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2014 DIGILAW 24 (PAT)

Ajit Kumar Singh v. Most. Rajeya Khatoon

2014-01-07

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2014
Oral Order (Per: Hon'ble the Chief Justice) Interlocutory Application No. 8796 of 2013 : Delay of one year and 50 days occurred in filing the Letters Patent Appeal is condoned. 2. Interlocutory Application stands disposed of. Letters Patent Appeal No. 1604 of 2013 : 3. This Appeal under Clause 10 of the Letters Patent has been preferred by the appellants against the judgment and order dated 9th April, 2012 passed by the learned single Judge in Miscellaneous Appeal No. 274 of 2007 filed under Section 173 of the Motor Vehicles Act, 1988 (arising from the order dated 28th April, 2007 passed by the learned Additional District Judge-cum-Claims Tribunal, East Champaran, Motihari in Claim Case No. 55 of 2003). The first and foremost question that arises is that of maintainability of the Letters Patent Appeal against the appellate order of the learned single Judge. 4. Learned advocate Mr. Md. Shahnawaz Ali has appeared for the appellants. He has relied upon the judgment of the Bombay High Court in the matter of Asha vs. National Insurance Co. Ltd. [2008(2) T.A.C. 332 (Bom.)]. In the said matter, the Division Bench of the Bombay High Court entertained the Letters Patent Appeal preferred by the claimants against the judgment in an appeal filed under Section 173 of the Motor Vehicles Act. As to the maintainability, the Court has held that while considering the appeal under Section 173 of the Motor Vehicles Act, the learned single Judge of the High Court did not exercise appellate jurisdiction under C.P.C. Hence, the Letters Patent Appeal was not barred by Section 100-A CPC and was maintainable. The above view is shared by the Karnataka High Court in the matter of Union of India and Another vs. M/s Mysore Paper Mills Ltd. [AIR 2004 Karnataka 1]. According to the Karnataka High Court, Tribunal constituted under the Motor Vehicles Act is not a Court. Section 100-A CPC therefore does not apply to the appeals arising under Section 173 of the Motor Vehicles Act. A similar view has been taken by the Full Bench of the Gujarat High Court. In the matter of Nasik Hing Supplying Co. vs. Annapurna Gruh Udyog Bhandar, Ahmedabad & Anr. [AIR 2003 Gujarat 275], identical issue was under consideration by the Gujarat High Court in respect of an appeal arising under Section 109(5) of the Trade and Merchandise Marks Act, 1958. In the matter of Nasik Hing Supplying Co. vs. Annapurna Gruh Udyog Bhandar, Ahmedabad & Anr. [AIR 2003 Gujarat 275], identical issue was under consideration by the Gujarat High Court in respect of an appeal arising under Section 109(5) of the Trade and Merchandise Marks Act, 1958. The learned Judges of the Gujarat High Court held that Section 100-A CPC, since its amendment in 1999 and 2002, bars a further appeal before the Division Bench of the High Court against the decision of a learned single Judge of the High Court in appeals under Sections 96, 100 & 104 of the CPC. "Where a special law provides for appeal against a decision of a single Judge of this Court to a Division Bench of this Court, the provisions of such special law will prevail because Section 100-A of the CPC is a part of general law of procedure which does not take away the substantive right of appeal provided by a special law, notwithstanding the non-obstante clause with which Section 100-A commences". 5. We are unable to agree with the aforesaid view expressed by the Bombay High Court or the Karnataka High Court or the Gujarat High Court. 6. Section 100-A C.P.C. substituted by Act 46 of 1999 and by Act of 2002 expressly bars a Letters Patent Appeal from an order of the learned single Judge of the High Court in an appeal arising from an original or appellate decree or order. The bar is absolute and applies to all appellate orders of the learned single Judge of the High Court. The appeal may arise out of the civil proceedings or from the proceedings under some special Act. The non-obstante clause, "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" gives away the legislative intent to bar any kind of second appeal before the Division Bench of the High Court arising from the appellate decree or order of the learned single Judge. 7. We do not see any distinction between the original or appellate decree or order under challenge made in a proceeding under the CPC or in a proceeding arising under a particular enactment such as Motor Vehicles Act/Workmen's Compensation Act. 7. We do not see any distinction between the original or appellate decree or order under challenge made in a proceeding under the CPC or in a proceeding arising under a particular enactment such as Motor Vehicles Act/Workmen's Compensation Act. The distinction drawn by the Bombay High Court or the Karnataka High Court or the Gujarat High Court does not appeal to us. This view of ours is supported by the Full Bench of the High Court of Andhra Pradesh in the matter of Gandla Pannala Bhulaxmi vs. Managing Director, APSRTC and Another [AIR 2003 Andhra Pradesh 458]. According to the Andhra Pradesh High Court, "There is a complete prohibition of filing of further appeal against the judgment and decree of a learned single Judge. It is a legislature declaration. The said legislative declaration prohibits preferring of a further appeal against the judgment and decree of a learned single Judge even if an appeal is provided in any other law for the time being in force. The expression "in any instrument having the force of law or in any other law for the time being in force' takes into its ambit of the legislations including the special enactments where a right of appeal may have been provided against the judgment and decree of a learned single Judge to a Division Bench. What is prohibited is preferring of a further appeal to a Division Bench against the judgment and decree of a single Judge not only under the Letters Patent for any High Court, but also under any special enactments even if an appeal is provided in such special enactments". 8. As recorded hereinabove, the present Letters Patent Appeal arises from the appellate order made by the learned single Judge in an appeal preferred under Section 173 of the Motor Vehicles Act. The Letters Patent Appeal is barred by Section 100-A CPC. 9. The Appeal is dismissed on the ground of maintainability alone.