Delhi High Court
Metro Tyres Ltd. & Ors. vs Satpal Singh Bhandari & Ors. on 1 September, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 2nd August, 2011
% Judgment Pronounced on: 1st September, 2011
+ LPA No.620/2011
METRO TYRES LTD. & ORS. ..... Appellants
Through: Mr.Akhil Sibal with Ms.Vidhi
Goel, Mr.Pradeep Chindra, Advs.
Versus
SATPAL SINGH BHANDARI & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1 Whether reporters of the local papers be allowed to see the judgment? Yes
2 To be referred to the Reporter or not? Yes
3 Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
The present intra-court appeal is preferred against the order dated
16.05.2011 passed by the learned Single Judge in CM Nos.9745/2011 and
LPA No.620/2011 page 1 of 23
CM No.9746/2011 in FAO No.368-377/2005 under Clause X of the Letters
Patent whereby the learned Single Judge has declined restoration of the
appeals and set aside the order dated 21.8.2009 by which the appeals were
dismissed in default.
2. We have heard Mr. Akhil Sibal, learned counsel for the appellants
on the question of maintainability of the intra-court appeal as the same
arises out of an order not allowing restoration of a first appeal wherein the
assail was to the order dated 12.9.2005 whereby the learned Additional
District Judge had rejected the application for restoration of Suit
No.1564/1996 on the ground that the suit had already abated as a whole
due to the failure on part of the plaintiffs to bring on record the legal
representatives of some of the defendants.
3. Challenging the said order, it was urged in the memorandum of
appeal that the learned Additional District Judge has fallen into grave
error by not directing restoration of the suit keeping in view the
parameters of Order 9 Rule 9 of the Code of Civil Procedure, 1908 (for
short „CPC‟) but taking into consideration a legal position pertaining to
abatement of suits, which was not permissible in law. When the first
LPA No.620/2011 page 2 of 23
appeal was listed for hearing on 21.8.2009, the learned Single Judge
dismissed the same in default. The application for restoration was filed
after 20 months. The learned Single Judge, as is demonstrable from the
order, did not think it appropriate to condone the delay and also did not
find justifiable ground for directing restoration. Hence, the present appeal.
4. On the question of maintainability being raised, Mr. Sibal, learned
counsel for the appellants submitted that but for Section 100A of the CPC
the present appeal is maintainable as Section 104(1) clearly saves the
Letters Patent Appeal and Section 104(2) is not a bar to the same in view of
the decision of the Apex Court in P.S. Sathappan v. Andhra Bank Ltd.,
(2004) 11 SCC 672. It is his further submission that the object and purpose
of Section 100A as has been culled out in Avtar Narain Behal v. Subash
Chander Behal, 154 (2008) DLT 140 is not to allow more than one appeal in
the specified matter and as the object is to minimize the delay and give
finality to the first appeals, it is imperative that the first appeal should
have been disposed of on merits. The learned counsel would further
contend that if the litigant is erroneously deprived of an opportunity to
address a court on the merits in the first appeal, it would not sub-serve the
underlying object and purpose of Section 100A of CPC. The learned
LPA No.620/2011 page 3 of 23
counsel would further contend that the order denying restoration is not a
judgment under Clause X of the Letters Patent as has been laid down in
Shah Babulal Khimji v. Jayaben D. Kania & Anr., (1981) 4 SCC 8 and the
language of Section 100A has to be strictly construed. It is contended by
him that the language employed under Section 100A can only get attracted
to an appeal which has been heard and decided but not to an order
declining restoration of an appeal. That apart, it is propounded by him
that Section 2(2) of the CPC that defines the term „decree‟ specifically
excludes an order of dismissal for default and the language employed
under Section 100A has to be understood in proper perspective by reading
the terms „judgment‟ and „decree‟ conjunctively and not disjunctively as
that clearly spells out the legislative intendment. Mr. Sibal has proponed
that the decisions rendered in P.S. Sathappan (supra), Kamal Kumar
Dutta v. Ruby General Hospitals, (2006) 7 SCC 613 and Subal Paul v.
Malina Paul, (2003) 10 SCC 361 are distinguishable as in P.S. Sathappan
(supra), Kamal Kumar Dutta (supra), Avtar Narain Behal (supra) and
Subal Paul (supra) the appeal was heard and decided finally by the
learned Single Judge. But in the case at hand, the appeal has not been
decided on merit. Learned counsel has submitted that the decision
LPA No.620/2011 page 4 of 23
rendered in N.G. Nanda v. Gurbax Singh, 174 (2010) DLT 180 (DB) is
distinguishable as the court had concluded an order which is appealed
against under Order 43 Rule 1 read with Section 14 of the CPC and which
cannot be assailed in intra-court appeal in view of the prohibition
contained under Section 100A of the CPC but in the said case also the
matter was heard and decided on merits by the learned Single Judge and
the grounds urged in the present appeal were not advanced before the
court.
5. To appreciate the submissions raised by Mr. Sibal, it is apposite to
refer to Section 100A of the CPC. 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 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."
6. In Avtar Narain Behal (supra), the Full Bench of this court was
dealing with a question which is as follows:
"Whether the Letters Patent Appeal against the
judgment of Single Judge of this Court in first appeal
LPA No.620/2011 page 5 of 23
would be maintainable having regard to the provisions
of Section 100A of the Code of Civil Procedure as
amended by Amendment Act, 2002?"
7. While dealing with the said issue, the Bench adverted to Section
10(1) of Delhi High Court Act, 1966 which provides for a Letters Patent
Appeal against the judgment of a Single Judge in exercise of original
jurisdiction which is known as intra-court appeal. Thereafter, the Bench
proceeded to reproduce Section 100A, the pre-amended one as it stood on
1.2.1977, the amendment that was eventually brought into the statute book
on 1.7.2002 and discussed the decisions rendered in P.S. Sathappan
(supra), Avtar Narain Behal (supra), Salem Advocate Bar Association,
T.N. v. Union of India, (2003) 1 SCC 49 and came to hold as follows:
"22. A plain reading of the provisions of Section 100A
of the Code of Civil Procedure makes it very clear that
there is complete prohibition of filing a further appeal
against a decree and order of a Single Judge. The said
legislative declaration prohibits preferring a further
appeal against the judgment and decree of a Single
Judge if an appeal is provided in any other law for the
time being in force. Thus, as prohibited by Section
100A, decree of a Single Judge is barred, not only under
the Letters Patent of any High Court but also under any
special enactment under which such appeal is provided.
Section 15 of the Delhi High Court Act provides that the
provisions of Act are subject to any provision that may
be made on or after the appointed day with respect to
LPA No.620/2011 page 6 of 23
the High Court by the Legislature or other authority
having power to make such provision. The non-
obstinate clause in 100A of the Code has the effect of
taking away the right of appeal which is available
under Section 10 of the Delhi High Court Act. The use
of the expression "notwithstanding anything contained
in any Letters Patent for any High Court or in any other
instrument having the force of law or any other law for
the time being in force" is clearly indicative of the
Legislature intention to totally bar Letters Patent
Appeal against the judgment rendered by a Single
Judge in an appeal arising from an original or appellate
decree or order. The language of Section 100A does not
suggest that the exclusion of the right of appeal
available under the Letters Patent is confined only to
the matters arising under the Code and not under any
enactments.
23. The next submission of Mr. Arvind Nigam is that
even if it is held that Section 100A would bar a Letters
Patent Appeal arising under a special enactment
nevertheless those provisions will not operate to bar the
present Letters Patent Appeal, since the proceedings
commenced long prior to the insertion of Section 100A
of the Code of Civil Procedure. It is true that right of
appeal is a matter of substance and not of procedure,
and such right is vested on the date when the original
proceedings are instituted. However, the vested right of
appeal can be taken away by a subsequent enactment, if
it so provides expressly or by necessary intendment. In
Bhenoy G. Dembla v. Prem Kutir (P) Ltd., (Bom.) 2003
Company Cases (Vol. 117) 643, a Division Bench of the
Bombay High Court to which one of us (A.P. Shah, C.J.)
was a party held that the provisions of Section 100A are
to the effect that 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.
The use of the word "is" would make it abundantly
LPA No.620/2011 page 7 of 23
clear that what the legislature intended was that no
further appeal should be maintainable where any
appeal from an original or appellate decree or order is
heard and decided after July 1, 2002, by a Single Judge
of a High Court. Therefore, the necessary intendment of
Section 100A is that where the appeal from an original
or appellate decree is decided by a Single Judge of a
High Court after July 1, 2002, no further appeal would
be maintainable. To hold otherwise would run contrary
to the plain intendment, as well as the object and
underlying purpose of Section 100A. In introducing the
amended provisions of Section 100A, the legislature
was concerned as much with the existing backlog of
cases as the accretion to the backlog that would accrue
by the institution of fresh cases after the amended
provisions were brought into force. Consequently, it
would be unreasonable to attribute to the legislature the
intendment that while seeking to bring into effect a
provision which was intended to cure the delays of
litigation, the legislature would have intended to
exempt from its purview all cases which have filed
prior to the date on which the amendment was brought
into force. As noticed earlier a similar submission was
expressly rejected by the Supreme Court in Kamal
Kumar Dutta v. Ruby General Hospital (supra)."
8. In N.G. Nanda (supra), the factual matrix was that in a suit, the
learned Trial Judge had disallowed the application filed under Order 22
Rule 9 of the CPC praying for setting aside of abatement. The same was
challenged in the first appeal, which was allowed. The defendant preferred
LPA No. 373/2010. While dealing with the LPA, the Division Bench
LPA No.620/2011 page 8 of 23
relying on Avtar Narain Behal (supra) expressed the view that the same
was not maintainable. Thereafter, an application for review was filed on
the ground that though the appeal was nomenclatured as Letters Patent
Appeal, it was fundamentally an appeal provided under Order 43 Rule
1(u) of the CPC and hence the appeal was maintainable. The Division
Bench referred to paragraph 32 of P.S. Sathappan (supra) wherein it has
been held thus -
"It was next submitted that Clause 44 of the Letters
Patent showed that Letters Patent were subject to
amendment and alteration. It was submitted that this
showed that a Letters Patent was a subordinate or
subservient piece of law. Undoubtedly, Clause 44
permits amendment or alteration of Letters Patent, but
then which legislation is not subject to amendment or
alteration? CPC is also subject to amendments and
alterations. In fact it has been amended on a number of
occasions. The only unalterable provisions are the basic
structure of our Constitution. Merely because there is a
provision for amendment does not mean that, in the
absence of an amendment or a contrary provision, the
Letters Patent is to be ignored. To subject that a Letters
Patent is a subordinate piece of legislation is to not
understand the true nature of a Letters Patent. As has
been held in Vinita Khanolkar‟s case and Sharda Devi‟s
case, a Letters Patent is the charter of the High Court.
As held in Shah Babulal Khimji v. Jayaben D. Kania,
(1982) 1 SCR 187, a Letters Patent is the specific law
under which a High Court derives its powers. It is not
any subordinate piece of legislation. As set out in the
aforementioned two cases a Letters Patent cannot be
LPA No.620/2011 page 9 of 23
excluded by implication. Further it is settled law that
between a special law and a general law the special law
will always prevail. A Letters Patent is a special law for
the High Court concerned. The Civil Procedure Code is
a general law applicable to all Courts. It is well-settled
law, that in the event of a conflict between a special law
and a general law, the special law must always prevail.
We see no conflict between a Letters Patent and the
Civil Procedure Code then the provisions of the Letters
Patent would always prevail unless there was a specific
exclusion. This is also clear from Section 4 of the Civil
Procedure Code which provides that nothing in the
Code shall limit or affect any special law. As set out in
Section 4, CPC only a specific provision to the contrary
can exclude the special law. The specific provision
would be a provision like Section 100-A."
9. While dealing with the application for review, the Division Bench
referred to the decision in Avtar Narain Behal (supra) and stated as
follows: -
"In this regard, we may fruitfully refer to the decision in
Avtar Narain Behal v. Subhash Chander Behal, 154
(2008) DLT 140 wherein a Full Bench of this Court was
dealing with the ambit and sweep of Section 100A of the
CPC. The Full Bench took note of Section 4 and Section
104 of the Code. The Bench also referred to the decision
in New Kennilworth Hotel (P) Ltd. v. Orissa State
Finance Corporation and Ors., II (1997) CLT 250 (SC) =
(1997) 1 SCR 395 wherein the question was whether
LPA was maintainable or not and in that context, Their
Lordships, relying on the decision rendered in Resham
Singh Pyara v. Abdul Sattar, (1996) 1 SCC 49, opined
that LPA would not lie by reason of the bar created by
LPA No.620/2011 page 10 of 23
Sub-section (2) of Section 104 of the CPC. The Full
Bench referred to the authority in Chandra Kanta Sinha
v. Oriental Insurance Co. Ltd., IV (2001) SLT 423 =
(2001) 2 SCR 759 wherein the decision in New
Kennilworth Hotel (P) Ltd. (supra) was held to be not
applicable. Be it noted, reference was made by the Full
Bench to the decision in Subal Paul v. Malina Paul and
Anr., II (2003) SLT 298 = (2003) 1 SCR 1092. Thereafter,
the Full Bench referred to the decision in P.S.
Sathappan v. Andhra Bank Ltd., VI (2004) SLT 454 = IV
(2004) CLT 74 (SC) = AIR 2004 SC 5152, wherein the
Constitution Bench was called upon to resolve the
conflict in New Kennilworth Hotel (P) Ltd. (supra) and
Gulab Bai v. Puniya, AIR 1966 SC 637."
After so stating, the Division Bench referred to the analysis made by
the Full Bench in P.S. Sathappan (supra), Sharda Devi v. State of Bihar,
AIR 2002 SC 1357 and relied on paragraph 18, which states as follows: -
"A plain reading of the above observations makes it
clear that the right of appeal conferred by the Letters
Patent can be taken away by the Parliament by enacting
appropriate provision in the C.P.C. and the provisions
contained in Section 100A of C.P.C. expressly barred a
second appeal against a judgment and order in the first
appeal passed by a Single Judge."
Eventually, the Division Bench expressed thus -
"In view of the aforesaid, there remains no scintilla of
doubt that even an order which is appealed against
Order 43 Rule 1 read with Section 104, CPC cannot be
LPA No.620/2011 page 11 of 23
assailed in LPA in view of the prohibition contained
under Section 100A of the CPC which in its ambit and
sweep covers an appeal from an appellate decree or
order."
10. In the present appeal, what is essentially contended by Mr.Sibal is
that when the learned Single Judge has declined to restore the appeal,
there has been no adjudication on merits and, therefore, an intra-Court
appeal under the Letters Patent Appeal would lie. It has been clearly laid
down in Avtar Narain Behal (supra) that Letters Patent Appeal would not
lie against an order passed in an appeal preferred under Order 41 Rule 1 of
the CPC. In N.G. Nanda (supra) the said principle has been reiterated.
11. The issue that has been very assiduously urged by Mr.Sibal is that
though an intra-Court appeal would not lie against an order passed by the
learned Single Judge in a first appeal against an order, yet when the appeal
is dismissed and the learned Single Judge declines to entertain the
application for restoration, the same can be rectified in an intra-Court
appeal. It is canvassed by him, as has been indicated before, the bar under
Section 100A of the CPC is not applicable to such a situation. In this
context, we may refer with profit to few passages from the Full Bench
LPA No.620/2011 page 12 of 23
decision rendered in Laxminarayan v. Shivlal Gujar & Ors., AIR 2003 MP
49 wherein it has been held thus -
"38. Before we proceed to dwell into that aspect we
think it appropriate to dissect whether Section 100A of
the Code affects the pending appeals preferred under
Clause 10 of the Letters Patent. Submission of Mr. Kale
and Mr. Agrawal, the learned Senior Counsel is that the
language employed in the said provision being quite
clear, unequivocal and unambiguous, it can only have
prospective application. To elucidate; submission of the
learned Senior Counsel is that the prospective
applicability would only encompass that the appeals
which would arise out of the suits which are instituted
after the cut-off date i.e. 1-7-2002 would be barred. It is
contended by them that there is nothing in the said
section to convey a different meaning or to expand the
canvas. It is putforth by them that Section 16 of the
Amending Act deals with „repeal and savings‟ and in
sub-section (2) use of the term „without prejudice to the
generality of the provisions Section 6 of the General
Clauses Act, 1897‟ and the exception carved out in
Clauses (a) to (c) have to be understood properly to
appreciate that other aspects which do not find mention
in the aforesaid clauses are to be governed by Section 6
of the aforesaid statute.
39-40. In this context we may profitably
reproduce a passage from Bidie v. General Accident,
Fire and Life Assurance Corporation, (1948) 2 All ER
995, 998 wherein Lord Greene in his inimitable style
spoke thus:
"The first thing to one has to do, I venture to
think, in construing words in a section of an Act
of Parliament is not to take those words in vacua,
so to speak, and attribute to them what is
LPA No.620/2011 page 13 of 23
sometimes called their natural or ordinary
meaning. Few words in the English language
have a natural or ordinary meaning in the sense
that they must be so read that their meaning is
entirely independent of their context. The method
of construing statutes that I prefer is not to take
particular words and attribute to them a sort of
prima facie meaning which you may have to
displace or modify. It is to read the statute as a
whole and ask oneself the question: In this state,
in this context, relating to this subject-matter,
what is the true meaning of what word?"
41. Keeping in view the aforesaid principles of
interpretations, now we shall proceed to discuss what
exactly is postulated under Section 100A of the Code.
The sub-section (2) of Section 1 of the Amending Act
stipulates that the amending provisions shall come into
force on such dates as the Central Government may by
notification in the Official Gazette appoint and different
dates may be appointed in respect of different
provisions of the Act. This provision is to be read
contextually regard being had to the language
employed therein. Section 100A of the Code employs
the words that 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 from such Single Judge.
The words which are of immense signification in this
provision are „is heard and decided‟. These words are
used absolutely in praesenti. That apart the words "no
further appeal shall lie‟ are also to be conjointly read
with „is heard and decided‟.
42. As has been held in the cases referred to above,
the words have to be understood in their context having
purposive reference to the totality of surrounding
features and the true and express meaning decipherable
LPA No.620/2011 page 14 of 23
from the import of the text. The use of the term „is heard
and decided‟ cannot be expanded to cover the vista that
the appeals which arise from the suit instituted before 1-
7-2002 are protected. Simultaneously its horizon cannot
be cramped and limited to imply and connote that the
appeals which have been filed prior to the cut-off date
also would be reigned by the said provision. In that case
the term „no further appeal shall lie‟ used in the
provision would lose its intrinsic etymological kernel.
To say that the aforesaid provision does not impair or
erode the right of appeal vested in a suitor in respect of
a suit instituted prior to 1-7-2002, would be reading the
provision without giving the true and actual meaning to
the term „is heard and decided‟. That would tantamount
to, to put it euphemistically, making the provision
achromatic. In this context we may profitably refer to
the three Judge Bench decision rendered in the case of
R. Rajagopal Reddy (dead) by L.Rs. v. Padmini
Chandrashekharan (dead) by L.Rs., AIR 1996 SC 238. In
the aforesaid decision their Lordships were considering
the operational sphere of Benami Transactions
(Prohibition) Act, 1988 (Act 45 of 1988) and posed the
question whether pending proceeding at various stages
in the hierarchy can get encompassed by the sweep of
Section 4(1) of the said Act and such suit would be
liable to be dismissed as laid down by that Section.
After referring to the report of the Law Commission,
taking note of the preamble of the Act, considering
Section 3 which is the heart of the said Act and further
referring to the decision rendered in the case of Re
Athlumney, (1898) 2 Q.B. 547 and Garikapati (AIR 1957
SC 540) (supra) and the observations made in the book
on Principles of Statutory Interpretation, 5th Edition, by
Justice G.P. Singh, at page 351 their Lordships in
paragraphs 19 and 20 held as under:
"19. No exception can be taken to the aforesaid
observations of learned author which in our view
LPA No.620/2011 page 15 of 23
can certainly be pressed in service for judging
whether the impugned section is declaratory in
nature or not. Accordingly it must be held that
Section 4 or for the matter the Act as a whole is
not a piece of declaratory or curative legislation.
It creates substantive rights in favour of
benamidars and destroys substantive rights of
real owners who are parties to such transaction
and for whom new liabilities are created by the
Act.
20. Qua reason No. 4, we may refer to our
discussion earlier that the words „no suit shall lie‟
as found in Section 4(1) and „no defence based on
rights in respect of property shall be allowed‟ as
found in Section 4(2) have limited scope and
operation and consequently this consideration
also cannot have any effect on the conclusion
which can be reached in this case. As to reason
No. 5, it is observed that even though the suit
may include appeal and further appeals in the
hierarchy, at different stages of the litigation.
Sections 4(1) and 4(2) cannot be made applicable
to these subsequent stages as already seen by us
earlier. Otherwise, they would cut across the very
scheme of the Act."
43. It is appropriate to mention here their Lordships
gave a limited retro-activity to the provisions in
question.
44. Thus, in our considered view, though there is use
of term „without prejudice to the generality of the
provisions of Section 6 of the General Clauses Act‟ the
same does not entirely save the vested rights of appeal
in a suitor as that would defeat the very purpose of
Legislation, scheme of the amending statute, and also
would cause violence to the reading of Section 100A of
the Code which is not allowable and we are not inclined
LPA No.620/2011 page 16 of 23
to think that the said provision is totally prospective. It
is so to a limited extent."
12. On a perusal of the analysis in the aforesaid decision, it is clear as
crystal that the Bench has opined that words „is heard and decided‟ as
used in Section 100A of the CPC are used absolutely in praesenti. That
apart, the Bench had also used the words „no further appeal shall lie‟
which are to be conjointly read with „is heard and decided‟. The similar
view has been expressed by the Full Bench in Avtar Narain Behal (supra).
13. In Kamla Devi v. Khushal Kanwar & Anr., AIR 2007 SC 663, their
Lordships have opined thus -
"18. In P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank
Ltd. and others [(2004) 11 SCC 672], a Constitution
Bench of this Court, albeit in reference to Section 104 of
the Code, held:
"It is thus to be seen that when the Legislature
wanted to exclude a Letters Patent Appeal it
specifically did so. The words used in Section
100A are not by way of abundant caution. By the
Amendment Acts of 1976 and 2002 a specific
exclusion is provided as the Legislature knew
that in the absence of such words a Letters Patent
Appeal would not be barred. The Legislature was
aware that it had incorporated the saving clause
in Section 104(1) and incorporated Section 4
C.P.C. Thus now a specific exclusion was
LPA No.620/2011 page 17 of 23
provided. After 2002, 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."
To be noted that here again the Legislature has
provided for a specific exclusion. It must be
stated that now by virtue of Section 100A no
Letters Patent Appeal would be maintainable.
However, it is an admitted position that the law
which would prevail would be the law at the
relevant time. At the relevant time neither Section
100A nor Section 104(2) barred a Letters Patent
Appeal."
It was furthermore observed:
"We may notice that when a first appeal or
second appeal was disposed of by a Single Judge,
a Letters Patent Appeal had been held to be
maintainable therefrom only because there
existed no bar in relation thereto. Such a bar has
now been created by reason of Section 100A of
the Code. No appeal would, therefore, be
maintainable when there exists a statutory bar.
When the Parliament enacts a law it is presumed
to know the existence of other statutes. Thus, in a
given case, bar created for preferring an appeal
expressly cannot be circumscribed by making a
claim by finding out a source thereof in another
statute."
LPA No.620/2011 page 18 of 23
19. In Kamal Kumar Dutta and another v. Ruby
General Hospital Ltd. and Ors., [2006 (7) SCALE 668], it
was observed:
"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...."
[Emphasis supplied]
20. Keeping in view the principles of law as
enunciated in the aforementioned decisions of this
Court, it is evident that a letters patent appeal, which
was filed prior to coming into force of the 2002 Act
would be maintainable."
14. The legislature at the time of incorporation of Section 100A, as has
been interpreted in Kamla Devi (supra), Avtar Narain Behal (supra) and
Laxminarayan (supra) intended to give limited retroactivity to the
provision in question. The view that has been expressed is that the
appeals which have been filed prior to the cut-off date, that is, 1st July, 2002
also would be saved. The contention that the right of a suitor to prefer a
Letters Patent Appeal was a vested right, despite the language employed
LPA No.620/2011 page 19 of 23
in Section 100A of the CPC was repealed. Thus, the language employed in
Section 100A of the CPC clearly means that no further appeal shall lie from
an appeal from an original order or the decree if it is heard or decided by
the learned Single Judge by the cut-off date. It does not stand to reason
that if appeal filed after the cut-off date before the learned Single Judge is
dismissed and thereafter he declines to restore the appeal, a Letters Patent
Appeal would lie. The words „heard and decided‟ if read out of context
would make the entire provision redundant. It has to be interpreted
keeping in view the context itself. Section 100A was amended with effect
from 1st July, 2002 to take away the further appeal from a decree or an
order. The fundamental purpose was to minimize the sphere of appeals.
If the submission of Mr.Sibal is accepted as the factual matrix would
reveal, a litigant can prefer an appeal under Order 43 Rule 1 and allow it to
dismiss for default or show total callousness in getting it dismissed for
want of prosecution and thereafter file an application for restoration at his
own leisure and being unsuccessful prefer a Letters Patent Appeal
contending it is maintainable. Thus, this interpretation could give a
premium to an unscrupulous or negligent litigant. That apart, it would be
totally against the scheme of Section 100A of the CPC and the same was
LPA No.620/2011 page 20 of 23
not the legislative intendment or purpose. The courts are required to place
the interpretation on a provision which would subserve the purpose of the
legislative intention unless the same brings in a situation of an
irreconciliability or absurdity. In this context, we may profitably refer to
the decision in Chief Justice of A.P. & Ors. v. L.V.A. Dikshitulu & Ors.,
(1979) 2 SCC 34, a Constitution Bench has ruled that it is the duty of the
court to understand the legislative intent and for the said purpose the
court can call in aid well recognised rules of construction, such as
legislative theory, the basic scheme and framework of the statute as a
whole. Their Lordships have laid emphasis on the purpose of the
legislation and the object sought to be achieved.
15. In M/s Girdhari Lal and Sons v. Balbir Nath Mathur & Ors., (1986)
2 SCC 237 it has been held thus -
"Our own court has generally taken the view that
ascertainment of legislative intent is a basic rule of
statutory construction and that a rule of construction
should be preferred which advances the purpose and
object of a legislation and that though a construction,
according to plain language, should ordinarily be
adopted, such a construction should not be adopted
where it leads to anomalies, injustices or absurdities,
vide K.P. Varghese v. ITO, (1981) 4 SCC 173 : 1981 SCC
(Tax) 293, State Bank of Travancore v. Mohd. M. Khan,
(1981) 4 SCC 82, Som Prakash Rekhi v. Union of India,
LPA No.620/2011 page 21 of 23
(1981) 1 SCC 449: (1981) SCC (L&S) 200, Ravula Subba
Rao v. CIT, 1956 SCR 577 : AIR 1956 SC 604, Govindlal v.
Agricultural Produce Market Committee, (1976) 1 SCR 451 :
(1975) 2 SCC 482 : AIR 1976 SC 263 and Babaji Kondaji v.
Nasik Merchants Co-op. Bank Ltd., (1984) 2 SCC 50."
16. In Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. & Ors., (1987) 1 SCC 424 it has been stated thus: -
"Interpretation must depend on the text and the
context. They are the bases of interpretation. One may
well say if the text is the texture, context is what gives
the colour. Neither can be ignored. Both are important.
That interpretation is best which makes the textual
interpretation match the contextual. A statute is best
interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a
whole and then section by section, clause by clause,
phrase by phrase and word by word. If a statute is
looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such context,
its scheme, the sections, clauses, phrases and words
may take colour and appear different than when the
statute is looked at without the glasses provided by the
context. With these glasses we must look at the Act as a
whole and discover what each section, each clause, each
phrase and each word is meant and designed to say as
to fit into the scheme of the entire Act. No part of a
statute and no word of a statute can be construed in
isolation. Statutes have to be construed so that every
word has a place and everything is in its place."
LPA No.620/2011 page 22 of 23
17. In District Mining Officer & Ors. v. Tata Iron & Steel Co. & Anr.,
(2001) 7 SCC 358, it has been held that while construing a statute it is
necessary to seek the intention of its maker. It has to be construed
according to the intent of them that makes it and the duty of the court is to
act upon the true intention of the legislature. The legislative intention that
is the true and legal meaning of an enactment is derived by considering
the meaning of the words used in the enactment in the light of any
discernible purpose or object which comprehends the mischief and its
remedy to which the enactment is directed.
18. In view of the aforesaid analysis, we conclude and hold that the
present appeal is not maintainable and, accordingly, the same stands
dismissed in limine.
CHIEF JUSTICE
SEPTEMBER 01, 2011 SANJIV KHANNA, J.
dk LPA No.620/2011 page 23 of 23