Lukshmi Shud Khadi Bhandar Vs. Bhagat Singh and ors. - 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. - the concluding part of the letter contained a warning to the plaintiffs that in case he failed to accede to the defendant's wishes, the latter would be forced to take the matter to court.1. the only question involved in this second appeal is whether the suit was within time because of an alleged acknowledgment of liability made by the defendant.2. it is not denied that in order that an acknowledgment may fall within the purview of section 19, limitation act, and give a fresh start to the period of limitation the acknowledgment should be of a subsisting liability. the acknowledgment upon which the plaintiff relied in the present case is said to be contained in ex. p-1, a letter written by the defendant to the plaintiff on 4th april 1940 and a statement of an account attached thereto. the letter itself does not contain any admission of liability. on the other band, it is mentioned therein that it is the plaintiff that owes something to the defendant. after referring to a previous letter that the defendant sent to the plaintiff, by which he was asked to appoint an arbitrator to settle his account, it went on to say that the plaintiff should nominate his arbitrator on the receipt of the letter so that the defendant might also nominate his arbitrator and take necessary steps to have the question referred to arbitration. the concluding part of the letter contained a warning to the plaintiffs that in case he failed to accede to the defendant's wishes, the latter would be forced to take the matter to court. the heading of the account which the defendant sent to the plaintiff with the letter mentioned above (ex. p-6) was 'statement of account showing the amounts payable by you to us.' it consisted of several items which, according to the statement, the plaintiff owed to the defendant and those due by the defendant to the plaintiff. the total of the first set of items came to rs. 736/2/3 and that of the second set to rs. 574/1/3, leaving a balance of rs. 162/1/- due by the plaintiff to the defendant.3. the counsel for the plaintiff-appellant urged that though the letter itself did not contain in so many words any acknowledgement of liability, taken along with the statement of accounts that accompanied it, it implied an 'acknowledgment of an open and unsettled account' and as such it was sufficient to attract the application of section 19. i have no hesitation in holding that the contention is wholly devoid of force. as i have already observed, the words of the letter not only do not imply any admission of the defendant's liability to the plaintiff, but on the other hand it is stated therein that the plaintiff owes something to the defendant and the statement of the account was enclosed with the letter in order to clarify the whole position. it is correct that the letter contained a request to the plaintiff to join with the defendant in referring the matter to arbitration for the settlement of the dispute, but the dispute, according to the contents of the letter, was with regard to the exact amount due by the plaintiff to the defendant and not by the defendant to the plaintiff. it is, therefore, entirely wrong to say that the letter either by itself or read along with the statement of account that accompanied it contained admission of an open account.4. counsel relied upon mt. diwanni widyawani v. ramji das & co. a.i.r.1939 lah.216, curlender v. abdul hamid 8 a.i.r. 1921 all. 335 and mani ram v. rup chand (1906)33 cal.1047. the facts of the lahore case were quite different. a dispute arose between the plaintiff and her agent who was managing a bungalow on her behalf. the duties of the agent included the letting out of this bungalow on rent and carrying out of repairs. the plaintiff wrote to her agent calling upon him to remit to her a certain amount which she claimed was due from him. the defendant wrote to her in reply that according to the account kept by him the amount due by him to her was only rs. 110-6-11, which was much less than the amount mentioned in the plaintiff's letter. the learned judge of the lahore high court held that the defendant's letter amounted to an acknowledgment of liability since it contained an admission of the existence of an unsettled outstanding account between him and the plaintiff. this ruling has no application whatever to the present case. in the allahabad case the plaintiff claimed that the period of limitation for the suit started afresh from a letter sent by the defendant to him with which he also enclosed a memorandum of account. the memorandum of account showed that the amount of rs. 1654 was as a matter of fact due to the plaintiff on a particular date, but the defendant squared the account on that date by debiting the plaintiff's account with the sum of rs. 1497-7-6 due to the defendant from the plaintiff and remitted the balance of rs. 156-8-6 to the defendant. the learned judges, without giving any reason in support of the conclusion reached by them, held that the memorandum of account was an acknowledgment of right within the meaning of section 19, limitation act and then went on to discuss whether the suit was within limitation, because of part payments of the principal sum from the defendant to the plaintiff within the meaning of section 20, limitation act. this fact was also found in favour of the plaintiff. from a perusal of the judgment i am not in a position to say what considerations weighed with the learned judges for holding that the entries in the memorandum of account amounted to an acknowledgment of liability and whether there were certain words in the letter with which the statement of account was enclosed that were also taken into account. apart from this it appears to me that the statement of account could be construed as containing an acknowledgment of a subsisting liability and. it was with a view to meet that liability in part that the defendant had debited the amount of rs. 1497-7-6 to the plaintiff. the statement of account in the present case, in so far as it referred to the amount payable by the defendant to the plaintiff, merely showed that some amount was due by the defendant to the plaintiff at one time, and accordingly if it involved the acknowledgment of any liability it was of past liability and as such it could not be taken any advantage of under section 19. as regards 4he privy council case, the acknowledgment that their lordships held to fall within the meaning of section 19, limitation act consisted of an admission by the defendants that a sum of money had been received by them and that there were open and current accounts between the parties.5. in my view the cases that are applicable here are murree brewery co. v. hazura mal (1987) 60 p.r.1887, miran bakhsh v. mt. mehr bibi 2 a.i.r. 1915 lah. 375 and jugal kishore v. t. caul : air1927all317 . in the first case the following letter had been written by the defendant to the plaintiff:i find the account against you amounting to rs. 1743 and the credits yon are entitled to are rs. 503, leaving a balance due to the company (defendants) of rs. 1239. i enclose details of each side of the account, and must request a very early settlement of the same. it was held that the letter was not an acknowledgment of any amount due by the defendants to the plaintiff. in the second case the plaintiff took his standi upon a written statement that the defendant had filed in a previous case wherein he had admitted that he had once taken rs. 1,000 from the plaintiff as an earnest money but added that the amount had been more than repaid by delivery of cotton to the value of rs. 3,000. it was held that the written statement did not amount to an acknowledgment of liability in respect of rs. 1,000. after observing that they found it difficult to understand how a statement of that kind could be construed into an admission of then existing liability in respect of rs. 1,000 and distinguishing mani ram v. rup chand (1906)33 cal.1047 this is what rattigan, j. said:in the present case there is no admission that open and current accounts were in existence between the plaintiffs and the defendants at the time when the written statement was filed, nor is there any admission from which a liability to pay the sum of rs. 1,000 can be implied.6. in the third case the letter sent by the defendant to the plaintiff contained the following words:i do not understand why you persist in sending me bills when you yourself owe me rs. 528. please deduct your bill from the money you owe me and send the balance of rs. 181-8 at your earliest. it will oblige. don't sent any more bills please.7. the learned judge repelling the plaintiff's contention that the letter contained an acknowledgment of liability observed that instead of containing any acknowledgment, the letter expressly denied any liability.8. relying upon these authorities i hold that the lower appellate court was right in finding that the plaintiff's suit was barred by time and dismiss the appeal with costs.