Gagan Bihari Nanda Vs. Project Officer and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. p.c. naik, j.1. his application for compensation having been dismissed, the claimant assails the said order before this court.2. on 18.11.1989, the claimant was knocked down by a jeep bearing registration no. ord 4276 as a result of which he sustained a fracture of his right leg, left hand and some ribs. alleging that the accident was due to rashness and negligence of the jeep driver, compensation amounting to rs. 1,00,000/- was claimed from the owner and insurer of the jeep.3. the owner of the jeep, respondent no. 1, denied his liability and pleaded that the accident was solely due to rashness and negligence of the claimant, and as such, the claimant was not entitled to any compensation.the insurance company, respondent no. 2, admitted that it was the insurer but denied its liability on the ground that the accident was not due to any rashness and negligence of the jeep driver.4. in support of his claim, the claimant has examined himself and narrated the circumstances under which the accident took place. twenty-six documents were filed and exhibited in support of his claim. no evidence in rebuttal was adduced by the owner and insurer of the jeep. a copy of the insurance policy was, however, filed and marked as exh. a.5. the learned tribunal discarded the evidence of the claimant and by placing reliance on the police papers and in regard of g.r. case has rejected the application. it is under these circumstances, the matter is now before this court.6. having heard the learned counsel, i am of the opinion that the order dismissing the claim cannot be sustained and has to be set aside. it is rather strange and unfortunate that the learned tribunal in utter disregard to the rules of evidence suo motu summoned the record of the g.r. case and by placing reliance on that record and in particular the m.v.i's report (which is a part of g.r. case record) disbelieved the claimant's evidence and rejected his claim.7. the learned tribunal seems to have completely lost sight of the fact that a case is to be decided one way or the other on the basis of the evidence and documents on record of that particular case, not on the basis of material which is extraneous to the record. in the case at hand, no evidence whatsoever, either oral or documentary, was adduced by the opposite parties. the last page of the impugned award contains a list of witnesses examined for the claimant and list of documents admitted on behalf of the claimant. this list does not indicate that the police papers or the report of the m.v.i, was exhibited on behalf of the opposite parties. admittedly, neither the m.v.i. was examined nor the alleged report proved and exhibited in this case. under which provision of law the said documents and g.r. case record was considered as part of the record in the claim case can only be explained by the learned presiding officer, as the learned counsel appearing for the respondents have not been able to point out any such provision or authority to support the procedure adopted by the learned tribunal. no doubt the tribunal had the power to dismiss the claim if for cogent reasons, it discarded/disbelieved the evidence adduced by the claimant, but it could not discard the evidence on the basis of some extraneous material which was not a part of the record of the claim case. this court does not appreciate the strange and unusual procedure adopted by the learned tribunal in disposing of the case. under the circumstances, the award cannot be sustained and is set aside accordingly.8. for the reasons aforesaid, the appeal is allowed and the matter is remitted to the appropriate tribunal which would, on the basis of material already on record, hear the parties and pass a fresh award in accordance with law. no order as to costs.