Citi Financials Consumer Finance India Ltd. Vs. Rabindra Nayak - 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. pradip mohanty, j.1. this civil revision is directed against the order dated 25.03.2006 passed by the learned civil judge (junior division), 1st court, cuttack in c.s. no. 161 of 2005 rejecting an application under section 8 of the arbitration & conciliation act, 1996.2. the brief facts of the case are that the opposite party/plaintiff filed a suit in the court of civil judge (junior division), 1st court, cuttack registered as c.s. no. 161 of 2005 praying therein to declare that defendant/petitioner in this case is not entitled to lend money to public by way of loan charging high rate of interest & further praying to injunct the petitioner from collecting the alleged high rate of interest from the house of the o.p. till the interest is calculated & adjusted by the court. before filing the written statement, the petitioner/defendant filed a petition under section 8 of the arbitration & conciliation act, 1996 with a prayer to refer the matter to an arbitrator. the trial court, however, rejected the application on 25.03.2006 on the ground that the petitioner had not complied with the provisions of section 8 (2) of the arbitration & conciliation act & that the suit filed by the opposite party/ plaintiff involves mixed questions of facts & law. against that order, the petitioner/defendant preferred this revision.3. mr. pattnaik, learned counsel for the petitioner contended that the subject matter of the suit is an arbitration agreement between the parties, in clause 30 whereof no specific court at delhi has been mentioned who has got the exclusive jurisdiction over the matters in dispute. the arbitration agreement was filed on 24.01.2006 before the court below along with the application. but, without adjudicating the same on the merits, it rejected the same. it is the settled principle of law that the defendant at the first instance had the option of filing a petition under section 8 of the arbitration act before the court below. against rejection of that application, civil revision will lie. in support of his submission, he has relied upon the decision in the case of tulsi ram and ors. v. mathura sagar pan tatha krishi and anr. : air 2003 sc 243. he also submitted that the court below should have referred the matter for arbitration in consonance with the arbitration agreement.4. learned counsel for the opposite party submitted that the civil revision which arises out of an interlocutory order, is not maintainable in view of the ratio in shiv shakti co-operative housing society v. swaraj developers and ors. : air 2003 sc 2434. moreover, the suit filed by the opposite party in the court of civil judge (junior division) is valued at rs. 500 for declaration & rs. 100 for injunction. therefore, the civil revision should have been filed before the learned district judge, cuttack. he submitted that there is no illegality committed by the court below in rejecting the petition under section 8 of the arbitration & conciliation act. section 8 of arbitration & conciliation act is very clear that a judicial authority shall entertain such an application after compliance of provisions of section 8(2) of the arbitration & conciliation act. in clause 30 of the arbitration agreement, no specific court or authority has been mentioned before whom the parties to the agreement should approach in case any dispute arises between them. therefore, the learned civil judge (junior division) has rightly rejected the application.5. perused the record. considered the submissions made by the parties. there is no dispute that the suit is valued at rs. 500 & is pending before the civil judge (junior division), 1st court, cuttack. the suit is for declaration. therefore, the civil revision petition is not maintainable before this court. it ought to have been filed before the district judge but not before this court.the civil revision is accordingly dismissed.