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M/S. Rajalakshmi Associates (A Firm) & Ors. v. M/S. Sree Meenakshi Papers (A Firm) & Ors.
Judgment Summary — K.S. Radhakrishnan, J.
Factual and Procedural Background
These appeals were preferred under Section 5(2) of the Kerala High Court Act, 1958 against a judgment of a learned single judge of the Kerala High Court. The maintainability of the appeals was questioned in view of Section 100-A of the Code of Civil Procedure as introduced by the Code of Civil Procedure (Amendment) Act, 2002, which came into force on 1-7-2002. The core dispute concerned whether appeals under Section 5(2) filed after 1-7-2002 remained maintainable in light of Section 100-A.
The court examined prior High Court decisions (a Full Bench of the Madhya Pradesh High Court and a Division Bench of the Andhra Pradesh High Court) which had held that Section 100-A precluded such appeals filed after 1-7-2002 and that only appeals filed prior to that date were saved. The opinion considers the nature and scope of Section 100-A, the constitutional and statutory context of the Kerala High Court (which is governed by the Kerala High Court Act, 1958 and Rules of 1971 rather than Letters Patent), and various precedent decisions concerning the nature of the right of appeal and the retrospective/prospective operation of statutes.
Both appeals before the court were filed after 1-7-2002.
Legal Issues Presented
- Whether Section 100-A of the Code of Civil Procedure (as amended by Act 22 of 2002, effective 1-7-2002) operates to take away the intra-court appeal provided under Section 5(2) of the Kerala High Court Act, 1958 (i.e., whether appeals under Section 5(2) are maintainable after 1-7-2002).
- Whether Section 100-A operates retrospectively to affect appeals that were already filed and pending on or before 1-7-2002, or whether it has only prospective effect.
- Whether an appeal filed after 1-7-2002 should be treated as filed before that date if the delay is attributable to the time taken to obtain certified copies (i.e., whether such time can be excluded so as to save the appeal under the pre-1-7-2002 law).
Arguments of the Parties
Appellants' Arguments
- The appellants relied on older authorities (including Colonial Sugar Refining Co. v. Irving, Sadar Ali v. Doliluddin, and submissions drawing on Garikapati Veeraya v. N. Subbiah Choudhry) to contend that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved for the parties throughout the suit's duration; thus the right of appeal vested at the commencement of the suit and could not be taken away in the present circumstances.
- Senior Counsel P.N.K. Achan contended that where an appeal was filed after 1-7-2002 only because of the time taken to obtain certified copies of the judgment and decree, the period for obtaining certified copies should be excluded and therefore the appeal should be treated as if filed prior to 1-7-2002. The contention referenced authority on exclusion of time for certified copies (Vidyacharan Shukla v. Khubchand Baghel and Rustomji on Limitation).
The opinion does not provide a detailed account of the respondents' specific arguments in this judgment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Laxminarayan v. Shivlal Gujar (Full Bench, Madhya Pradesh High Court) (2003 (1) ILD 64) | Held that, in view of Section 100-A, appeals filed after 1-7-2002 under Letters Patent provisions are not maintainable; only appeals filed prior to 1-7-2002 are saved. | The court accepted and followed this decision's reasoning and outcome on the scope of Section 100-A and concurred with its conclusion regarding appeals filed after 1-7-2002. |
| S. Shiva Raja Reddy v. S. Raghu Raj Reddy (Division Bench, Andhra Pradesh) (2002 (4) CCC 75 (AP)) | Examined the impact of Section 100-A with respect to appeals preferred under Clause 15 of the Letters Patent and held appeals filed after 1-7-2002 are not maintainable; only those filed before are saved. | The court concurred with this Division Bench's view and adopted the same conclusion for the scope of Section 100-A. |
| Ittyavira Mathai v. Varkey Varkey (AIR 1964 S.C. 907) | Observed that no party has a vested right to have an appeal heard by a specified number of judges. | Used to support the proposition that litigants do not have a vested right to have their appeal heard by a particular constitution of the court (number of judges). |
| Mohd. Meera Lebbai v. Thiruvalaya Gounder Ramaswamy Gounder (1966 (1) SCR 574) | Reiterated that no party has a vested right to have an appeal heard by one particular judge of the High Court. | Relied upon to reinforce that the composition or mode of hearing is not a vested right in the litigant. |
| Shyamsunder v. Ramkumar ((2001) 8 SCC 24) | Observed that no party has a vested right to have his appeal heard by more than one judge of the High Court. | Invoked to underline that a litigant does not possess a vested entitlement to the specific forum makeup (e.g., Division Bench) for hearing. |
| Colonial Sugar Refining Co. v. Irving (AIR 1905 P.C. 369) | Relied upon by appellants for the proposition that rights of appeal attach to the institution of a suit and are preserved. | Cited by the appellants; the court considered this and related authorities but relied on later authoritative pronouncements concerning vested rights and legislative power to take them away. |
| Sadar Ali v. Doliluddin (AIR 1928 Calcutta 640 (FB)) | Relied upon by appellants for the proposition that institution of a suit preserves all rights of appeal. | Considered as part of appellants' reliance; the court examined the constitutional bench decisions that qualified the broad proposition relied upon. |
| Garikapati Veeraya v. N. Subbiah Choudhry & Others (AIR 1957 SC 540) | Constitution Bench laid down principles: (1) suit, appeal and second appeal are steps in a single proceeding; (2) right of appeal is substantive; (3) institution of suit preserves rights of appeal in force at commencement; (4) the right of appeal is vested as of the date the lis commences and is governed by law prevailing at that date; (5) such vested right can be taken away only by subsequent enactment expressly or by necessary intendment. | The court relied on these principles to acknowledge that the right of appeal is vested but also that it can be taken away by subsequent legislation if the statute so provides; the decision informed the analysis of whether Section 100-A effected such a change. |
| Salem Advocate Bar Association, T.N. v. Union of India ((2003) 1 SCC 49) | Dealt with Section 100-A and opined that omission of an intra-court appeal would not cause prejudice even in cases of large value; observed that High Court Rules could provide that Division Bench hear certain appeals; found no illegality in Section 100-A. | The court relied on this apex court view to support the legality of Section 100-A and the proposition that removing intra-court appeals did not contravene legal principles. |
| Kolhapur Canesugar Works Ltd. v. Union of India ((2000) 2 SCC 536 : AIR 2000 SC 811) | Dealt with Section 6 of the General Clauses Act and held that to determine the effect on pending proceedings the court must look at the provisions of the newly introduced rule after omission of the previous rule. | Applied to conclude that Section 100-A's provisions must be examined to decide whether pending appeals filed on or before 1-7-2002 continue; used to support the conclusion that Section 100-A does not operate retrospectively to bar appeals already filed. |
| Vidyacharan Shukla v. Khubchand Baghel (AIR 1964 S.C. 1099) | Authority referenced concerning exclusion of time taken to obtain certified copies for limitation purposes. | Referenced in relation to a contention that delay caused by obtaining certified copies should be excluded; the court rejected that approach in the context of Section 100-A which permits no second appeal after 1-7-2002. |
| Kochupennu Kochikka v. Kochikka Kunjipennu (Full Bench of Kerala High Court) (1961 KLT 275) and 1960 KLT 109 | Considered constitutional validity of the Kerala High Court Act and held the State Legislature competent to enact law to define and regulate jurisdiction and powers of the High Court in administration of justice. | Referred to explain the statutory and constitutional basis for the Kerala High Court Act and to distinguish the Kerala High Court (which has no Letters Patent) from courts governed by Letters Patent. |
Court's Reasoning and Analysis
The court's analysis proceeded through the following steps, relying only on materials cited within the opinion:
- Context and nature of the Kerala High Court: The court noted that Kerala High Court is not a Letters Patent court and is governed by the Kerala High Court Act, 1958 and Rules framed under Article 225 and Section 122 CPC. Thus the general Letters Patent jurisprudence had to be adapted to the statutory framework applicable to Kerala.
- Effect of Section 100-A and its non obstante clause: Section 100-A contains a non obstante clause which the court interpreted as intended to give overriding effect over any Letters Patent, instrument having force of law, or other law. The court viewed such a non obstante clause as a legislative device to produce an overriding effect and concluded that it will take away the effect of Section 5(2) of the Kerala High Court Act to the extent that Section 100-A covers the same field.
- Vested nature of the right of appeal and power of subsequent legislation: The court reviewed precedent (including Garikapati Veeraya) establishing that the right of appeal is vested at the commencement of the lis, but also recognized that a vested right of appeal can be taken away by subsequent enactment if the later statute so provides expressly or by necessary intendment. Thus the court framed the legal question as whether Section 100-A, so enacted, takes away the right of appeal which had accrued at the suit's institution and which would otherwise have been exercisable under Section 5(2).
- Reliance on other High Court and Supreme Court pronouncements: The court expressly adopted and endorsed the conclusions of the Madhya Pradesh Full Bench and the Andhra Pradesh Division Bench, which held that Section 100-A precludes further appeals where a single judge decides the appeal and that only appeals filed prior to 1-7-2002 are saved. The court also relied on Salem Advocate Bar Association where the Supreme Court upheld the validity of Section 100-A and observed that removing intra-court appeals did not necessarily cause prejudice because High Court rules could make alternative provisions.
- Prospective application of Section 100-A to pending appeals: Applying the principle in Kolhapur Canesugar Works and examining Section 100-A itself, the court concluded that Section 100-A does not operate retrospectively to nullify appeals already filed and pending on or before 1-7-2002. Appeals filed on or before that date remain saved; appeals filed after that date fall within the new statutory prohibition.
- Rejection of the certified-copies exclusion argument: The court considered the contention that time spent obtaining certified copies should be excluded (with reference to Vidyacharan Shukla), but held that this contention was without force given Section 100-A's clear provision that no further appeal shall lie after 1-7-2002; therefore, condonation of delay or equating late filing with an earlier filing was not permissible to defeat the statute's bar.
- Conclusion on maintainability: Because Section 100-A, by its non obstante clause, removes the intra-court appeal under Section 5(2) for appeals falling within its language after 1-7-2002, the court held such appeals are not maintainable. Appeals filed prior to 1-7-2002 remain unaffected.
Holding and Implications
HOLDING: The court held that by virtue of Section 100-A of the Code of Civil Procedure as amended by Act 22 of 2002, appeals preferred under Section 5(2) of the Kerala High Court Act that were filed after 1-7-2002 are not maintainable. Only appeals filed prior to 1-7-2002 are saved. Because both appeals before the court were filed after 1-7-2002, the court dismissed them as not maintainable.
Implications:
- The direct legal consequence for the parties in these appeals is dismissal for want of maintainability because their appeals were filed after 1-7-2002.
- The court endorsed the view that Section 100-A is constitutionally and legally operative to remove intra-court appeals governed by Section 5(2) insofar as Section 100-A's language covers the matter; the court found conformity with the Supreme Court's treatment of Section 100-A in Salem Advocate Bar Association.
- The opinion specifies that Section 100-A does not operate retrospectively to bar appeals already filed and pending on or before 1-7-2002; those appeals continue to be governed by the law as it stood when they were filed.
- The judgment adopts and applies the reasoning of prior High Court decisions and the Supreme Court rulings cited; the court did not assert that it was creating a new principle beyond applying the existing authorities and the statutory text of Section 100-A.
The court also recorded appreciation for assistance rendered by Senior Advocate S.V.S. Iyer as amicus curiae; no separate relief or effect was recorded arising from that assistance.
The Judgment of the Court was delivered by
K.S Radhakrishnan, J.:— These appeals have been preferred under Section 5(2) of the Kerala High Court Act, 1958 against the judgment of learned single judge of this court. Maintainability of the appeals has been questioned in view of Section 100-A introduced by the Code of Civil Procedure (Amendment) Act 2002 with effect from 1-7-2002. Section 100-A of the Code of Civil Procedure is extracted below for easy reference.
“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.
2. Contention was raised that in view of the provisions of Section 100-A of the C.P.C (Amendment) Act, 2002 appeals filed after 1-7-2002 under Section 5(2) of the Kerala High Court Act are not maintainable and only those appeals which were filed prior to 1-7-2002 would alone be maintainable. Scope of Section 100-A with regard to pending appeals preferred under clause 10 of the Letters Patent came up for consideration before a Full Bench of the Madhya Pradesh High Court in Laxminarayan v. Shivlal Gujar (2003 (1) Indian Law Decisions 64). Above question came up for decision before a Division Bench of the Andhra Pradesh High Court in S. Shiva Raja Reddy v. S. Raghu Raj Reddy (2002 (4) CCC 75 (AP) wherein the impact of Section 100-A with respect to appeals preferred under Clause 15 of the Letters Patent 1865 was also examined. Full Bench of the Madhya Pradesh High Court as well as the Division Bench of Andhra Pradesh High Court have taken the view, after elaborate consideration of the law on the point, that in view of Section 100-A of the C.P.C (Amendment) Act 2002 appeals filed after 1-7-2002 are not maintainable and only such Letter Parent Appeals saved are those filed prior to 1-7-2002 whether they have been admitted or not. The decision rendered by the Full Bench of the Madhya Pradesh High Court as well as the Division Bench of the Andhra Pradesh High Court have reduced our burden in examining the scope of Section 100-A viz-a-viz Section 5(2) of the Kerala High Court Act, 1958. After examining both the decisions at length and hearing the counsel on either side, we fully concur with the views expressed by those High Courts with regard to the scope and ambit of Section 100-A as amended by Act 22 of 2002.
3. We may point out that Full Bench of the Madhya Pradesh High Court as well as the Division Bench of Andhra Pradesh High Court were dealing with appeals filed under Letters Patent. Out High Court is not a chartered court and was not a court in British India. Kerala High Court was established after the formation of the new State under the State Re-organization Act, 1956. Therefore, High Court of Kerala has no letters patent. Kerala High Court Act, 1958 regulates the business and the exercise of powers of the High Court of the State of Kerala. High Court of Kerala has in exercise of the powers conferred by Article 225 of the Constitution of India, Section 122 of the Code of Civil Procedure, 1908 and all other powers enabling in this behalf, has also published rules of the High Court of Kerala 1971. The Kerala High Court Act and the Rules framed thereunder regulate the business and exercise of powers thereunder. The Kerala High Court Act, 1958 has been enacted by the State Legislature in exercise of the powers conferred under Entry III List II read with Articles 225 of the Constitution of India. Administration of justice has been transferred from Entry 3 of List III to Concurrent List 11-A of List III of VII Schedule.
4. Constitutional validity of the Kerala High Court Act came up for consideration before this court in 1960 KLT 109. Same question again came up before a Full Bench of this court in Kochupennu Kochikka v. Kochikka Kunjipennu (1961 KLT 275) and the Full Bench held that the State Legislature is undoubtedly competent to enact a law to define and regulate the jurisdiction and power of the High Court in the matter of administration of justice. Jurisdiction and powers of the High Court was regulated by the Rules of the High Court of Kerala 1971. Article 225 states that subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the court shall be the same as immediately before the commencement of the Constitution. Entry administration of justice has been transferred from entry 3 List II from the concurrent list and inserted as entry 11-A of List III of VII Schedule.
5. Section 100-A has employed a non obstante clause stating that 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 no further appeal shall lie against judgment and decree of a learned single judge. Before the introduction of Section 100-A appeal to the Division Bench is regulated by Section 5(2) of the Kerala High Court Act. The question is whether Section 100-A has taken away intra court appeal provided under Section 5(2) of the Kerala High Court Act 1958 and whether it is legal. In Ittyavira Mathai v. Varkey Varkey (AIR 1964 S.C 907) the Supreme Court observed that no party has vested right to have an appeal heard by specified number of judges. Again in Mohd. Meera Lebbai v. Thiruvalaya Gounder Ramaswamy Gounder (1966 (1) SCR 574) the apex court reiterated that no party has vested right to have an appeal heard by one judge of the High Court. In Shyamsunder v. Ramkumar ((2001) 8 SCC 24) the apex court observed that no party has vested right to have his appeal heard by more than one judge of the High Court. Contention was raised by the appellants placing reliance on the decision in Colonial Sugar Refining Co. v. Irving (AIR 1905 P.C 369), Sadar Ali v. Doliluddin (AIR 1928 Calcutta 640 (FB)) and Garikapati Veeraya v. N. Subbiah Choudhry & Others (AIR 1957 SC 540) and contended that the institution of a suit carries with it with the implication all rights of appeal are preserved to the parties till the rest of the career of the suit. The Constitution bench of the apex court in Garikapati Veeraya's case (supra) however laid down the following principles:
1) That the legal pursuit of a remedy suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
2) The right of appeal is not a mere matter of procedure but is a substantive right.
3) 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.
4) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
5) 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.
6. It is therefore evident from the aforementioned decisions that though right of appeal is vested one same can be taken away by subsequent enactment if it so provides expressly or by necessary intendment. Therefore, the question that falls for consideration is whether Section 100-A takes away right of appeal accrued at the time of institution of the suit which impliedly carried with it all rights of appeal then in force including under Section 5(2) of the High Court Act.
7. The Code of Civil Procedure 1908 contains the law relating to the procedure in suits and civil proceedings. The Code has been amended from time to time by various Acts of Central and State Legislatures. Code of Civil Procedure (Amendment) Act 1999 was enacted with a view to cutting short the delays at various levels. Law Commission of India in its 163rd report also dealt with the Code of Civil Procedure (Amendment) Bill 1997 which was enacted later on as the Code of Civil Procedure (Amendment) Act, 1999. Parliament has made further amendment to the Code of Civil Procedure (Amendment) Act 1999. Act 46 of 1999 and Act 22 of 2002 have come into force with effect from 1-7-2002. Section 100-A was introduced to minimise the delay. Non obstante clause appended to Section 100-A was enacted with a view to give the enacting part of the Section an overriding effect over the Acts or the instruments having the force of law mentioned in the non obstante clause. Such a clause was introduced as a legislative device to give overriding effect to certain provisions. In our view non obstante clause contained in Section 100-A will take away the effect of Section 5(2) of the Kerala High Court Act 1958. Therefore, by virtue of Section 100-A as amended by the amendment Act 2002 no appeal is maintainable under Section 5(2) of the Kerala High Court Act against the judgment of the learned single Judge. In Salem Advocate Bar Association, T.N v. Union Of India. ((2003) 1 SCC 49) the apex court while dealing with Section 100-A opined that no prejudice would be caused to the litigants by not providing for intra court appeal even where the value involved is large. In such cases the apex court opined, the High Court Rules could provide that Division Bench would hear the regular appeal. The apex court found no illegality in the amended provision Section 100-A.
8. We may also examine the question as to whether See. 100-A would affect appeals which have already been filed prior to 1-7-2002. We are of the view, prospective operation of the Section shall not extend to and is not applicable to such of those appeals which were filed and pending adjudication. We endorse the view there is no retrospective operation of Section 100-A in respect of pending appeals filed on or before 1-7-2002. The apex court in Kolhapur Canesugar Works Ltd. v. Union of India ((2000) 2 SCC 536 : AIR 2000 S.C 811) dealt with the effect of Section 6 of the General Clauses Act and held that the court has to look at the provisions in the rule which has been introduced after omission of the previous rule to determine whether a pending proceeding will continue or lapse. On a close scrutiny of the provisions of Section 100-A we are in agreement with the reasoning of the Full Bench of the Madhya Pradesh High Court as well as the Division Bench of Andhra Pradesh High Court that no appeal which is covered within the ambit and scope of the language used in Section 100-A of the Code would lie after 1-7-2002, but appeal filed prior to 1-7-2002 would not be affected. Senior Counsel Sri. P.N.K Achan raised a contention that even though the appeal was filed after 1-7-2002 if the time taken to get the certified copies of judgment and decree is excluded, the appeal filed by him would be in time and therefore be treated as appeal filed prior to 1-7-2002. Reference was made to the Book on Limitation by Rustomji, Eighth edition and so to the decision of the apex court in Vidyacharan Shukla v. Khubchand Baghel (AIR 1964 S.C 1099). This contention has no force due to the introduction of Section 100-A which provides no second appeal after 1-7-2002 and therefore the question of filing an appeal after 1-7-2002 after condoning the delay does not arise.
9. In the light of the aforementioned discussion, we hold that by virtue of the provisions of Section 100-A amended by Act 22 of 2002 appeals preferred under Section 5(2) of the High Court Act after 1-7-2002 are not maintainable and only such appeals are saved which were filed prior to 1-7-2002. Since both these appeals are filed after 1-7-2002, we, hold they are not maintainable and hence dismissed.
10. Before we conclude we place on record our appreciation for the assistance rendered by Senior Advocate Sri. S.V.S Iyer as amicus curiae on our request.
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