JUDGMENT - LODHA R.M., J.:-

The Division Bench presided over by Hon'ble the Chief Justice by order dated January 15, 2004 passed in the present Letters Patent Appeal observed that the decision of the Division Bench of this Court (Goa Bench) in (Shri Chandreshwar Bhuthanath Devesthan of Paroda v. Subiraj Prabhakar Naik and others)1, 2004(Supp.) Bom.C.R. (P.B.)802 deserves reconsideration.

2.The present Letters Patent Appeal presented on January 6, 2004 is directed against the order dated December 18, 2003 passed by the learned Single Judge summarily dismissing the First Appeal arising out of the suit for possession filed on September 9, 1992.

3.In Chandreshwar Bhuthanath the Division Bench of this Court (Goa Bench) held that section 100-A as substituted by the Code of Civil Procedure (Amendment) Act, 2002 shall have retrospective effect and summarised its reasoning thus :

"46. We are summarising our reasonings as follows for our conclusion that the aforesaid C.P.C. (Amendment) Act, 2002, pertaining to section 100-A will have retrospective effect :

(a) Substantive vested right of appeal against an order of a Single Judge of the High Court in appeal against an original or appellate decree or order has been destroyed by the above amendment.

(b) In section 16 of the above Amendment Act, 2002, only three types of matters have been saved, whereas the amendment dealt with thirteen types of matters.

(c) Section 97, Clause 2(n) of the C.P.C. Amendment Act, 1978 expressly saved admitted and pending Letters Patent Appeals, but in the Amendment Act, 2002 such a saving has not been provided at all.

(d) Code of Civil Procedure (Amendment) Act, 1999 in section 32, Clause 2(g) only Letters Patent Appeals arising out of a decision of Single Judge pertaining to an order arising out of Article 226 or 227 of the Constitution of India have been saved and consciously the Parliament has omitted the other categories of pending admitted Letters Patent Appeals, from such saving.

(e) The logic of doing away with such a right of Letters Patent Appeal appears to be that when a Single Judge of the High Court considers the entire matter in an appeal jurisdiction, hence there is no further need of an intra Court appeal."

4.When the present Letters Patent Appeal came to for admission before the Division Bench presided over by Hon'ble the Chief Justice, it was submitted that the decision in Chandreshwar Bhuthanath requires reconsideration. The Bench in its order dated 15th January, 2004 observed thus--

"6. The learned Counsel, however, submitted that the decision in Chandreshwar Bhuthanath requires reconsideration by a larger Bench. The Counsel submitted that some of the decisions which ought to have been considered, were not cited. Other decisions though referred to, have not been considered, appreciated and ratio applied in their proper perspective.

7. In this connection, attention of the Court was invited to a leading decision of the Supreme Court in (Garikapati Veeraya v. Subbiah Choudhry and others)2, A.I.R. 1957 S.C. 540. No doubt, the decision has been noted by the Division Bench in Chandreshwar Bhuthanath. It is also true that the relevant principles laid down by Their Lordships of the Supreme Court in Garikapati in para 23 of the reported judgment have been quoted in para 15 by the Division Bench in Chandreshwar Bhuthanath. The Counsel, however, submitted that principle No. (iii) in Garikapati would apply to the case on hand. The said principle reads thus :

"The institution of the 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." (emphasis supplied)

It is, no doubt, true that in principle No. (v), the Supreme Court stated:

"This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."

8. The Division Bench, keeping in view the provisions

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