SPECIAL LAND ACQUISITION OFFICER, TALCHER (AHO.NO.8/2000) NEW INDIA ASSURANCE Vs. TANKADHAR MANABHOI AND OTHERS (AHO.NO.8/2000) NISHI DIBYA

JUDGEMENT

(1.) THE preliminary question involved is whether these Letters Patent Appeals filed under Clause 10 of the Letter Patent read with Orissa High Court Order, 1948 can be entertained after coming into force of the Code of Civil Procedure Amendment Act, 46 of 1999, as amended by the Code of Civil Procedure Amendment Act, Act 22 of 2002 on 1.7.2002. These appeals were filed prior to 1.7.2002. But they have not so far been admitted after a scrutiny under Order 41, Rule 11 of the Code of Civil Procedure. In this situation, the question to be decided is whether these appeals are maintainable or can be entertained after the insertion of Section 100A of the Code of Civil Procedure as it now exists.

(2.) SECTION 100A of the Code of Civil Procedure was inserted by Amendment Act 104 of 1976. The Section as then inserted read thus : - "S. 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, 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." Section 97 of Amendment Act 104 of 1976 by Sub -Section 2 (n) saved Letters Patent Appeals which had been admitted before the commencement of the amended Section with effect from 1.2.1977. For convenience, we may extract Section 97 (2) (n) of Act 104 of 1976 hereunder : - "(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;" Thus, the bar on filing appeals against Second Appellate decrees was introduced. But, the above provisions saved appeals filed against Second Appellate decrees provided they had been admitted prior to 1.2.1977. No bar was introduced on the filing of Letters Patent Appeals from judgments of single Judge in exercise of their First Appellate jurisdiction. But then, the said provision underwent an amendment by Act 46 of 1999 which read as follows : "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, - (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 High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge." Section 32 (2) (g) of Act 46 of 1999 also saved all appeals admitted prior to the coming into force of that Act. But, these provisions were not brought into force. The Section was again amended by Act 22 of 2002. As amended, the Section reads thus : "100A. 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 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." Thus, an appeal from a decree passed in exercise of First Appellate jurisdiction by a single Judge was also brought within the purview of Section 100A of the Code of Civil Procedure. In other words, it was provided that no Letters Patent Appeal would lie against a second appellate judgment or a first appellate judgment. The constitutional validity of the above amendment came to be considered by the Supreme Court in Salem Advocate Bar Association, Tamil Nadu etc. v. Union of India (AIR 2003 SC 189). In paragraphs 13 to 15 of that judgment, their Lordships dealt with the question of validity of Section 100A of the Code and its validity was upheld. As noticed, Section 32 (2) (g) of Act 46 of 1999 saved all appeals admitted prior to the coming into force of Section 100A as inserted. Section 32(2) (g) of Act 46 of 1999 was omitted by Section 16 of Act 22 of 2002. In Section 16 of Act 22 of 2002 dealing with Repeal and Savings, nothing was mentioned about Section 100A of the Code as amended by Act 22 of 2002. In other words, there was no provision corresponding to Section 32(2) (g) of Act 46 of 1999 or corresponding to Section 97(2) (n) of Act 104 of 1976.

(3.) THE question then is whether Section 97 (2) (n) of Amending Act 104 of 1976 brings about any change in this situation. It was Act 104 of 1976 that originally inserted Section 100A of the Act into the Code preventing the filing of further appeals from Second Appellate decrees but saving those appeals already filed and which had been admitted under Order 41, Rule 11 of the Code of Civil Procedure, as on the date of the coming into force of that Act, namely, 1.2.1977. It is no doubt true that a right of further appeal from a Second Appellate decree was lost not only in suits instituted subsequent 1.2.1977 but also in appeals actually filed but not admitted under Order 41, Rule 11 of Code of Civil Procedure prior to 1.2.1977. Therefore, notwithstanding Section 6 of the General Clauses Act, a clear contrary intention was expressed by the Amending Act by virtue of Section 97(2) (n) thereof. but, the amendment brought about by Act 104 of 1976 only related to the right of appeal against Second Appellate Decree. The embargo on filing an appeal against a First Appellate decree is created and brought into force only by Act 22 of 2002 which came into force on 1.7.2002. Considered i the context of rights saved by operation of Section 6 of the General Clauses Act and taking note of the fact that a right of further appeal from a first appellate decree had accrued to the suitor when he instituted the suit giving right to such an appeal, it is clear that the provision cannot destroy the right of appeal which had already accrued to the suitor, since the filing of a suit carries with it the right of appeal conferred by the Statute. There is nothing in Amending Act 22 of 2002 which destroys that right. It is also not possible to resort to Section 97(2) (n) of Act 104 of 1976, to import a theory that only appeals admitted under Order 41, Rule 11 of the Code of Civil Procedure prior to .1.7.2002 are saved since Section 97(2) (n) is not part of Act 22 of 2002 which introduced the present Section. Going by the general principle that a right of appeal accrues to the suitor on his instituting the suit and that right is not destroyed retrospectively, unless otherwise provided, we have no hesitation in holding that the bar created by Section 100A of the Code of Civil Procedure as amended by Act 22 of 2002 will apply only in cases where suits are instituted subsequent to 1.7.2002, the date on which the provision was brought into force.