SHAHID HUSSAIN Vs. MAHTABA BEGUM AND ORS.

JUDGEMENT

(1.) This is an application seeking condonation of delay of 56 days in filing the Letters Patent Appeal against the decision of the learned Single Judge of this Court in CIMA No. 515/2012 dated 30.05.2017.

(2.) Mr. Raina, the learned senior counsel appearing on behalf of the respondent Nos. 1 to 6 took a preliminary objection that no useful purpose would be served by examining this application for condonation of delay, inasmuch as the Letters Patent Appeal itself is not maintainable. He took the support of Section 100-A of the Code of Civil Procedure Svt 1977 and submitted that where any appeal from an order is heard and decided by a Single Judge of the High Court, no further appeal can lie from the judgment of such Single Judge, notwithstanding anything contained in any Letters Patent of the High Court.

(3.) On the other hand, the learned counsel for the applicant submitted that Section 100-A was amended substituting the original Section 100-A through Act 6 of 2009 and the new Section 100-A took effect on 20.03.2009. He submitted that the present proceedings arose from the institution of a suit for preemption, being file No. 6/Civil, which was instituted in the Munsiff's Court, Kishtwar on 08.04.2002. He submitted that the amendment to Section 100-A took effect on 20.03.2009 subsequent to the institution of the said suit which was, as pointed out above, instituted on 08.04.2002, therefore, the right to appeal being a substantive right would vest on the plaintiff/applicant as on the date of institution of the suit i.e. 08.04.2002. He further submitted that this vested right could only be taken away by way of an express statutory provision or by necessary intendment of a statutory provision. According to him, there was no expression in Section 100-A to the effect that it was retrospective in operation and no such intendment could be discerned from the said provision either.