Alok Kumar Mallick vs Janardan Mahadani & Anr

Alok Kumar Mallick S/o Late Anil Chandra Mallick, Resident of Bahadurpur, Bokaro ... Appellant Vrs. Janardan Mahadani & Ors. ... Respondents ------

CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE APARESH KUMAR SINGH ------ For the Appellant : Mr. Lalit Kumar Lal, Mr. Sandeep Verma, For the Respondents : Mr. P.K.Prasad, Mr. N.K.Sahani, ------ Reportable Order No. 09 Dated: 16th March, 2012.

Heard learned counsel for the parties on the question of

maintainability of appeal as objection has been raised by the learned

counsel for the respondents that the appeal against the order of the

learned single judge dated 6th May, 2011 passed in Miscellaneous Appeal

No. 220 of 2007 arising out of the proceeding taken in the Indian

Succession Act for grant of Letter of Administration no further appeal lies

in view of the bar u/s 100A of Civil Procedure Code.

Controverting, learned counsel for the appellant submits that

Section 100A bars only appeals arising out of any proceeding wherein

appeal has been under the Code of Civil Procedure itself and Section

100A does not bar the intra-court appeals preferred in proceedings arising

out of Special Statute.

It is submitted that in the present matter the appellant's application

was submitted before the District Court, Bokaro under provision of Section

278 of the Indian Succession Act for grant of Letters of Administration with

regard to the WILL executed on 01.06.1999 by one B.N.Mallick. The

appellant's application was dismissed by the trial Court vide order dated

19th June, 2007 and the appellant challenged the order dated 19th June,

2007 by preferring appeal under the provisions of the Indian Succession

Act specially u/s 299 of the Indian Succession Act. That Miscellaneous

Appeal No. 220 of 2007 was dismissed by the learned single judge on 2.

6th May, 2011 and therefore, the facts clearly demonstrate that the appeal

before the Single Judge was under a special statute and was not under

any of the provisions of the Civil Procedure Code, therefore, the bar

created by Section 100A cannot be applied so as to nullify the provisions

of the Letters Patent which provides for further appeal i.e., intra-court

appeal before the Division Bench of the same High Court against any of

the order passed by the Single Judge of High Court.

Learned counsel for the appellant relied upon the judgements of the

Hon'ble Supreme Court delivered in the case of Subal Paul -vs.- Malina

Paul and another, reported in (2003) 10 SCC 361 and in the case of

P.S.Sathappan -vs.- Andhra Bank Ltd. & Ors., reported in A.I.R. (2004)

SC (4) 5152 and in the case of Kamla Devi -vs.- Kushal Kanwar & Anr.,

reported in (2006) 13 SCC 295.

Learned counsel for the respondents submitted that now the issue

is no more resintegra in view of the subsequent judgements of the Hon'ble

Supreme Court which have considered the amendment of Section 100A of

the Civil Procedure Code and held that even where appeal under any

special statute is maintainable before the single judge of the High Court

even in those matters also, by virtue of bar created by Section 100A

C.P.C., further appeal i.e., Letters Patent is not maintainable.

Learned counsel for the respondent relied upon the judgements

delivered in the case of Kamal Kumar Dutta & Anr. -vs. Ruby General

Hospital Ltd,. & Ors. reported in (2006) 7 SCC 613 and in the case of

Geeta Devi & Anr. -vs.- Puran Ram Raigar & Anr. reported in (2010) 9

SCC 84 and in the case of Mohd. Saud & Anr. -vs.- Dr.(Maj.) Shaikh

Mohfooz & Ors. reported in (2010) 13 SCC 517.

We have considered the submissions of the learned counsel for the

parties and perused the judgements referred above. It is not in dispute

that in the case in hand the proceeding originated in special act i.e., in

Indian Succession Act and thereafter, it was subject matter of appeal 3.

before the learned Single Judge of the High Court in Special Statute u/s

299 of the Indian Succession Act of 1925 and was not preferred up

Section 96 or any other Section of C.P.C.. The appellant has preferred this

L.P.A. and the maintainability of which has been objected. Hon'ble

Supreme Court in the case of Subal Paul (Supra) while considering one

matter under the same Act i.e., the Indian Succession Act, 1925, after

considering the provisions of Section 104(1) and 104(2) as well as Letters

Patent of Calcutta High Court (as extended to Gauhati High Court), Cl.15,

held that bar created by Section 104 (2) of the Civil Procedure Code would

not apply if, appeal against an order as provided for under any other law

obviously, other than the Civil Procedure Code. The Hon'ble Supreme

Court while considering the issue observed as under :

10. The provisions referred to herein before clearly go to show that although the contentious proceedings would not be treated as regular suit or upon determination of the issues raised therein a decree is not to follow the judgment but procedural provisions of the Code of Civil Procedure would be applicable. The words "in accordance with the provisions of the Code of Civil Procedure, 1908" occurring in Section 299 of the Act, therefore, do not refer to any substantive rights of the parties but merely procedural part thereof.

Hon'ble Supreme Court observed that "the words "in accordance

with the provisions of the Code of Civil Procedure,1908" occurring in

Section 299 of the Act, therefore, do not refer to any substantive rights of

the parties but merely procedural part thereof." The Hon'ble Supreme

Court held that the right of appeal of a party in a contentious proceedings

is, therefore, to be found in the provisions of Section 299 of the Act itself

and not in Section 104 of the Code of Civil Procedure. At this juncture it is

relevant to mention that, under section 104A of the Code of Civil

Procedure provides for appeals against the orders and in the proceedings

for grant of Letter of Administration which is proceeding under Indian

Succession Act and such the matters are decided by passing an order and 4.

in an appeal arising out of that proceeding lies to the High Court and High

Court decides such appeals not by virtue of Section 104 C.P.C. but

decides appeal under it's appellate jurisdiction created by Section 299 of

Indian Succession Act. However, in para-20 of the judgement, the Hon'ble

Supreme Court also considered Section 100A of the Code of Civil

Procedure and since at that relevant time, Section 100A as it is after

amendment of the Code of Civil Procedure after 2002 was not there.

Because of that reason, the Hon'ble Supreme Court considering the

matter of the 1986 decided by the High Court in that fact situation held that

the appeal is in a special statute as appeal is against the order passed in

proceeding arising out from special statute, and that unamended Section

100A there was no specific exclusion of Letters Patent Appeals, therefore,

the Letters Patent is maintainable.

The present case is of after the coming into force of the amended

Section 100A in the C.P.C.

In the Case of P.S.Sathappan (Supra) the issue again came up for

consideration, however, in relation to an order appealable under order 43

Rule 1 C.P.C.. After considering the unamended Section 100A which was

introduced in 1976 and amended Section 100A as introduced in the year

2002 the Hon'ble Supreme Court held as under:

"It is also accepted that Letters Patent is a special law. However, on the wordings of the concerned Letters Patent as noticed, it was held that the Letters Patent did not permit a second appeal. Had the Letters Patent permitted a second appeal on the ratio laid down earlier, a Letters Patent Appeal would have been held to be maintainable. In our case it is an admitted position that the concerned Letters Patent permits an appeal."

It is clear from the facts of the above case of P.S.Sathappan

(Supra) that, that was also matter arising out of the matter prior to insertion

of Section 100A in the year 2002 and wherein also the Hon'ble Supreme

Court has observed that exclusion of appeal (Letters Patent Appeal) is 5.

required to be specifically provided by legislature and in the case of

P.S.Sathappan (Supra) such amendment was not there as is available

after the year 2002 and applicable to the present facts of the case.

In the case of Kamla Devi (Supra) a Probate Case No. 31 of 1978

was converted into a suit by virtue of the contest and therein final order

was passed which was challenged in appeal before the High Court.

However, in the case of Kamla Devi only issue was that whether Section

100A has retrospective operation or has to render the appeal preferred

prior to coming into force of Section 100A as not maintainable. Hon'ble

Supreme Court decided that issue by holding that Section 100A CPC. is

not operative retrospectively. In Kamla Devi's case number of earlier

judgements including the judgement of P.S.Sathappan was also

considered and wherein judgement held that u/s 100A legislature has

provided for specific execution and it must be held that now by virtue of

Section 100A no such appeal would be maintainable, therefore, in fact the

judgement of Kamla Devi which has also followed the decision of

P.S.Sathappan does not support the appellant but in fact supports the

respondents.

Learned counsel for the respondent relied upon the judgement of

Kamal Kumar Dutta & Anr. (Supra). This was a case in a company

matter before the Company Law Board. An order was passed which was

challenged in an appeal u/s 10-F of the Companies Act 1956. That order

was challenged directly before the Hon'ble Supreme Court wherein a

preliminary objection was raised that the LPA is maintainable before the

Division Bench of the same High Court, as the order was passed u/s 397

and 398 of the Company's Act of 1956 by the Company Law Board and

against that order an appeal was preferred u/s 10-F of the Act of 1956

before the single judge and it was submitted before the Hon'ble Supreme

Court that Letters Patent allows intra court appeal in such matters before

the Division Bench of the same High Court. This objection was overruled 6.

by the Hon'ble Supreme Court after considering the judgements

referred above which has been cited by the learned counsel for the

appellant. Para -22 and para-23 are relevant which are as under:-

22. So far as the general proposition of law is concerned that the appeal is a vested right there is no querrel with the proposition but it is clarified that such right can be taken away by a subsequent enactment, either expressly or by necessary intendement. Parliament while amending Section 100-A 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 the learned Single Judge to the Division Bench.

Section 100-A of the Code of Civil Procedure reads as follows:

"100-A. No further appeal in certain cases.-

Notwithstanding anything contained in any Letters Patent for any High Court or in any 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 Singh Judge."

23. Therefore, where appeal has been decided from an original order by a Single Judge, no further appeal has been provided and that power which used to be there under the Letters Patent of the High Court has been subsequently withdrawn. The present order which has been passed by CLB and against that an appeal has been provided before the High Court under Section 10-F of the Act, that is, an appeal from the original order. Then in that case no further letters patent appeal shall lie to the Division Bench of the same High Court. This amendment has taken away the power of the Letters Patent in the matter where the learned Single Judge hears an appeal from the original order. Original order in the present case was passed by CLB exercising the power under Section 397 and 398 of the Act and appeal has been preferred under Section 10-F of the Act before the High Court. The learned Single Judge having passed an order, no further appeal will lie as Parliament in 7. its wisdom has taken away its power. Learned counsel for the respondents invited our attention to a letter from the then Law Minister. That letter cannot override the statutory provision. When the statute is very clear, whatever statement by the Law Minister made on the floor of the House, cannot change the words and intendment which is borne out from the words. The letter of the Law Minister cannot be read to interpret the provisions of Section 100-A. The intendement of the legislature is more than clear in the words and the same has to be given its natural meaning and cannot be subject to any statement made by the Law Minister in any communication. The words speak for themselves. It does not require any further interpretation by any statement made in any manner. Therefore, the power of the High Court in exercising the Letters Patent in a matter where a Single Judge has decided the appeal from the original order, has been taken away and it cannot be invoked in t intra he present context. There are no two opinions in the matter that when CLB exercised its power under Sections 397 and 398 of the Act, it exercised its quasi-judicial power as original authority. It may not be a Court but it has all the trapping of a court. Therefore, CLB while exercising its original jurisdiction under Sections 397 and 398 of the Act passed the order and against that order appeal lies to the learned Single Judge of the High Court and thereafter no further appeal could be filed.

This was a case under special statute where the proceeding

originated under a special act and appeal was also provided in that

wherein no further appeal was provided and objection was that instead of

approaching the Supreme Court the party should approach first to the

Division Bench of the High Court by preferring an appeal as LPA which

objection has been rejected by the Hon'ble Supreme Court for the reason

mentioned above which we have narrated indicating that in special statute

where appeal is provided by that very statute to the Single Bench of the

High Court and the provision of intra court appeal in Letters Patent

remains, by virtue of Section 100A C.P.C., the right of appeal under 8.

Letters Patent has been taken away. In view of the above legal position,

the argument of the learned counsel for the appellant that only appeals

which have been provided by the C.P.C. under the provisions of Section

96, 100 or 43 Rule 1 etc. are the matters where the L.P.A. is not

maintainable, has no force.

The same view has been taken by the Hon'ble Supreme Court in

the case of Geeta Devi & Anr.(Supra) wherein appeal arising out of the

Award passed by the Motor Accident Claims Tribunal under Special

Statute, the Motor Vehicles Act Hon'ble Supreme Court held that the

Division Bench of the High Court rightly dismissed the appeal holding it not

maintainable.

In the case of Mohd. Saud and Another (Supra) also the Hon'ble

Supreme Court has considered the scope of 100A C.P.C.. However, that

was matter arising out of an order passed under section 43 Rule 1 CPC

subject to appeal under order and C.P.C. against which the L.P.A. was

preferred and in that situation the Hon'ble Supreme Court held that the

appeal was barred. However, this judgement is not relevant for our

purpose because of the reason that learned counsel for the appellant has

not disputed nor this is a controversy involved in this case where any order

which is appealable under the Code of Civil Procedure before the High

Court then the intra court appeal is not maintainable because of the bar

u/s 100A C.P.C.

In view of the above reasons, we are of the considered opinion that

the appeal preferred by the appellant is not maintainable, hence

dismissed.

(Prakash Tatia, C.J.)

(Aparesh Kumar Singh, J.)

D.S./Kamlesh