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2017 DIGILAW 1039 (JK)

Shahid Hussain v. Mahtaba Begum

2017-11-29

BADAR DURREZ AHMED, SANJEEV KUMAR

body2017
JUDGMENT : BADAR DURREZ AHMED, J. 1. This is an application seeking condonation of delay of 56 days in filing the Letters Patent Appeal against the decision of the learned Single Judge of this Court in CIMA No. 515/2012 dated 30.05.2017. 2. Mr Raina, the learned senior counsel appearing on behalf of the respondent Nos. 1 to 6 took a preliminary objection that no useful purpose would be served by examining this application for condonation of delay, inasmuch as the Letters Patent Appeal itself is not maintainable. He took the support of Section 100-A of the Code of Civil Procedure Svt 1977 and submitted that where any appeal from an order is heard and decided by a Single Judge of the High Court, no further appeal can lie from the judgment of such Single Judge, notwithstanding anything contained in any Letters Patent of the High Court. 3. On the other hand, the learned counsel for the applicant submitted that Section 100-A was amended substituting the original Section 100-A through Act 6 of 2009 and the new Section 100-A took effect on 20.03.2009. He submitted that the present proceedings arose from the institution of a suit for pre-emption, being file No. 6/Civil, which was instituted in the Munsiff’s Court, Kishtwar on 08.04.2002. He submitted that the amendment to Section 100-A took effect on 20.03.2009 subsequent to the institution of the said suit which was, as pointed out above, instituted on 08.04.2002, therefore, the right to appeal being a substantive right would vest on the plaintiff/applicant as on the date of institution of the suit i.e. 08.04.2002. He further submitted that this vested right could only be taken away by way of an express statutory provision or by necessary intendment of a statutory provision. According to him, there was no expression in Section 100-A to the effect that it was retrospective in operation and no such intendment could be discerned from the said provision either. 4. He has placed reliance on the decision of the Constitution Bench of the Supreme Court in the case of Garikapatti Veeraya v. N.Subbial Choudhury, AIR 1957 SC 540 . 4. He has placed reliance on the decision of the Constitution Bench of the Supreme Court in the case of Garikapatti Veeraya v. N.Subbial Choudhury, AIR 1957 SC 540 . In that decision, the Supreme Court, per majority, held that the legal pursuit of a remedy through the suit, appeal and second appeal are really only steps in a series of proceedings which are all connected by intrinsic unity and ought to be regarded as one legal proceeding. It is clearly established that the right of appeal is not a matter of mere procedure, but is a substantive right and that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. Furthermore, the Constitution Bench held that the right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on from the date the lis commences and, although, it may be actually exercised when an adverse judgment is pronounced, such a right is to be governed by the law prevailing on the date of the institution of the suit or proceeding and not by the law which prevails on the date of its decision or on the date of filing of the appeal. However, the Constitution Bench added that the vested right of appeal could be taken away but, only by a subsequent enactment, if it so provides expressly or necessary intendment and not otherwise. 5. The learned counsel for the plaintiff/applicant also relied on the decision of the Supreme Court in the case of Kamla Devi v. Khushal Kanwar and anr, 2006 (13) SCC 295. In the said decision, the Supreme Court referred to its earlier decision in M/s Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and others, AIR 1953 SC 221 . In the said decision [Hoosein Kasam Dada], the Supreme Court had observed that the right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated and before a decision is given by the inferior Court. It further observed that such a vested right cannot be taken away except by express enactment or necessary intendment. It further observed that such a vested right cannot be taken away except by express enactment or necessary intendment. This observation is in line with the Constitution Bench decision in Garikapatti (supra). The Supreme Court further observed that an intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention is clearly manifested by express words or necessary implication. 6. Considering these observations of the earlier Supreme Court decision, the Supreme Court in Kamla Devi (supra) posed the question as to whether Section 100-A takes away such a right. The answer was given that it did not. It further buttressed the said answer by observing that an appeal is well known as the continuation of the original proceedings. 7. In the wake of these decisions, on first blush, the arguments of the learned counsel for the plaintiff/applicant do appear to be attractive. But these arguments are not available to him in the peculiar facts of the present case. We have already noticed that the suit was filed on 08.04.2002. The suit was ultimately dismissed on 04.02.2011. In other words, it was decreed against the plaintiff. Being aggrieved, the plaintiff/applicant filed a civil first appeal on 15.12.2011 before the District Judge, Kishtwar. That appeal was allowed by an order directing remand which led to the revival of the suit. The order was passed on 16.11.2012. That order was an appealable order under Order 43 Rule 1(u) of the Code of Civil Procedure, Svt. 1977. As such, the defendants/respondent Nos. 1 to 6 preferred a Civil First Miscellaneous Appeal under order 43 Rule 1(u), being CIMA No. 515/2012, before a learned Single Judge of this Court. That appeal was allowed by virtue of impugned judgment dated 30.05.2017. The effect whereof was that the remand order dated 16.11.2012 passed by the District Judge, Kishtwar in the civil first appeal was set aside and the dismissal decree got revived. The present application for condonation of delay is in respect of a proposed Letters Patent Appeal against the decision of the learned Single Judge dated 30.05.2017. 8. The entire controversy can be sorted out by examining whether the plaintiff/applicant had a vested right to prefer the letters patent appeal against an order such as the one dated 30.05.2017, passed in CIMA No. 515/2012. 8. The entire controversy can be sorted out by examining whether the plaintiff/applicant had a vested right to prefer the letters patent appeal against an order such as the one dated 30.05.2017, passed in CIMA No. 515/2012. The amendment which was brought about in 2009 in Section 100-A only introduced the concept of an original decree. This would be clear from the provisions of Section 100-A as it was originally introduced in 1983 and as amended in 2009. The un-amended and amended Section 100-A are reproduced hereinbelow:- Unamended Section 100-A:- “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 of such single Judge in such appeal or from any decree passed in such appeal.” Section 100-A as amended:- “100-A. No further appeal in certain cases Notwithstanding anything contained in any Letters Patent of the High Court or in any instrument having the force of law or in any other law for the time being in force in the State, 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.” (Underlining added) 9. It will be apparent that in Section 100-A as it stood prior to its amendment, there was no reference to an original decree, however there was a clear reference to an appeal from an “order” heard and decided by a learned Single Judge of the High Court. Therefore, even prior to the amendment on 2009, notwithstanding anything contained in the Letters Patent of this Court, no further appeal could lie from the judgment of a Single Judge of the High Court in an appeal from an “order”. The decision dated 30.05.2017 qualifies as a judgment of a Single Judge of a High Court in an appeal from an order. Therefore, there was an express bar to any further appeal from such judgment, notwithstanding anything contained in the Letters Patent, even prior to the amendment of 2009. The decision dated 30.05.2017 qualifies as a judgment of a Single Judge of a High Court in an appeal from an order. Therefore, there was an express bar to any further appeal from such judgment, notwithstanding anything contained in the Letters Patent, even prior to the amendment of 2009. In other words, the plaintiff/applicant did not have any right of appeal against the judgment of the kind which is impugned before us, that is the judgment dated 30.05.2017 and no vested right of appeal had accrued to the plaintiff/applicant on 08.04.2002 when the civil suit had been instituted. 10. From the above discussion, it is evident that an appeal against the judgment dated 30.05.2017 was not maintainable even under the unamended Section 100-A and therefore there is no need for us to examine the question of retrospectivity of the amended Section 100-A of the Code of Civil Procedure, Svt 1977. 11. Although, the accompanying proponed appeal has been styled as an appeal against the judgment dated 30.05.2017 as also the order in the review petition dated 27.07.2017, the question of entertaining a Letters Appeal against the said order dated 27.07.2017 rejecting the review petition, does not, in any event, arise because of the decision of this Division Bench in this very case in respect of the said order dated 27.07.2017 in LPAC No. 26/2017 whereby the appeal from the order dated 27.07.2017 was held to be not maintainable. 12. Consequently, on all counts, the present appeal is not maintainable. Therefore, Mr Raina the learned senior counsel appearing for the respondent Nos. 1 to 6 is right in his contention that no useful purpose would be served by considering the application for condonation of delay in filing the Letters Patent Appeal against the judgment dated 30.05.2017 and the order dated 27.07.2017. The application is dismissed.