FAZAL ALI Vs. AMMA KHATUN

JUDGEMENT

(1.) At the motion stage, a question of wide ramification arises for consideration is whether the Special Appeal filed under Article 225 of the Constitution of India against the judgment of a learned single Judge passed in an appeal preferred under Section 173 of the Motor Vehicles Act is not maintainable in view of Section 100-A introduced by the Code of Civil Procedure (Amendment) Act, 2002 with effect from 1-7-2002?

(2.) The impact of Section 100-A with respect to special appeals preferred under Section 18 of Rajasthan High Court Ordinance, 1949, as stood before commencement of the Constitution and imported under Article 225 of the Constitution, against an original or appellate decree or order passed by the learned single Judge after 1-7-2002 was examined by the Division Bench of this Court in UCO Bank v. Roopa Ram reported in (2003) 6 ILD 421 : (AIR 2003 Rajasthan 222), to which one of us (Mathur, J.) was a party. The Division Bench held that in view of Section 100-A of the Code of Civil Procedure (Amendment) Act, 2002, appeals filed after 1-7-2002 are not maintainable and only such letters patent appeals saved are those filed prior to 1-7-2002 whether they have been admitted or not. The question in the instant appeal pertains to impact of Section 100-A with respect to special appeals under Article 225 of the Constitution against the appellate order passed in appeal under special enactment namely Motor Vehicles Act by learned single Judge after 1-7-2002.

(3.) It is submitted that paramount Charter under which the High Court functions, would not get excluded by a provision incorporated in the Code of Civil Procedure. Elaborating the contention, it is submitted that a Motor Accident Claims Tribunal not being a civil Court, restrictions provided under Section 100-A of the Code of Civil Procedure are not attracted. Strong reliance is placed on a Full Bench decision of this Court in United India Insurance Company Limited v. Brij Mohan Das reported in 1998 WLC (Raj) UC 1. It is also contended that the legislature has deliberately omitted to extend the provisions of Section 100-A to an order passed on appeal under Section 173 of the Motor Vehicles Act by not using the words "decision of Tribunal" after the words "decree or order". It is also argued that the Motor Vehicles Act is a Special Act and it does not prohibit further appeals from the judgment of the learned single Judge; Reliance has been placed on a recent decision of the Honble Supreme Court in the case of Subal Paul v. Malina Paul reported in (2003) 5 JT (SC) 193 : (AIR 2003 SC 1928) Virtually, no argument has been advanced by any of the Counsel opposing the maintainability of the Special Appeal in view of Section 100-A, CPC. However, there are formidable contentions, which deserve to be considered before answering the question posed.