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State of West Bengal Etc. Vs. Mir Fakir Mohammad Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal Nos. 1658 of 1965 and 1603 of 1966
Judge
Reported inAIR1977Cal285
ActsCode of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 38 and 97(2); ;Code of Civil Procedure (CPC) , 1908 - Section 100A; ;Calcutta High Court Appellate Side Rules - Rule 2
AppellantState of West Bengal Etc.
RespondentMir Fakir Mohammad Etc.
Appellant AdvocateLala Hemanta Kumar and ;Govinda Chandra Pal, Advs.
Respondent AdvocatePanchanan Pal, Adv. for Opposite Parties in S.A. No. 1658 of 1965, ;S.C. Das Gupta and ;Rebati Nath Sarkar, Advs. for Opposite Parties in S.A. No. 1603 of 1966
DispositionApplications rejected
Excerpt:
- .....leave to appeal under clause 15 of the letters patent on 3-11-1976 and the appellant of the other appeal filed an application under clause 15 on 21-9-1976. for the sake of convenience both the matters were heard together. mr. panchanan pal, the learned advocate for the appellant, who is the apposite party in the application, filed in connexion with the second appeal no. 1658 and mr. s. c. das gupta, the learned advocate appearing on behalf of the respondent-opposite party in the other application raised a preliminary objection as to the maintainability of the application under clause 15 of the letters patent in view of the introduction of the amendment of the civil p. c. by the amending act of 1976. their contention is that after the amendment of the civil p. c. by the amending act of.....
Judgment:

R. Bhattacharya, J.

1. These two applications under Clause 15 of the Letters Patent, one filed in connexion with the Second Appeal No 1658 of 1965 and another relating to Second Appeal No. 1603 of 1966 have been heard together as the same question of law about the maintainability of these two applications are involved therein and this order shall govern both the matters.

2. The Appeal No. 1658 was allowed on 21-7-1976 and the Appeal No. 1603 was dismissed on 5th July, 1976. The plaintiff-respondent in Appeal No. 1658 filed the application for leave to appeal under Clause 15 of the Letters Patent on 3-11-1976 and the appellant of the other appeal filed an application under Clause 15 on 21-9-1976. For the sake of convenience both the matters were heard together. Mr. Panchanan Pal, the learned Advocate for the appellant, who is the apposite party in the application, filed in connexion with the Second Appeal No. 1658 and Mr. S. C. Das Gupta, the learned Advocate appearing on behalf of the respondent-opposite party in the other application raised a preliminary objection as to the maintainability of the application under Clause 15 of the Letters Patent in view of the introduction of the amendment of the Civil P. C. by the Amending Act of 1976. Their contention is that after the amendment of the Civil P. C. by the Amending Act of 1976, there can be no appeal against the decision of a judgment of the High Court sitting singly disposing of a second appeal and as such the present applications under Clause 15 of the Letters Patent are not maintainable and in any view no certificate or leave can be granted for an appeal against the decision made in the second appeal. Mr. Hemanta Kumar Lala has challenged this contention and his main argument is that before the amendment of the Civil P. C. of 1976 came into being, the two appeals were disposed of and, therefore, the petitioners have a right to prefer an appeal against the decision for which purpose the present applications have been filed. It has been contended further by Mr. Lala that as the applications were filed before the amendment of the Civil P. C. has come into force, the applications are maintainable and should not be rejected.

3. Admittedly, the applications had been filed before the amendment of the Civil P. C. came into force. The opposite parties to these applications rely upon Section 100-A of the Civil P. C. introduced by the Amending Act read with Sections 38 and 97(2)(n) of the C. P. C. Amendment Act of 1976. Section 38 of the Amendment Act of 1976 inserts the new Section 100A of the Principal Act and it runs as follows :--38. Insertion of new Section 100A.--After Section 100 of the Principal Act, the following section shall be inserted :--

'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 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 He from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal.'

Clause (n) of Sub-section (2) of Section 97 speaks about repeal and savings and I quote the relevant portion of Sub-section (2) of Section 97 of the Amendment Act of 1976 with Clause (n) as under :--

'2. Notwithstanding that the provisions of these Acts have come into force or the repeal under Sub-section (1) has taken effect and without prejudice to the generality of the provisions of the Section 6 of the General Clauses Act, 1897 (10 of 1897)-

(n) Section 100A as inserted in the Principal Act 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.'

4. After the introduction of Section 100-A of the Code, no further appeal shall lie from the judgment, decision or order of a single Judge in the second appeal 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. Therefore, on account of this new section, there shall be no appeal under the provisions of the Letters Patent as indicated in the section. But in view of Section 97(2)(n) of the C. P. C. Amendment Act of 1976 if any appeal is admitted under the Letters Patent before the coming into force of Section 100A inserted by the Amendment Act of 1976, such appeal, however, in spite of Section 100A coming into force shall be disposed of as if the Section 38 introducing Section 100A of the Amendment Act has not come into force. Admittedly the present applications were filed under the Letters Patent before the coming into force of Section 100-A of the Code. It cannot be, however, argued that the instant applications under Clause 15 of the Letters Patent should be summarily rejected simply because Section 100-A has already come into force although no orders have been passed upon those applications. An application under Clause 15 if filed even a day prior to the coming into force of Section 100-A of the Code, cannot be rejected summarily. If the application has already complied with other provisions of law for admission of the appeal certainly the Court will consider whether it is a fit case for granting leave or certificate as prayed for. There may be various reasons for the Court not to pass an order upon the application filed prior to the introduction of Section 100-A but for those reasons the applicant cannot suffer if the applicant has already complied with other provisions of law and procedure for admission of the appeal before the Section 100-A came into force.

5. Mr. Lala has argued that as soon as the application under Clause 15 of the Letters Patent is filed, the date of such filing should be recorded as the date of admission referred to in Clause (n) of Sub-section (2) of Section 97 of the C. P. C. Amendment Act of 1976. In this connexion my attention has been drawn to Chap. VIII, Rule 3 in the Rules of the High Court at Calcutta, Appellate Side framed in connexion with appeals under Clause 15 of the Letters Patent. Rule 3 of Chap. VIII of Part II says that the memorandum of appeal shall be drawn up according to the provisions of Order XLI, Rule I of the C. P. C. and shall be certified by an Advocate of the Court but it need not be accompanied by a copy of judgment appealed from. The authorised officer to whom the memorandum of appeal is presented shall have to endorse thereon the date of presentation and send the same to the Stamp Reporter who shall satisfy himself that there is a declaration by the Judge who passed the judgment that the case is a fit one for appeal and that it is in order and within time. Admittedly again there is no procedure in our High Court for admission of an appeal under the Letters Patent as in a case under Order 41, Rule 11 of the C. P. C. According to Rule 2 of Chap. VIII of the Rules of our High Court on the Appellate Side every appeal to the High Court under Section or clause (as generally called) 15 of the Letters Patent from a judgment of a Division Bench or a Judge sitting singly of the Appellate Side of High Court shall be presented to the Deputy Registrar or such other officer as the Registrar may appoint within sixty days from the date of the judgment appealed from unless the Court in its discretion on good cause shown shall grant further time.

6. Now the question arises as to what would be the date of admission of an appeal under Clause 15 of the Letters Patent because in Clause (n) of Sub-section (2) of Section 97 of the Amendment Act, 1976 it is stated that if an appeal is already admitted before the commencement of Section 38, that is to say, before the coming into force of Section 100-A of the Code, it will be disposed of. Otherwise after the commencement of the Section 38 of the Amendment Act no fresh appeal will He. It has therefore, to be ascertained what the meaning of the word 'admitted' appearing in Clause (n) of Sub-section (2) of Section 97 of the Amendment Act is. It cannot be heard to say that the litigant can file an appeal against the decision of a Judge under Clause 15 of the Letters Patent as a matter of right The law is clear that unless the Judge considers a case fit for an appeal, the litigant cannot as a matter of right or in due course prefer an appeal. The practice of our Court is that a party aggrieved may pray for a certificate for leave to appeal under Clause 15 of the Letters Patent orally at the time when the judgment is delivered in the open court or if it is not orally prayed at the time of delivery of judgment, an application in writing is filed for the said purpose subsequently. The appellate side Rules already mentioned clearly say that within the stipulated time the aggrieved party has got to file a memorandum of appeal without any copy of the judgment complained against before an authorised officer of the High Court and if a certificate is granted under Clause 15 of the Letters Patent by the Judge concerned then that certificate has got to be endorsed upon memorandum of appeal. If the memorandum of appeal already presented within time complies with the Rules prescribed by the High Court and if there is the certificate of the Judge concerned that it is a fit case for appeal and the same is endorsed and it is otherwise found in order, the appeal is deemed to toe accepted by the Court. The condition precedent is, therefore, a certificate to be granted under Clause 15 of the Letters Patent and further the filing of the memorandum of appeal ag prescribed by the Rules of the High Court. There is no other procedure for admission of the appeal. The word 'admit' according to Oxford Dictionary is 'let in, allow entrance of. accept as valid etc.' According to Chambers's Twentieth Century Dictionary the word 'admit' means 'to allow to enter, to let in, to acknowledge etc.' On reading the relevant provisions already mentioned and considering the popular and dictionary meaning of the word 'admit'. I have no doubt to hold that the reference to the appeal admitted before the commencement of Section 38 as mentioned in Clause (n) of Sub-section (2) of Section 97 of the C. P. C. Amendment Act of 1976 means appeals already accepted by the High Court to be heard as already indicated.

7. In the present case before us although applications under Clause 15 of the Letters Patent were filed before the commencement of the Section 38 of the Amendment Act of 1976, no memoranda of appeal have been filed by the petitioners at all not to speak within time prescribed under Rule 2 of Chap. VIII of the High Court Appellate Side Rules. It may be that at the time of delivery of judgment, the aggrieved party may pray orally for leave to appeal under Clause 15 of the Letters Patent and that may be allowed. But in spite of the leave being granted, there may be cases where the party concerned does not file any memorandum of appeal at all. In that case certainly it cannot be stated that the granting of prayer under Clause 15 of the Letters Patent amounts to an admission of an appeal without the existence or the filing of the memorandum of appeal. There can be no question of any admission of appeal or an appeal being admitted. It may also be that a memorandum of appeal is filed within the time prescribed by the Rules and subsequent to the delivery of judgment an application in writing is filed under Clause 15 of the Letters Patent. For various reasons the Court might not have passed orders upon the application at an early date, but when ultimately the certificate is granted the memorandum of appeal already filed and found in order may be taken as admitted. In the case before us when no memorandum of appeal is at all filed although a long time has passed beyond the period of limitation prescribed by the Rules before the commencement of Section 38 of the Amendment Act of 1976, the granting of certificate under Clause 15 of the Letters Patent 19 useless and it is barred by Section 100-A of the C. P. C.

8. In the result, the applications are rejected but without any cost.

9. On the prayer of the petitioners, let there be stay of operations of the judgments and decrees for a month from today. Return the certified copies of the judgments and decrees of the Second Appeals, if filed, to the learned Advocates of the petitioners.


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