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Himachal Pradesh High Court · body

2012 DIGILAW 842 (HP)

Birbal Kumar Negi v. Madan Lal

2012-11-16

R.B.MISRA, RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. This Letters Patent Appeal is directed against the order dated 20.9.2006 passed by the learned Single Judge in CMP (M) No. 661/2006 in F.A.O. 2. Material facts necessary for the adjudication of this appeal are that respondent No.1 filed a claim petition M.A.C. No. 23-S/2 of 1995 before the Motor Accident Claim Tribunal (II), Shimla for the grant of compensation in respect of accident, which took place on 26.3.1994 on account of rash and negligent driving of the appellant at about 11.00 A.M. at Bus Stand, Bhabanagar, Sungra. Learned Motor Accident Claim Tribunal allowed the petition on 2.8.2001 and respondent No.1 was awarded compensation to the tune of Rs.1,50,000/- alongwith interest @9% per annum from the date of filing of petition or till the same was paid or deposited before the Tribunal. Appellant was held liable to pay the amount of compensation. Appellant filed F.A.O. in this Court against the award dated 2.8.2001. It was barred by 198 days. Appellant had also filed CMP (M) No. 661 of 2006 for condonation of delay. Learned Single Judge dismissed the application on 20.9.2006. In these circumstances, the Letters Patent Appeal has been filed. 3. The core issue involved in this L.P.A. is: whether an appeal would lie against the order dated 20.9.2006 or not passed by the learned Single Judge in F.A.O. Section 173 of the Motor Vehicle Act, 1988 reads thus: “173. Appeals. – (1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court : Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court, unless he has deposited with it twenty-five thousand rupees of fifty per cent, of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.” 4. Mr. (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.” 4. Mr. B.C. Negi has relied upon Chandra Kanta Sinha versus Oriental Insurance Company Limited and others, (2001) 6 SCC 158 . The apex court in this case has held that Letters Patent Appeal would be maintainable against the judgment and order of the Single Judge in first appeal against order of trial court under section 140 of the Motor Vehicles Act, 1988. The apex court has held as under: “12. Learned counsel for the respondents, however, argued that clause 10 provides that an appeal shall lie to the said High Court only from a judgment passed in exercise of the appellate jurisdiction not being a judgment passed in the exercise of the appellate jurisdiction and as the judgment of the learned Single Judge was passed in the appellate jurisdiction, a Letters Patent Appeal was not maintainable. In our view, the contention of the learned counsel is based on a mis-reading of clause 10. He has overlooked the vital words, namely, in respect of a decree or order made in exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court in the first limb of clause 10. If those words are also read along with the words relied upon by the learned counsel, it becomes clear that the appellate jurisdiction mentioned therein refers to a second appeal under Section 100 CPC (or under any provision of an special Act) which is in respect of decree or order made in exercise of appellate jurisdiction in the first appeal, filed under Section 96 CPC, (or under any provision of an special Act) by a court subject to the superintendence of the High Court. In other words, from a judgment passed by one judge in second appeal, under Section 100 CPC or any other provision of an special Act no Letters Patent Appeal will lie to the High Court provided the second appeal was against a decree or order of a District Judge or a subordinate judge or any other judge subject to the superintendence of the High Court passed in a first appeal under Section 96 CPC or any other provision of an special Act. 14. 14. From the above discussion, it follows that the appeal against the order of the learned Single Judge in M.A.No.494 of 1996 dated April 13, 1998 would lie before the Division Bench under clause 10 of the Letters Patent. Letters Patent Appeal No.599 of 1998 is, therefore, maintainable. The order of the High Court under challenge is set aside. The Letters Patent Appeal is restored to the file of the High Court. The High Court will now decide the said letters patent appeal on merits in accordance with law. The appeal is accordingly allowed. There shall be no order as to costs.” 5. Mr. V.S. Rathore and Mr. Deepak Bhasin have submitted that Letters Patent Appeal would not lie after section 100-A has been inserted in the Code of Civil Procedure in 2000. Section 100-A of the Code of Civil Procedure Reads as under: “100-A. 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 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 order or such single Judge in such appeal or from any decree passed in such appeal.” 6. The judgment rendered by the Apex Court, cited hereinabove, was before the insertion of section 100-A in the Code of Civil Procedure. Their Lordships of the Hon’ble Supreme Court in Mohd. Saud and another versus Dr. (Maj.) Shaikh Mahfooz and others, (2010) 13 SCC 517 have held that purpose of introducing section 100-A was to reduce number of appeals, as public in India was being harassed by numerous appeals provided in the statute. Their Lordships have held as under: “13. While at first glance this argument may appear plausible but when we go deeper into it, we will realize that it has no merit. It would be strange to hold that while two appeals will be maintainable against interlocutory orders of a District Judge, only one appeal will be maintainable against a final judgment of the District Judge. 14. It may be noted that there seems to be some apparent contradiction in Section 100-A as amended in 2002. It would be strange to hold that while two appeals will be maintainable against interlocutory orders of a District Judge, only one appeal will be maintainable against a final judgment of the District Judge. 14. It may be noted that there seems to be some apparent contradiction in Section 100-A as amended in 2002. While in one part of Section 100-A it is stated “where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court”, in the following part it is stated “no further appeal shall lie from the judgment and decree of such Single Judge”. Thus while one part of Section 100-A refers to an order, which to our mind would include even an interlocutory order, the later part of the Section mentions judgment and decree. 15. To resolve this conflict we have to adopt a purposive interpretation. The whole purpose of introducing Section 100-A was to reduce the number of appeals as the public in India was being harassed by the numerous appeals provided in the statute. If we look at the matter from that angle it will immediately become apparent that the LPA in question was not maintainable because if it is held to be maintainable then the result will be that against an interlocutory order of the District Judge there may be two appeals, first to the learned Single Judge and then to the Division Bench of the High Court, but against a final judgment of the District Judge there can be only one appeal. This in our opinion would be strange, and against the very purpose of object of Section 100-A, that is to curtail the number of appeals.” 7. Their Lordships of the Hon’ble Supreme Court in Geeta Devi and others versus Puran Ram Raigar and another, (2010) 9 SCC 84 have held that intra-court appeal against order of Single Judge in miscellaneous appeal in motor accident case would not lie in view of section 100-A of the Code of Civil Procedure notwithstanding High Court Rules or Letters Patent. Their Lordships have held as under: “3. In our opinion, the Division Bench of the High Court has rightly held that the appeal against the order of the learned Single Judge dated 07th August, 2006 did not lie in view of Section 100-A, CPC. The learned Single Judge had decided the Misc. Their Lordships have held as under: “3. In our opinion, the Division Bench of the High Court has rightly held that the appeal against the order of the learned Single Judge dated 07th August, 2006 did not lie in view of Section 100-A, CPC. The learned Single Judge had decided the Misc. Appeal No. 2777/2003 against the award of the Motor Accident Claims Tribunal. In our opinion, this intra court appeal in the High Court was not maintainable in view of Section 100-A, CPC notwithstanding anything in the High Court Rules or the Letters Patent to the contrary. Hence, the appeal was rightly dismissed by the Division bench of the High Court and this appeal is, therefore, -2- dismissed.” 8. The appellant has not given sufficient reasons for condonation of delay in filing the appeal against the award dated 2.8.2001. It was barred by 198 days. The certified copy of the award was prepared on 22.8.2001 and the same was obtained by the counsel on 5.9.2001. The version of the appellant that the counsel had not informed him about the decision of the case has rightly not been believed by the learned Single Judge. Appellant has not even filed the affidavit of the counsel. 9. Accordingly, we are of the considered view that in view of definitive law laid down by the Hon’ble Supreme Court in (2010) 9 SCC 84 (supra) whereby the provisions of section 100-A of the Code of Civil Procedure have been taken into consideration, the Letters Patent Appeal shall not lie against the order of the Single Judge in motor accident cases. 7. Consequently, in view of the observations and analysis made hereinabove, there is no merit in the Letters Patent Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.