Mohd.Saud & Anr vs Shaikh Mahfooz & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS 9321-9322 OF 2010 [arising out of Special Leave Petition (Civil) Nos.2515-2516 of 2009]

Mohd. Saud & Another ...... Appellants -versus-

Dr.(Maj.) Shaikh Mahfooz & Others ....... Respondents WITH CIVIL APPEAL NOS. 9323-9324 OF 2010 (Special Leave Petition (Civil) Nos.13684-13685 of 2009)

JUDGMENT

Markandey Katju, J.

CIVIL APPEAL NOS. 9321-9322 OF 2010 [arising out of Special Leave Petition (Civil) Nos.2515-2516 of 2009]

1. Leave granted.

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2. These appeals have been filed against the impugned

judgments of the Orissa High Court dated 24.9.2008 in LPA No.7 of

2008 and dated 25.10.2008 in LPA No.8 of 2008.

3. Heard learned counsel for the parties and perused the record.

4. The facts have been mentioned in the impugned judgment of

the High Court and hence we are not repeating the same here.

5. The short question in the case is whether a Letters Patent

Appeal (for short `LPA') is maintainable before the Division Bench

against the judgment of the learned Single Judge of the High Court.

Dated 6.8.2008. Since there was conflict of opinion between

different Division Benches of the High Court on the point whether the

LPA was maintainable in view of the amendment of Section 100A

CPC the Full Bench was constituted, and by the impugned judgment

it was held that the LPA was not maintainable in view of Section

100-A CPC.

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6. It may be mentioned that the proceedings arose out of an

interim order dated 9.9.2005 passed by the Additional District Judge,

Fast Track Court No.III, Bhubaneswar in Civil Suit No.498 of 2004.

The Civil Suit is still pending, but against the aforesaid interim order

dated 9.9.2005 a first appeal under Order 43 Rule 1 being FAO

No.386 of 2007 was filed before a learned Single Judge of the High

Court who decided it on 6.8.2008. Against the judgment of this

learned Single Judge dated 6.8.2008 the LPA was filed. It has been

held to be not maintainable by the impugned judgment.

7. Before deciding the question involved in this case we may refer

to the relevant provisions in the C.P.C.

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8. Section 100-A of the Code of Civil Procedure (hereinafter called

`the Code') was inserted by Amendment Act 104 of 1976. The said

Section initially read as follows:

Section 100-A : No further appeal in certain cases :

Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal."

The said Section was amended by Amendment Act 46 of 1999 as follows :

Section 100-A : No further appeal in certain cases :

Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force,

(a) Where any appeal from an original or appellate decree or order is heard and decided.

5 (b) Where any writ, direction or order is issued or made on an application under Article 226 or Article 227 of the Constitution,

by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge."

This amendment was however not given effect to.

Again Section 100-A of the Code was amended by Act 22 of 2002 and the amended Section reads as follows:-

Section 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 single Judge."

9. The Full Bench by the impugned judgment has held that after

the introduction of Section 100-A with effect from 1.7.2002, no Letters 6

Patent Appeal shall lie against the judgment or order passed by a

learned Single Judge in an appeal. The Full Bench has held that the

decision of the Division Bench of the High Court in Birat Chandra

Dagra vs. Taurian Exim Pvt. Ltd. & Anr. (vide page 5) 2006(11) OLR

344 does not lay down the good law while the decision of Division

Bench in V.N.N. Panicker vs. Narayan Patil & Anr. 2006(2) OLR 349

lays down the correct law. The Full Bench has further held that after

the amendment of Section 100-A w.e.f. 1.7.2002 no LPA shall lie

against the order or judgment passed by a learned Single Judge even

in an appeal arising out of a proceeding under a Special Act.

10. It has been held in a catena of decisions of this Court that an

appeal is a creature of a statute and not an inherent right vide

Garikapati Veeraya vs. N. Subbiah Choudhry & Ors. AIR 1957 SC

540. This right of appeal can be taken away or curtailed by a

subsequent enactment vide in Kamal Kumar Dutta & Ors. vs. Ruby

General Hospital & Ors. 2006 (7) SCC 613.

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11. The validity of Section 100-A C.P.C. has been upheld by the

decision of this Court in Salem Advocate Bar Association, Tamil

Nadu vs. Union of India AIR 2003 SC 189.

12. The Full Benches of the Andhra Pradesh High Court vide

Gandla Pannala Bhulaxmi vs. Managing Director, APSRTC & Anr.

AIR 2003 AP 458, the Madhya Pradesh High Court in Laxminarayan

vs. Shivlal Gujar & Ors. AIR 2003 MP 49, and of Kerala High Court

in Kesava Pillai Sreedharan Pillai vs. State of Kerala & Ors. AIR

2004 Ker 111 have held that after the amendment of Section 100-A in

2002 no litigant can have a substantive right for a further appeal

against the judgment or order of the learned Single Judge of the High

Court passed in an appeal. We respectfully agree with the aforesaid

decisions.

13. In Kamala Devi vs. Khushal Kanwar & Anr. AIR 2007 SC 663,

this Court held that only an LPA filed prior to coming into force of the

Amendment Act would be maintainable.

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14. In the present case the LPA was filed after 2002 and hence in

our opinion they are not maintainable.

15. Learned counsel for the appellant, however, submitted that

Section 100-A does not bar a LPA against a judgment of the learned

Single Judge who had decided an appeal under Order 43 Rule 1

against an interlocutory order of the District Judge. He submitted that

Section 100-A after its amendment in 2002 requires that the judgment

of learned Single Judge should be a judgment and decree of such

Single Judge. He further submitted that in the present case the

learned Single Judge was hearing an appeal against an interlocutory

order of the learned Additional District Judge and hence when the

learned Single Judge decided the appeal he was not passing any

decree because the suit was still pending.

16. Learned counsel submitted that there is a difference in the

language of Section 100A as initially inserted in 1976, and the

language of the provision as substituted in 2002. While the former 9

barred an L.P.A. even against a judgment, decision or order of a

learned single Judge which was not a decree, the latter bars only a

judgment which is also a decree. Since the judgment of the learned

Single Judge dated 6.8.2008 was not a decree he submitted that the

L.P.A. against that judgment was not barred.

17. While at first glance this argument may appear plausible but

when we go deeper into it, we will realize that it has no merit.

18. It would be strange to hold that while two appeals will be

maintainable against interlocutory orders of a District Judge, only one

appeal will be maintainable against a final judgment of the District

Judge.

19. It may be noted that there seems to be some apparent

contradiction in Section 100-A as amended in 2002. While in one

part of Section 100-A it is stated "where any appeal from an original

or appellate decree or order is heard and decided by a Single Judge 1

of a High Court", in the following part it is stated "no further appeal

shall lie from the judgment and decree of such Single Judge". Thus

while one part of Section 100-A refers to an order, which to our mind

would include even an interlocutory order, the later part of the Section

mentions judgment and decree.

20. To resolve this conflict we have to adopt a purposive

interpretation. The whole purpose of introducing Section 100-A was

to reduce the number of appeals as the public in India was being

harassed by the numerous appeals provided in the statute. If we look

at the matter from that angle it will immediately become apparent that

the LPA in question was not maintainable because if it is held to be

maintainable then the result will be that against an interlocutory order

of the District Judge there may be two appeals, first to the learned

Single Judge and then to the Division Bench of the High Court, but

against a final judgment of the District Judge there can be only one

appeal. This in our opinion would be strange, and against the very 1

purpose of object of Section 100-A, that is to curtail the number of

appeals.

21. It is well settled that the modern method of interpretation is

purposive vide Directorate of Enforcement vs. Deepak Mahajan &

Anr. (1994) 3 SCC 440, Hindustan Lever Ltd. vs. Ashok Vishnu

Kate & Ors. (1995) 6 JT 625 (vide page 631) and Workmen of

American Express International Banking Corporation vs.

Management of American Express International Banking Corporation

(1985) 4 SCC 71.

22. We are of the opinion that the apparent contradiction in Section

100A as amended in 2002 was only due to bad drafting, and not

much can be made out of it once we understand the purpose of

Section 100A.

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23. For the reasons given above we are of the opinion that the Full

Bench of the High Court has taken a correct view. Thus there is no

force in these appeals, which are accordingly dismissed. No costs.

CIVIL APPEAL NOS. 9323-9324 OF 2010 [arising out of Special Leave Petition (Civil) Nos.13684-85 of 2009]

24. Leave granted.

25. These appeals have been filed against the order of the learned

Single Judge dated 6.8.2008 in first appeal from order no.386 of 2007

of the Orissa High Court. The appeal before the learned Single

Judge arose out of an interlocutory order passed by the learned

Additional District Judge, Fast Track Court-III in a suit which is still

pending.

26. In our opinion, though the judgment of the learned Single Judge

is a final judgment, it is in another sense an interlocutory order as it is

well settled that an appeal is a continuation of the original 1

proceedings. Since the original order of the learned Additional

District Judge was an interlocutory order, hence the appeal against

that order and the judgment of learned Single Judge in that sense

was also interlocutory.

27. It is well settled that this Court does not ordinarily interfere

under Article 136 of the Constitution with interlocutory orders.

28. For the reasons given above, we dismiss these appeals without

going into the merits of the case. However, we direct the learned

Additional District Judge to decide the suit expeditiously. No costs.

....................................J. (MARKANDEY KATJU)

....................................J. (T. S. THAKUR) NEW DELHI;

th 25 OCTOBER, 2010 1