Seth Jayendrabhai Shantilal Shah And ... vs Sri R K Jain President Bharat Varsiye ...

----- Seth Jayendrabhai Shantilal Shah & Ors. Appellants Versus

Sri R.K.Jain & Ors. Respondents -----

For the Appellants : Mr.R.N.Sahay For the Respondents : ----- ----

CORAM HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE SHREE CHANDRASHEKHAR

CAV on 27th January, 2014 Pronounced on 30th,January,2014

-----

R.Banumathi,C.J. This L.P.A is preferred against the order dated

27.8.2012

dismissing the application filed under Order XXXIX Rule 2A

C.P.C read with Section 10 of the Contempt of Courts Act, 1971 for

violation of order dated 31.10.1991 passed in F.A No.145/1990(R).

2. The order dated 31.10.1991 was passed in F.A

No.145/1990(R), in which the suit land appertains to Khata No.25, Plot

No.27 of Mauja Parasnath Hill. When the first appeals were pending,

the appellants filed M.J.C No.349/1996(R) for alleged violation of the

interim order passed and for punishing the Opposite parties under

Order XXXIX Rule 2A C.P.C. Learned Single Judge dismissed the

application finding that there is no sufficient ground to proceed and

take action against the Opposite parties either under the provisions of

Rule 2A Order XXXIX CPC or under the provisions of Contempt of

Courts Act, 1971.

3. The case of the appellant is that the Opposite Parties have

violated the court order dated 31.10.1991 and 28.9.1992 and are liable 2

for contempt of court for violation of the order of temporary injunction

and also the order directing to maintain status quo. In extenso, the

learned Single Judge has referred to the facts of the case and therefore,

it is not necessary to narrate the entire fact. Suffice to note that F.A

No.145/1990(R) along with other connected First Appeals was disposed

of. Letters Patent Appeals arising therefrom, being L.P.A

No.332/1997(R) with L.P.A Nos.333, 334,335, 336 and 346 of 1997(R)

were also disposed of and the Special Leave Petition filed by the

petitioners and others, being S.L.P (Civil) Nos.25572-25576 of 2004 and

the counter Special Leave Petition by one Ratnesh Kumar Jain & Ano.,

being S.L.P (Civil) No.2818-2819 of 2005, are shown to be pending in

the Apex Court as per updated information dated 1st August, 2012,

obtained from the official website of the Supreme Court of India.

4. When the Letters Patent Appeal came up for admission, the

Court had raised query regarding maintainability of the appeal. Heard

the submissions of the learned counsel for the appellants on the

question of maintainability.

5. It was submitted that the order passed by the learned

Single Judge in MJC No.349/1996(R) was passed in exercise of the

original jurisdiction and therefore, L.P.A is maintainable. It was further

submitted that as against the order passed under Order XXXIX Rule

2A, Order XLIII Rule 1(r) C.P.C provides for appeal. It was also

submitted that sub-section (1) of Section 104 C.P.C saves the Letters

Patent and Letters Patent Appeal may be availed of in relation to an

order passed by a court. The main contention of the appellants is that

by virtue of sub-section (1) of Section 104 C.P.C, appeals provided for

under statute including Letters Patent are saved and therefore, an

appeal under Letters Patent is maintainable in relation to the order

passed by the Single Judge under Order XXXIX Rule 2A C.P.C. 3

6. The short point falling for consideration is whether as

against the order passed by the learned Single Judge in MJC

No.349/1996R, dismissing the application filed under Order XXXIX

Rule 2A CPC, L.P.A is maintainable?

7. MJC No.349/1996(R) was filed under Order XXXIX Rule 2A

CPC for the alleged violation of the order of status quo dated

31.10.1991 and 28.9.1992 passed in F.A No.145/1990(R) and other

appeals. Learned Single Judge held that there is no sufficient ground to

proceed and take action against the Opposite Parties either under the

provisions of Rule 2A of Order XXXIX CPC or under the provisions of

the Contempt of Courts Act, 1971. As against the order passed under

Order XXXIX Rule 2A, under Order XLIII Rule 1(r), the appeal is

maintainable. Section 100A C.P.C as substituted by the Amendment

Act of 2002 in clear and specific terms prohibits further appeal against

the decree and judgment or order of Single Judge to the Division Bench,

notwithstanding anything contained in Letters Patent. Section 100A

C.P.C reads as under:-

"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."

8. Learned counsel for the appellants contended that

notwithstanding Section 100A C.P.C as inserted by the Amendment Act

2002, Section 104(1) provides for an appeal from the original order.

Learned Counsel for the appellants submitted that sub-section (1) of

Section 104 C.P.C saves the Letters Patent Appeal and Section 100A

and Section 104(2) C.P.C cannot be read to create a bar as regards the

maintainability of the appeal under clause 10 of the Letters Patent. In 4

support of his contention, learned counsel for the appellants relied

upon the decision rendered in the case of P.S.Sathappan (Dead) By

LRS. Vs. Andhra Bank Ltd. & Ors. [(2004) 11 SCC 672].

9. The question in the above decision before the Hon'ble

Supreme Court was as to whether a Letters Patent Appeal is

maintainable against an order passed by a Single Judge of the High

Court sitting in an appellate jurisdiction (prior to Amendment of Section

100A C.P.C by C.P.C Amendment Act 22 of 2002). In the said case,

validity of the court auction for realization of the decretal amount was

challenged and the same was dismissed by the Single Judge of the

Madras High Court. A Letters Patent Appeal in terms of clause 15 of the

Letters Patent of the Madras High Court was filed by the appellant. Full

Bench of the Madras High Court dismissed the Letters Patent Appeal,

holding that in terms of Section 104(2) C.P.C, an appeal against an

order passed by the appellate court under Order XLIII Rule 1(j) read

with Section 104 was not maintainable. A certificate of fitness in terms

of Article 133 of the Constitution was granted by the Full Bench. When

the matter was placed before a Division Bench of Hon'ble Supreme

Court, it noticed a conflict of opinion between decisions of two-Judge

Benches of the Supreme Court in New Kenilworth Hotel, (1997) 3 SCC

462 and Resham Singh Pyara Singh, (1996) 1 SCC 49, and referred the

matter to a larger Bench. Since the order passed by the Single Judge

was prior to C.P.C Amendment 2002, majority of Hon'ble Supreme

Court took the view that on facts and for the time being in force, Section

104 read with Order XLIII Rule 1 C.P.C confers additional powers of

appeal to a larger Bench within the High Court. Section 104(2) C.P.C

only bars appeals against the orders passed in appeal under that

Section and thus, Section 104(2) C.P.C does not bar appeals permitted

by any law in force.

5

10. The above decision is not applicable to the case on hand,

since the order in M.J.C No.349/1996(R) was passed by the learned

Single Judge on 27.8.2012, the impugned order is governed by Section

100A after C.P.C Amendment 2002.

11. Even though the said decision in P.S.Sathappan's case

arose out of a case prior to C.P.C Amendment Act 2002, Hon'ble

Supreme Court considered the effect of Section 100A as amended in

2002 and referring Section 100A (after 2002), Hon'ble Supreme Court

held as under:-

"From Section 100A CPC, as inserted in 1976, it can be seen that when the Legislature wanted to exclude a letters patent appeal it specifically did so. Again from Section 100A, as amended in 2002, it can be seen that 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 in the facts of the present case. 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. 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 CPC. Thus now a specific exclusion was provided.

Therefore, on facts, the appeal under clause 15 of the Letters Patent of Madras High Court is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Section 104(2) did not attach to an appeal passed under such law."

12. Learned counsel for the appellant contended that under

Order XLIII Rule 1(r) C.P.C, appeal is maintainable against the order

passed dismissing the application filed under Order XXXIX Rule 2A

CPC and declining to entertain the contempt petition.

13. As pointed out earlier, application under Order XXXIX Rule

2A CPC was filed in F.A No.145/1990(R) etc. After CPC amendment

2002, as against the order passed by the learned Single Judge in

exercise of appellate jurisdiction, no further appeal lies to the High

Court.

6

14. The effect of C.P.C Amendment Act 2002 is that where an

appeal from an appellate order or decree is heard and decided by the

Single Judge of the High Court, no further appeal lies to the Division

Bench of the High Court. In Section 100A of the Amendment Act, "no

further appeal shall lie" is of great significance. It clearly means that no

further appeal shall be entertained in respect of the appeal filed after

1.7.2002. In this regard, we may usefully refer the judgment of Hon'ble

Supreme Court in the case of Salem Advocate Bar Association,

Tamil Nadu vs. Union of India [AIR 2003 SC 189], which reads as

follows:-

"15. Section 100A deals with two types of cases which are decided by a Single Judge. One is where the Single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated. Where, however, an appeal is filed before the High Court against the decree of a trial court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a Single Judge or by a Division Bench of the High Court. Where the regular first appeal so filed is heard by a Division Bench, the question of there being an intra-Court appeal does not arise. It is only in cases where the value is not substantial that the rules of the High Court may provide for the regular first appeal to be heard by a Single Judge. In Such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily. We do not find that any prejudice would be caused to the litigants by not providing for intra-Court appeal, even where the value involved is large. In such a case, the High Court by Rules, can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be found with the amended provision Section 100A."

15. Learned counsel for the appellants submitted even though

the order passed in M.J.C No.349/1996(R) was passed on 27.8.2012,

the order of status quo in F.A No.145/1990(R) was passed on

31.10.1991, which was prior to the Amendment Act 2002 and therefore,

the Letters Patent Appeal is maintainable. The above contention of the

learned counsel for the appellants does not merit acceptance. Section

100A C.P.C as substituted by the Amendment 2002 will bring the

impugned order within its fold. In the present case, since the 7

impugned order was passed on 27.8.2012, even though the order of

status quo was passed in F.A No.145/1990(R) on 31.10.1991, the

Letters Patent Appeal would be barred in view of 2002 Amendment.

16. By virtue of Section 100A C.P.C, the Legislature has

provided a specific exclusion that no Letter Patent Appeal would be

maintainable and this L.P.A is, thus, dismissed as not maintainable.

(R.Banumathi, C.J)

(Shree Chandrashekhar,J) Dey/AFR 8