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JAMMU & KASHMIR HIGH COURT
Sanjeev Kumar & Puneet Gupta, JJ.
Doulat Ram and Anr. – Appellants
Versus
Roop Chand and Ors. – Respondents
LPA No.58/2021 and CM No.3267/2021
Decided on 24.8.2021
Civil Procedure Code, 1908 – Order 41, Rule 19 and Section 100 – Instant appeal is maintainable under Clause 12 of Letters Patent and bar created by Section 100A CPC is not attracted, for, order impugned is not passed by single Judge hearing and deciding any appeal against an original or appellate decree or order of court subordinate to High Court – Civil First Appeal readmitted.
Held: That being the position, application under Order 41 Rule 19 CPC was clearly maintainable against order dated 17.09.2018 and there should be no doubt in anyone’s mind that the order passed by the appellate court rejecting the application under Order 41 Rule 19 is appealable order in terms of Order 43 Rule 1(t).
Section 100-A begins with non-obstante clause i.e. “notwithstanding anything contained in any Letters Patent of the High Court or in any instrument having the force of law or in any other law for the time being in force in the State”, which means that Section 100-A is a specific provision to the contrary in terms of Section 4 and, therefore, has overriding effect on Clause 12 of the Letters Patent of this Court where it is an appeal heard and decided by a Single Judge of the High Court from original or appellate decree or order. To put it simply, the appeal under Clause 12 of the Letters Patent shall not be maintainable against a judgment and decree of the Single Bench passed in an appeal from original or appellate decree or order. This is so, because Section 100-A CPC has overriding effect and contains a provision contrary to clause 12 of the Letters Patent which provides that an appeal to the Division bench from “Judgment” of the Single Bench passed on its original side or in appeal from the original decree from the court subject to its power of superintendence. From a plain reading of Clause 12 of the Letters Patent reproduced herein above will fortify the conclusion we have drawn.
In view of the Full Bench judgment, it is now trite that an appeal under Clause 12 of the Letters Patent against a judgment of Single Judge passed by him in the exercise of appellate jurisdiction against the decree or order of subordinate court is competent and the contrary view, as has been taken by the Division Bench in Vijay Kumari (supra), similar to the one taken by earlier Division Bench in the case of Satya Jyoti v. Maj. R.D. Jyoti decided on 14.03.1979 is not correct. Had the Full Bench judgment (supra) been brought to the notice of the Division Bench in Vijay Kumari’s case (supra), the result would have been different.
Following the Full Bench judgment of this Court in the case of Kamla Devi (supra), we hold that the instant appeal is maintainable under Clause 12 of the Letters Patent and the bar created by Section 100-A CPC is not attracted, for, the order impugned is not passed by the learned Single Judge hearing and deciding any appeal against an original or appellate decree or order of the court subordinate to High Court.
For the foregoing reasons, we allow this appeal, set aside the order impugned dated 19.03.2021, readmit the Civil First Appeal No.22/2013 and remand the case back to the learned Single Judge for hearing and deciding the Civil First Appeal afresh.
(Paras 13, 19, 31, 32 & 34)
Result: Appeal allowed.
JUDGMENT
Sanjeev Kumar, J.—Instant appeal filed under clause 12 of the Letters Patent is directed against order dated 19.03.2021 passed by a learned Single Judge, whereby the petition of the appellants for re-admission (RESC No.23/2018) of Civil First Appeal (CFA No.22/2013), dismissed vide order and judgment dated 17.09.2018, has been rejected.
2. Mr. R.K. Jain, learned Senior Counsel appearing for the contesting respondents has raised a preliminary objection to the maintainability of the letters patent appeal against the impugned order. It is argued by Mr. Jain that order dated 17.09.2018 passed by the learned Single Judge, whereby CFA No.22/2013 was disposed of is an order passed by the learned Single Judge on merits and, therefore, no application for re-admission, in terms of Order 41 Rule 19, is maintainable.
3. Before we examine the arguments of Mr. Jain, we deem it appropriate to notice few material facts to put the issues raised in this appeal in proper perspective. The appellants and the proforma respondents filed a suit for declaration to declare the sale deed executed by the contesting respondent Nos. 1 to 7 through respondent No.8 in favour of respondent Nos.9 to 11 as null and void. The suit was contested by the contesting respondents by filing their written statements. The Court of learned District Judge, Reasi [“the trial Court”] after holding trial dismissed the suit filed by the appellants vide its judgment and decree dated 30.04.2013.
Aggrieved, the appellants challenged the judgment and decree of the trial Court by way of Civil First Appeal i.e. CFA No.22/213 before the learned Single Judge of this Court. The appeal was admitted to hearing. On 15.12.2017, the appeal along with writ petition i.e. OWP No.1798/2015 filed by the appellants against the order of Additional Commissioner, Jammu dated 28.12.2015 that had arisen out of the partition proceedings before the revenue courts, came up for consideration before the learned Single Judge. The matter was heard in part by the learned Single Judge and was directed to be listed on 07.02.2018 for continuation of the arguments. On 09.02.2018, the matter could not be heard due to non-availability of learned counsel for the respondents and, therefore, adjourned to 13.02.2018 for continuation of arguments. On 28.05.2018, learned counsel for the parties were present but the matter was adjourned to 29.05.2018 for continuation. Something similar happened on 19.07.2018 and the matter was kept on Board by the learned Single Judge for 20.07.2018. On 20.07.2018, there was no representation on behalf of the appellants, the matter was heard and reserved. Order dated 20.07.2018 reads thus; “Heard and reserved”.
Thereafter the judgment was pronounced by the learned Single Judge on 17.09.2018. As is evident from the judgment dated 17.09.2018, the civil first appeal preferred by the appellants was decided on merits, though, in the absence of the appellants. Since on 20.07.2018 the appellants either in person or through their counsel were not present, as such, the arguments were concluded in their absence and the matter was reserved for judgment.
4. The appellants against whom the judgment dated 17.09.2018 was delivered filed a petition for re-admission of the appeal in terms of Order 41 Rule 19 of the Code of Civil Procedure contending, inter alia, that the learned Single Judge could not have decided the civil first appeal on merits in absence of the appellants and the only course open to the learned Single Judge was to dismiss the appeal in default.
5. The application was considered by the learned Single Judge and the same was rejected vide judgment impugned primarily on the ground that hearing of the appeal, which commenced on 15.12.2017 in the presence of counsel for the parties, had been concluded on 19.07.2018 that, too, in the presence of learned counsel for the parties and on 20.07.2018 the appeal was simply reserved for orders notwithstanding the use of expression “heard” ap
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