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2010 Supreme(Raj) 929
[Citation : 2011(2) RLW 1057 (SC)]
(Supreme Court)
Mohd. Saud Vs. Dr.(Maj.) Shaikh Mahfooz (Katju, J.)
HON'BLE MARKANDEY KATJU, J.
HON'BLE T.S. THAKUR, J.
Mohd. Saud & Anr.
Versus
Dr.(Maj.) Shaikh Mahfooz & Ors.
Civil Appeal Nos. 9321-9322 with 9323-9324 of 2010, decided on 25.10.2010
Headnote:C.P.C., Sec. 100-A (as amended by Act of 2002) — Letters Patent Appeal — Maintainability — Interim order passed by trial Court, civil suit is pending — First appeal filed against interim order (under Order 43 Rule 1) before Single Judge and decided — Against the judgment of Single Judge Letters Patent Appeal (LPA) filed — Held — LPA not maintainable against judgment and order passed by Single Judge of High Court in appeal. (Paras 19 to 23)
Appeal dismissed.
fl-iz-la-] /kkjk 100-d ¼2002 ds vf/kfu;e }kjk ;Fkk la'kksf/kr½ & ysVlZ isVsaV vihy & iks"k.kh;rk & nhokuh nkok yfEcr jgrs fopkj.k U;k;ky; }kjk vUrfje vksn'k ikfjr fd;k x;k & vUrfje vkns'k ¼vkns'k 43 fu;e 1 ds rgr½ ds fo:) ,dy U;k;k/kh'k ds le{k izFke vihy nk;j dh tks fofuf'pr gqbZ & ,dy U;k;k/kh'k ds fu.kZ; ds fo:) ysVlZ isVsaV vihy ¼,y-ih-,-½ nk;j dh & vfHkfu/kkZfjr & vihy esa mPp U;k;ky; ds ,dy U;k;k/kh'k }kjk ikfjr fu.kZ; ,oa vkns'k ds fo:) ,y-ih-,- iks"k.kh; ugha gSA
vihy [kkfjt dhA ¼in la- 19 ls 23½
Hon'ble KATJU, J.—
Civil Appeal Nos. 9321-9322 of 2010
1. Leave granted.
2. These appeals have been filed against the impugned judgments of the Orissa High Court dated 24.9.2008 in LPA No.7 of 2008 and dated 25.10.2008 in LPA No.8 of 2008.
3. Heard learned counsel for the parties and perused the record.
4. The facts have been mentioned in the impugned judgment of the High Court and hence we are not repeating the same here.
5. The short question in the case is whether a Letters Patent Appeal (for short 'LPA’) is maintainable before the Division Bench against the judgment of the learned Single Judge of the High Court. Dated 6.8.2008. Since there was conflict of opinion between different Division Benches of the High Court on the point whether the LPA was maintainable in view of the amendment of Sec. 100A CPC the Full Bench was constituted, and by the impugned judgment it was held that the LPA was not maintainable in view of Section 100-A CPC.
6. It may be mentioned that the proceedings arose out of an interim order dated 9.9.2005 passed by the Additional District Judge, Fast Track Court No.III, Bhubaneswar in Civil Suit No.498 of 2004. The Civil Suit is still pending, but against the aforesaid interim order dated 9.9.2005 a first appeal under Order 43 Rule 1 being FAO No.386 of 2007 was filed before a learned Single Judge of the High Court who decided it on 6.8.2008. Against the judgment of this learned Single Judge dated 6.8.2008 the LPA was filed. It has been held to be not maintainable by the impugned judgment.
7. Before deciding the question involved in this case we may refer to the relevant provisions in the C.P.C.
8. Section 100-A of the Code of Civil Procedure (hereinafter called `the Code’) was inserted by Amendment Act 104 of 1976. The said Section initially read as follows:
Section 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.”
The said Section was amended by Amendment Act 46 of 1999 as follows:
Section 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,
(a) Where any appeal from an original or appellate decree or order is heard and decided.
(b) Where any writ, direction or order is issued or made on an application under Article 226 or Article 227 of the Constitution,
by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge.”
This amendment was however not given effect to. Again Section 100-A of the Code was amended by Act 22 of 2002 and the amended Section reads as follows:-
Section 100- A : No further appeal in certain cases : Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, 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.”
9. The Full Bench by the impugned judgment has held that after the introduction of Section 100-A with effect from 1.7.2002, no Letters Patent Appeal shall lie against the judgment or order passed by a learned Single Judge in an appeal. The Full Bench has held that the decision of the Division Bench of the High Court in Birat Chandra Dagra vs. Taurian Exim Pvt. Ltd. & Anr. (vide page 5) 2006(11) OLR 344 does not lay down the good law while the decision of Division Bench in V.N.N. Panicker vs. Nara
