SAINABA UMMA Vs. MOIDEENKUTTY

JUDGEMENT

(1.) This appeal has been preferred under S.5(ii) of the Kerala High Court Act against the judgment and decree in A.S. 355 of 1992. Appeal was filed on 17.9.2002. Judgment was delivered by the learned Single Judge on 26.11.2001. Application was preferred for copy of the judgment on 28.11.2001. Copy was ready on 3.12.2001 and date notified for appearance was 10.12.2001. However, copy was received by the appellant only on 3.9.2002. By the time S.100A was introduced by the Code of Civil Procedure (Amendment) Act 2002 with effect from 1.7.2002 by which no further appeal was provided to the Division Bench after 1.7.2002. We have already held in our judgment in AFA 91 and 88 of 2002 that no second appeal is maintainable after 1.7.2002, in view of S.100A of the CPC. Therefore this appeal is not liable to be admitted and hence dismissed as not maintainable.

(2.) Senior counsel appearing for the appellant Sri. P.N.K. Achan however, submitted that though he had raised a legal contention while arguing AFA 91 of 2002 that in computing the period of limitation for appeal the date from which the period is to be reckoned, the time requisite for obtaining copy of the judgment, shall be excluded was not properly considered. Counsel submitted S.5 of the Limitation Act refers to extension of prescribed period of limitation in certain cases while S.12 of the Limitation Act refers to exclusion of time in legal proceedings. In cases coming under S.5, it is only if the appellant satisfies the court that he has sufficient cause for not preferring the appeal within the period provided that the Section applies. In other words, counsel submitted extension provided under S.5 depends upon the discretion to be exercised by the Court while time taken for obtaining copy of the decree under S.12 of the Act refers to exclusion of time in legal proceedings and therefore no discretion vested in the court. Counsel submitted if the time is so excluded under S.12 of the Limitation Act and even if the case is filed after 1.7.2002, the same would be maintainable. Counsel placed reliance on the Full Bench decision of the Madras High Court reported in AIR 1970 Mad. 353 and reference was made to paragraph 18 of the judgment. Referring to the decision of the Apex Court in Addl. Collector of Customs v. Best and Co. AIR 1966 SC 1713 counsel pointed out the Supreme Court has stated that the provisions of S.12(2) and (3) are a positive directions excluding the time taken for obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the provisions of the Civil Procedure Code or the Rules made by a Court under S.12(2) of the Code.

(3.) We are of the view there would not be any quarrel regarding the proposition laid down by the Full Bench of the Madras High Court or by the Apex Court in Best & Co.s decision. But in cases where right to file appeal has been taken away by a statutory amendment with effect from 1.7.2002 neither S.5 or S.12 of the Limitation Act would enable the Court to entertain such appeals. By doing so court would be doing violence to the statute. S.5 and 12(2) of the Act would apply only in those cases where right to appeal survives. Further S.100A has employed a non obstante clause. A non obstante clause is appended to a section 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. We are of the view non obstante clause contained in S.100A would take away the effect of S.5(ii) of the Kerala High Court Act 1958 and the provisions contained under S.12(2) and 12(3) of the Limitation Act. Considerable stress was laid by the counsel on the decision of the Apex Court in Best & Co.s case and contended that provisions of S.12(2) and 12(3) are positive directions for excluding the time taken for obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Civil Procedure Code. The expression irrespective of the Code of Civil Procedure or the rules made by a Court under S.12(2) of the Code refers to not the cases where rights of appeal has been taken away but deals with the rules permitting him to file the appeal without annexing copy of judgment, order, decree etc. This is a case where further appeal has been taken away statutorily by the legislature by introducing S.100A by the Code of Civil Procedure (Amendment) Act, 2002. The Apex Court in Garikaoati Veeraya v. N. Subbiah Choudhury, AIR 1957 SC 540 , held that the vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment. It is true that if the appellant had received the copy of the judgment and decree in time he could have filed the appeal before 1.7.2002 and consequently appeal would have been maintainable. The delay in getting the requisite copy under S.12 of the Limitation Act could be excluded in legal proceedings only if the right of appeal survives. Such an appeal cannot be held maintainable by applying S.12 of the Limitation Act after 1.7.2002. Under such circumstances we are of the view either under S.5 or in a case falling under S.12(2) of the Limitation Act no appeal could be preferred after 1.7.2002 and it is so declared. Appeal would stand dismissed as not maintainable.