New India Assurance Co. Ltd. Vs. Kasturibai and ors. - Court Judgment

Excerpt:
- madhya pradesh uchcha nyayalaya (khand nyaypeeth ko appeal) adhiniyam (14 of 2006)section 2 & m.p. general clauses act, 1957, section 12: [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] appeal to division bench against judgment of single judge - application for restoration/revival of letters patent appeal under clause 10 - held, the legal effect of the 1981 adhiniyam was that with effect from 1st july 1981, all appeals under clause 10 of the letters patent were abolished except appeals which were pending before high court on date immediately preceding date of commencement of 1981 adhiniyam on 1st july 1981. it will be clear from sub-section 92) of section 1 of the 2005 adhiniyam that the 2005 adhiniyam was to come into force with retrospective effect from first day of july, 1981 i.e., with effect from the date from which the appeals under clause 10 of the letters patent were abolished by the 1981 adhiniyam. it will be further clear from section 2 of the 2005 adhiniyam that under the 2005 adhiniyam, appeal was provided for only from a judgment and order passed by a single judge in exercise of original jurisdiction under article 226 of the constitution of india to a division bench comprising of two judges of the high court and no appeal was provided for from the judgment and order passed by a single judge of high court in exercise of any other jurisdiction of the high court. it will also be clear from section 4 of the 2005 adhiniyam that sub-section (1) of section 4 repealed the 1981 adhiniyam. therefore by the repeal of the 1981 adhiniyam by section 4(1) of 2005 adhiniyam, appeals under clause 10 of the letters patent against judgment and decree passed by the single judge in exercise of its jurisdiction under section 96 of the code of civil procedure would not be revived as 2005 adhiniyam does not provide for any such revival. a reading of section 12 of the m.p. general clauses act, 1957, would show that the legislature must expressly state that the repealed act is either wholly or partially revived. where an act is passed repealing a repealing enactment, it shall not be considered as reviving any enactment previously repealed unless words are added reviving that enactment. in the absence of any express or implicit provision in the 2005 adhiniyam providing for appeal from a judgment, decree or order passed by single judge under section 96 of c.p.c., to a division bench, by virtue of the repeal of the 1981 adhiniyam, appeal under clause 10 of the letters patent from a judgment and decree passed by single judge in exercise of appellate jurisdiction under section 96 of c.p.c., are not revived. - it may well be said that in the aforesaid authority of gaya prasad v.tej shankar, j. 1. heard. 2. learned counsel for the appellant concedes that steps for service have to be taken for respondent no. 5. learned counsel for the respondent nos. 1 to 4 points out that the appeal itself is not maintainable and as such it will be futile to take steps for service of respondent no. 5. he relied upon the case of gaya prasad v. suresh kumar 1992 acj 200 (mp), in which full bench of this court has specifically held that order of interim compensation under section 140 of the motor vehicles act is not appealable under section 173. it has further been observed that if such order is passed arbitrarily the high court can give relief under article 227 of the constitution of india. learned counsel for the appellant points out that an application has also been moved for converting the appeal into a writ petition.3. i have heard the learned counsel on the points raised. it may well be said that in the aforesaid authority of gaya prasad v. suresh kumar 1992 acj 200 (mp), it has been observed, as stated above, that if the appeal does not lie but if the order is arbitrary, relief can be given under the provisions of article 227 of the constitution. there is nothing to show that any allegation is made that the impugned order is arbitrary. consequently, the question of converting the appeal into a writ petition does not arise. the appeal is not maintainable and there is no allegation of arbitrariness in the impugned order, the appeal and the application deserve to be dismissed as no useful purpose would be served in converting the appeal into a writ petition.4. the appeal is consequently rejected and the application for converting the appeal into a writ petition is also rejected. in the facts and circumstances of the case parties shall bear their own costs of this appeal.