(4)MPHT360
JUDGMENT S.S. Jha, J.
1. This Letters Patent Appeal is filed against the judgment and decree passed in First Appeal No. 10 of 1982 arising out of the judgment and decree dated 19-6-82 passed by Third Additional Judge to the Court of District Judge, Gwalior.
2. Objection is raised by the respondents as to maintainability. The appeal was finally heard and decided on 4-9-96 [1997(1) Vidhi Bhasvar 255]. After its decision an application for restoration was filed as some of the respondents were not served and appeal came up for hearing. After restoration of appeal the case was listed again and objection is raised that in view of amendment in Section 100A of Code of Civil Procedure this appeal is not maintainable. This appeal is filed against that order.
3. It is to be examined whether the appeal is now maintainable in view of amended Section 100A of Code of Civil Procedure came into force w.e.f. 1st July, 2002. Section 100A is reproduced below:--
"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."
4. This section provides that notwithstanding anything contained in any Letters Patent for any High Court 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 High Court, no further appeal shall lie from the judgment and decree of such Single Judge. Section 16 of the Amending Act, 2002 relates to repeal and savings which is reproduced below:--
"16. Repeal and savings.-- (1) Any amendment made, or any provision inserted in the Principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the Principal Act as amended by this Act, stand repealed.
(2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897-
(a) the provisions of Section 102 of the Principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force;
(b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;
(c) the provisions of Rule 1 of Order XX of the First Schedule as amended by Section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of Section 13 of this Act."
5. Counsel for appellant submitted that appeal is a vested right. If appellant has acquired right to file appeal at the time of institution of suit, it can not be withdrawn. Repeal and saving of the amended CPC will be applicable to those cases, which have been instituted on 1st July or afterwards. Second contention of Counsel for appellant is that the repeal is without prejudice to the generality of the provisions of Section 6 of General Clauses Act, 1897. Counsel for appellant submitted that provisions of Section 100A is not procedural and it will not have retrospective operation. In support of his contention Counsel for appellant has referred to the judgment in the case of Garikapati Veeraya v. N. Subbiah Choudhry and Ors. [(S) AIR 1957 SC 540] and submitted that right of appeal is a vested right and it can not be withdrawn by amendment. Considering the scope of Sections 109 and 110 of Code of Civil Procedure, 1908, it was held that the right of appeal is a vested right. It is held that suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings. The right of appeal is not a mere matter of procedure but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. The right of appeal is a vested right and such right to enter the Superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. Therefore, it has to be examined that vested right of appeal is taken away expressly or by necessary intendment.
6. In the case of Chuluram v. Bhagatram (1979 JLJ 730) Division Bench of this Court considered the amendment in the definition of decree by Act No. 104 of 1976, which came into force on 1st February, 1977. By this Act the orders passed under Section 47 have been omitted from the definition of a decree by interpreting Section 97 of the Amending Act. Sub-section (2) of Section 97 of the Amending Act provides as under :--
''Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (1) has taken effect and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897."
7. In this case it is held that the right of appeal against the determination under Section 47 of the Code of Civil Procedure is accrued to the appellant on the date respondent files his objection to the execution application. Section 97(2)(a) of the Amending Act expressly preserve the right of appeal against the determination of a question as is referred to in Section 47. It is held that an appeal is the right of entering a Superior Court and invoking its aid and inter-position to redress an error of the Court below and, though procedure does surround an appeal, the central idea is a right. While interpreting Sub-section (2) of Section 97 it is held that Sub-section (2) of Section 97 is intended to be retrospective so as to take away vested right of appeal. In para 8 of judgment it is further held that we have already referred to the cases dealing with change in law restricting Letters Patent Appeals where the obvious intention was to reduce the number of such appeals, yet it was held that the new law did not affect any vested right of appeal in a pending suit. It has to be presumed that Parliament, while enacting the Amending Act was aware of the rule of construction recognised by the Supreme Court in Garikapati's case and affirmed by it in subsequent case and if it intended to take away vested rights of appeal in pending execution proceedings it would have expressed that intention in clear terms.
8. In the case of Mukund Deo v. Mahadu and Ors. (AIR 1965 SC 703) it is held that right of appeal is substantive right and considering the powers of High Court in second appeal under Section 602 of Hydrabad Code of Civil Procedure, it was held that Hydrabad Code of Civil Procedure is attracted and not Section 100 of Civil Procedure Code.
9. In the case of Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto and Ors. [(1979) 1 SCC 92] scope of Section 6 of General Clauses Act, 1897 was considered. In this case question was considered about the proceedings initiated under a repealed statute. In this case a suit was filed in the year 1960 under the Portuguese Civil Procedure Code. Suit was decreed in the year 1968 and thereafter appeal was preferred before the Court of Judicial Commissioner within ninety days. Preliminary objections were raised that according to Portuguese Code the appeal was to be filed in the Court which decided the suit and therefore it was not filed in the proper forum and the appeal was barred by limitation. During the pendency of the suit: (1) the territories of Goa, Daman and Diu were liberated and became a part of the Union of India in 1961; (2) the Limitation Act, 1963 was made applicable to the whole of India including the Union Territory of Goa, Daman and Diu in 1964; (3) the Indian Code of Civil Procedure, 1908 with protanto repeal of the Portuguese Code was extended by the Goa, Daman and Diu in 1966; and (4) on the same in 1966 the Goa, Daman and Diu Civil Courts Act, 1965 came into force. Under the Goa, Daman and Diu Civil Courts Act, 1965 the appeal lay to the Judicial Commissioner's Court. The appellant therefore contended that the appeal was filed in the proper forum and when suit was pending the Limitation Act had come into force in Goa, Daman and Diu, therefore, period of limitation of ninety days from the date of the decree as provided by the Limitation Act shall govern the appeal. Therefore, appeal was within time. The Judicial Commissioner did not decide the question as to the proper forum for filing the appeal, but dismissed the appeal on the ground of limitation. Apex Court held that no doubt that right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced and such right or remedy will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy. If the repealing Act provides a new forum where the remedy or the legal proceeding in respect of such vested right can be pursued after the repeal, the forum must be as provided in the repealing Act and it was held that the appeal was filed in the proper Court under the repealing enactment of 1965 read with the Goa Enactment of 1965. It was further held on the question of limitation that appellant was under bona fide belief that the appeal could be filed within ninety days and it is a clear case of sufficient cause which could be said to have prevented appellant from filing the appeal. Where there are two views equally possible on a question and a party guided by one of the views adopts a course consistent with that view, it would be a case of just impediment within the meaning of Article 145 of the Portuguese Code, which could be said to have prevented the party from filing the appeal within the time prescribed by the Portuguese Code.
10. In the case of K.S. Paripooman v. State of Kerala and Ors. [(1994) 5 SCC 93] wherein the scope of amendment in Section 23(1-A) of Land Acquisition Act, 1894 as inserted by Land Acquisition (Amendment) Act, 1984 was considered and it was held that Section 23(1-A) deals with substantive right and must be construed accordingly. For applying the amended section to pending proceedings initiated prior to the commencement of enactment, there must be clear intendment in the law. It is held that Section 23(1-A) does not apply to all proceedings pending in the reference Court on 24-9-1984 irrespective of the date on which award was made by the Collector. It applies only to those pending proceedings which are specifically mentioned in Clauses (a) and (b) of Section 30(1) covers under Clause (a) proceedings commenced prior to 30-4-1982 and where no award had been made by the Collector till that date and where the award was made prior to 24-9-1984 and award was made after 24-9-1984 under Clause (b) of Section 30(1) are covered proceedings commenced after 30-4-1982 and where award was made prior to 29-4-1984 and award was made after 24-9-1984. Where the award was made by the Collector prior to 30-4-1982, the case is not covered by amended Section 23(1-A). It is held that this provision is a substantive right which has retrospective effect as provided under Section 30(1) of the Amending Act. Legislative intent was that not only the reference Court under Section 23 but also the Collector under Section 11 should give the benefit of Section 23(1-A) in a proceeding pending before him. The Collector can grant the benefit in the proceedings pending before him on 30-4-1982 only where no award made by him before that date. Under Clause (b) of Section 30(1) the Collector has given power to grant the benefit in all acquisition proceedings started after 30-4-1982. It is held that this Amending Act can not be given retrospective operation beyond the provisions of Section 30 of the Amending Act.
11. In the case of Ramesh Singh and Anr. v. Cinta Devi and Ors. [(1996) 3 SCC 142], the Apex Court has considered the scope of Section 173 first proviso and Section 217(4) of Motor Vehicles Act, 1988 making the deposit of the requisite amount a pre-condition for entertaining the appeal under the first proviso, whereas Section 110D of the 1939 Act contained no such pre-condition. Considering the repealing Clause in Sub-section (4) of Section 217, the Apex Court held that it has preserved the general application of Section 6 of General Clauses Act. The Act does not expressly or by necessary implication make the proviso to Section 173 retrospective in operation.
12. In the case of Baddula Lakshmaiah and Ors. v. Sri Anjaneya Swami Temple and Ors. (1996 MPLJ 1074) it is held that Letters Patent Appeal is normally an intra-Court appeal whereunder Letters Patent Bench sitting as a Court of correction, corrects its own order in exercise of same jurisdiction as vested in the Single Judge. It is not an appeal against the order of a subordinate Court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. So understood, the appellate power under the Letters Patent is quite distinct, in contrast to what is ordinarily understood in procedural language.
13. Counsel for respondents submitted that intra-Court appeal is not a vested right and therefore by amendment in Section 100A, Code of Civil Procedure, the right of appeal has come to an end. Counsel for respondents then invited attention to the Code of Civil Procedure (Amendment) Act, 1999 (hereinafter referred to as '1999 Act') and submitted that in Section 32(2)(g) of the 1999 Act it is specifically provided that the provisions of Section 100A of the Principal Act, as substituted by Section 10 of this Act, shall not apply to or affect any appeal against the decision of a Single Judge of a High Court under Article 226 or 227 of the Constitution which had been admitted before the commencement of Section 10 and every such admitted appeal shall be disposed of as if Section 10 had not come into force. Counsel for respondents submitted that while enacting the amendment in the Code of Civil Procedure by Amendment Act of 2002, the legislature in Section 16 of the Amending Act of 2002 has not provided for any saving about the amendment in Section 100A of the Code of Civil Procedure by Section 4 of the Amending Act of 2002. Under Section 16 intention of the legislature is clear and it has specifically saved the proceedings as regard to provisions of Section 100A of the Principal Act as substituted by Section 5 of the Amending Act will not apply or affect any appeal which has been admitted before the commencement of Section 5 and shall be disposed of as if such amendment has not come into force. Similar provision has been made out in Rules 5,15.17and 18 of Order 6 of the Code and Order 20 Rule 1 of the first Schedule as amended by Section 13 of the Act. It is contended by Counsel for respondents that intention of legislature is clear and apparent. Legislature has not saved pending appeals and no Letters Patent Appeal against the appellate order or appellate decree of the Single Bench is maintainable. Appellate order is a valid connotation and it will apply to all the appeals under different Acts decided by the order of Single Judge. No Letters Patent Appeal lies against the order passed by Single Judge exercising appellate jurisdiction. As regards prejudice to the Section 6 of General Clauses Act is concerned it is submitted that under Section 6 it is specifically provided that unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect and the operation of enactment so repealed. The question is that what is the legislative intent.
14. This Court in the case of Bhanwarlal Jain v. Bherulal and Anr. (1982 MPLJ 253) has considered the effect of amendment under Code of Civil Procedure vide Amending Act (104 of 1976) and construing the provisions of Section 97 (2) (q), it is held that provisions of Rules 31, 32, 48-A, 57 to 59, 90 and 97 to 103 of Order XXI of the First Schedule shall not apply or to or affect any attachment subsisting immediately before the commencement of the said Section 72, any suit instituted before such commencement under Rule 63 of Order XXI to establish right to attached property or under Rule 103 aforesaid to establish possession, or any proceedings to set aside the sale or any immovable property, and every such attachment, suit or proceedings shall be continued as if the said Section 72 had not come into force. Thus, considering the scope of the case this Court held that the legislative intention is clear and it will not affect the pending cases and they will be governed as if new Act has not come into force.
15. In the case of Mool Chand v. Kedar (AIR 2000 SC 745) it is held that the effect of the death of a female before Hindu Succession Act came into force and provisions of Section 172 (2) (a) (i) and Section 172 (2) (a) (ii) of U.P. Zamindari Abolition and Land Reforms Act was considered. Section 172 provides succession in the case of a woman holding an interest inherited as a widow, mother, daughter. Section 172 provides that holding shall devolve upon her and she will be entitled to life estate only in the holding, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male intermediary of tenant aforesaid; and she was in accordance with the personal law applicable to her entitled to the holding absolutely the holding shall devolve in accordance with the table mentioned in Section 174. Apex Court held that since death took place before the commencement of the Hindu Succession Act, succession shall be governed by Section 172 of U.P. Zamindari Abolition and Land Reforms Act.
16. In the case of Kolhapur Canesugar Works Ltd. v. Union of India [(2000) 2 SCC 536] the question of repeal and deletion came for consideration and scope of Section 6(1) of General Clauses Act was considered. It is held in para 32 that when the question to be considered is whether a particular provision of the Act applies in a case then the clear and unambiguous language of that provision has to be given its true meaning and import. When the legislature by clear and unambiguous language has extended the provision of Section 6 to cases of repeal of a "Central Act" or "regulation", it is not possible to apply the provision to a case of repeal of a "rule". The position will not be different even if the rule has been framed by virtue of the power vested under an enactment; it remains a "rule" and takes its colour from the definition of the term in the Act (the General Clauses Act). In para 37 of the judgment it is held as under:--
'"37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in Special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision.'"
17. The Court held that Section 6 of General Clauses Act has no application. There is no saving provision in favour of pending proceedings. Therefore, action for realisation of the amount refunded can only be taken under the new provision in accordance with the terms thereof.
18. In the case of Sikkim Subba Associates v. State of Sikkim [2001 Arb.W.LJ. 581: (2001) 5 SCC 629] examining the words "consisting of it is held that in Section 98(2) Proviso in a Civil Procedure Code shall mean and have relevance only to the sanctioned strength. Therefore, taking into account the fact that for the time being, there were only two Judges in position and that the Judges who constituted the Division Bench expressed different views and at the same time thought fit to refer the matter to the opinion of a third Judge, the matter should await till the arrival of a third Judge. Not only such a contingency also fructified in the present case but the matter also came to be actually posted before the third Judge for hearing.
19. In the case of Shyam Sunder v. Ram Kumar and Anr. [(2001) 8 SCC 24] it was argued that an appeal being a continuation of the suit, the Appellate Court is required to notice and consider the subsequent event, namely loss of qualification by the pre-emptor during pendency of an appeal. While considering the scope of Order 20 Sub-rule (1) of Rule 14, CPC, which provides that where a Court decrees a claim to pre-empt in respect of a particular sale of property and a decree-holder has deposited the purchase money alongwith the cost of the suit in the Court, the vendee is required to deliver possession of the property to the decree-holder and title to the property stands transferred in favour of the claimant. The right of pre-emption prior to the decree may be weak but after it becomes a vested right, it can only be taken by a known method of law. The loss of qualification of pre-emptor or vendee acquiring status above the pre-emptor during pendency of appeal cannot be allowed to influence the Court as a Court of appeal is mainly concerned with the correctness of the judgment rendered by the Court of first instance. While considering the amendment in Section 15 of the Punjab Pre-emption Act, 1913 in para 45 it is held that it is not found that substituted Section 15 of the Amending Act either expressly or by necessary implication intended to supply an omission or to clear up a doubt as to the meaning of the previous Section 15 of the parent Act. The previous Section 15 of the parent Act was precise, plain and simple. There was no ambiguity in it. The meaning of the words used in Section 15 of the parent Act was never in doubt and there was no omission in its phraseology which was required to be supplied by the Amending Act.
20. In Harshad S. Mehta and Ors. v. State of Maharashtra [(2001) 8 SCC 257] it is held that where language is plain and admits only one construction, that construction must be adopted, whatever be its effect. Considering the effect of repeal it is held that there is a presumption against a repeal by implication. The reason for the presumption is that the legislature while enacting a law has a complete knowledge of the existing laws on the subject-matter and, therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. The burden to show that there has been a repeal by implication lies on the party asserting it. Courts lean against implied repeal. If by any fair interpretation both the statutes can stand together, there will be no implied repeal. If possible, implied repeal shall be avoided. One of the important tests to determine the issue of implied repeal would be whether the provisions of the Act arc irreconciliably inconsistent with those of the Code that two cannot stand together or the intention of the legislature was only to supplement the provisions of the Code. This intention is to be ascertained from the provisions of the Act. The presumption against the intent to repeal by implication is thus overthrown if the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals an intent to repeal the existing laws. Repugnancy must be such that two statutes cannot be reconciled on reasonable construction or hypothesis. They ought to be clearly and manifestly irreconciliable. It is possible, that the inconsistency may operate on a part of a statute also.
21. In the case of Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Company [(2001) 8 SCC 397] Apex Court has considered the scope of Section 6 of General Clauses Act. It contemplates continuance of pending proceedings or investigations as if statute had not been repealed as rights and obligations of the parties get crystallised on the date of commencement of the lis. This case relates to amendment in Delhi Rent Control Act. It is held that the mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed. Clause (c) of Section 6 of the General Clauses Act refers to "any right, privilege, obligation.... acquired or accrued" which under the repealed statute would not be affected by the repealing statute, though mere existence of a right not being "acquired" or "accrued" on the date of the repeal would not get protection of Section 6. At the most, such a provision can be said to be granting a privilege to the landlord to seek intervention of the Controller for eviction of the tenant under the statute. Such a privilege is not a benefit vested in general but is a benefit granted and may be enforced by approaching the Controller in the manner prescribed under the statute. On filing the petition for eviction of the tenant the privilege accrued to the landlord is not affected by repeal of the Act in view of Section 6(c) of the General Clauses Act.
22. In the case of Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad and Ors. [(1999) 4 SCC 468] it is held that right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. Right of appeal which is a statutory right can be conditional or qualified. It can not be said that such a law would be violative of Article 14 of the Constitution. If the statute does not create any right of appeal, no appeal can be filed. There is a clear distinction between a suit and an appeal. While every person has an inherent right to bring a suit of a civil nature unless the suit is barred by statute, however, in regard to an appeal, the position is quite opposite. The right to appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. When such a law authorizes filing of appeal, it can impose conditions as well.
23. In the case of Municipal Corporation of Brihatmumbai and Anr. v. State Bank of India (AIR 1999 SC 2000), the Apex Court considered the scope of Section 100A (as inserted by Amendment Act, 1976). It is held that while considering the scope of the Act, where no further appeal is provided against the judgment of Single Judge of the High Court deciding the second appeal under Section 218D of the Act. Section 100-A of the Code of Civil Procedure, which was introduced by the Amendment Act, 1976, specifically bars any further appeal in such cases. Section 100-A was introduced to minimize the delay in the finality of a decision. Prior to the enactment of the above provision, under the letters patent, an appeal against the decision of Single Judge in a second appeal was, in certain cases, held competent, though under Section 100 of the Code of Civil Procedure, there was some inhibition against interference with the findings of fact. The right of taking recourse to such an appeal has now been taken away by Section 100-A of the Code of Civil Procedure and therefore it was held that after second appeal after Bombay Municipal Corporation Act, no letters patent appeal was maintainable.
24. In the case of Chandra Kanta Sinha v. Oriental Insurance Co. Ltd. and Ors. [(2001) 6 SCC 158] scope of letters patent was considered and it is held that appeal against judgment or order passed by a Single Judge of Patna High Court in first appeal against order of Trial Court under Section 140 of Motor Vehicles Act, 1988 was held to be maintainable, but judgment passed by Single Judge in second appeal under Section 100 of Code of Civil Procedure or any other provisions of a Special Act under condition stated in Clause 10 would not be maintainable. While considering the scope of Motor Vehicles Act, Apex Court considered the provisions of Clause 10 and in para 12 of the judgment Apex Court has held that the vital words, namely "in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court". It is clear that the appellate jurisdiction mentioned therein refers to a second appeal under Section 100, CPC (or under any provision of a Special Act) which is in respect of a decree or order made in exercise of appellate jurisdiction in the first appeal, filed under Section 96, CPC (or under any provision of a Special Act) by a Court subject to the superintendence of the High Court. In other words, from a judgment passed by one Judge in second appeal, under Section 100, CPC or any other provision of a Special Act no letters patent appeal will lie to the High Court provided the second appeal was against a decree or order of a District Judge or a Subordinate Judge or any other Judge subject to the Superintendence of the High Court passed in a first appeal under Section 96, CPC or any other provision of a Special Act Considering the ratio laid down in this case it is held that no further appeal shall lie where any appeal from original or appellate decree or order is heard and decided by Single Judge of the High Court. From the ratio of the judgment Section 100A will cover the appeals under Section 96 of CPC or appeals under any other provisions of Special Act namely-- Motor Vehicles Act, Workmen's Compensation Act and other Acts. Thus, the ratio laid down in this case clearly indicates that after the appellate order of the Single Bench no further appeal in the High Court shall lie.
25. In the case of Central Mine Planning and Design Institute Ltd. v. Union of India and Anr. [(2001) 2 SCC 588] the definition of "judgment" referred in Clause 10 of Letters Patent has been considered. It is held that "judgment" includes intermediary and interlocutory judgment also. An interlocutory order which is a final determination affecting valuable rights and obligations of the parties is a "judgment" within the meaning of Clause 10.
26. In the case of Pt. Rishikesh and Anr. v. Smt. Salma Begum (1995 AIR SCW 2476) it is held that the pre-existing State Amendments or High Court Amendments can not be said to have been obliterated unless fresh amendment, by the State Legislature or High Court is made after February 1, 1977. The Amending Act provides that the State Amendment or order by a High Court being inconsistent with the Amending Act shall stand repealed.
27. In the case of Sitaram and Anr. v. Chaturo and Ors. (1981 JLJ 171) Division Bench has held that rights of appeal against a decree or order accrues and vests in the suitor at the time of the institution of the proceeding in which the decree or order is passed. There is a very strong presumption that this vested right of appeal in pending proceedings is not taken away by a change in law restricting or abolishing appeals is not interpreted to apply to pending proceedings unless the legislature expressly or by necessary intendment provides to the contrary and the mere fact that if the change in law is not applied to appeals arising from pending proceedings, the object of curtailing the appeals would not be immediately achieved is by itself insufficient to show a contrary intention.
28. In the case of Ganpat Giri v. IInd Additional District Judge (AIR 1986 SC 589) while considering the scope of Civil Procedure Code (Amendment) Act (104 of 1976) in Section 97 it is held that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in Sub-section (2) of Section 97. The Court considered the effect of Section 97 of Code of Civil Procedure (Amendment) Act, 1976. Sub-section (2) of Section 97 provides that in this Act also the Amending Act has taken effect and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 and while considering the scope of Sub-section (2) of Section 97 it is held that save as otherwise provided in Sub-section (2), the provisions of the Principal Act, as amended by the Amending Act, shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceedings, appeal or application is instituted or filed, had been acquired or had accrued before such commencement. Sub-section (3) of Section 97 of said Amending Act provides that the provisions of the Principal Act, as amended by the Amending Act, shall apply to all proceedings referred to therein subject to Sub-section (2) of Section 97.
29. Division Bench of this Court in the case of Radheshyam Gupta v. Laxmi Bai (1977 MPLJ 259) while considering the scope of amendment in Section 28 of Hindu Marriage Act has held in para 2 that the amendment in Hindu Marriage Act by Act 68 of 1976 came into force on 27th May, 1975. Section 28, as amended by this Act, does not provide for any appeal against an order made under Section 24. The application under Section 24 in this case was, however, made sometime in 1975 before coming into force of the Amending Act. Section 28 as it then stood permitted an appeal against all decrees and orders and, therefore, an order made under Section 24 was then applicable. It is well settled that the right of appeal accrues on the date of institution of the original proceeding and is presumed to be not affected by a subsequent change in law unless a contrary intention is expressed by the Legislature. The right of appeal accrued in this case in 1975 when the application under Section 24 was made. While considering the scope of Section 39 of the Act it is provided that all petitions and proceedings in causes and matters matrimonial which are pending in any Court as the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such Court. While interpreting Section 39 (1) it was held that the proceedings pending at the time when the Amending Act came into force is to be "dealt with and decided as it had been originally instituted" under the Hindu Marriage Act as amended by the Amending Act. However, because of the fiction created by Section 39 (1), it has to be dealt with and decided as if it had been instituted under the Hindu Marriage Act as amended by the Amending Act and it was held that appeal under Section 28 was not maintainable.
30. On plain reading of Section 16 of the Amendment Act, 2002 it is clear that amended provisions shall not apply to certain pending proceedings as if the new Act has not come into force. But in Section 16 any appeals pending or filed, which are barred under Section 100A of the Code have not been saved. Thus, legislative intent is clear and it has not saved such appeals. No further appeal against the order of Single Judge in an appeal under Section 96 or under any special provisions of law shall be maintainable.
31. The legislature while amending in 1999 Act has specifically mentioned in Section 32 (g) that the provisions of Section 100A of the Principal Act, as substituted by Section 10 of this Act, shall not apply to or affect any appeal against the decision of a Single Judge of a High Court under Article 226 or Article 227 of the Constitution which had been admitted before the commencement of Section 10; and every such admitted appeal shall be disposed of as if Section 10 had not come into force. But by Amendment of 2002 the pending appeals are not saved.
32. Thus even in the 1999 Act further appeal from the appellate decree apart from appellate decree under Section 96 or under any Special Act were not saved and were held to be not maintainable. Intention of legislature is clear and unambiguous and the legislature intends to reduce the number of litigation and once the party who has a right of appeal, exhausted the forum of appeal it can not be said that the intention of legislature is to continue pending appeal.
33. While considering the Code of Civil Procedure (Amendment) Bill, 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 amendment to Section 100A of the Code with a view to provide that further appeal 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. The Satish Chandra Committee has also recommended for abolition of further appeals if first appeal is decided by Single Judge in exercise of appellate jurisdiction. The object of Section 100A is to minimise delay in finality of decision. Section 102 was also amended by 1976 Amendment, wherein it was held that no second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit docs not exceed three thousand rupees. While considering the said amendment though the suits were instituted prior to commencement of 1996 amendment, it was held that second appeal is not maintainable. By the amendment pecuniary jurisdiction of second appeal is enhanced to twenty-five thousand rupees. This section abolishes the right of second appeal in matters where the subject-matter does not exceed twenty-five thousand rupees. This section has been made applicable to all suits and not restricted to those cognizable by the Court of Small Causes. Intention of the legislature can be gathered from repeal and savings. In Section 97 of the Amending Act of 1976, legislature under Section 97(n) has saved the Letters Patent Appeals which have been admitted before the commencement of Amended Act and every such admitted appeal was to be disposed as if Section 38 of Amended Act had not come into force. In the amendment of repeal and savings no saving is provided for pending appeal, which has not been admitted or which has been admitted after commencement of Act. Thus, intention of legislature is clear that no Letters Patent Appeal is maintainable where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court. There is specific bar that no further appeal shall lie from the judgment and decree of such Single Judge. Under Section 16 no specific saving for pending appeal has been made. Therefore, the legislative intent is clear to bar further appeals against the judgment and decree or order of Single Judge.
34. In view of the aforesaid discussion, in our considered view the intention of legislature is plain and simple. Legislature has not saved the pending appeals in the Court or appellate right exhausted at the time of institution of suit. On the contrary intention is clear. Letters Patent Appeal is not an appeal under any statute either in the Code of Civil Procedure or under any other Special Act, but it is a intra-Court appeal under the Letters Patent of the High Court. The powers can be curtailed by the Act of Parliament and the Act of Parliament will override the provisions of Letters Patent as envisaged under Clause 10. The intra-Court appeal is not a vested right and therefore, appeal against an appellate decree passed under Section 96 of the Act or any other Special Act or order passed under Section 96 or any other Special Act except Article 226 or Article 227 of the Constitution is not maintainable.
35. In view of aforesaid discussion appeal is not maintainable and is dismissed.