OM PARKASH Vs. SOHAN LAL

JUDGEMENT

(1.) In support of this Review Petition, the leaned counsel has relied upon a judgment of Supreme Court in the case of Sharda Devi v. State of Bihar, 2002 3 SCC 705] to contend that the ratio of the aforesaid Supreme Court judgment supports the view that despite the bar created in Section 54 of the Land Acquisition Act, 1894 an Appeal under the Letters Patent was maintainable against the judgment of a Single Judge of the High Court to the Division Bench and, therefore, applying the aforesaid ratio in Sharda Devi v. State of Bihar we should review our judgment dated 22nd September, 2003 because it is erroneous in law.

(2.) We have seen the aforesaid judgment in Sharda Devi and noticed that Section 100A, Code of Civil Procedure has not even been noticed, referred to, in the said judgment by their Lordships and perhaps for the simple reason that at the relevant time it was not on the Statute Book. Section 100A creates a clear bar in the maintainability of an Appeal before a Division Bench of the High Court, notwithstanding anything contained in any Letters Patent, even if an appeal before the Division Bench arises from the judgment of a Single Judge given in an appeal, either from the original or appellate decree or order passed by the lower Court. Actually their Lordships of the Supreme Court in para 11 of the aforesaid judgment while referring to Section 54 of the Land Acquisition Act clearly made observations with respect to expression "enactment" as occurring in Section 54 and had thus indicated that expression "enactment" would not include the provisions contained in any Letters Patent. Para 11 reads thus:Mr. Sharan submits that Section 54 of the said Act contains a non obstante clause. He submits that the words notwithstanding anything to the contrary in any enactment for the time being in force would also include the provisions contained in a Letters Patent. We are unable to accept this submission. A Letters Patent is not an enactment. It is the charter of the High Court. A nun obstante clause of this nature cannot cover the charter of the High .

(3.) Section 100A, C.P.C, now includes within its ambit provisions contained in the Letters Patent as well and, therefore, an appeal in the aforesaid circumstances is clearly held not maintainable. This apart, Sharda Devi was decided by the Supreme Court on 13th March, 2002 whereas Section 100A, Code of Civil Procedure came into force on 1st July, 2002. In additional to this, Sharda Devi was a judgment which arose from an appellate order passed by the Patna High Court on 1st May, 1996. Actually it was on 1st May, 1996 that the Division Bench of Patna High Court had disposed of the Letters Patent Appeal. The original appellate order was passed by the Single Judge as far back as on 25th April, 1988. The aforesaid dates would indicate that the right to appeal had actually stood vested in the parties long before Section 100A was introduced in July, 2002.