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2014 Supreme(Pat) 19
IN THE HIGH COURT OF JUDICATURE AT PATNA
R.M. Doshit, CJ & Ashwani Kr. Singh, J.
Ajit Kumar Singh & Ors. - Petitioners-Appellants
vs.
Most. Rajeya Khatoon & Ors. - Respondents/Opp. Parties
LPA No. 1604 of 2013 with I.A. No.8796 of 2013
Decided on : 7.1.2014
For the Appellants : Mr. Md. Shahnawaz Ali.
For the Respondents: None.
Section 100-A CPC bars the Letters Patent Appeal from an order of the learned single Judge of the High Court in an appeal arising from an original or appellate decree or order.
Headnote:
Letters Patent Appeal - Maintainability - Section 173 of the Motor Vehicles Act, 1988 - Summary: The court discussed the maintainability of the Letters Patent Appeal against the appellate order of the learned single Judge under Section 173 of the Motor Vehicles Act. It referred to judgments from the Bombay High Court, Karnataka High Court, and Gujarat High Court, but ultimately held that the appeal is barred by Section 100-A CPC.
Fact of the Case:
Delay in filing Letters Patent Appeal, maintainability of the appeal under Section 173 of the Motor Vehicles Act
Finding of the Court:
The court found that the Letters Patent Appeal is barred by Section 100-A CPC and dismissed the appeal on the ground of maintainability alone.
Issues: Delay in filing the appeal, maintainability of the Letters Patent Appeal under Section 173 of the Motor Vehicles Act
Ratio Decidendi: The court held that the appeal is barred by Section 100-A CPC, despite references to judgments from other High Courts.
Final Decision: The Appeal is dismissed on the ground of maintainability alone.
(Per: Hon'ble the Chief Justice)
Interlocutory Application No. 8796 of 2013 :
Delay of one year and 50 days occurred in filing the Letters Patent Appeal is condoned.
2. Interlocutory Application stands disposed of.
Letters Patent Appeal No. 1604 of 2013 :
3. This Appeal under Clause 10 of the Letters Patent has been preferred by the appellants against the judgment and order dated 9th April, 2012 passed by the learned single Judge in Miscellaneous Appeal No. 274 of 2007 filed under Section 173 of the Motor Vehicles Act, 1988 (arising from the order dated 28th April, 2007 passed by the learned Additional District Judge-cum-Claims Tribunal, East Champaran, Motihari in Claim Case No. 55 of 2003). The first and foremost question that arises is that of maintainability of the Letters Patent Appeal against the appellate order of the learned single Judge.
4. Learned advocate Mr. Md. Shahnawaz Ali has appeared for the appellants. He has relied upon the judgment of the Bombay High Court in the matter of Asha vs. National Insurance Co. Ltd. [2008(2) T.A.C. 332 (Bom.)]. In the said matter, the Division Bench of the Bombay High Court entertained the Letters Patent Appeal preferred by the claimants against the judgment in an appeal filed under Section 173 of the Motor Vehicles Act. As to the maintainability, the Court has held that while considering the appeal under Section 173 of the Motor Vehicles Act, the learned single Judge of the High Court did not exercise appellate jurisdiction under C.P.C. Hence, the Letters Patent Appeal was not barred by Section 100-A CPC and was maintainable. The above view is shared by the Karnataka High Court in the matter of Union of India and Another vs. M/s Mysore Paper Mills Ltd. [AIR 2004 Karnataka 1]. According to the Karnataka High Court, Tribunal constituted under the Motor Vehicles Act is not a Court. Section 100-A CPC therefore does not apply to the appeals arising under Section 173 of the Motor Vehicles Act. A similar view has been taken by the Full Bench of the Gujarat High Court. In the matter of Nasik Hing Supplying Co. vs. Annapurna Gruh Udyog Bhandar, Ahmedabad & Anr. [AIR 2003 Gujarat 275], identical issue was under consideration by the Gujarat High Court in respect of an appeal arising under Section 109(5) of the Trade and Merchandise Marks Act, 1958. The learned Judges of the Gujarat High Court held that Section 100-A CPC, since its amendment in 1999 and 2002, bars a further appeal before the Division Bench of the High Court against the decision of a learned single Judge of the High Court in appeals under Sections 96, 100 & 104 of the CPC. "Where a special law provides for appeal against a decision of a single Judge of this Court to a Division Bench of this Court, the provisions of such special law will prevail because Section 100-A of the CPC is a part of general law of procedure which does not take away the substantive right of appeal provided by a special law, notwithstanding the non-obstante clause with which Section 100-A commences".
5. We are unable to agree with the aforesaid view expressed by the Bombay High Court or the Karnataka High Court or the Gujarat High Court.
6. Section 100-A C.P.C. substituted by Act 46 of 1999 and by Act of 2002 expressly bars a Letters Patent Appeal from an order of the learned single Judge of the High Court in an appeal arising from an original or appellate decree or order. The bar is absolute and applies to all appellate orders of the learned single Judge of the High Court. The appeal may arise out of the civil proceedings or from the proceedings under some special Act. The non-obstante clause, "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" gives away the legislative intent to bar any kind of second appeal before the Division Bench of the High Court arising from the appellate decree or order of the learned single Judge.
7. We
