Saroop Singh and anr. Vs. Gian 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. - in that case, the plaintiff-pre-emptors had failed to deposit the pre-emption money for a number of hearings after the date fixed for the initial deposit had expired. placed in a tight situation, a person could put in a last tint of effort and it cannot be said that in a city like ambala it was humanly impossible to raise a sum of rs. it has no doubt been held in a number of cases that pre-emption is a piratical right and that it makes inroads into the right of freedom of contract but the right of pre-emption is conferred by statute and cannot be allowed to be defeated by sub-terfuges.1. the sole question for decision in this second appeal from the order of the lower appellate court remanding a pre-emption case to the trial court for a decision on merits is whether the lower appellate court was justified in granting the plaintiffs-respondents nos. 1 to 3 an extension of time for the deposit of 1/5th of the purchase price as pre-emption money. the trial court had declined to exercise its discretion in favour of the plaintiffs and had rejected the plaint under section 22(4) of the punjab pre-emption act, 1913. the defendant-vendees are now the appellants before me.2. according to a single bench decision of this court in karnail singh v. pran nath, 1963 cur lj 315 (punj) the court has a discretion to grant an extension of time, but the discretion has to be exercised judicially. in that case, the plaintiff-pre-emptors had failed to deposit the pre-emption money for a number of hearings after the date fixed for the initial deposit had expired. they had set up the plea that they had never been informed by the court that they were to deposit the pre-emption money. the order directing the deposit was found to have been recorded in the presence of the plaintiff-pre-emptors on the date of which the case had been registered. in every pre-emption case, the plaintiff is presumed to know that he has to make an initial deposit in accordance with section 22(1) of the act and the plea was on the face of it so frivolous that the order of the lower appellate court granting extension of time for the deposit of the pre-emption amount was set aside by the high court.3. i however, feel that in the present case the discretion has been judicially exercised by the learned court of first appeal. the case was registered on november 3, 1966, and it had been directed by the trial court that 1/5th of purchase price of rs.16,000/-should be deposited by the plaintiff-pre-emptors on or before the next date of hearing which was fixed for december 15, 1966. according to this initial order, the plaintiffs could deposit the pre-emption money up to closing hours of the court on december 15, 1966. the plaintiffs had asked for an extension of time in an application which had been rejected by the trial court on december 3, 1966.4. the case came up for hearing in that court at about 10.15 a.m. on december 15, 1966. it was observed that the treasury challans, which had been prepared by an official of the court on plaintiff's application for deposit of the amount, had not been signed by the presiding officer. the challans were signed and the case was then adjourned for two hours to enable the plaintiffs to deposit the pre-emption money. this was rather a curtailment even though by a few hours of the time initially fixed for the deposit of the amount. the trial court's order dated december 15, 1966 rejecting the plaint does not give any indication as to the hour of the day when the case was again taken up for the second time on december 15, 1996. the plaintiffs had moved another application for extension of time pleading that they had not been able to arrange the pre-emption money. the learned trial judge observed that the application did not appear to be genuine and forthwith rejected the plaint.i see no reason why the trial court should have acted in such haste and why the case could not be adjourned to the next working day to give the plaintiff a last chance to deposit the amount within the few hours left before the courts were due to close that day. the unexpected curtailment of time and the premature rejection of the plaint could have had the effect of so discouraging and putting off the plaintiff as to make him relax his efforts to comply with the order. placed in a tight situation, a person could put in a last tint of effort and it cannot be said that in a city like ambala it was humanly impossible to raise a sum of rs.3200/-within about two hours on usurious terms which the party may have been trying to avoid until the last moment in the hope that the court may be inclined to take a more lenient view of his prayer for extension of time. it has no doubt been held in a number of cases that pre-emption is a piratical right and that it makes inroads into the right of freedom of contract but the right of pre-emption is conferred by statute and cannot be allowed to be defeated by sub-terfuges. all these considerations may appear to have weighed with the lower appellate court when it exercised its discretion in favour of the plaintiff-preemptors.5. i see no grounds for interference and dismiss the appeal. there are, however, no orders as to costs in this appeal.6. appeal dismissed.