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2006 DIGILAW 1153 (MP)

Ratanlal v. Purushottam

2006-09-28

A.K.PATNAIK, DEEPAK VERMA, DIPAK MISRA

body2006
ORDER 1. A Division Bench of this Court sitting at Indore by order dated 19.7.2006 has referred the following question of law to the Full Bench: "Whether section 4 of the M.P. Uchcha Nyaya1aya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, which repeals the M.P. Uchcha Nyayalaya (Letters of Patent Appeal Samapti) Adhiniyam, 1981, would review only an appeal to a Division Bench from the order passed by the learned Single Judge under Article 226 of Constitution or also revive appeals under clause 10 of the Letters Patent from judgment and order of the learned Single Judge in other cases". 2. The relevant facts very briefly are that the applicants had filed the second appeal in this Court numbered as SA No.494 of 1975 and on 5.1.1989 the second appeal was dismissed by a learned Single Judge of this Court for default. MCC No.6 of 1989 was filed by the applicants under O.41 R.19, CPC for restoration of said second appeal and the same was dismissed by the Court on 9.2.2000. Against the order dated 9.2.2000, LPA No.237 of 2000 was then filed by the applicants. The said LPA No.237 of 2000 was admitted for final hearing and interim relief was granted on 28.9.2000 but thereafter the said LPA was dismissed on 6.9.2005 by the Court in view of the decision of the Supreme Court in Jamshed N. Guzdar v. State of Maharashtra [ 2005(1) JLJ 358 =JT(1) 2005 SC 370], upholding the validity of the M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 (for short 'the Samapti Adhiniyam, 1981 ). Thereafter, the applicants filed SLP (Civil) No.7813 of 2006 before the Supreme Court, but on 7.5.2006, the said SLP was withdrawn by the applicants with a view to take steps for revival of LPA under the Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (for short 'the Adhiniyam, 2005'), which had in the meanwhile been enacted. 3. Section 4(1) of the said Adhiniyam, 2005, repealed the Samapti Adhiniyam, 1981. 3. Section 4(1) of the said Adhiniyam, 2005, repealed the Samapti Adhiniyam, 1981. In view of the said provision in section 4(1) of the said Adhiniyam, 2005, the Division Bench by order dated 19.7.2006 referred the question of law to the Full Bench as to whether the said section 4 of the said Adhiniyam, 2005, which repeals the Samapti Adhiniyam, 1981 would revive only an appeal to a Division Bench from the order passed by learned Single Judge under Article 226 of the Constitution or would also revive appeals under clause 10 of the Letters Patent from judgment and decree of the learned Single Judge in other cases. 4. We find that under section 100A of the CPC, which was inserted with effect from 1.2.1977 by the Code of Civil Procedure Amendment Act, 1976, a third appeal against an appellate decree or order heard and decided by a Single Judge of the High Court was barred. The said section 100A of the CPC prior to its amendment w.e.f. 1.7.2002, is quoted hereunder : "100A. 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 original or appellate decree or order is heard and decided by a Single Judge or a High Court, no further appeal shall lie from the judgment and decree of such Single Judge." A plain reading of the aforesaid provision in section 100A of the CPC as stood when LPA No.237 of 2000 was filed would show that a third appeal against the order or decree of Single Judge of this Court was barred notwithstanding anything contained in any Letters Patent Appeal for any High Court. 5. Hence, even if section 4(1) of the said Adhiniyam, 2005 repeals the Samapti Adhiniyam, 1981, a third appeal against the judgment and decree of learned Single Judge of this Court against the second appeal was barred under section 100A of the CPC. This has already been held by a Division Bench of this Court in its order dated 29,8.2006 in WA (LT) No.37 of 2006 in the case of P.N. Sahu v. Manoj Kumar. 6. This has already been held by a Division Bench of this Court in its order dated 29,8.2006 in WA (LT) No.37 of 2006 in the case of P.N. Sahu v. Manoj Kumar. 6. We, therefore, hold that so far as third appeal against the judgment and decree of learned Single Judge of this Court is concerned, the same stands barred under section 100A of the CPC, with effect from 1.2.1977 and does not stand revived under section 4(1) of the Adhiniyam, 2005. The question as to whether a Letters Patent Appeal against a judgment and decree of learned Single Judge in first appeal would revive by virtue of section 4(1) of the said Adhiniyam, 2005 is left open to be decided in a case where such a question arises. 7. The matter will now be placed before Division Bench for appropriate orders. ......................