AJIT KUAMR SINGH Vs. MOST RAJEYA KHATOON

JUDGEMENT

(1.) Interlocutory Application No.8796 of 2013:

(2.) This Appeal under Clause 10 of the Letters Patent has been preferred by the appellants against the judgment and order dated 9th April 2012 passed by the learned single Judge in Miscellaneous Appeal No. 274 of 2007 filed under Section 173 of the Motor Vehicles Act, 1988 (arising from the order dated 28th April 2007 passed by the learned Additional District Judge-cum-Claims Tribunal, East Champaran, Motihari in Claim Case No. 55 of 2003). The first and foremost question that arises is that of maintainability of the Letters Patent Appeal against the appellate order of the learned single Judge.

(3.) Learned advocate Mr. Md. Shahnawaz Ali has appeared for the appellants. He has relied upon the judgment of the Bombay High Court in the matter of Asha Vs. National Insurance Co. Ltd., 2008 2 TAC 332 (Bom.)]. In the said matter, the Division Bench of the Bombay High Court entertained the Letters Patent Appeal preferred by the claimants against the judgment in an appeal filed under Section 173 of the Motor Vehicles Act. As to the maintainability, the Court has held that while considering the appeal under Section 173 of the Motor Vehicles Act, the learned single Judge of the High Court did not exercise appellate jurisdiction under C.P.C. Hence, the Letters Patent Appeal was not barred by Section 100A CPC and was maintainable. The above view is shared by the Karnataka High Court in the matter of Union of India and another Vs. M/s. Mysore Paper Mills Ltd., 2004 AIR(Kar) 1. According to the Karnataka High Court, Tribunal constituted under the Motor Vehicles Act is not a Court. Section 100A CPC therefore does not apply to the appeals arising under Section 173 of the Motor Vehicles Act. A similar view has been taken by the Full Bench of the Gujarat High Court. In the matter of Nasik Hing Supplying Co. Vs. Annapurna Gruh Udyog Bhandar Ahmedabad & Anr, 2003 AIR(Guj) 275, identical issue was under consideration by the Gujarat High Court in respect of an appeal arising under Section 109(5) of the Trade and Merchandise Marks Act, 1958. The learned Judges of the Gujarat High Court held that Section 100A CPC, since its amendment in 1999 and 2002, bars a further appeal before the Division Bench of the High Court against the decision of a learned single Judge of the High Court in appeals under Sections 96, 100 & 104 of the CPC. "Where a special law provides for appeal against a decision of a single Judge of this Court to a Division Bench of this Court, the provisions of such special law will prevail because Section 100A of the CPC is a part of general law of procedure which does not take away the substantive right of appeal provided by a special law, notwithstanding the non-obstante clause with which Section 100A commences".