Dassi Vs. Dhani Ram Teku - 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. - she has herself appeared in the witness-box and has stated that she had no illicit relations with dhani ram,,ordinarily, in a letters patent appeal ,the bench is entitled to consider the evidence afresh but unless very strong grounds are made out, the letters patent bench will accept the finding of the fact arrived at by the learned single judge after due consideration of the evidence on the record in the instant case is not sufficient to come to the conclusion that the charge of adultery has been proved.tuli, j.1. shrimati dassi, wife of dhani ram, respondent filed a petition under section 13 of the hindu marriage act, 1955, for divorce on the ground that her husband was living in adultery with one shrimati reoti. the learned trial court granted to the petitioner a decree for divorce against her husband with costs on 24th january 1962. against that decree, dhani ram filed an appeal which was accepted by d.k. mahajan j., on 8th march, 1963, and the petition of shrimati dassi was dismissed leaving the parties to bear their own costs throughout.2. shrimati dassi, feeling aggrieved from the judgment of d.k. mahajan, j. has filed this letters patent appeal.3. shri m.c. sood, learned counsel for the respondent has raised a preliminary objection that the letters patent appeal is not maintainable as it is not provided in the hindu marriage act, 1955 (hereinafter called the act). there is no merit in this objection. section 19 of the act provides:'every petition under this act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together.'4. 'district court' has been defined in section 3(b) of the act as under:'district court' means, in any areas for which there is a city civil court, that court, and in any other area the principle civil court of original jurisdiction. and includes any; other civil court which my be specified by the state government, by notification in the official gazette, as having jurisdiction in respect of the maters dealt with in this act.'section 21 of the act provides:'subject to the other provisions contained in this act and to such rules as the high court may make in this behalf, all proceedings under this act shall be regulated, as far as may be, by the code of civil procedure, 1908 (act v of 1908).'5. section 28 of the act provides that all decrees and orders made by the court in any proceedings under this act may be appealed from under any law for the time being in force provided that there shall be no appeal on the subject of costs only.6. from the provisions of the act cited above, it is at once clear that the court in which proceedings are held on petitions under the act is the established court and the; appeals from its decrees and orders lie to the court to which appeals from decrees and orders passed in civil suits will lie. it was held by the house of lords in national telephone company v. his majesty's postmaster general, 1913 a.c. 546;'when a question is stated to be referred to an established court without more, it in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches.'the appeal to this court from the decree and orders passed in petitions under the act lies either under section 96 of the code of civil procedure or section 39 of the punjab courts act read with section 28 of the act. the high court hears the appeals from the decrees and orders as appellate court and a further appeal from the judgment, decree or order of a single judge made in the exercise of appellate jurisdiction lies under clause 10 of the letters patent to a division bench and this appeal has not been taken away by the statute. it was held by their lordships of the supreme court in south asia industries (p) ltd. v. s.b. sarup singh air 1965 sc 1442 that if a statute gave a right of appeal from an order of a tribunal of a court without any limitation thereon. the appeal to the high court would be regulated by the practice and procedure obtaining in; the high court, including the right of letters patent appeal . the learned counsel has also cited before us the supreme court judgment reported as union of india v. mohindra supply co. air 1962 sc 256 wherein it was held:'section 39(2) of the arbitration act, expressly prohibits a 'second appeal' from an order passed in appeal to the supreme court. there is clear indication inherent in sub-section (2) that the expression 'second appeal ' does not mean an appeal under section 100 of the code of civil procedure. the expression 'second appeal' means a further appeal from an order passed in appeal under section 39(1) and not an appeal under section 100, civil procedure code.'it was further held that appeal under clause 10 of the letters patent from the order of a single judge would be a 'second appeal' and as the 'second appeal' had been barred by; section 39(2), appeal under clause 10 of the letters patent would not be competent7. it is thus clear that their lordships of the supreme court held that the letters patent appeal was not competent because of the provision made in section 39(2) of the arbitration act by; the legislature which is competent to abridge the rights of appeal under the letters patent by virtue of clause 37 of the letters patent. the appeal under clause 10 of the letters patent from the order of the learned single judge passed in appeal against an order made under the act is, therefore, maintainable.8. shrimati dassi produced six witnesses besides herself in support of her allegation that her husband, dhani ram, was living in adultery with shrimati reoti and dhani ram produced six witnesses including himself. his father and shrimati reoti to controvert the allegation of shrimati dassi, appellant. the learned single judge has very carefully and minutely considered the entire evidence produced by both the parties and has come to the conclusion that the appellant has not been able to prove her allegations of adultery against the respondent. the entire evidence has been read before us by the learned counsel for the appellant and we do not find any ground to differ from the conclusion of the learned single judge to the effect that the evidence in the case is neither convincing not enough to arrive at a firm finding that the allegation of adultery against the husband has been; proved. the charge of adultery is a serious charge and has to be proved beyond reasonable doubt. the plea of the husband was that shrimati reoti was her maternal aunt and he did not have any illicit relations with her. shrimati reoti has not been made a party to the petition for divorce. she has herself appeared in the witness-box and has stated that she had no illicit relations with dhani ram,, ordinarily, in a letters patent appeal , the bench is entitled to consider the evidence afresh but unless very strong grounds are made out, the letters patent bench will accept the finding of the fact arrived at by the learned single judge after due consideration of the evidence on the record in the instant case is not sufficient to come to the conclusion that the charge of adultery has been proved. 9. for the reasons given above, this appeal fails and is dismissed with no order as to costs.mehar singh, c. j.10. i agree. 11. appeal dismissed.