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2010 DIGILAW 421 (GAU)

A. S. Hopeson v. A. S. Wungnang

2010-06-09

H.N.SARMA, MAIBAM B.K.SINGH

body2010
JUDGMENT H.N. Sarma, J. 1. This Letter Patent Appeal was filed before this Court on 22.7.1998 and since then the Appeal has been pending even without being admitted. Although the Appeal was listed from time to time, it is being adjourned on the prayers made by either of the parties for the last 12 years. We have heard Mr. L. Gojendro Singh, learned Counsel lead by Mr. S. Jayanta Singh, learned Senior Counsel appearing on behalf of the Plaintiff/Appellant and Mr. Th. Modhu Singh, the learned Counsel for the Defendant/Respondent. 2. The Appellant filed the Second Appeal No. 3 of 1976 challenging the judgment and decree dated 25.2.1976 passed by the learned Addl. District Judge, Manipur in Civil Appeal No. 17/75/5 of 1975 whereunder the judgment and order/decree passed by the learned Trial Magistrate/Munsiff in Original Suit No. 68 of 1971 was reversed and appeal was allowed. 3. The aforesaid Second Appeal was dismissed on 1.12.1993 as the learned Counsel for the Appellant did not want to press the appeal. Against the aforesaid order dated 1.12.1993, a review petition was filed before the Court which was registered as Civil Review No. 1 of 1998. The learned Single Judge after hearing the learned Counsel for the review Petitioner, dismissed the review petition vide an order dated 20.4.1998. Challenging the aforesaid order dismissing the review petition as well as in the second appeal, the present Letter Patent Appeal has been filed on 22.7.1998 by the Plaintiff/Appellant. 4. Mr. Th. Modhu Singh, the learned Counsel for the Defendant/Respondent has raised a preliminary question about the maintainability of this Letter Patent Appeal. It is submitted by the learned Counsel that in view of the provisions contained in Section 100A of the Code of Civil Procedure, this LPA is not maintainable. The learned Counsel of the Appellant, however, submits that since this LPA is pending for a long time since 22.7.1998 and there has been apparent error on the face of the record in passing the order impugned in this appeal, this Letter Patent Appeal may be admitted to be heard on merit. We have considered the submission of the learned Counsel for both the parties. Section 100A was inserted by the Code of Civil Procedure Amendment Act, 1976. We have considered the submission of the learned Counsel for both the parties. Section 100A was inserted by the Code of Civil Procedure Amendment Act, 1976. Prior to the aforesaid amendment, the provisions regarding Letter Patent Act was regulated and guided by Clause 15 of the Charter of letters Patent for the High Court of Calcutta dated 28.12.1865 in the following form: 15. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise or revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108of the Government of India Act made (on or after the first day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council. Under Section 38 of the Code of Civil Procedure, Amendment Act, 1976, Section 100A has been newly inserted and the provision of Section 100A as inserted by Code of Civil Procedure Amendment Act 1976 is quoted herein below: 100A. Under Section 38 of the Code of Civil Procedure, Amendment Act, 1976, Section 100A has been newly inserted and the provision of Section 100A as inserted by Code of Civil Procedure Amendment Act 1976 is quoted herein below: 100A. No further appeal in certain cases - Not with standing anything contained in any letters patent for any High Court or in any other instrument having the force of law or in any other 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 other or such single Judge in such appeal or from any decree passed in such appeal. Section 97(2)(n) of the Code of Civil Procedure Amendment Act, 1976 provides that Section 100A, as inserted on the Principal Act by Section 38 of the Amending Act shall not apply to or affect any appeal against the decision of a Single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the Section 38 and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force. Code of Civil Procedure Amendment Act 1976 came into force on and from 1.02.1977 except Sections 12, 13 and 50. 5. Section 100A has been amended by Act 56 of 1999 and Act No. 92 of 2002 w.e.f. 1.7.2002. After such amendment, the provisions of Section 100A Code of Civil Procedure as it exists now are as follows: 100A. No further appeal in certain cases - Not with standing anything contained in any letters patent for any High Court or in any other instrument having the force of law or in any other 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, decision or other or such Single Judge in such appeal or from any decree passed in such appeal. 6. From the aforementioned enactments, it is, thus, clear that the legislature made changes from time to time in respect of the right to file Letters Patent Appeal. 6. From the aforementioned enactments, it is, thus, clear that the legislature made changes from time to time in respect of the right to file Letters Patent Appeal. It is apparent and transparent that initial restriction in preferring a Letters Patent was made by the legislation vide Code of Civil Procedure (Amendment) Act, 1976 by inserting a new Section, namely Section 100A in the Code. As per the provision of Section 100A, Code of Civil Procedure inserted by way of amended in 1976, no restriction was imposed in respect of filing any such letters patent appeal against a judgment and order/decree passed in an appeal by a Single Judge of the High Court to the High Court itself. However, after subsequent amendment of the Code of Civil Procedure, in 1997 and 2000, such further appeal by way of a letters patent appeal is barred against a judgment passed in the original or appellate decree or order passed by a Single Judge of the High Court to the same Court. Thus, in terms of the law holding the field as on date, no letters patent appeal would lie against the judgment and order/decree passed by a learned Single Judge of the High Court to the same High Court. As indicated above, it is found from record of this case that although the appeal was filed on 22.7.1998, i.e. after insertion of Section 100A in the Code of Civil Procedure by Code of Civil Procedure Amendment Act 1976, the appeal has not been admitted as yet. In fact at the time of filing of the appeal itself, there was a legislative embargo as contained in Section 100A to file such an appeal against a judgment and order/decree passed by the learned Single Judge in the Second Appeal. 7. We have noticed another serious loophole in this appeal. The Appellant not being satisfied with the order passed in the Second Appeal filed a review petition before the learned Single Judge being Civil Review No. 1 of 1998, which was also rejected on 20.4.1998. Under the provision of Order 47, Rule 7, no appeal lies against an order of rejection of the review petition. The Apex Court in the case of Kumari Chilra Ghosh and Anr. v. Union of India and Ors. reported in (1969) 2 SCC 228 at paragraph 3 discussing facts of that case noted that in December. Under the provision of Order 47, Rule 7, no appeal lies against an order of rejection of the review petition. The Apex Court in the case of Kumari Chilra Ghosh and Anr. v. Union of India and Ors. reported in (1969) 2 SCC 228 at paragraph 3 discussing facts of that case noted that in December. 1968, the Appellants filed a petition under Section 114 and Order XLVII. Rule 1 read with Section 141, Code of Civil Procedure, seeking a review of the judgment and order, dated December 3, 1968 and the petition was dismissed by the High Court on 27.1.1969. Thereafter, on 1.2.1969 a petition was filed under Articles 133(1)(c) and 132(1) of the Constitution for leave to appeal to the Supreme Court and the prayer to leave sought against the judgment and order dismissing the writ petition as also the order by which the review petition was disposed of. In the certificate, however, in the heading only the judgment, dated December 3, 1968 is mentioned. It would appear that the certificate was limited to the appeal against the writ petition. This would be so because under Order XL VII, Rule 7 the order of the Court rejecting the application for review is not appealable. It the Appellants desired to challenge that order it could have been done only by asking for leave of Apex Court under Article 136 which was never done. In such circumstances, the Appellants were confined to the matter decided by the judgment and order dated 3.12.1968. 8. From the discussions made hereinabove and the related provisions of law regarding right to challenge a judgment passed in a Second Appeal by way of Letters Patent Appeal and legislative changes made from time to time, we are of the opinion that this Letters Patent Appeal is not maintainable. Accordingly this Letter Patent Appeal stands dismissed as not maintainable. Appeal dismissed