GANESH SINGH Vs. BISHRAM SINGH

JUDGEMENT

(1.) A suit, Title Suit No. 5 of 1986 was filed by the appellants herein as the plaintiffs in the Court of the Subordinate Judge, Palamau, Daltonganj. The said suit was dismissed by the trial Court on 29.4.1989. An appeal was filed before this Court by the plaintiffs on 24.7.1989. That appeal was dismissed by a learned Single Judge of this Court on 21.1.2002. This appeal was filed invoking Clause 10 of the Letter Patent. The Code of Civil Procedure, as amended by Act 22 of 2002 and Act 46 of 1999 was brought into force with effect from 1.7.2002. Section 100 -A of the Code of Civil Procedure introduced by Act 104 of 1976 with effect from 1.2.1977 was amended. The present appeal was filed only on 30.9.2002, after the coming into force of the amended Sec.100 -A of the Code. The question is whether this appeal is maintainable or could be entertained by this Court.

(2.) EVEN at the outset, we must express our disappointment at the assistance we received in deciding this difficult question. But, our research has shown that while the Ahdhra Pradesh, Madhya Pradesh and Kerala High Courts have taken the view that no Letters Patent Appeal filed after 1.7.2002 would he maintainable, the Orissa High Court has taken the view that the appeal would be maintainable notwithstanding, the fact that it has been filed after 1.7.2002, provided it arises out of a suit filed prior to 1.7.2002. One of us (the Chief Justice) was a party to the decision of the Orissa High Court. The Orissa High Court did refer to the decision of the Andhra Pradesh High Court, but had no occasion to advert to the judgments of the Madhya Pradesh High Court and the Kerala High Court which followed the view of the Andhra Pradesh High Court, and took a view contrary to the one taken by the Orissa High Court. In view of the general importance of the question posed, we think it proper to discuss the question in some detail.

(3.) NOW , we shall refer to the decisions that have been rendered on this question. The first in point of time is the decision of the Andhra Pradesh High Court dated 1.8.2001 in S. Shiva Raja Reddy and Ors. V/s. S. Raghu Raj Reddy and Ors., 2002 (4) CCC 75. After an exhaustive reference to the relevant amendments and various decisions relevant to the question. The Division Bench of the High Court summed up the decision therein thus : Malindo Marandi Versus State Of Bihar