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P. Ranga Redy and ors. Vs. Golla Sambasivarao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 373 of 1976
Judge
Reported inAIR1978AP97
ActsCode of Civil Procedure (CPC) 1908 - Sections 100-A - Order 43, Rule 1
AppellantP. Ranga Redy and ors.
RespondentGolla Sambasivarao and ors.
Appellant AdvocateM. Rajasekhara Reddy, Adv.
Respondent AdvocateN. Ramamohan Rao, Adv.
Excerpt:
.....decree or order within meaning of section 100-a so as to bar further appeal therefrom - single judge of high court while disposing of above appeal under order 43 rule1 is exercising appellate jurisdiction against an appellate decree or order - held, as per section 100-a no further appeal lies from judgment of single judge of high court passed in appeal from an order of remand passed by lower appellate court while exercising appellate jurisdiction. - - 100a provided for the bar of further appeals like letters patent appeal under cl. if that test is satisfied, it attracts the relevant clause and the leave of the judge is pre-requisite'.23. the point that arose for consideration in the case dealt with by the division bench was whether the order made by the subordinate judge, the..........second appeals or c.m.as. provided such civil miscellaneous appeals are disposed of by a single judge in exercise of the appellate jurisdiction with respect to a decree or order passed in exercise of appellate jurisdiction by the court below subject to the superintendence of the high court.32. that is the effect of enacting for the bar of further appeals in s. 100a c.p.c. prefaced by the non obstante clause relating to the appeals under cl. 15 of the letters patent. this view of mine that s. 100a c.p.c. envisages abolition of all third appeals before a fourth court gains support from the notes of cl. 40 of the bill.33. clause 40 of the notes on clauses of bill which was ultimately enacted resulting in the amendment of s. 100a c.p.c. is rather very instructive as throwing light upon.....
Judgment:

1. The point that arises for determination is whether in view of S. 100A of the Civil P. C., a Letters Patent Appeal lies from the judgment of a single Judge of the High Court in a Civil Miscellaneous Appeal from an order of remand made by the lower appellate Court while disposing of an appeal.

FACTS:

2. The respondents filed the suit O. S. No. 122/66 before the District Munsif, Giddalur for partition of a bus with all its accessories into sixteen shares and for allotment of three such shares to them or to apply the provisions of the Partnership Act and for an account of all realisations made by the 1st defendant. Various issues were framed but the trial of the suit was confined to the issue as regards the maintainability of the suit. The trial court dismissed the suit holding that the suit is not maintainable as the alleged partnership was opposed to public policy and offends the provisions of the Motor Vehicles Act and S. 23 of the Contract Act.

3. Aggrieved by that decision, the respondents took up the matter in appeal - A. S. No. 29 of 1972 before the learned District Judge, Ongole and the appellate authority reversed the finding of the trial court on the issue pertaining to the maintainability of the suit, allowed the appeal and remanded the case with a direction to the trial court to proceed with the trial of the suit and the other issues.

4. The defendants preferred before the High Court a Civil Miscellaneous Appeal (C.M.A. No. 373 of 1976) as against that order of remand under O. 43, R. 1 of the C.P.C. read with S. 104 C.P.C. and a single Judge of the High Court heard and allowed that appeal through a judgment dated Feb. 17, 1977 pronounced in the open court.

5. No application was made before the single Judge as required under R. 105 of the Andhra Pradesh High Court Appellate Side Rules for leave to appeal under Cl. 15 of the Letters Patent of the High Court orally and immediately after the judgment had been delivered on Feb. 17, 1977.

6. Sri Ramamohana Rao, learned counsel appearing for the respondents requested for grant of leave to appeal under Cl. 15 of the Letters Patent four or five days after the date of the delivery of judgment. That was opposed by Sri Rajasekhara Reddi learned counsel appearing for the appellants on the ground that no further appeal lies as per S. 100A of the C.P.C. from the judgment of the single Judge in the appeal from an order of remand passed in appeal by the Court below and, therefore, no leave under Cl. 15 of the Letters Patent can be granted as a right of appeal was itself abolished by S. 100A of the C.P.C. Alternatively it was contended that this is not a fit case for the grant of leave under C.. 15. In any event, the learned counsel contended that no application for leave was made as required under rule 105 of the Andhra Pradesh High Court Appellate Side Rules for leave to appeal orally and immediately and, therefore, the request of the learned counsel for the respondents cannot be acceded to.

7. But the learned counsel for the respondents submitted that the bar of S. 100A C.P.C. operates only in respect of second appeals under S. 100 C.P.C. or civil miscellaneous second appeals but not in respect of appeals under S. 104 read with O. 43 of the C.P.C. from an order of remand.

8. As the solution to the problem raised depends upon the interpretation of S. 100A C.P.C. we shall read the same:

'S. 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 where any appeal from the appellate decree or order is heard or 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.'

9. It is admitted, at any rate not disputed, that S. 100A provided for the bar of further appeals like Letters Patent Appeal under Cl. 15 of the Letters Patent from second appeal under S. 100 C.P.C. or C.M.S.As. Whereas Sri Ramamohana Rao confines the bar to second appeals under S. 100 C.P.C. and Civil Miscellaneous second appeals, Sri Rajasekhara Reddi contends that the bar comprehends within its ambit civil miscellaneous appeal also under S. 104 read with O. 43, R. 1 C.P.C. from an order of remand where the order of remand was passed by the Subordinate Court in exercise of appellate jurisdiction. For one thing, s. 100A does not mention either the expression 'Second Appeal' or for that matter the expression 'Civil Miscellaneous Appeal' against an order of remand.

10. Section 100A C.P.C. was inserted by Parliament through the Civil Procedure Code (Amendment) Act, 1976. This Amendment Act came into force on first day of Feb., 1977 as per the notification issued by the Central Government in exercise of the powers conferred by sub-sec. (2) of S. 1 of the above said Amendment Act, 1976.

11. Before we proceed further, it may be noted in this connection that the validity of S. 100A is not assailed before me. Section 4 of the Civil P.C. dealing with the subject-matter of savings provides 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. The expression 'special jurisdiction' occurring in the aforesaid S. 4 refers to the 'Special jurisdiction' conferred on the High Court under Cl. 15 of the Letters Patent and, therefore the bar of S. 4 does not affect the special jurisdiction conferred on the High Court under Cl. 15 of the Letters Patent. It is not out of place to point out that S. 104 dealing with the subject-matter of appeals from orders through sub-sec. (2) thereof provides that no appeal shall lie from any order passed in appeal under this section. The order of remand can be passed only under O. 43 read with S. 104 of the Civil P. C. and the bar of further appeal from an order passed in appeal under S. 104 does not in any way affect the jurisdiction of the High Court under Cl. 15 of the Letters Patent though that jurisdiction can be affected by Parliament as is sought to be done through the enactment of Section 100A of the Civil P. C. Providing for the abolition of certain further appeals as mentioned therein.

Section 100A C.P.C. - Interpretation of - Abolition of third appeals before a fourth court:

12. Uninfluenced by any considerations derived from the previous state of law, it is proposed in the first instance to scrutinise the language of the amended provision of S. 100A for the purpose of ascertaining the meaning and the intention of the Parliament, bearing in mind the caution admonished by Lord Herchull as early as in the year 1891 in Bank of England v. Vagliano Brothers, (1891) AC 107, to the following effect:-

'I think....... the proper course is in the first instance to examine the language of the statute...........'

13. The Judicial Committee of the Privy Council in Narendranath Sircar v. Kamala Basini Desai, (1896) 23 Ind App 18 (PC) interpreting the Indian Succession Act, 1865 approving the above observation of Lord Herchull observed that a Code must be construed according to the natural meaning of the language used and not on the assumption that it was intended to leave the existing law unaltered.

14. Interpreting S. 39(2) of the Arbitration Act, 1940 our Supreme Court observed in Union of India v. Mohindra Supply Co., : [1962]3SCR497 , that-

'...............the court must proceed to interpret the words of the statute without any pre-disposition towards the state of the law before the Arbitration Act was enacted.'

15. In the light of the aforesaid canons of interpretation, we shall now proceed to examine the language employed in S. 100A C.P.C. for the purpose of ascertaining its natural meaning.

16. According to the marginal note to S. 100A of the Civil P. C., no further appeal lies in certain cases. What these cases are is made certain in the body of section which, omitting for the present the non obstante clause, reads thus:

'...............where any appeal from the appellate decree or order is heard or 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.'

17. Further appeals are barred from two categories of appeals, i.e., appeals from appellate decrees and appeals from appellate orders. Appeals from appellate decrees are known as Second Appeals under S. 100 whereas appeals from appellate orders including orders of remand under S. 104 read with O. 43, R. 1 (u) C.P.C. are known as Civil Miscellaneous Appeals. That further appeal from second appeal under S. 100 C.P.C. and Civil Misc. Second Appeal is barred is not disputed. But what is disputed is whether further appeals from civil miscellaneous appeals from orders of remand which are appellate in character are also barred.

18. From the point of bar of further appeals S. 100A C.P.C. does not make any distinction between appeals from appellate decrees and appeals from appellate orders in the sense that judgments by single Judge of a High Court from both categories of appeals are rendered statutorily non-appealable. Terminologically, the distinction maintained by the existing law between second appeals under S. 100 and Civil Miscellaneous Appeals under S. 104 read with O. 43 R. 1 C.P.C. is sought to be done away with by the Parliament for the purpose of giving effect to the bar of further appeals.

19. S. 100A. Abolition of third appeals before a Fourth Court:- The intention of the Parliament in enacting Section 100A of the Civil P. C. seems to be as discernible from the examination of the language employed therein to abolish all third appeals before a fourth court.

20. In Krishnamacharyulu v. Sidda Veeraraju, : AIR1964AP527 , the question raised is whether a Letters Patent Appeal lies under Cl. 15 of Letters Patent (Madras) from the judgment of a single Judge of the High Court allowing a civil miscellaneous appeal against an order of a subordinate Judge remanding the suit to the trial court for disposal on merits. The Division Bench in that case observed that civil miscellaneous appeal is in the nature of second appeal and held thus (at pp. 527-528 of AIR):

'Notwithstanding the fact that the appeal presented by the respondent was described as civil miscellaneous appeal, it was a second appeal in that it was preferred against the judgment of lower appellate court passed in exercise of its appellate jurisdiction. Consequently, despite the nomenclature of the appeal as Civil miscellaneous appeal, it does not cease to be a second appeal. Hence without leave of the Judge who has given the judgment now impeached before us, a letters patent appeal is not competent.'

21. This is a case where the question raised was whether a letters patent appeal could be filed without leave against the judgment of a single Judge of the High Court allowing the appeal filed by the respondents against the order of the Subordinate Judge remaining the suit brought by the appellants to the trial court for disposal on merits. It is in that connection the above observation was made.

22. In Nagamma v. Venkatasubbaiah, (1959) 2 Andh WR 554, a Division Bench of this court observed that 'the test is not whether the appeal is filed as second appeal or civil miscellaneous appeal but whether the order was passed by the lower appellate court in the exercise of appellate jurisdiction or original jurisdiction. If that test is satisfied, it attracts the relevant clause and the leave of the Judge is pre-requisite'.

23. The point that arose for consideration in the case dealt with by the Division Bench was whether the order made by the Subordinate Judge, the appellate authority, under S. 114 read with O.47, R. 1 C.P.C. reviewing its own judgment was made in the exercise of the appellate jurisdiction. The contention urged on behalf of the appellant was that the order passed by the Subordinate Judge was not passed by him in the exercise of his appellate jurisdiction but in the exercise of its original jurisdiction since he reviewed his own order. Repelling that contention the learned Judges made the aforesaid observation regarding the correct test to be applied.

24. In the instant case, the trial court dismissed the suit on the ground that it is not maintainable as opposed to public policy embodied in S. 23 of the Contract Act and as opposed to the provisions of the Motor Vehicles Act. In appeal that decision of the trial court was set aside and the matter was remanded to the trial court for fresh disposal on other issues. Defendants 1 and 3 thereafter preferred the appeal before this court under O. 43, R 1 read with S. 104 C.P.C. That appeal was allowed by this Court. The question is whether it is such an appeal from the appellate decree or order within the meaning of S. 100A of the C.P.C. so as to bar further appeal therefrom. The single Judge of this Court while disposing of the above civil miscellaneous appeal under O.43, R. 1 C.P.C. is exercising appellate jurisdiction against an appellate decree or order because the decree and judgment of the lower appellate court allowing the appeal and remanding the matter was the subject matter of the appeal before the single Judge of the High Court under O. 43, R. 1 C.P.C. I am therefore, of the opinion having regard to the language employed in S. 100A of the C.P.C. that no further appeal lies from the judgment of a single Judge of the High Court passed in a civil miscellaneous appeal from an order of remand passed by the lower appellate court while exercising appellate jurisdiction.

25. All the aforesaid discussion is as regards that part of S. 100A of the C.P.C. omitting the subject-matter of the non obstante clause contained therein. We shall now propose to consider the effect and impact of that non obstante clause on the later part of the aforesaid section. Further appeals are barred under S. 100A C.P.C. 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. We are concerned in this case with the non obstante clause in so far as it relates to the provisions contained in the Letters Patent for the High Court, the particular clause concerned being Cl. 15. Which reads thus:

' 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 from the judgment ( not being a judgment passed in the exercise of appellate jurisdiction by a court subject to the superitendence of the said High Court and not being an order passed or made in the exercise of revisional jurisdiction and not being sentence or order passed or made in the exercise of power of superitendence under the provisions of S. 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 S. 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 made ( on or after the 1st day of Feb. 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 superitendence of the said High Court, where the Judge who passed the judgment declares that the right of appeal from other judgments of such Division Court shall be to us, our heirs or successors in our or their Privy Council as hereinafter'.

26-27. Clause 15 contains two parts. The first part provides that an appeal lies to the High Court from the judgment of one Judge of the said High Court. Certain decisions were excepted from out of the purview of the first part; they being (1) 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; (2) any order made in the exercise of revisional jurisdiction and (3) any sentence or order passed or made in the exercise of power of superintendence under the provisions of S. 107 of the Government of India Act or in the exercise of criminal jurisdiction.

28. A further exception was engrafted upon this exception which was found in the latter part by virtue of which, provision for appeal is made to lie to the High Court from a judgment of one Judge of the High Court 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. But there is a condition precedent to be fulfilled before such a right of appeal can be availed of that being the obtainment of leave or certificate from such a single Judge that the case is a fit one for appeal.

29. In other words, the first part provides that an appeal shall lie to the High Court from the judgment of one Judge of the said High Court. Certain class of cases were excepted from the first part where the judgments are passed in second appeals or in exercise of revisional or criminal jurisdiction. So far as cases comprised under the first part of Cl. 15 are concerned persons concerned are entitled as a matter of right to prefer an appeal under Cl. 15 without the need on the part of the Judge to declare that it is a fit case for appeal; in other words without the leave or a certificate from the single Judge that it is a fit case for appeal. That requirement as regards the need to ask for leave or certificate that it is a fit case for appeal is applicable to the class of cases referred to under the second part of Cl. 15. From the class of cases excepted from out of the purview of the first part, second part of Cl. 15 refers to them by providing appeals therefrom provided that a single Judge who passed the judgment certifies or grants leave that it is a fit case for being appealed against. Within the brackets of the 1st part the class of cases sought to be excepted is 'not being the judgment 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. The class of cases comprised and subsumed in this category are sought to be excluded from out of the purview of the first part of Cl. 15; and included in the second part which commences with the non obstante clause 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 in exercise of the appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by the 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.

30. Further appeals that were sought to be abolished under S. 100A of the C.P.C. are appeals that were contemplated by second part of Cl. 15 of the Letters Patent in so far they relate to the second appeals. In other words a reading of Section 100A C.P.C. with Cl. 15 of the Letters Patent indisputably establishes the fact that it is the intention of the framers of the amendment that there should be no third appeal before the fourth court as the letters patent appeal or any further appeal under S. 100A C.P.C. will be only such third appeal before the fourth court.

31. An appeal under the first part of Cl. 15 is only a second appeal in the third court whereas the appeal under the second part of the aforesaid clause is a third appeal before the fourth court which is sought to be abolished under S. 100A of the Code of Civil Procedure. I am therefore of the opinion that on a correct interpretation of Cl. 15 of the Letters Patent and S. 100A of the Civil P. C. the expression 'no further appeal' in S. 100A C.P.C. subsumes within the ambit all third appeals before the fourth court whether they are appeals from second appeals or C.M.As. provided such civil miscellaneous appeals are disposed of by a single Judge in exercise of the appellate jurisdiction with respect to a decree or order passed in exercise of appellate jurisdiction by the court below subject to the superintendence of the High Court.

32. That is the effect of enacting for the bar of further appeals in S. 100A C.P.C. prefaced by the non obstante clause relating to the appeals under Cl. 15 of the Letters Patent. This view of mine that S. 100A C.P.C. envisages abolition of all third appeals before a fourth court gains support from the notes of Cl. 40 of the Bill.

33. Clause 40 of the notes on Clauses of Bill which was ultimately enacted resulting in the amendment of S. 100A C.P.C. is rather very instructive as throwing light upon the correctness of the interpretation that we are now placing upon S. 100A C.P.C. That reads thus:

'Under the letters patent, appeals lie, in certain cases, against the decision of a single Judge in a second appeal. Such an appeal in effect amounts to a third appeal. For the purpose of minimising delay in the finality of adjudications, it is not desirable to allow more than two appeals. In the circumstances now Section 100A is being inserted to provide that there should be no further appeal against the decision of a single Judge in a second appeal.'

34. It is not out of place to refer to the recommendations of the Law Commission in 14th report suggesting the abolition of Letters Patent Appeals from the judgment of a single Judge of the High Court exercising the appellate jurisdiction. (See: 14th Report Vol. I pages 378, 381, paras 28 and 31).

35. The view, therefore, taken thus by me about the interpretation of S. 100A is quite consistent with the view of the sponsors of the bill which was ultimately enacted into S. 100A C.P.C. besides the same being quite consistent with the views expressed by the Law Commission.

36. Sri Rajasekhara Reddi, the learned counsel appearing for the plaintiffs contended that Rule 105 of the Appellate side Rules of Andhra Pradesh disentitles the defendants even otherwise to apply for leave under Cl. 15 of the Letters Patent. That Rule reads thus:

'When an appeal against the appellate decree or order has been heard and disposed of by a single Judge, application for leave to appeal under Cl. 15 of the Letters Patent of the High Court shall be made orally and immediately after the judgment has been delivered.'

37. The date on which the judgment was delivered in the civil miscellaneous appeal is 17-2-1977 and it is only after three or four days after the judgment was delivered that a request with respect to leave was made by the learned counsel. According to Sri Rajasekhara Reddi, this belated request cannot be acceded to by this Court as per Rule 105 of the Appellate Side Rules. For one thing there is nothing contained in Cl. 15 obliging the person concerned to apply for leave orally and immediately after the judgment has been delivered. No doubt that rule may be said to have been made with a view to securing the implementation of Cl. 15 of the Letters Patent; but in view of my conclusion that no further appeal lies it is not necessary to go into the validity of this contention.

38. As has already been seen it is an order of remand passed by the appellate court in exercise of its appellate jurisdiction that was made the subject-matter of the appeal before this court in the C.M.A. In effect and substance, this civil miscellaneous appeal is not a first appeal but a second appeal from the judgment of the lower court rendered in the first appeal. If that is so, this falls under the category of cases comprised under the second part of Cl. 15 of the Letters Patent; but for the amended S. 100A of the C.P.C. this appeal would have fallen under the second part in which case there could have been an appeal maintainable provided a certificate is granted or declaration is given by the concerned Judge that it is a fit case for appeal, and it is precisely this type of third appeal before the fourth court that was sought to be abolished by abolition of further appeals under S. 100A of the C.P.C.

39. I am therefore satisfied for the aforesaid reasons that the bar enacted under S. 100A of the C.P.C. is attracted to the proposed appeal and there will not be any further appeal and in view of S. 100A of the C.P.C. no letters patent appeal lies from the judgment of the single Judge of the High Court passed in an appeal from the order of remand passed in appeal. The matter is therefore disposed of accordingly. There is no question therefore of granting any leave because the appeal itself with respect to which leave is sought for was abolished.

40. Order accordingly.


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