Anita Kumari vs Muneer Ahmad and Others

This is an application seeking permission of this court to file the Civil Second appeal, as Letters Patent Appeal, against the judgment and decree

passed by a learned Single Judge in Civil 1st appeal No. 31/1988 and for further reliefs. Indeed this CMP is arising out of a second appeal

presented by the appellant on 3.3.1992 seeking to challenge the correctness and legality of the Judgment and decree passed by the 1st appellate

court dated 3.1.1992. It is seen therefrom that the learned Single Judge while dealing with the first appeal held:

I, therefore, order that a decree in terms of the compromise and the statements recorded of the Advocates arid the parties be passed in the

appeal which shall be treated disposed of in terms of the compromise and the statements which shall form part of the decree. The office will frame

a decree sheet accordingly.

It is this order which is called in question in Civil second appeal.

We have heard learned counsel for he parties. Learned counsel for the respondents at the outset raised a preliminary objection as regards the

maintainability of this civil second appeal. We are therefore obliged to look into the provisions of Section 100A C.P.C, 1977 {1920 A.D) of the

State of Jammu and Kashmir, which is extracted as under:

100 A. No further appeal is 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.

Thus in the language employed in Section 100A extracted above, it is seen that a restriction is patently declared that once a decree Is passed in

the first appeal, no further appeal shall lie from the judgment and decree of such first appeal, passed by a learned Single Judge of the High Court.

The argument advanced by the learned counsel for the appellant in support of his case is that if the Letters patent provisions as found in the

legislation of this state makes it convenient for the litigant public to invoke such letters patent provisions to present the second appeal, this court

may have to consider the feasibility of entertaining such appeal.

We are afraid, it is not possible to accept this contention in as much as the opening sentence of the section extracted above patently makes it

clear that this section is overriding provision which lays down that even in respect of Letters patent of the High Court of JandK providing any such

law shall be taken as to abide by the intention of Section 100 A. In that view of the matter this provision of the Letters patent cannot override the

provisions of section 100A. Instead, regard being had to the provisions of section 100A and the intention that could be gathered from the language

employed therein, it is made clear that a civil second appeal cannot be entertained as against the judgment and decree passed by a learned Single

Judge in a civil 1st appeal. Therefore, we have no option but to hold that this appeal as brought before this court is not maintainable In that view of

the matter the application as presented by way of CMP is not maintainable.

In view of the foregoing we hold that the appeal is not maintainable and is hereby dismissed. Consequently the CMP also shall stand disposed

of.