Shree Ranisati Processors (P) Ltd. Vs. Gayatri Panda - 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. - xxx xxx xxxadvocate for the applicant as well as o. after careful consideration of the petition as well as objection, i am not inclined to accept the petition dt. therefore, in passing the impugned order learned commissioner has illegally failed to exercise jurisdiction vested on him.orderb.k. patel, j.1. learned counsel appearing for the petitioner-employer, opp. parties 1 to 3 claimants & opp. party no. 4 esi corporation are present.2. heard3. in this writ application the petitioner has assailed the order dated 14.7.2008 annexure-4 passed by the commissioner for workmen's compensation-cum-deputy labour commissioner, cuttack in w.c. case no. 137-d/2005 rejecting petitioner's application under order 9 rule 13 r/w section 151 c.p.c to set aside exparte judgment dated 12.2.2008.4. the impugned order reads as follows:xxx xxx xxxadvocate for the applicant as well as o.p. no. 1 are present. advocate for the applicant filed written objection to the petition dated 9.6.2008 filed by o.p. no. 1. heard. after careful consideration of the petition as well as objection, i am not inclined to accept the petition dt.9.6.08 since the judgment has already been passed as per order dt.12.2.08. further, i have no jurisdiction to consider the same. hence rejected. direct the o.p. no. 1 to deposit the award amount of compensation immediately in this court within one month from receipt of this order.xxx xxx xxx5. obviously the only ground assigned by the learned commissioner for rejecting petitioner's application under order 9, rule 13 c.p.c appears to be on the basis of the observation that he has no jurisdiction to consider the application. however, as has been pointed out by the learned counsel for the petitioner, rule 41 of the workmen's compensation rules, 1924 provides that provisions under order 9 shall apply to the proceeding before the commissioner. therefore, in passing the impugned order learned commissioner has illegally failed to exercise jurisdiction vested on him. therefore, the matter has to be remanded back to the commissioner for disposal of the application under order 9 rule 13 c.p.c. on merit.6. accordingly, the writ application is allowed. order dated 14.7.2008 passed by the commissioner for workmen's compensation-cum-deputy labour commissioner, cuttack in w.c. case no. 137-d/2005 is set aside. the matter is remanded to the learned commissioner with a direction to consider & dispose of the application under order 9 rule 13 read with section 151 c.p.c. filed by the petitioner afresh. parties are directed to appear before the commissioner on 7.12.2009 on which date the learned commissioner shall fix a date for hearing on the petition so as to pass final order on the application under order 9 rule 13 c.p.c. within two months thereafter.7. urgent certified copy of the order be granted on proper application.

Judgment:
ORDER

B.K. Patel, J.

1. Learned Counsel appearing for the Petitioner-employer, Opp. Parties 1 to 3 claimants & Opp. Party No. 4 ESI Corporation are present.

2. Heard

3. In this writ application the Petitioner has assailed the Order Dated 14.7.2008 Annexure-4 passed by the Commissioner for Workmen's Compensation-cum-Deputy Labour Commissioner, Cuttack in W.C. Case No. 137-D/2005 rejecting Petitioner's application under Order 9 Rule 13 r/w Section 151 C.P.C to set aside exparte Judgment dated 12.2.2008.

4. The impugned order reads as follows:

xxx xxx xxxAdvocate for the applicant as well as O.P. No. 1 are present. Advocate for the applicant filed written objection to the petition dated 9.6.2008 filed by O.P. No. 1. Heard. After careful consideration of the petition as well as objection, I am not inclined to accept the petition dt.9.6.08 since the Judgment has already been passed as per order dt.12.2.08. Further, I have no jurisdiction to consider the same. Hence rejected. Direct the O.P. No. 1 to deposit the award amount of compensation immediately in this Court within one month from receipt of this Order.xxx xxx xxx

5. Obviously the only ground assigned by the Learned Commissioner for rejecting Petitioner's application under Order 9, Rule 13 C.P.C appears to be on the basis of the observation that he has no jurisdiction to consider the application. However, as has been pointed out by the Learned Counsel for the Petitioner, Rule 41 of the Workmen's Compensation Rules, 1924 provides that provisions under Order 9 shall apply to the proceeding before the Commissioner. Therefore, in passing the impugned order Learned Commissioner has illegally failed to exercise jurisdiction vested on him. Therefore, the matter has to be remanded back to the Commissioner for disposal of the application under Order 9 Rule 13 C.P.C. on merit.

6. Accordingly, the writ application is allowed. Order Dated 14.7.2008 passed by the Commissioner for Workmen's Compensation-cum-Deputy Labour Commissioner, Cuttack in W.C. Case No. 137-D/2005 is set aside. The matter is remanded to the Learned Commissioner with a direction to consider & dispose of the application under Order 9 Rule 13 read with Section 151 C.P.C. filed by the Petitioner afresh. Parties are directed to appear before the Commissioner on 7.12.2009 on which date the Learned Commissioner shall fix a date for hearing on the petition so as to pass final order on the application under Order 9 Rule 13 C.P.C. within two months thereafter.

7. Urgent certified copy of the order be granted on proper application.