Chandiwal K.U., J.
1. Heard.
2. The dismissal of suit for recovery of Rs. 3750/- dated 10.1.2000 and first appeal on 19.3.2002 is the subject of appeal.
3. The short question is : Does a right of second appeal accrue to the plaintiff in spite of inhibition envisaged in Section 102 C.P.C. by amendment dated 1.7.2002.
4. The Counsel canvassed, Section 102 C.P.C. does not spell to be prospective and since appeal is a continuation, the right shall exist.
5. It is not a controversy that appeal is continuation of original proceedings, to seek redressal, unless and until it dictates contrary. By virtue of Section 16(2)(b) of Code of Civil Procedure (Amendment) Act, contemplating repeal and savings, the proviso of Section 102 of the Principal Act, as substituted by Section 5 of the Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5, and every such appeal shall be disposed off as if Section 5 had not come into force.
6. The legislative intent behind Section 16(2)(b) and Section 102 is more than clear. Right of appeal as generally flow has indeed a inbuilt restriction imposed by above enactment. The saving 'appeal admitted', need not be stretched to mean that appeal pending admission after 1st July, 2002 can be considered notwithstanding legal bar of Section 102 C.P.C.
7. The Full Bench of this Court, while considering effect of Section 100A C.P.C. Mohd. Riyazur Rehman Siddiqui v. Deputy Director of Health Services : 2008(6) Bom.C.R. 723 (A.B.) : 2008(6) Mh.L.J. 941, D.D. 25.9.2008, formulated following questions of law:
(a) Whether upon amendment to Section 100A of the Code of Civil Procedure, 1908 (with effect from 1st July, 2002), the Letters Patent Appeal against the judgment rendered by the learned Single Judge of High Court would be maintainable?
(b) Whether an appeal arising out of special statute like Motor Vehicles Act, 1988 (even if assuming that it is a special statute) would be maintainable under Clause 15 of the Letters Patent against the judgment passed by the learned Single Judge of this Court in exercise of its appellate jurisdiction?
and the Full Bench has recorded the answer as under:
(a) Upon amendment of Section 100A of the Code of Civil Procedure by Amending Act of 2002 with effect from 1st July, 2002, no Letters Patent Appeal would be maintainable against the judgment rendered by the learned Single Judge of the High Court under the provisions of Section 173 of the Motor Vehicles Act, 1988.
(b) Appeal against the judgment of the learned Single Judge in exercise of its appellate jurisdiction under Section 173 of the Motor Vehicles Act, 1988 even with the aid of Clause 15 of the Letters Patent is not maintainable and in fact, in both these situations, the Appellate Court would have no jurisdiction to entertain and decide such an appeal.
8. Thus, there should not be any ambiguity in interpreting Section 102 C.P.C. in the light of Section 16(2)(b) that it will not be applicable to appeal after 1st July, 2002 irrespective of cause to the lis prior thereto. The right of appeal conferred on an individual being subject to restrictions as imposed, inhibiting second appeal for the dispute involving recovery of money not exceeding Rs. Twenty five thousand. Section 6 of the General Clauses Act will not be attracted to the case in question. The vested rights are taken away by express provision embodied in Section 16(2)(b). The legislature was well aware of pending cases before putting in amendment, the restriction imposed carving exception to admitted appeal: does not leave any doubt and the appeals filed after 1.7.2002 shall not be maintainable, as the amendment is prospective.
9. Second appeal is not maintainable hence dismissed.