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W.N.ALALA SUNDARAM versus COMMISSIONER

High Court of Madras

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W.N.Alala Sundaram v. Commissioner - LPA.SR.305 of 2007 [2007] RD-TN 1970 (15 June 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated : 15..06..2007

C O R A M

The Honourable Mr. A.P. SHAH, CHIEF JUSTICE

and

The Honourable Mr. Justice P.JYOTHIMANI

L.P.A. SR. No.305 of 2007

W.N. Alala Sundaram .. Appellant Versus

1. The Commissioner,

H.R. & C.E. Administration Department,

Nungambakkam High Road, Madras-34.

2. The Joint Commissioner,

H.R. & C.E. Administration Department,

Nungambakkam High Road, Madras-34.

3. The Joint Commissioner,

H.R. & C.E. Administration Department,

Nungambakkam High Road, Madras-34.

4. Veeraraghavan

5. T.N. Singarayan

6. G. Kumaravelu

7. The Executive Officer,

A/m. Agastheeswarankoil,

Villivakkam, Madras-49.

8. The Executive Officer,

A/m. Somiya Damadaraperumal,

Villivakkam, Madras-49. .. Respondents - - - - -

Prayer : Appeal filed under Clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 27.10.2006 passed in A.S. No.700 of 1997, reversing the judgment and decree dated 27.10.1995 passed in O.S. No.5916 of 1990 on the file of the 1st Assistant Judge, City Civil Court, Chennai. - - - - -

For Appellant : Mr. V. Raghavachari Mr. Arvind P. Dattar, Senior Counsel (Court Appointed Amicus Curiae) - - - - -

J U D G M E N T



( Judgment delivered by the Honourable Chief Justice ) Whether after insertion of the amended Section 100A in the Code of Civil Procedure by Act 22 of 2002, Letters Patent Appeal is maintainable against the judgment rendered by a single Judge in an appeal arising out of a special enactment is the question which falls for our consideration.

2. The background in which the above mentioned question is raised may be noticed first. The appellant filed a suit under Section 70(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act XXII of 1959) (in short 'HR & CE Act') in order to set aside the order of the Commissioner, H.R. & C.E. Department passed in A.P. No.57 of 1987 dated 21.3.1990. The trial court decreed the suit holding that the suit properties absolutely belong to the appellant's family and there is no endowment as specified in Section 6(19) of the HR & CE Act. The appeal preferred to this Court by the respondents 1 to 3 under Section 72 of the Act, being A.S. No.700 of 1997 has been allowed by the learned single Judge and the decree of the trial court is set aside. Being aggrieved, the appellant has filed the present Letters Patent Appeal. At the time of scrutiny, an objection was raised by the Registry to the maintainability of the appeal in view of the express bar contained in Section 100A of C.P.C. Mr.V.Raghavachari, learned counsel for the appellant resisted the Office objection by stating that the L.P.A. is maintainable against the judgment passed by the single Judge under the H.R. & C.E. Act, which is a special enactment. Learned counsel has cited several judgments in support of his contention.

3. Mr. Aravind P. Dattar, learned senior counsel, on being requested to act as an Amicus Curiae, also made extensive submissions before us. He has taken the trouble of compiling all relevant judgments and making them available to the Court.

4. The purport of the submissions made by Mr. V. Raghavachari, learned counsel appearing for the appellant, is that Clause 15 of the Letters Patent is an independent source of appeal for the matters arising under different enactment, including C.P.C, and an amendment in C.P.C cannot regulate the applicability of appeals arising out of other enactments. He contends that as long as Clause 15 remains in the present form, a non-obstante clause contained in Section 100-A of the C.P.C, cannot prohibit an appeal against the judgment rendered by a single Judge in a matter arising under a special enactment. It is urged that an appeal as provided for under Clause 15 of the letters patent would be maintainable, unless expressly excluded by a special statute, in the instant case, the H.R. & C.E. Act. Reliance is placed on the decision of the Supreme Court in the case of Sharada Devi vs. State of Bihar reported in A.I.R. 2002 S.C. 1357, in which it was observed that the letters patent is not an enactment, but a Charter of the High Court and that a non-obstante clause as contained in Section 54 of the Land Acquisition Act, 1894 could not cover the Charter of the High Court. Reliance is also placed on the recent judgment of the Supreme Court in the case of Subal Paul vs. Malina Paul reported in A.I.R. 2003 S.C. 1928, wherein the Supreme Court had occasion to consider the maintainability of a letters patent appeal in respect of an appeal heard by a learned single Judge of a High Court from an order of the learned District Judge in an appeal filed under Section 299 of the Indian Succession Act, 1925. It is urged that in the said decision, the Supreme Court had categorically held that a right of appeal under clause 15 was not governed by Section 104 of C.P.C. Reference was also made to the decisions in National Sewing Threat Co. Ltd. vs. James Chadwick and Bros. (A.I.R. 1953 S.C. 357), Union of India vs. Mohindra Supply Co. (A.I.R. 1962 S.C. 256), South Asia Industries (P) Ltd. vs. S.B. Sarup Singh (A.I.R. 1965 S.C. 1442), Vinita M. Khanolkar vs. Pragna M. Pai (1998 (1) S.C.C. 500) and Chandra Kanta Sinha vs. Oriental Insurance Co. Ltd. (2001 (6) S.C.C. 158).

5. Mr. Raghavachari also contended that the right of appeal is not merely procedural, but is a substantive right and it has been consistently held by courts that a right to appeal from a decision of an inferior tribunal to a superior tribunal becomes vested in a party when the proceedings are first initiated and before the decision is given by the inferior court. In this regard, he referred to a decision of the Constitution Bench of the Supreme Court in the case of Garikapatti Veeraya vs. N. Subbiah Choudhary (A.I.R. 1957 S.C. 540).

6. Mr. Aravind P. Dattar, learned senior counsel submitted that Section 100A of C.P.C. can regulate only those proceedings, to which provisions of C.P.C. apply and not others which are consciously kept outside the purview of C.P.C. Learned senior counsel urged that the wording of Section 100 of C.P.C. shows that it deals with only further appeals from an original or appellate decree or an order passed under the C.P.C. and not under the provisions of special enactments like the Land Acquisition Act or Motor Vehicles Act or Companies Act. Learned counsel urged that the words 'original decree' or 'order' used in Section 100A of C.P.C. refer only to a decree or order passed under the provisions of the C.P.C. by a civil court and not to orders passed under special enactments.

7. The first Letters Patent or Charter establishing the High Court of Madras was issued on 20th February, 1798. Simultaneously, the High Courts of Bombay and Calcutta were established under similar Charters. Clause 15 of the Letters Patent provides for appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction what is known as intra-court appeal. Clauses 15 and 44 of the Letters Patent, vide which the Madras High Court was established and which are material for the present case are as follows : "15. Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction .And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court and not being an order made in the exercise of a revisional jurisdiction, and not being a sentence or order passed or made in exercise of the po wer of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, on or after the first day of February, 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, our heirs or successors in our or their Privy Council as hereinafter provided."

"44. Powers of the Indian Legislature preserved .And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General-in-Legislative Council, and also of the Governor-General-in-Council under Section 71 of the Government of India Act, 1915; and also of the Governor General, in cases of emergency under Section 72 of the Act, and may be in all respects amended and altered thereby.

8. Section 100A was introduced in the Code of Civil Procedure by Section 38 of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), which came into force with effect from 1.2.1997. The Section inserted read as follows : "100A. 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 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." In Clause 40 of the Objects and Reasons, it is stated as follows : "Under the Letters Patent, appeals lie, in certain cases, against the decision of a single Judge in a Second Appeal. Such appeal, in effect, amounts to a third appeal. For the purpose of maintaining delay in the finality of adjudications, it is not desirable to allow more than two appeals. In the circumstances, new S.100A is being inserted to provide that there should be no further appeal against the decision of a single Judge in a second appeal." Section 100A was thus introduced in the Code of Civil Procedure for the first time with an intention to abolish the third appeal.

9. Section 100A was substituted by Section 10 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) which came into force with effect from 1.7.2002. It reads as follows : "100A. 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." The Objects and Reasons for the amendment read as follows : "Justice Malimath Committee examined the issue of further appeal against the judgment of single Judge exercising even a first appellate jurisdiction. The Committee recommended for suitable amendments to Section 100-A of the Code with a view to provide that further appeal in this regard shall not lie. The Committee also recommended for suitable enactment by Parliament for abolition of appeal to a Division Bench against the decision and order rendered by a single Judge of the High Court in a proceeding under Article 226 or Article 227 of the Constitution. Clause 10 seeks to substitute a new Section 100-A with a view to provide for no further appeal in the above cases." The Legislature wanted to take away the further appeals not only from an original decree or order, but even the right of appeal conferred on the litigant against the decisions rendered by a single Judge while disposing of a writ petition filed under Article 226 or 227 of the Indian Constitution. The purpose was to avoid a system of entertaining a second appeal in the High Court in all categories of cases.

10. Section 100A was again amended by Section 4 of the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) which came into force with effect from 1.7.2002. At present, Section 100A reads as follows : "100A. 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." In Clause 3(j) of the Objects and Reasons contained in Act 22 of 2002, it is stated as follows : "(j) appeals to Division Bench of the High Courts in writs under Articles 226 and 227 of the Constitution shall be restored. Section 10 of the Code of Civil Procedure (Amendment) Act, 1999 abolished appeals against judgments of a single Judge of the High Court in all cases."

11. We may also notice two more provisions of the C.P.C. which have a bearing on the present case, viz. Section 4 and Section 104, which read as hereunder : "4. Savings. - (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. (2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land." 104. Orders from which appeal lies. - (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other order: (a) to (f) (Omitted by Arbitration Act, 1940;) (ff) an order under section 35A; [(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;] (g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section."

12. At this stage, we may refer to the judgments cited at the Bar. In National Sewing Thread Co. Ltd. vs. James Chadwick and Bros. Ltd. (supra), the question arose whether a letters patent appeal under clause 15 of the Letters Patent of the Bombay High Court was maintainable against the judgment of a single Judge exercising appellate jurisdiction under Section 76 of the Trade Marks Act, 1940. Holding that such an appeal was maintainable, the Supreme Court observed : (AIR p. 360 para.7) Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act. Referring to clause 44 of the Letters Patent, it was held that the provisions of the Letters Patent were subject to the legislative powers of the Governor-General-in-Legislative Council, and therefore, in the present-day context, subject to the legislative power of the appropriate legislature. But the Court found nothing in the Trade Marks Act restricting the right of appeal under clause 15 of the Letters Patent.

13. This question was also considered by a four-Judge Bench of this Court in the case of Union of India v. Mohindra Supply Co.'s case (supra). In that case, a dispute between the parties was referred to arbitration. The arbitrator gave an award. An application was made for setting aside the award. That application was rejected. Against that order an appeal was preferred to the High Court under Section 39(1) of the Arbitration Act, 1940. A single Judge of the High Court allowed the appeal and set aside the award. Thereupon, a letters patent appeal was filed. The question was whether the second appeal was barred. The Supreme Court referred to Clauses 10 and 37 of the Letters Patent of the Punjab & Haryana High Court and held that the Letters Patent are subject to the legislative power of the Governor-General-in-Council, which in the present day contet means, "subject to the legislative power of the appropriate Legislature". The Four Judges' Bench further held that in view of Section 39 of the Arbitration Act, only one appeal is maintainable and the right to further appeal is taken away. The Bench observed in paragraph 5 as follows : (AIR p.259) "By this clause, a right to appeal except in the cases specified, from one Judge of the High Court to a Division Bench is expressly granted. But the Letters Patent are declared by clause 37 subject to the legislative power of the Governor-General in Council and also of the Governor-in-Council under the Government of India Act, 1915, and may in all respects be amended or altered in exercise of legislative authority. Under Section 39(1), an appeal lies from the orders specified in that sub-section and from no others. The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away. If by the express provision contained in Section 39(1), a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that clause (2) does not similarly restrict the exercise of appella te power granted by the Letters Patent. If for reasons aforementioned the expression second appeal includes an appeal under the Letters Patent, it would be impossible to hold that notwithstanding the express prohibition, an appeal under the Letters Patent from an order passed in appeal under sub-section (1) is competent."

14. In South Asia Industries (P) Ltd., v. S.B.Sarup Singh (supra) the Suprme Court was called upon to interpret the provisions of Sections 39 and 43 of the Delhi Rent Control Act, 1958 with a view to answer the question whether an appeal was competent under Clause 10 of the Letters Patent of the High Court of Lahore against the judgment of a single Judge in a second appeal under Section 39 of the aforesaid Act. Section 39 provided an appeal to the High Court against the judgment of the Tribunal only on a substantial question of law. It was not disputed that the right of appeal conferred by Clause 10 of the said Letters Patent could be taken away by law made by the appropriate legislature. Under the rules, an appeal under Section 39 of the aforesaid Act was to be heard by a single Judge and under Clause 10 of the said Letters Patent, appeal to the High Court lay against the judgment of a single Judge. The Court held that unless the right of appeal was taken away by the appropriate legislature either expressly or by necessary implication, an appeal was competent under Clause 10 as against the judgment of the single Judge, to the High Court. The Court, however, held that the expression 'finally' in Section 43 of the Act put an end to further appeal and the Section imposed a total bar on a further appeal. In Vinita M. Khanolkar vs. Pragna M. Pai (supra), a letters patent appeal had been filed against the order passed under Section 6 of the Specific Relief Act. It was contended that such an appeal was barred by sub-section (3) of Section 6 of the Specific Relief Act. The Supreme Court agreed that Section 6(3) of the Specific Relief Act barred an appeal, but went on to consider whether Section 6(3) could bar a letters patent appeal. In this context, the Supreme Court held as follows : (SCC p. 502, para 3) Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under Letters Patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contended by learned counsel for the respondents that if clause 15 of the Letters Patent is invoked then the order would not be appealable. Consequently, in our view, on the clear language of clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the High Court exercising original jurisdiction of the court. Only on that short ground the appeal is required to be allowed.

15. The question whether a letters patent appeal was maintainable against a judgment/order of a single Judge in an order passed under Section 140 of the Motor Vehicles Act was considered by the Supreme Court in the case of Chandra Kanta Sinha vs. Oriental Insurance Co. Ltd.'s case (supra). In that case, it was held that such an appeal was maintainable. It was also held that the decision of the Supreme Court in New Kennilworth Hotel (P) Ltd. vs. Orissa State Finance Corporation (1997 (3) S.C.C. 462) was inapplicable to the said case.

16. In the case of Subal Paul vs. Malina Paul (supra), the question was whether a letters patent appeal was maintainable against an order passed by a single Judge of the High Court under Section 299 of the Succession Act, 1925. It was held therein that an appeal under Section 299 was permitted by virtue of Section 299 and not under Section 104 of C.P.C. Section 299 of the Indian Succession Act permitted an appeal to the High Court in accordance with the provisions of C.P.C. That provision was Section 104 of C.P.C. The order passed by the single Judge was an order under Section 104 of C.P.C. The further appeal was under the Letters Patent only. Section 299 of the Indian Succession Act did not permit it. The letters patent appeal was saved/permitted by the words "any other law for the time being in force" in Section 104(1). It was thus held that clause 15 of the Letters Patent permitted a right of appeal against the order/judgment passed under any Act unless the same was expressly excluded. It was held that the bar under Section 104(2) would not apply if an appeal was provided in any other law for the time being in force. Thus, it was held that an appeal permitted by "any other law for the time being in force" will not be hit by Section 104(2) of C.P.C.

17. In none of the aforementioned judgments, the Supreme Court was called upon to consider the ambit and scope of Section 100A of the Code, as it stands today and its effect on the maintainability of the Letters Patent Appeal, though in Subal Paul's case (supra), the Three Judges' Bench did observe that this Section creates an express bar on the maintainability of further appeal.

18. At this stage, we may refer to the judgment of the Constitution Bench in P.S. Sathappan vs. Andhra Bank Ltd. (2004 (11) S.C.C. 672) and the judgment of a Two Judges' Bench of the Supreme Court in Kamal Kumar Dutta vs. Ruby General Hospital Ltd. (2006 (7) S.C.C. 613). In P.S. Sathappan's case (supra), the Constitution Bench was called upon to decide apparently conflicting views expressed in Gulab vs. Punia (supra) on the one hand and New Kennilworth Hotel's case (supra) on the other. The majority of the Constitution Bench examined the scheme of Section 104 of the Code in the light of the other provisions, including Section 4 and held that Section 104(1) specifically saves letters patent appeal and the bar contained in Section 104(2) does not apply to such appeals. However, it is important to note that the Constitution Bench emphasised that the legislature can exclude the letters patent appeal. The majority judgment referred to Section 100A of the Code as amended in the year 2002 and observed as follows : "As stated hereinabove, a specific exclusion may be clear from the words of a statute even though no specific reference is made to Letters Patent. But where there is an express saving in the statute/section itself, then general words to the effect that an appeal would not lie or order will be final are not sufficient. In such cases i.e. where there is an express saving, there must be an express exclusion. Sub-section (2) of Section 104 does not provide for any express exclusion. In this context refer ence may be made to Section 100-A. The present Section 100-A was amended in 2002. The earlier Section 100-A, introduced in 1976, reads as follows : '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.' It is thus to be seen that when the legislature wanted to exclude a letters patent appeal it specifically did so. The words used in Section 100-A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the legislature knew that in the absence of such words a letters patent appeal would not be barred. The legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 CPC. Thus now a specific exclusion was provided. After 2002, Section 100-A reads as follows : '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. To be noted that here again the legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100-A no letters patent appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100-A nor Section 104(2) barred a letters patent appeal." The majority judgment also referred to Clause 44 of the Letters Patent and observed that Letters Patent is a special law vis-a-vis the Code and in case of conflict, the former would prevail except when there is an exclusion of the special law like the one made by Section 100A. In paragraph 32 of the judgment, the Court observed as follows : "It was next submitted that clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, clause 44 permits amendment or alteration of Letters Patent, but then which legislation is not subject to amendment or alteration? CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar's case and Sharda Devi's case, a Letters Patent is the charter of the High Court. As held in Shah Babulal Khimji vs. Jayaben D. Kania (1981 (4) S.C.C. 8, a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in the aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure Code is a general law applicable to all courts. It is well-settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between the Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of the Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 of the Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 CPC only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100-A."

In the course of the judgment, the Bench also clarified the observations made in Sharada Devi's case (supra) to the effect that the letters patent was akin to the constitutional powers of the High Court and observed as follows : "Thereafter in the case of Sharda Devi's case, the question again arose whether a letters patent appeal was maintainable in view of Section 54 of the Land Acquisition Act. A three-Judge Bench of this Court held that a Letters Patent was a charter under which the High Courts were established and that by virtue of that charter the High Court got certain powers. It was held that when a Letters Patent grants to the High Court a power of appeal, against a judgment of a Single Judge, the right to entertain such an appeal does not get excluded unless the statutory enactment excludes an appeal under the Letters Patent. It was held that as Section 54 of the Land Acquisition Act did not bar a letters patent appeal, such an appeal was maintainable. At this stage it must be clarified that during arguments, relying on the sentence the powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court in para 9 of this judgment it had been suggested that a Letters Patent had the same status as the Constitution. In our view these observations merely lay down that the powers given to a High Court are the powers with which that High Court is constituted. These observations do not put Letters Patent on a par with the Constitution." (emphasis supplied)

19. A plain reading of the above observations makes it clear that the right of appeal conferred by the Letters Patent can be taken away by the Parliament by enacting appropriate provision in the C.P.C. and the provisions contained in Section 100A of C.P.C. expressly barred a second appeal against a judgment and order in the first appeal passed by a single Judge.

20. In Kamal Kumar Dutta vs. Ruby General Hospital Ltd. (supra), the appeals were preferred to the Supreme Court against the order passed by the single Judge of the High Court in a matter under Sections 397 and 398 of the Companies Act, 1956. A preliminary objection was raised to the maintainability of the said appeals on the ground that the appellant had an alternative remedy of approaching the Division Bench of the High Court under the Letters Patent of the High Court concerned. Rejecting the said objection, a two Judge Bench of the Supreme Court held as follows : "22. So far as the general proposition of law is concerned that the appeal is a vested right there is no quarrel with the proposition but it is clarified that such right can be taken away by a subsequent enactment, either expressly or by necessary intendment. Parliament while amending Section 100-A of the Code of Civil Procedure, by amending Act 22 of 2002 with effect from 1-7-2002, took away the Letters Patent power of the High Court in the matter of appeal against an order of the learned Single Judge to the Division Bench. Section 100-A of the Code of Civil Procedure reads as follows : '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.'

23. Therefore, where appeal has been decided from an original order by a Single Judge, no further appeal has been provided and that power which used to be there under the Letters Patent of the High Court has been subsequently withdrawn. The present order which has been passed by CLB and against that an appeal has been provided before the High Court under Section 10-F of the Act, that is, an appeal from the original order. Then in that case no further letters patent appeal shall lie to the Division Bench of the same High Court. This amendment has taken away the power of the Letters Patent in the matter where the learned Single Judge hears an appeal from the original order. Original order in the present case was passed by CLB exercising the power under Sections 397 and 398 of the Act and appeal has been preferred under Section 10-F of the Act before the High Court. The learned Single Judge having passed an order, no further appeal will lie as Parliament in its wisdom has taken away its power. Learned counsel for the respondents invited our attention to a letter from the then Law Minister. That letter cannot override the statutory provision. When the statute is very clear, whatever statement by the Law Minister made on the floor of the House, cannot change the words and intendment which is borne out from the words. The letter of the Law Minister cannot be read to interpret the provisions of Section 100-A. The intendment of the legislature is more than clear in the words and the same has to be given its natural meaning and cannot be subject to any statement made by the Law Minister in any communication. The words speak for themselves. It does not require any further interpretation by any statement made in any manner. Therefore, the power of the High Court in exercising the Letters Patent in a matter where a Single Judge has decided the appeal from the original order, has been taken away and it cannot be invoked in the present context. There are no two opinions in the matter that when CLB exercised its power under Sections 397 and 398 of the Act, it exercised its quasi-judicial power as original authority. It may not be a court but it has all the trapping of a court. Therefore, CLB while exercising its original jurisdiction under Sections 397 and 398 of the Act passed the order and against that order appeal lies to the learned Single Judge of the High Court and thereafter no further appeal could be filed. ... ... ...

25. In this connection, our attention was invited to a decision of the Bombay High Court in Maharashtra Power Development Corpn. Ltd. v. Dabhol Power Co. (2003 (117) Comp Cas 651 (Bom)). In that case, the High Court took the view that despite the amendment in Section 100-A of the Code of Civil Procedure, order passed by the Single Judge in appeal arising out of the order passed by CLB under Sections 397 and 398 of the Act, appeal lay to the Division Bench and in that connection, the Division Bench invoked Section 4(1) of the Code of Civil Procedure which says that in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force and, therefore, the Division Bench concluded that the letters patent appeal is a statutory appeal and special enactment. Therefore, appeal shall lie to the Division Bench. We regret to say that this is not the correct position of law. We have already explained the facts above and we have explained Section 100-A of the Code of Civil Procedure to indicate that the power was specifically taken away by the legislature. Therefore, the view taken by the Bombay High Court in Maharashtra Power Development Corpn.'s case cannot be said to be the correct proposition of law.

26. In this connection, our attention was invited to a Constitution Bench decision in P.S. Sathappan's case (supra). In this case, the Constitution Bench observed as follows: (SCC p. 675) 'From Section 100-A CPC, as inserted in 1976, it can be seen that when the legislature wanted to exclude a letters patent appeal it specifically did so. Again from Section 100-A, as amended in 2002, it can be seen that the legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100-A no letters patent appeal would be maintainable in the facts of the present case. However, it is an admitted position that the law which would prevail would be the law at the releva nt time. At the relevant time neither Section 100-A nor Section 104(2) barred a letters patent appeal. The words used in Section 100-A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the legislature knew that in the absence of such words a letters patent appeal would not be barred. The legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 CPC. Thus now a specific exclusion was provided.'

27. Similarly, in Subal Paul's case (supra), their Lordships observed as follows: (SCC p. 368, para 20) 'Whenever the statute provides such a bar, it is so expressly stated, as would appear from Section 100-A of the Code of Civil Procedure.'

28. In Gandla Pannala Bhulaxmi v. Managing Director, A.P. S.R.T.C. (A.I.R. 2003 A.P. 458 (FB), the Full Bench of the Andhra Pradesh High Court has taken a similar view in the matter. Same is the view taken by the Full Bench of the Kerala High Court in Kesava Pillai Sreedharan Pillai v. State of Kerala (A.I.R. 2004 Ker 111 (FB). Therefore, in this view of the matter, we are of the opinion that the preliminary objection raised by Mr Nariman cannot be sustained and the same is overruled." (emphasis supplied) It is thus clearly held by the two Judge Bench that a letters patent appeal against a decision rendered by the single Judge in an appeal arising under the special statute is barred by Section 100A of the C.P.C.

21. A plain reading of the provisions of Section 100A of C.P.C. makes it very clear that no further appeal shall lie from the decree or order of a single Judge to a Division Bench notwithstanding anything contained in any Letters Patent for any High Court or any other instrument having the force of law or any other law for the time being in force. There is complete prohibition of filing a further appeal against a decree and order of a single Judge. It is a legislative declaration. The said legislative declaration prohibits preferring a further appeal against the judgment and decree of a single Judge if an appeal is provided in any other law for the time being in force. Thus, as prohibited by Section 100A, preferring a further appeal to a Division Bench against a judgment and decree of a single Judge is barred, not only under the Letters Patent of any High Court, but also under any special enactment even if such appeal is provided in the said special enactment.

22. A Larger Bench of the Andhra Pradesh High Court in United India Insurance Co. Ltd. vs. S. Surya Prakash Reddy (2006 (4) C.T.C. 97), held that Section 100A of the C.P.C. has the effect of taking away the right of appeal available either under the Letters Patent or any other provision of law, including the C.P.C and an appeal against the judgment rendered by a single Judge in an appeal filed under the Motor Vehicles Act, 1988 is not maintainable. A Full Bench of the Kerala High Court in Kesava Pillai Sreedharan Pillai vs. State of Kerala (A.I.R. 2004 Kerala 111) has also taken a similar view. The Full Bench held that the provisions contained in Section 100A of C.P.C. will prevail over the provisions contained in Section 5(ii) of the Kerala High Court Act (5 of 1959) regarding a further appeal to a Bench of two Judges from a decision of a single Judge. It was also held therein that a decision rendered by a single Judge is to be treated as a decree/judgment/order passed by the single Judge under Section 3(13)(b) of the Kerala High Court Act and not as one rendered under the Land Acquisition Act or the Motor Vehicles Act. It was expressely held that there is no justification in limiting the applicability of Section 100A to the appeals filed under the provisions of the C.P.C.

23. In Salem Advocate Bar Association vs. Union of India (2003 (1) S.C.C. 49), the Supreme Court observed as follows : "Section 100-A deals with two types of cases which are decided by a Single Judge. One is where the Single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated. Where, however, an appeal is filed before the High Court against the decree of a trial court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a Single Judge or by a Division Bench of the High Court. Where the regular first appeal so filed is heard by a Division Bench, the question of there being an intra-court appeal does not arise. It is only in cases where the value is not substantial that the rules of the High Court may provide for the regular first appeal to be heard by a Single Judge. In such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily. We do not find that any prejudice would be caused to the litigants by not providing for intra-court appeal, even where the value involved is large. In such a case, the High Court by rules, can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be found with the amended provision Section 100-A."

24. Certain judgments of the High Courts cited by Mr. Raghavachari and Mr.Datar in Fazal Ali vs. Amna Khatun (2005 (1) K.L.T. 828 (Rajasthan) and Satya Narayan Agiwal vs. State Bank of India (2005 (2) B.L.J.R. 1580, M/s.Sunny Konark Construction v. State of Jharkhand, AIR 2006 Jharkhand 78 cannot be regarded as good law in the light of the decisions of the Constitution Bench in P.S. Sathappan's case (supra) and the Two Judges' Bench in Kamal Kumar Dutta's case (supra). Clause 44 of the Letters Patent was not considered in any of these judgments. Clause 44 makes all the provisions of the Letters Patent subject to the legislative power of the Governor-General-in-council and of the Governor-in-Council under Section 71 of the Government of India Act, 1915 and also of the Governor-General in cases of Emergency under Section 72 of the Act and can be amended in all respects. As held by the Supreme Court in Union of India vs. Mohindra Supply Co. (supra) that in the post-Constitution era, the legislative power of the Governor-General or Governor-in-Council has to be construed as power of the appropriate Legislature. It is also established by a series of judgments of the Supreme Court, starting from Hasinuddin Khan vs. Deputy Director of Consolidation (1980 (3) S.C.C. 285 that the legislature has the right to abolish Letters Patent. Section 100A of C.P.C. is a piece of legislation enacted by the Parliament. The non-obstante clause contained in Section 100A of the Code has the effect of taking away the right of appeal which may be available either under the Letters Patent or under any provision of law, including the Code. The use of the expression "notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or any other law for the time being in force" are clearly indicative of the Legislature's intention to bar Letters Patent Appeal against the judgment rendered by a single Bench in an appeal arising from an original or appellate decree or order. The language of Section 100A does not suggest that the exclusion of the right of appeal available under the Letters Patent is confined only to the matters arising under the Code and not under other enactments.

25. The alternative submission of Mr.V. Raghavachari is that even if it is held that Section 100A would bar a letters patent appeal arising under a special enactment nevertheless those provisions will not operate to bar a letters patent appeal, since the proceedings commenced long prior to the insertion of Section 100A of the Code of Civil Procedure. It is true that right of appeal is a matter of substance and not of procedure, and such right is vested on the date when the original proceedings are instituted. However, the vested right of appeal can be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment. In Bhenoy G.Dembla v. Prem Kutir (P) Ltd., (Bom.), 2003 Company Cases (Vol.117) 643), a Division Bench of the Bombay High Court to which one of us (A.P.Shah, C.J.) was a party held that the provisions of Section 100A are to the effect that 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. The use of the word "is" would make it abundantly clear that what the legislature intended was that no further appeal should be maintainable where any appeal from an original or appellate decree or order is heard and decided after July 1, 2002, by a single Judge of a High Court. Therefore, the necessary intendment of Section 100A is that where the appeal from an original or appellate decree is decided by a single Judge of a High Court after July 1, 2002, no further appeal would be maintainable. To hold otherwise would run contrary to the plain intendment, as well as the object and underlying purpose of Section 100A. A similar submission was expressly rejected by the Supreme Court in Kamal Kumar Dutta vs. Ruby General Hospital (supra). In introducing the amended provisions of Section 100A, the legislature was concerned as much with the existing backlog of cases as the accretion to the backlog that would accrue by the institution of fresh cases after the amended provisions were brought into force. Consequently, it would be unreasonable to attribute to the legislature the intendment that while seeking to bring into effect a provision which was intended to cure the delays of litigation, the legislature would have intended to exempt from its purview all cases which have filed prior to the date on which the amendment was brought into force.

26. In the result, we hold that the Letters Patent Appeal filed against the decision of the learned single Judge under Section 72 of the Hindu Religious and Charitable Endowments Act, 1959 is barred by Section 100A of the Code of Civil Procedure. The appeal is, therefore, dismissed as not maintainable. ab/pv

To

1. The Commissioner,

H.R. & C.E. Administration Department,

Nungambakkam High Road, Madras-34.

2. The Joint Commissioner,

H.R. & C.E. Administration Department,

Nungambakkam High Road, Madras-34.

3. The Joint Commissioner,

H.R. & C.E. Administration Department,

Nungambakkam High Road, Madras-34.

4. The Executive Officer,

A/m. Agastheeswarankoil,

Villivakkam, Madras-49.

5. The Executive Officer,

A/m. Somiya Damadaraperumal,

Villivakkam, Madras-49.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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