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2019 DIGILAW 378 (JK)

Wajahat Hussain v. Mohd. Akbar Kichloo

2019-08-09

DHIRAJ SINGH THAKUR, SINDHU SHARMA

body2019
JUDGMENT MCC No. 215/2019 Application is allowed, as prayed for. Requirement for filing the certified copy of the decree is exempted. LPA No. 98/2019 Dhiraj Singh Thakur, J.—The present Letters Appeal has been preferred against judgment and order dated 10.04.2019 passed in CFA No. 29/2012 whereby the Civil First Appeal filed by the respondent No. 1 has been allowed. 2. A preliminary objection has been raised by the respondent No. 1 regarding the maintainability of the present LPA. It is stated that in view of the amended provisions of Section 100-A of the Code of Civil Procedure, Svt. 1977 (for short the CPC) the present LPA was not maintainable. 3. It can be seen from the record that the present LPA was preferred on 24.04.2019. It also needs to be noticed that Section 100-A of the CPC was substituted in the year 2009 by the amendment Act VI of 2009 dated 20.03.2009. Section 100-A of the CPC as it existed before the amendment and post amendment is reproduced hereunder: “Unamended Section 100-A:- 100-A. No further appeal in certain cases Notwithstanding anything contained in any letter 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 other 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.” 4. On a perusal of the aforementioned unamended and amended provisions of Section 100-A of the CPC, it can be seen that in the unamended provisions, an LPA would not be maintainable where any appeal from an appellate decree or order was heard and decided by a Single Judge of the High Court. On a perusal of the aforementioned unamended and amended provisions of Section 100-A of the CPC, it can be seen that in the unamended provisions, an LPA would not be maintainable where any appeal from an appellate decree or order was heard and decided by a Single Judge of the High Court. After the amendment, an LPA would not be maintainable where any appeal from an original or appellate decree or order was heard and decided by a Single Judge of the High Court. 5. Learned counsel for the appellants urged that Section 100-A of the CPC had no retrospective application and could only apply prospectively w.e.f. 20.03.2009. It was urged that the provisions of Section 100-A of the CPC would not apply to a case where right to file an LPA was available on the date when the proceedings had first been initiated. In this case, it was stated that the proceedings had been initiated when the Collector Baglihar, Hydroelectric Project, Ramban, sought a reference under Section 17-A and 32 of the Land Acquisition Act, 1990 for apportionment/entitlement of compensation, in view of the dispute between the interested persons, who claim compensation. It was urged that the date of institution of proceedings before the learned Additional District Judge, Doda was 12.09.2008 which was before the amendment which came to be incorporated on 20.03.2009. The argument is that if an LPA was permissible on the date when proceedings were initiated before the Court of learned Additional District Judge, Doda, then notwithstanding the amendment by substitution of Section 100-A of the CPC on 20.03.2009, the right to file an LPA would continue to remain available with the appellant. 6. Reliance was placed upon a decision of the Constitution Bench of Hon’ble Supreme Court in the case of Garikapati Veeraya v. Subbiah Choudhary, AIR 1957 SC 540 , wherein it was held that the right of appeal is a vested right and that such a right accrues to the litigant and exists as on and from the date the lis commences and is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails on the date of its decision or on the date of the filing of the appeal. The Constitution Bench also held that the right of appeal was a vested right and such a right to enter the superior Court accrues to the litigant and exists as on the date when the lis commences. 7. What is important to note, however, is that the Constitution Bench also held that the vested right of appeal could be taken away only by a subsequent enactment if it so provides expressly or “by necessary intendment” and not otherwise. 8. Learned counsel for the appellant may be right in contending that right to file an LPA was available to the appellants when the lis commenced and since it was in the nature of a vested right, the same cannot be taken away. However, it is settled law that even a vested right can be taken away as held by the Constitution Bench in Garikapati Veeraya’s case by way of subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. 9. In Kamal Kumar Dutta and another v. Ruby General Hospital Ltd and other, (2006) 7 Supreme Court Cases 613, the apex Court in paragraph 22 held: “So far as the general proposition of law is concerned that the appeal is a vested right there is no quarrel with the proposition but it is clarified that such right can be taken away by a subsequent enactment, either expressly or by necessary intendment. Parliament while amending Section 100-A of the Code of Civil Procedure, by amending Act 22 of 2002 with effect from 01.07.2002, took away the Letters Patent power of the High Court in the matter of appeal against an order of the learned Single Judge to the Division Bench. 10. In P. S. Sathappan v. Andhra Bank Ltd., (2004) 11 Supreme Court Cases 672, the apex Court in paragraph 67 held: “67. ........We may notice that when a first appeal or second appeal was disposed of by a Single Judge, a letters patent appeal had been held to be maintainable therefrom only because there existed no bar in relation thereto. Such a bar has now been created by reason of Section 100-A of the Code. No appeal would, therefore, be maintainable when there exists a statutory bar. When Parliament enacts a law it is presumed to know the existence of other statutes. Such a bar has now been created by reason of Section 100-A of the Code. No appeal would, therefore, be maintainable when there exists a statutory bar. When Parliament enacts a law it is presumed to know the existence of other statutes. Thus, in a given case, bar created for preferring an appeal expressly cannot be circumscribed by making a claim by finding out a source thereof in another statute.” 11. While placing reliance upon the aforementioned judgments, the apex Court in Kamla Devi v. Kushal Kanwar and another, AIR 2007 SC 663 held that an LPA which was filed prior to coming into force of the 2002 Act would be maintainable. 12. This statement of law has been reiterated in Vasanthi v. Venugopal (dead) through Legal Representatives, (2017) 4 Supreme Court Cases 723. What was held in paragraph 14 is reproduced hereunder: “14. The purport and purview of this amended provision fell for the scrutiny of this Court, amongst others in Kamla Devi and Mohd. Saud, wherein it was held in unambiguous terms that only letters patent appeal, filed prior to the coming into force of the said amendment vide Act 22 of 2002 would be maintainable and as a corollary, by virtue of the bar contained therein, letters patent appeal filed thereafter, would not be maintainable.” 13. The position of law is unambiguous, clear and finally settled. The LPAs filed prior to the coming into the force of the amendment Act of 2009 in the present case would be maintainable and as a necessary consequence, all LPAs filed thereafter would not be maintainable. 14. Testing the facts of the present case on the touchstone of the law discussed above, the LPA of the appellant would be maintainable only if the same had been filed prior to the amendment brought about by amending Section 100-A of the CPC by amendment Act VI of 2009 dated 20.03.2009. Since the present LPA has been filed thereafter, the present LPA is held to be not maintainable and is, accordingly, dismissed. Interim direction, if any, shall stand vacated.