Nathu Ram Vs. Jagan Nath 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. - (3) the change in the digit '9' of '29th december,'is clearly in different ink and obviously appears to have been made subsequent to the time of writing the order on 24th of december, 1951. no explanation is forthcoming on the record of the court below as to why and in what circumstances this preponement of the date for the announcement of orders was effected. this shows that the learned judges who decided din dayal's case, 55 pun lr 478: (air 1954 punj 46) were perfectly aware of the contrary view taken in the allahabad and the madras high courts but they nevertheless laid down the rule that the order of transfer passed by the high court operates from the date it is made and not from the date it is communicated. , dated the 24th of december, 1951, the trial court announced the judgment on the 26th of december, 1951, though it had actually fixed the 29th of december, 1951 for the purpose and the alteration in the date of announcement very clearly appears on the record to have been made on the 27th of december, 1951, i.dua, j.(1) this appeal is directed against the judgment and decree of the learned subordinate judge first class, karnal granting the plaintiffs a decree for rs. 5,900/- with costs against the defendant. it is not necessary to consider the merits of the controversy, because the appeal has to be allowed and the judgment and decree of the learned subordinate judge set aside on another point.(2) it appears that on 20th of december, 1951, which was the date fixed for arguments, the counsel for the parties stated that they wanted to file written arguments instead of addressing the court orally. the court acceded to this request and directed that the written arguments should be filed on 24th of december, 1951. on the 24th of december, written arguments were put in and the case was adjourned for orders to the 29th of december, 1951. we, however, find from the record that the orders were actually announced on the 26th of instead of the 29th, the date fixed on the 24th of december,. on the 26th of december, 1951 mr. bhim sen advocate, counsel for the defendants, first signed his name as a token of having noted the announcement of the judgment but a little later he returned and scored out his signature. but then he was again made by the court to affix his signatures which he did.there is a note at the bottom of the judgment to this effect, and indeed we find that the learned subordinate judge put down 11-45 a.m. as the time of appending his note. the need for nothing the time is not disclosed, nor is it understood by us. we also find that 29th of december, 1951, the date fixed on 24th of december, 1951 for announcement of orders, was changed to 26th of december, 1951 and according to the note in the margin this change was effected on 27th of december, 1951, i.e., one day after the actual announcement of the orders. both the english and the urdu records tally with each other so far as this change in the date is concerned and both the records show that this change was effected on 27th of december, 1951, though this alteration is not initialled by anybody.(3) the change in the digit '9' of '29th december,' is clearly in different ink and obviously appears to have been made subsequent to the time of writing the order on 24th of december, 1951. no explanation is forthcoming on the record of the court below as to why and in what circumstances this preponement of the date for the announcement of orders was effected.(4) we further find from the record that two revisions were filed in this court by jagan nath, and j. l. kapur, j. on 24th of december, 1951, while dismissing in limine civil revn. no. 724 of 1951, jagan nath v. nathu ram, ordered that both the suits should be heard by one judge, i.e., senior subordinate judge. i may here mention that there were to suits between the parties relating to the same subject-matter pending in two different courts. the suit, out of which this appeal has arisen, was pending in the court of shri ishar singh, subordinate judge, 1st class, and the other suit was pending in the court of the senior sub-ordinate judge, karnal. the plaintiff had tried to have this suit stayed pending the decision of the other suit and one of the revisions was directed against the order refusing the prayer for stay.(5) it is contended by mr. roop chand on behalf of the appellant before us that as soon as the order, dated 24th of december, 1951, was passed by j. l. kapur j. holding that both the suits should be heard by the senior subordinate judge, that order became operative immediately and that shri ishar singh subordinate judge, who was trying the present suit, could not pass final orders. reliance in support of this contention has been placed by the learned counsel on a bench decision of this court in din dayal v. union of india, (1953) 55 pun lr 478: (air 1954 punj 46) which is an authority for the proposition that an order passed by the high court withdrawing a case from a subordinate court operates from the date it is made and not from the date it is communicated and that proceedings in the subordinate court after the passing of the order of transfer are without jurisdiction.(6) mr. r. n. aggarwal on behalf of the respondents has submitted that there is no express order in the present case formally withdrawing the suit from the court of shri ishar singh, subordinate judge, first class. this contention is, however, untenable, because the substance of the order passed by kapur j. on 24th of december, 1951 is that this case should be tried by the learned senior subordinate judge. it is not possible for me to construe that order to be consistent with the contention advanced by mr. aggarwal that the present suit was intended to be tried and concluded by shri ishar singh subordinate judge. in the alternative mr. aggarwal has contended that the decision in din dayal's case, 55 pun lr 478: (air 1954 punj 46) does not lay down correct rule of law and he has tried to refer us to certain decisions of the allahabad and madras high courts; amount others he cited kuni behari v. sha college, lucknow, (s) air 1955 all, 96 and sitaramaswami v. lakshmi narasamma, ilr 41 mad, 510: (air 1919 mad 755 (2)).(7) i am afraid it is not possible for us to sit in judgment on the decision in din dayal's case, 55 pun lr 478: (air 1954 punj 46) because as observed by the supreme court in sidheswar ganguly v. state of west bengal, air 1958 sc 143 one bench of a high court has no jurisdiction to sit in judgment on the decision of another division bench. in din dayal's case, 55 pun lr 478: (air 1954 punj 46) kapur j. accorded approval to the decision of a full bench of the lahore high court in karam ali v. raja, air 1949 lah, 108, where the contrary view taken by the allahabad and madras high courts was dissented from.this shows that the learned judges who decided din dayal's case, 55 pun lr 478: (air 1954 punj 46) were perfectly aware of the contrary view taken in the allahabad and the madras high courts but they nevertheless laid down the rule that the order of transfer passed by the high court operates from the date it is made and not from the date it is communicated. mr. aggarwal has suggested that we should refer this point to a larger bench, so that the correctness of the decision in din dayal's case, 55 pun lr 478: (air 1954 punj 46) may be reconsidered. we are, however, not inclined to agree with this suggestion, because no cogent reason has been shown for inducing us to doubt the correctness of this decision.(8) it is then contended that kapur j. had passed the order, dated the 24th of december, 1951, at the instance of the respondent and, therefore, he could not possibly have been instrumental in getting the date of announcement of judgment accelerated, as he was not anxious to obtain a decision from shri ishar singh, subordinate judge. this may or may not be so, and, strictly speaking, it is hardly relevant for the purposes of determining whether or not in view of the order of kapur, j. the judgment and decree of the court below are legally sustainable. the alternation in the date for the announcement of the judgment has indisputably been designed to accelerate the decision and from the notes, appearing both in the urdu and english records, it is crystal clear that this was done on the 27th of december, 1951.whosoever may have been instrumental in this alteration, it is obvious that something out of the normal has happened in the present case and that too in a material particular, and this has undoubtedly given rise to a grave suspicion in our mind. it must be stated in the clearest terms that justice must not only be done, but it must also indubitably be seen to be done, and that this court can never countenance anything which may tend to create an impression in the mind of the suitors that court's of justice in this country are inspired by any undisclosed collateral consideration and that they decide the citizens' disputes in a manner which is not strictly judicial and impartial.(9) the lukewarm suggestion thrown by the respondent that the conduct of the counsel for the defendants in first scoring out his signatures and then, on being compelled by the court, to reaffix his signatures at the bottom of the judgment of the trial court on the 26th of december, 1951, is not straightforward, need not detain us, because it would be pure speculation to try to find, on the present record the precise underlying idea which had induced the counsel for the defendants to do what he did.the fact remains that after the order of j. l. kapur j., dated the 24th of december, 1951, the trial court announced the judgment on the 26th of december, 1951, though it had actually fixed the 29th of december, 1951 for the purpose and the alteration in the date of announcement very clearly appears on the record to have been made on the 27th of december, 1951, i.e., one day after the actual accelerated announcement. this position is clear from the record and is sufficient to vitiate the impugned judgment and decree, which in the circumstances must be quashed and set aside as being without jurisdiction.(10) in view of the above discussion, this appeal is allowed, the judgment and decree of the court below set aside and the case sent back to the court of the senior subordinate judge, karnal for proceeding for the stage where the suit stood on the 24th of december, 1951. in other words the learned senior subordinate judge would hear arguments of the parties and proceed to disposes of the suit according to law and in the light, of the observation made above. the costs so far incurred would be costs in the cause. the parties are directed to appear in the court of the senior subordinate judge, karnal, on the 6th of june 1960, when another date will be given to them for further proceedings.bishan narain, j.(11) i agree.(12) appeal allowed.