Arjan Singh and Another vs Amar Nath

V.K. Mehrotra, C.J.—Sub-Judge 1st Class (2), Sbimla, passed a decree in suit No, 97/1 of 1976 on December 28, 1981 on the basis of a statement made by a referee, with whose statement the parties to the suit had agreed to abide The Defendants in the suit were not happy with the decision. They assailed it in appeal (C.A. 25-S/13 of 1982/C.A. 12-S/13 of 1982) which came up for decision before the District Judge, Shimla. The learned District Judge set-aside the decree and by his judgment and order dated December 7, 1982 remanded the case for trial afresh. That decision was assailed by the Plaintiff before this Court in F.A.O. No. 77 of 1983. A learned single Judge allowed the appeal on September 17, 1990 and while setting aside the judgment and order dated December 7, 1982 of the learned District Judge, restored the decree passed by the learned Sub-Judge (2), Shimla. The present appeal under Clause 10 of the letters Patent constituting the High Court of Judicature at Lahore, as applicable to this Court on account of Sections 7 and 17 of the Delhi High. Court Act, 1966 and Section 25 of the State of Himachal Pradesh Act, 1970, has been brought against that decision of the learned Single Judge. It was filed on November 1, 1990.

Shri K.D. Sood, who appeared before the learned single Judge on behalf of the Plaintiff-Respondent in this appeal, appeared before us and has taken a preliminary objection regarding the maintainability of the appeal.

The submission of Shri Sood is that no appeal is now competent under the Letters Patent against the decision of a learned single Judge recorded in appeal against an order u/s 104 read with Order XLIII Rule 1 of the CPC for various reasons. Firstly, Section 104(2) CPC provides in terms that:

104(2) No appeal shall lie from any order passed in appeal under this Section....

Secondly, that on account of the introduction of Section 100-A in the Code by Section 38 of the CPC (Amendment) Act 1976 (Act 104 of 1976) with effect from February 1, 1977 an appeal of the present nature stood abolished even under the Letters Patent.

Section 100-A Civil Procedure provides, which came into force from February 1, 1977, introduced by Section 38 of the CPC (Amending Act 1976) reads thus;

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.

A perusal of this provision makes it clear beyond doubt that irrespective of a provision about it in the Letters Patent, no appeal would lie from an order passed by a single Judge in an appeal against an order.

Section 97 of the CPC Amending Act of 1976 providing for repeal and savings says, in its material part that:

97(2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897)

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(n) Section 100-A, as inserted in the principal Act by Section 38 of this Act, shall not apply to or affect any appeal against the decision of a single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the said Section 38, and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force....

This clause, obviously, saves an appeal under the Letters Patent against a decision of the nature under challenge in the present appeal only if it had been admitted before the commencement of Section 38 of the Amending Act. It does not permit an appeal under the Letters Patent to be filed after the commencement of the Amendment Act. Sub-section (3) of Section 97 makes the position still clear. It reads:

97(3) Save as otherwise provided in Sub-section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.

The provision contained in Section 100-A, CPC would, therefore, apply to the present case with full vigour. The view taken by us is shared by some other High Courts also. We may only refer to a decision of the Calcutta High Court in State of West Bengal and Others Vs. Mir Fakir Mohammad and Others, ; of the Andhra Pradesh High Court in Pidaiala Ranga Reddy and Anr. v. Golta Samoasiva Rao and Ors. (1977) 1 AWR 502 ); and of the Gujarat High Court in Madhusudan Vegetable Products Co. Ltd. Vs. Rupa Chemicals, Vapi and Others, .

In conclusion, we hold that the present appeal is not maintainable under the Letters Patent. It is dismissed as such. Costs on parties.