Hola Ram Vs. Kewal Krishan and Others - 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. - kewal krishan, 1985 pun lj 581. 2. after having failed, the plaintiff hola ram then moved an application for amendment of the plaint claiming therein that he is entitled to the total land being tenant thereon after the death of smt.order1. this petition is directed against the order of the trial court dt. 14-10-1987, whereby the application filed on behalf of the plaintiff for amendment of the plaint was rejected. the plaintiff-petitioner holaram along with one smt. ram piari filed a suit for possession by way of pre-emption claiming themselves to be the tenants on the suit land in equal shares. during the pendency of that suit smt. ram piari plaintiff died. the application filed by her legal representatives to be brought on the record was dismissed by the trial court by an, order dt. 22-12-1984. revision petition against the said order was also dismssed by this court reported as karan chand v. kewal krishan, 1985 pun lj 581.2. after having failed, the plaintiff hola ram then moved an application for amendment of the plaint claiming therein that he is entitled to the total land being tenant thereon after the death of smt. ram piari. that application was opposed by the defendants and the trial court dismissed the same with the observations that the proposed amendment was not necessary or proper in order to determine the real controversy in the suit. the trial court also found that under the circumstances when it was admitted on behalf of the plaintiff that the application for implead-ing the legal representatives of the deceased plaintiff smt. ram piari had already been dismissed and that order has achieved finality, the present application was not maintainable.3. the learned counsel for the petitioner submitted that since the petitioner was a tenant on the suit land in equal shares with smt. ram piari, he would be admitted to be a tenant on every parcel of the land and that being so he is entitled to a decree of the total land after the death of smt. ram piari. in support of this contention, he referred to partap singh v. kala ram, 1969 cur lj 829.4. after hearing the learned counsel for the parties, i do not find any merit in this petition. admittedly, in the plaint originally filed the plaintiffs claimed to be the tenants on the suit land in equal shares, i.e. one half each. if once the shares are determined then on the death of one tenant the other tenant would not claim to be the tenant on the whole land. as such, the judgment relied upon has no applicability to the facts and circumstances of the present case, as therein the shares of the tenants were not determined. in the circumstances, the petition fails and is dismissed withcosts.5. since further proceedings were stayed at the time of motion hearing, parties are directed to appear before the trial court on 10-8-1989.6. in order to expedite the hearing of the case, the parties shall produce evidence at their own responsibility and for that purpose one opportunity will be given to each party.7. petition dismissed.

Judgment:
ORDER

1. This petition is directed against the order of the trial Court dt. 14-10-1987, whereby the application filed on behalf of the plaintiff for amendment of the plaint was rejected. The plaintiff-petitioner HolaRam along with one Smt. Ram Piari filed a suit for possession by way of pre-emption claiming themselves to be the tenants on the suit land in equal shares. During the pendency of that suit Smt. Ram Piari plaintiff died. The application filed by her legal representatives to be brought on the record was dismissed by the trial Court by an, order dt. 22-12-1984. Revision petition against the said order was also dismssed by this Court reported as Karan Chand v. Kewal Krishan, 1985 Pun LJ 581.

2. After having failed, the plaintiff Hola Ram then moved an application for amendment of the plaint claiming therein that he is entitled to the total land being tenant thereon after the death of Smt. Ram Piari. That application was opposed by the defendants and the trial Court dismissed the same with the observations that the proposed amendment was not necessary or proper in order to determine the real controversy in the suit. The trial Court also found that under the circumstances when it was admitted on behalf of the plaintiff that the application for implead-ing the legal representatives of the deceased plaintiff Smt. Ram Piari had already been dismissed and that order has achieved finality, the present application was not maintainable.

3. The learned counsel for the petitioner submitted that since the petitioner was a tenant on the suit land in equal shares with Smt. Ram Piari, he would be admitted to be a tenant on every parcel of the land and that being so he is entitled to a decree of the total land after the death of Smt. Ram Piari. In support of this contention, he referred to Partap Singh v. Kala Ram, 1969 Cur LJ 829.

4. After hearing the learned counsel for the parties, I do not find any merit in this petition. Admittedly, in the plaint originally filed the plaintiffs claimed to be the tenants on the suit land in equal shares, i.e. one half each. If once the shares are determined then on the death of one tenant the other tenant would not claim to be the tenant on the whole land. As such, the judgment relied upon has no applicability to the facts and circumstances of the present case, as therein the shares of the tenants were not determined. In the circumstances, the petition fails and is dismissed withcosts.

5. Since further proceedings were stayed at the time of motion hearing, parties are directed to appear before the trial Court on 10-8-1989.

6. In order to expedite the hearing of the case, the parties shall produce evidence at their own responsibility and for that purpose one opportunity will be given to each party.

7. Petition dismissed.