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2003 DIGILAW 379 (AP)

State Govt. Gazetted Officers Cooperative House Building Society Ltd. v. Mutyala Pothayya

2003-03-07

BILAL NAZKI, G.ROHINI

body2003
BILAL NAZKI, J. ( 1 ) THIS Letters Patent Appeal has been filed against the judgment and decree dated 24-1-2002 passed by the learned single Judge of this Court in A. S. No. 1961 of 1993. The maintainability of this appeal has been questioned by the learned counsel for the respondents on the ground that this appeal has been filed before this Court on 1-7-2002 when the Code of Civil Procedure (Amendment) Act, 2002 (Act No. 22/2002) came into operation. A notification was published in the Gazette on 6-6-2002 and the amendments to the Code of Civil Procedure were made applicable with effect from 1-7-2002. For Section 100-A of the principal act the following section was substituted,"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. " ( 2 ) FROM perusal of the section itself it becomes clear that with effect from 1-7-2002 no letters patent appeal would lie against the judgment of a learned single Judge of the high Court passed in an original or appellate decree. This provision has been made notwithstanding anything contained in the letters patent or in any instruments applicable to the High Court. The various shades of interpretation of this section have already been considered by another division Bench of this Court in S. Shiva Raja reddy v. S. Rahgu Raj Reddy whereby the court held that all letters patent appeals which had been admitted by the High Court for hearing prior to 1-7-2002 were maintainable and no appeals filed against the decisions of a single Judge of the High court in an original or appellate decree were maintainable with effect from 1-7-2002. Therefore this appeal, on the face of it, which was presented on 1-7-2002 against the judgment of a single Judge of this Court, is not maintainable. But the matter does not end there. Therefore this appeal, on the face of it, which was presented on 1-7-2002 against the judgment of a single Judge of this Court, is not maintainable. But the matter does not end there. There is further controversy in this case as the learned counsel for the appellant submits that 30-6-2002 was sunday, therefore on the last date when he could have filed the appeal being a holiday, the next day i. e. , 1-7-2002 which was monday should be taken as a day on which the appeal could have been filed. The learned counsel vehemently argued that the principles laid down by the various courts, while interpreting the provisions of the limitation Act and the General Clauses Act, should apply in the present context also. On the other hand, it is argued by the learned counsel for the respondents that in case of limitation the question of lack of jurisdiction or availability of jurisdiction by the respective Court would never be a factor, but in the present case it will have to be seen as to whether on 1-7-2002 the High Court had jurisdiction to entertain a letters patent appeal or not in cases which come under section 100-A of the Code of Civil Procedure (Amendment) Act, 2002 (Act No. 22/2002) and if the High Court lacked jurisdiction, no law or no provision of law of limitation would entitle the High Court to assume the jurisdiction. Section 10 of the General clauses Act, 1897 reads as under:"where, by any Central Act or regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. " ( 3 ) THIS section merely gives a concession to a party to do an act which he had to do on a particular day or within a particular date and if the last date of the prescribed period was a holiday, then he could do it on a subsequent date, but by the amendment in the Code of Civil Procedure it is hot the period of limitation which has been prescribed or amended by the law, it has taken away the jurisdiction of the High court from a particular day. Therefore, in our view, the appellant would not be within his rights to file an LPA in terms of section 100-A of Code of Civil Procedure (Amendment) Act, 2002 (Act No. 22/2002) after 30-6-2002. It was not his omission, which would be the subject matter of consideration of this Court, but it would be an action of the High Court itself which would be the focal point. What this amendment sought to do was not to deprive a party from filing an LPA in certain cases, but it also sought to take away the jurisdiction of the High Court in certain matters. Therefore, in our view, after 30-6-2002 the High Court had no jurisdiction to entertain an appeal being LPA within the meaning of Section 100-A of the Code of civil Procedure (Amendment) Act, 2002 (Act No. 22/2002 ). In cases of limitation or in cases where Section 10 of the General clauses Act would apply, the Court, which entertains a proceeding after the period of limitation, would be a Court with requisite jurisdiction. But in the present case, in our view, by an amendment in the Code of Civil procedure the High Court lost jurisdiction to entertain such an appeal on 1-7-2002, therefore it becomes immaterial whether 30-6-2002 was a holiday or 1-7-2002 was a working day. Reliance has been placed by the learned counsel for the appellant on various judgments. As we have already pointed out, Section 100-A Code of Civil procedure (Amendment) Act, 2002 (Act no. 22/2002) does not place restrictions on the party, but it places restrictions on the court itself. In this context judgment of the supreme Court reported in Harinder Singh v. S. Karnail Singh can be examined. As we have already pointed out, Section 100-A Code of Civil procedure (Amendment) Act, 2002 (Act no. 22/2002) does not place restrictions on the party, but it places restrictions on the court itself. In this context judgment of the supreme Court reported in Harinder Singh v. S. Karnail Singh can be examined. The supreme Court in para 5 interpreted the section 10 in the following words," (5) This argument proceeds on an interpretation of Section 10 of the general Clauses Act which, in our opinion, is erroneous. Broadly stated, the object of the section is to enable person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to the section, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday. " ( 4 ) THIS judgment does not take care of a situation of which we are presently concerned that the last day of the prescribed period was the last date for which the Court could have exercised the jurisdiction which jurisdiction was not available to the Court on the next date. If a party filed an appeal on the last date of the prescribed period and the last date being a holiday i. e. , on 30-6-2002 as in the present case, it could be presumed that as if he had filed it within the prescribed period, but what about the Court. The Court would take up the matter on Monday i. e. , 1-7-2002 on which date because of the provisions of the Amended Section 100-A of the Code of Civil Procedure (Amendment) act, 2002 (Act No. 22/2002) the Court lacked jurisdiction, therefore in our view, this judgment would not help the appellant. Similarly other judgments which were pressed into service are the judgment of the madras High Court reported in chenchuramana v. Arunachalam (F. B.) and the judgment of the Supreme Court reported in C. F. Angadi v. Y. S. Hirannayya. Similarly other judgments which were pressed into service are the judgment of the madras High Court reported in chenchuramana v. Arunachalam (F. B.) and the judgment of the Supreme Court reported in C. F. Angadi v. Y. S. Hirannayya. These are the judgments which, in our view, would not be of any assistance to the appellant. The judgment of the Supreme Court reported in c. F. Angadi v. Y. S. Hirannayya is also not applicable to the facts and circumstances of the present case because the question which was considered by the Supreme Court was,"what is the principle which should be applied in a case where a party to a consent decree is given time to do an act within a specified day or by a specified day and fails to do it on the ground of impossibility of performance on the last day specified but does it on the next practicable day. " ( 5 ) FOR the reasons given hereinabove, we hold that this appeal which was filed on 1-7-2002 is not maintainable.