NaraIn Das Vs. Co-operative Society Through Pt. Gurdas Ram, Vice President of the Society - 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. kapur, j.1. this is an appeal from a judgment of a learned single judge of this court dated 31st december 1948 holding that the appeal ]ay to the district judge and not to the high court & thus giving effect to the objection to the forum of appeal raised by the present respondent.2. narain das appellant entered into anagreement with the co-operative society oflahara village for extraction of resin at a rentalof rs. 11,425/12/6 out of which he paid to thesociety rs. 5600/- and dispute arose in regardto the balance rs. 5825/12/6. under section 20,arbitration act, the society made an applicationto the court for filing the arbitration agreement. in the heading of this application itstated that the application was under theindian arbitration act, 10 of 1940 in respectof a sum of rs. 5825/12/6. in para. 4 of thepetition the applicant stated that rs. 5600 hadbeen received from the then respondent andthat rs. 5825/12/6 were due from him. mr.har charan das, sub judge, 1st class, una, byan order dated 12th april 1948 ordered' theagreement to be filed. against this order anappeal was brought to this court and objectionwas successfully taken that the appeal shouldhave been taken to the district judge. anappeal against this judgment has been broughtby the respondent narain das. ;3. 'court' is defined in section 2(c), arbitration act as follows: '(c) 'court' means a civil court having jurisdiction to decide the questions forming thesubject-matter of the reference if the samehad been subject-matter of a suit, but doesnot, except for the purpose of arbitrationproceedings under section 21, include a smallcause court.'as i read it, it means that all proceedings under the arbitration act will have to be taken to the court which would have jurisdiction todecide the question which formed the subject-matter of the reference and the subject-matterin the present case is over rs. 5000 and there-tore the application was rightly made in thecourt of a sub judge 1st class, under section 39of the act ah appeal lies from the orderstherein given to the court authorised by lawto hear appeals from original decrees of thecourt passing the order. if the applicant hadbrought a suit for the sum which he has statedin his application to be due from the respondent(now appellant) the appeal would lie to thehigh court whatever the amount decreed bythe .trial court. i am of the opinion that ifsections 2(c) and 39 are read together the appealagainst an order passed in the present application would lie to this court and not to thecourt of the district judge. i would, therefore,allow this appeal and set aside the judgmentof the learned single judge. the appellant willhave his costs of the letters patent appeal.the case will be set down for hearing in thelist before a single judge.soni, j.4. i agree.