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2005 DIGILAW 578 (PNJ)

Oriental Insurance Company Limited v. Banti Devi

2005-05-11

D.K.JAIN, HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. Whether the Letters Patent Appeal is maintainable against the judgment and order passed by the learned Single Judge in appeal under Section 173 of the Motor Vehicles Act, 1988 , against the award rendered by the Motor Accident Claims Tribunal is the question raised. 2. The said question arises on account of substitution of Section 100-A of the Code of Civil Procedure (hereinafter to be referred as "the Code") w.e.f. 01.07.2002 vide Code of Civil Procedure (Amendment) Act, 2002. The said substituted section reads as under:- "100-A. No further appeal in certain cases:- Notwithstanding anything contained in any Letters Patent for any High Court or in an other instrument having the force of law or in another 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." 3 A Seven Judges Full Bench of this Court in Letters Patent Appeal No. 225 of 2003, Balbir Kaur v. Bhim Singh, (2005-1)139 P.L.R. 848 (F.B.) decided on December 01, 2004 has held that the Letters Patent Appeal would not be maintainable against the judgment and order passed by the learned Single Judge while exercising the appellate jurisdiction. However, the said question arose in proceedings under the Hindu Marriage Act, 1956. 4. Learned counsel for the appellant has vehemently argued that the substituted provision of Section 100-A of the Code would not be applicable to an appeal under special statute, such as the Motor Vehicles Act, 1988 , Section 4 of the Code provides that nothing in this Code shall be deemed to limit or affect any special or local law in force. It is, thus, contended that the provisions of Section 100-A of the Code would be applicable only to an appeal arising out of decree or order passed under the Code and not in respect of an appeal arising out of the special statute. Reference was made to Subal Paul V/s. Malina Paul, AIR 2003 SC 1928 wherein it has been held that appeal under Section 299 of the Succession Act, 1925 is not barred by the provisions of Section 104 of the Code. 5. We are unable to agree with the said argument raised by learned counsel for the appellant. Reference was made to Subal Paul V/s. Malina Paul, AIR 2003 SC 1928 wherein it has been held that appeal under Section 299 of the Succession Act, 1925 is not barred by the provisions of Section 104 of the Code. 5. We are unable to agree with the said argument raised by learned counsel for the appellant. The judgment in Suibal Pauls case (supra) has been considered by the Constitution Bench in P.S. Santhappan (dead) by LRs V/s. Andhra Bank Ltd. and Ors., AIR 2004 SC 5152 as well as Seven Judges Bench of this Court in Balbir Kaurs case (supra), where it has been held to the following effect:- "In fairness to Mr. H.S. Dhandi, learned counsel for the appellant, we note his submission before us that this Letters Patent Appeal is maintainable under the provisions of the Act. He, however, failed to show us any provisions of the Act to support his contention. The Act does not contemplate any provision for filing any Letters Patent Appeal against the judgment of the learned Single Judge. The Memorandum of this Letters Patent Appeal shows that it has been filed under Clause X of the Letters Patent. Mr. Dhandi could not distinguish the express verdict given by the Constitution Bench of the Supreme Court and support his argument as to how this appeal is maintainable, which has been admittedly filed after coming into force of the new Section 300-A of the Code of Civil Procedure."; 6. The present appeal has been filed under Clause X of the Letters Patent. The provisions of Sec. 100-A of the Code has been given over riding effect notwithstanding anything contained in any Letters Patent or any other instrument having the force of law or "in any other law for the time being in force". Thus, it is apparent that the said provisions override not only Section 4 of the Code but also all other laws which are in force. Section 100-A of the Code does not restrict its applicability to the appeals arising under the Code of Civil Procedure. 7. Thus, we are of the opinion that an appeal under the Letters Patent would not be maintainable when an original or appellate decree or order is heard and decided by the learned Single Judge of this Court. 8. Consequently, the present appeal is dismissed as not maintainable with no order as to costs.