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Mohd. Saud And Another v. Dr. (Maj.) Shaikh Mahfooz And Others
Factual and Procedural Background
The litigation originated from Civil Suit No. 498 of 2004 pending before the Additional District Judge, Fast Track Court No. III, Bhubaneswar. On 9 September 2005 the trial court passed an interim order. An appeal under Order 43 Rule 1 of the Code of Civil Procedure (CPC) (FAO No. 386 of 2007) was preferred to a learned Single Judge of the Orissa High Court, who decided the appeal on 6 August 2008.
Dissatisfied, the aggrieved party invoked the High Court’s intra-court appellate jurisdiction by filing Letters Patent Appeals (LPA Nos. 7 and 8 of 2008). Because Division Benches of the High Court had expressed conflicting views on the maintainability of such LPAs after the 2002 amendment to Section 100-A CPC, a Full Bench was constituted. By judgments dated 24 September 2008 and 25 October 2008 the Full Bench held that the LPAs were not maintainable.
Civil Appeals Nos. 9321-22 of 2010 (arising from SLP (C) Nos. 2515-16 of 2009) challenge the Full Bench decision. Civil Appeals Nos. 9323-24 of 2010 (arising from SLP (C) Nos. 13684-85 of 2009) directly assail the Single Judge’s order dated 6 August 2008 under Article 136 of the Constitution.
Legal Issues Presented
- Whether, after the amendment of Section 100-A CPC with effect from 1 July 2002, a Letters Patent Appeal lies to a Division Bench against a judgment of a Single Judge rendered in an appeal under Order 43 Rule 1 CPC (i.e., against an interlocutory order of a subordinate court).
- In the companion appeals, whether the Supreme Court should exercise its discretionary jurisdiction under Article 136 to interfere with what is, in substance, an interlocutory order.
Arguments of the Parties
Appellant's Arguments
- Section 100-A, as substituted in 2002, bars a further appeal only from the “judgment and decree” of a Single Judge. The order dated 6 August 2008 disposed of an appeal against an interlocutory order and did not amount to a decree; therefore the statutory bar did not apply.
- A distinction exists between the 1976 and 2002 texts of Section 100-A: the former barred appeals even from orders, while the latter refers only to decrees. Hence an LPA is still maintainable against a Single Judge’s order that is not a decree.
Respondent's Arguments
This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Birat Chandra Dagra v. Taurian Exim (P) Ltd., (2006) 11 Ori LR 344 | Earlier Orissa Division Bench view that an LPA is maintainable post-2002 amendment. | Rejected; declared not good law. |
| V.N.N. Panicker v. Narayan Patil, (2006) 102 CLT 479 | Contrary Division Bench view holding LPAs not maintainable after 2002 amendment. | Approved as laying down the correct law. |
| Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 | Appeal is a creature of statute, not an inherent right. | Used to show that the right of appeal can be curtailed by legislation. |
| Kamal Kumar Dutta v. Ruby General Hospital Ltd., (2006) 7 SCC 613 | A statutory right of appeal may be taken away by subsequent enactment. | Cited to reinforce that Section 100-A validly restricts further appeals. |
| Salem Advocate Bar Association v. Union of India, (2003) 1 SCC 49 | Constitutional validity of Section 100-A upheld. | Relied upon to negate any challenge to the amended provision. |
| Gandla Pannala Bhulaxmi v. A.P. SRTC, AIR 2003 AP 458 | Full Bench view: no substantive right of further appeal after 2002 amendment. | Cited with approval. |
| Laxminarayan v. Shivlal Gujar, AIR 2003 MP 49 | Same principle as above. | Cited with approval. |
| Kesava Pillai Sreedharan Pillai v. State of Kerala, AIR 2004 Ker 111 | Same principle as above. | Cited with approval. |
| Kamla Devi v. Kushal Kanwar, (2006) 13 SCC 295 | Only LPAs filed before the 2002 amendment survive; later ones are barred. | Applied; LPAs in the present case were filed after 2002 and are therefore barred. |
| Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 | Adopts purposive interpretation in statutory construction. | Cited to justify interpreting Section 100-A in line with its object of reducing appeals. |
| Hindustan Lever Ltd. v. Ashok Vishnu Kate, (1995) 6 SCC 326 | Purposive approach endorsed. | Same application as above. |
| Workmen v. American Express International Banking Corpn., (1985) 4 SCC 71 | Purposive interpretation principle. | Same application as above. |
Court's Reasoning and Analysis
The Court began by reiterating that an appeal is a statutory right and may be curtailed by legislation. Section 100-A CPC, as substituted in 2002, begins with a non-obstante clause overriding Letters Patent or any other law and states that when “any appeal from an original or appellate decree or order” is decided by a Single Judge, “no further appeal shall lie from the judgment and decree of such Single Judge”.
Although the provision uses the words “judgment and decree”, the first limb expressly covers appeals from orders, which would include interlocutory orders. The Court resolved this textual tension by applying purposive interpretation: the 2002 amendment sought to reduce multiplicity of appeals. Accepting the appellant’s construction would paradoxically permit two tiers of intra-court appeal against an interlocutory order while allowing only one appeal against a final decree, undermining the legislative objective.
The Court noted that the Full Bench of the Orissa High Court correctly preferred the Division Bench decision in V.N.N. Panicker over Birat Chandra Dagra. It relied on Supreme Court precedents upholding both the validity and the restrictive scope of Section 100-A, and on multiple Full Bench decisions of other High Courts that had reached the same conclusion.
With respect to the companion appeals filed directly against the Single Judge’s order, the Court observed that the underlying order was interlocutory in character and reaffirmed the settled practice that the Supreme Court does not ordinarily interfere with interlocutory matters under Article 136. Consequently, there was no reason to examine the merits.
Holding and Implications
APPEALS DISMISSED. No order as to costs.
Immediate Effect: The Full Bench judgment of the Orissa High Court stands affirmed, rendering the LPAs non-maintainable. The trial court has been directed to dispose of the pending suit expeditiously.
Broader Implications: The decision reinforces that, after the 2002 amendment to Section 100-A CPC, no Letters Patent Appeal lies against any judgment of a Single Judge delivered in appellate jurisdiction, including appeals from interlocutory orders. It furthers the legislative objective of streamlining the appellate process and provides authoritative guidance to High Courts on intra-court appeals.
Markandey Katju, J.—
Civil Appeals Nos. 9321-22 of 2010 [arising out of Special Leave Petitions (Civil) Nos. 2515-16 of 2009]
1. Leave granted. 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.
2. Heard the learned counsel for the parties and perused the record. The facts have been mentioned in the impugned judgment of the High Court and hence we are not repeating the same here.
3. 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 Section 100-A 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.
4. 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 CPC 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.
5. Before deciding the question involved in this case we may refer to the relevant provisions in CPC. 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:
“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 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:
“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.
6. Again, Section 100-A of the Code was amended by Amendment Act 22 of 2002 and the amended section 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.”
7. 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 v. Taurian Exim (P) Ltd. (2006) 11 Ori LR 344 (Ori) (vide p. 5) does not lay down good law while the decision of the Division Bench in V.N.N Panicker v. Narayan Patil (2006) 102 CLT 479 (Cut), (2006) 2 Ori LR 349 (Ori) lays down the correct law. The Full Bench has further held that after the amendment of Section 100-A w.e.f 1-7-2002, no LPA shall lie against the order or judgment passed by a learned Single Judge even in an appeal arising out of a proceeding under a special Act.
8. It has been held in a catena of decisions of this Court that an appeal is a creature of a statute and not an inherent right vide Garikapati Veeraya v. N. Subbiah Choudhry AIR 1957 SC 540. This right of appeal can be taken away or curtailed by a subsequent enactment vide Kamal Kumar Dutta v. Ruby General Hospital Ltd. (2006) 7 SCC 613
9. The validity of Section 100-A CPC has been upheld by the decision of this Court in Salem Advocate Bar Assn. v. Union of India (2003) 1 SCC 49, AIR 2003 SC 189. The Full Benches of the Andhra Pradesh High Court vide Gandla Pannala Bhulaxmi v. A.P SRTC AIR 2003 AP 458, the Madhya Pradesh High Court in Laxminarayan v. Shivlal Gujar AIR 2003 MP 49, and of the Kerala High Court in Kesava Pillai Sreedharan Pillai v. State of Kerala AIR 2004 Ker 111 have held that after the amendment of Section 100-A in 2002 no litigant can have a substantive right for a further appeal against the judgment or order of a learned Single Judge of the High Court passed in an appeal. We respectfully agree with the aforesaid decisions.
10. In Kamla Devi v. Kushal Kanwar (2006) 13 SCC 295, AIR 2007 SC 663 this Court held that only an LPA filed prior to coming into force of the Amendment Act would be maintainable. In the present case the LPAs were filed after 2002 and hence in our opinion they are not maintainable.
11. The learned counsel for the appellant, however, submitted that Section 100-A does not bar an LPA against a judgment of the learned Single Judge who had decided an appeal under Order 43 Rule 1 against an interlocutory order of the District Judge. He submitted that Section 100-A after its amendment in 2002 requires that the judgment of the learned Single Judge should be a judgment and decree of such Single Judge. He further submitted that in the present case the learned Single Judge was hearing an appeal against an interlocutory order of the learned Additional District Judge and hence when the learned Single Judge decided the appeal he was not passing any decree because the suit was still pending.
12. The learned counsel submitted that there is a difference in the language of Section 100-A as initially inserted in 1976, and the language of the provision as substituted in 2002. While the former barred an LPA even against a judgment, decision or order of a learned Single Judge which was not a decree, the latter bars only a judgment which is also a decree. Since the judgment of the learned Single Judge dated 6-8-2008 was not a decree, he submitted that the LPA against that judgment was not barred.
13. While at first glance this argument may appear plausible but when we go deeper into it, we will realise that it has no merit. It would be strange to hold that while two appeals will be maintainable against the interlocutory orders of a District Judge, only one appeal will be maintainable against a final judgment of the District Judge.
14. It may be noted that there seems to be some apparent contradiction in Section 100-A as amended in 2002. While in one part of Section 100-A it is stated “where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court” (emphasis supplied), in the following part it is stated “no further appeal shall lie from the judgment and decree of such Single Judge”. Thus while one part of Section 100-A refers to an order, which to our mind would include even an interlocutory order, the latter part of the section mentions judgment and decree.
15. To resolve this conflict we have to adopt a purposive interpretation. The whole purpose of introducing Section 100-A was to reduce the number of appeals as the public in India was being harassed by the numerous appeals provided in the statute. If we look at the matter from that angle it will immediately become apparent that the LPA in question was not maintainable because if it is held to be maintainable then the result will be that against an interlocutory order of the District Judge there may be two appeals, first to the learned Single Judge and then to the Division Bench of the High Court, but against a final judgment of the District Judge there can be only one appeal. This in our opinion would be strange, and against the very purpose of the object of Section 100-A, that is, to curtail the number of appeals.
16. It is well settled that the modern method of interpretation is purposive vide Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440, Hindustan Lever Ltd. v. Ashok Vishnu Kate (1995) 6 SCC 326, JT (1995) 6 SC 625 (vide : JT p. 631) and Workmen v. American Express International Banking Corpn. (1985) 4 SCC 71
17. We are of the opinion that the apparent contradiction in Section 100-A as amended in 2002 was only due to bad drafting, and not much can be made out of it once we understand the purpose of Section 100-A.
18. For the reasons given above, we are of the opinion that the Full Bench of the High Court has taken a correct view. Thus there is no force in these appeals, which are accordingly dismissed. No costs.
Civil Appeals Nos. 9323-24 of 2010 [arising out of Special Leave Petitions (Civil) Nos. 13684-85 of 2009]
19. Leave granted. These appeals have been filed against the order of the learned Single Judge dated 6-8-2008 in first appeal from Order No. 386 of 2007 of the Orissa High Court. The appeal before the learned Single Judge arose out of an interlocutory order passed by the learned Additional District Judge, Fast Track Court No. III in a suit which is still pending.
20. In our opinion, though the judgment of the learned Single Judge is a final judgment, it is in another sense an interlocutory order as it is well settled that an appeal is a continuation of the original proceedings. Since the original order of the learned Additional District Judge was an interlocutory order, hence the appeal against that order and the judgment of the learned Single Judge in that sense was also interlocutory.
21. It is well settled that this Court does not ordinarily interfere under Article 136 of the Constitution with interlocutory orders.
22. For the reasons given above, we dismiss these appeals without going into the merits of the case. However, we direct the learned Additional District Judge to decide the suit expeditiously. No costs.
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