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Smt. Anusua Dhirajlal Kanakia Vs. Promode Kumar Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 505 of 1972
Judge
Reported inAIR1978Cal249,82CWN313
ActsCode of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(2) and 100A
AppellantSmt. Anusua Dhirajlal Kanakia
RespondentPromode Kumar Banerjee and ors.
Appellant AdvocateR.C. Deb, ;Aditya Narayan Roy and ;Sudipta Maitra, Advs.
Respondent AdvocateSakti Nath Mukherjee and ;Bhaskar Ghose, Advs.
DispositionApplication dismissed
Cases ReferredState of West Bengal v. Mir Fakir Mohammad
Excerpt:
- m.n. roy, j.1. this is an application for leave to file an appeal under clause 15 of the letters patent, against the judgment and decree dated feb. 24, 1977, made in g. a. no. 505 of 1972, affirming thereby the judgment and decrees passed by the learned additional district judge, 4th court, alipore, in title appeal no. 709 of 1971.2. the point involved in this case is whether after the incorporation of the amendment by the civil p. c. (amendment) act, 1976, an appeal, out of a proceeding initiated earlier would be maintainable under clause 15 of the letters patent.3. the respondent opposite parties are admittedly joint owners of premises no. 8, ashutosh mukherjee road (hereinafter referred to as the said premises), where there are several tenants. three of the flats in the said premises.....
Judgment:

M.N. Roy, J.

1. This is an application for leave to file an appeal under Clause 15 of the Letters Patent, against the judgment and decree dated Feb. 24, 1977, made in G. A. No. 505 of 1972, affirming thereby the judgment and decrees passed by the learned Additional District Judge, 4th Court, Alipore, in Title Appeal No. 709 of 1971.

2. The point involved in this case is whether after the incorporation of the amendment by the Civil P. C. (Amendment) Act, 1976, an appeal, out of a proceeding initiated earlier would be maintainable under Clause 15 of the Letters Patent.

3. The Respondent Opposite Parties are admittedly joint owners of premises no. 8, Ashutosh Mukherjee Road (hereinafter referred to as the said premises), where there are several tenants. Three of the flats in the said premises were let out to the appellant petitioner, who is in Scooter business. A suit being Title Suit No, 266 of 1969, was filed against the appellant petitioner for permanent injunction restraining her and her men, agents and servants from using the courtyard of the said premises for the purpose of her business and obstructing the same or to encroach the same in any way whatsoever The said suit had been filed, as it was alleged that for her business purpose, the appellant petitioner, her men, servants and agents started using the courtyard in question by keeping the Scooters, Motor cycles for repairs, thereby causing annoyance and nuisance to other tenants of the said premises. Such user of the said courtyard was alleged to have been done without the permission or consent of the landlords.

4. On contest, the suit was decreed and the appellant petitioner herein was restrained by an order of permanent injunction from using the courtyard in question for the purpose of her business as aforesaid. She was also restrained by an order of injunction from committing any nuisance in the said courtyard by such or any user. The determinations as made by the learned Munsif, were also affirmed on some modification in Title Appeal N0. 7-19 of 1971 by the learned Additional District Judge, 4th Court, Alipore on Jan. 20, 1972,

5. The appeal being S. A. No. 505 of 1972, which was preferred against such determination, was dismissed by this Court on Feb. 24, 1977, affirming thereby the determination as made by the learned Courts below.

6. From such determination, the present application for leave to file an appeal underCIause 15 of the Letters Patent was affirmed and filed on May 24, 1977, on the grounds as mentioned therein.

7. Mr. B. C. Deb, learned Advocate appearing for the appellant petitioner, placed Section 100A of the Civil P. C., 1908 as amended by the (Amendment) Act of 1976 and which is to the following effect:

38. Insertion of new Section 100A -- After Section 100 of the principal Act, the following section shall be inserted, namely:--

'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 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'. and submitted that even after the incorporation of the said Section 100A, the appeal under CI. 15 of the Letters Patent would not be barred in a proceeding which was initiated earlier and wherefrom such appeal under the old provisions of the Code ordinarily would have been available. He in short, submitted that Section 100A has application to such appeals, which have been preferred after the incorporation of the (Amending) Act of 1976, which came into force on Sept. 9, 1976. Mr. Deb submitted that since the appeal in the instant case Or the proceeding wherefrom such appeal has been taken, was initiated prior to Sept. 9, 1976, so the provisions of Section 100A would have no application. He also submitted, that to have the benefits of an appeal under Clause 15 of the Letters Patent, is a vested right and that cannot or should not be allowed to be taken away by the subsequent incorporation as made through Section 88. He further submitted that proceedings initiated prior to the incorporation of the 1976 amendment, would be governed by the old Act and not by the subsequent incorporation through the new Act, as aforesaid, and in fact the right of appeal viz., by Clause 15 in the instant case, has not been taken away. In support of his submissions Mr. Deb being assisted by Mr. Aditya Narayan Roy, relied on the determination of the Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Choudhury : [1957]1SCR488 wherein it has been observed that 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. The right of appeal is not a mere matter of procedure but is a substantive right, 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. 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 Ms 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. This vested light of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.

8. Mr. Saktinath Mukherjee, appearing for the Respondent Opposite Parties No. 1, disputed such submissions of Mr, Deb and submitted that a right of appeal under Clause 15 of the Letters Patent is not a vested right. It is a discretion left or vested with the Court concerned. He further submitted that even in terms of the determination of the Supreme Court as referred to hereinbefore, and more particularly when such a right of appeal under Clause 15 has been taken away by the present enactment, this Court should hold and as such should not award the necessary leave to appeal under Clause 15 of the Letters Patent. It was also contended by him that when the present application was affirmed and filed on May 24, 1977 i.e. after the incorporation or coming into force of the said (Amending) Act of 1976, which incidentally came into force On Sept. 9, J97&, the right of appeal under Clause 15 of the Letters Patent has been lost to the appellant petitioner, in view of the provisions of Section 97 and more particularly Sub-sections (2) (2) and (3) thereunder. It was submitted by him that the reference to the words appeal '(admitted)', before commencement of Section 38 of the said 1976 (Amending) Act, as mentioned in Clause (2) of Section. 97 (2), would mean that appoals excepting those already accepted by the High Court, would be barred. In support of his submissions, as aforesaid, Mr. Mukherjee first relied on Section 100A of the Code as incorporated by Section 38 of the (Amending) Act of 1976 as quoted hereinbefore and also relied on Section 97 (2) (n) and Section 97 (3), which are quoted hereunder-

'Section 97: Repeal and savings : (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 10 of the General Clauses Act, 1897.

(n) Section 100A, as inserted in the principalAct by Section 38 of this Act, shall not apply to or affect any appeal against the decision of a single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the said Section 38; and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force;

(3) Save as otherwise provided to Sub-section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, not withstanding the fact that the right, or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement', and submitted further that when a litigant cannot file an appeal under Clause 15 against the decision of the Single Judge as a matter of right and more particularly unless the Judge concerned considers the case to be a fit one for appeal, the present application for leave to appeal under Clause 15, which was admittedly filed after the incorporation of the (Amending) Act of 1970, was not maintainable.

9. The (Amending) Act of 1976, admittedly came into force on and from Sept. 9, 1976 and the same has repealed all the amendments in the Code made by the appropriate Legislature or the High Courts before the commencement of the Act except to the extent that such amendments or provisions are consistent with the provisions of the Code, as amended by Section 97(1) and the provisions of the Code, as amended by the Act, have been made also applicable to all suits, proceedings, appeals, or applications pending at the commencement of the Act in terms of Section 97 (3) except as otherwise provided in respect of matters mentioned in Sectin 97 (2) of the said (Amending) Act of 1976, where the provision of the Code as amended by the said Act. would not apply. It further appears that the underlying principles behind the incorporation of Section 100A to the Code by Section 38 of the (Amending) Act of 1976 is for the purpose of minimising the delay in the finalisation of adjudications and in fact by such incorporation of the said Section 100A, further appeals under Clause 15 of the Letters Patent against the decision of the Single Judge in Second Appeal has been barred, overriding the provisions of Letters Patent or any other law providing such appeal. Thus after the introduction of Section 100A as aforesaid, no appeal would be available from the judgment, decision or order ot a Single Judge in a Second Appeal notwithstanding anything contained in any Letters Parent for any High Court or any other instrument having the force of law or any other law for the time being in force. So, and because of the incorporation of the said new section and in fact after the incorporation of the same there can be no appeal under the provisions of the Letters Patent as indicated in the section itself, subject to the exception as mentioned in Section 97 (2) (n) of the (Amending) Act of 1976 viz., if any appeal is admitted under the Letters Patent before the coming into force of the said Section 100A, the same shall be disposed of as if the said Section 38 introducing Section 100A of the Act had not come into force. Therefore, when the present application has been filed after the coming into force of Section 100A as introduced by Section 38 of the (Amending) Act of 1976, and no leave, prior to the date of incorporation ot the said (Amending Act) was given or obtained, the present application, I hold in agreement with the submissions of Mr. Mukherjee, must he held to be not maintainable. It must be recorded that similar view has also been taken by R. Bhatta-charya J. in the case of State of West Bengal v. Mir Fakir Mohammad, : AIR1977Cal285 .

10. Thus the application fails and the same is dismissed with costs and assessed at 5 gold mohurs.


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