Ran Singh and ors. Vs. Girdhari - 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. - 1. this civil revision is directed against the order passed by the sub judge, ist class, gurgaon, dated 14.3.1983 dismissing the application of the petitioners for setting aside order dated 31.1.1983. 2. the suit of the petitioner was dismissed on 31.1.1983 under order 9 rule 2 code of civil procedure in consequence of the petitioner's failure to file the summons required for service of the defendant for various dates fixed for hearing. ' 3. the trial court dismissed this application on the ground that no sufficient cause had been shown by the petitioner for failure to file the summons and that there was nothing on record worth the name to show that there was a bonafide mistake on the part of the applicant in not filing the summons. in this factual background if the application is considered, it is clear that there is no explanation whatsoever for not filing the summons and process fee for 31.1.1983, an order passed under order 9 rule 2 cpc can only be set aside if the applicant is able to satisfy the court that there was sufficient cause for failure as referred to in rule 2 of order 9 cpc.ordern.k. sud, j.1. this civil revision is directed against the order passed by the sub judge, ist class, gurgaon, dated 14.3.1983 dismissing the application of the petitioners for setting aside order dated 31.1.1983.2. the suit of the petitioner was dismissed on 31.1.1983 under order 9 rule 2 code of civil procedure in consequence of the petitioner's failure to file the summons required for service of the defendant for various dates fixed for hearing. the petitioner filed application dated 31.1.1983 for setting aside the impugned order stating as under;'1. that the above mentioned case is pending in this hon'ble court since 20.4.1981 and which was fixed for today i.e. 3.1.1983.2. that the plaintiff/applicant have been submitting the summons for service of the defendant on each and every date of hearing in this hon'ble court, but the service of the defendant could not make on the summons.3. that in the case file the entries of the summons has not been made for the last four/five hearings, so the case has been dismissed on this basis alone. this is bonafide mistake.it is, therefore, requested that the above case may kindly be heard and the order passed by your honour be set aside.'3. the trial court dismissed this application on the ground that no sufficient cause had been shown by the petitioner for failure to file the summons and that there was nothing on record worth the name to show that there was a bonafide mistake on the part of the applicant in not filing the summons.4. i have heard the counsel for the petitioner and also perused the records of the case. a perusal of the zimini order shows that the matter was taken up for the first time on 3.6.1981 and summons were ordered to be issued to respondent for various dates. finally on 14.12.1982 following order was passed.;-'deft be summoned on filing of pf and summons within seven days for 31.1.1983'.5. counsel for the petitioners has not been able to dispute that no process fee or summons were filed by the petitioner in compliance with the above mentioned order. on the other hand, the application filed by the petitioner dated 31-1-1983, which was already been reproduced in full above shows that the petitioner made a wrong claim before the trial court that he had been submitting summons for service 'on each and every date of hearing.' it is thus clear that he was claiming setting aside of the order on the ground that he had submitted summons in compliance with the order dated 14.12.1982 also. this claim is totally false as per the admitted position. in this factual background if the application is considered, it is clear that there is no explanation whatsoever for not filing the summons and process fee for 31.1.1983, an order passed under order 9 rule 2 cpc can only be set aside if the applicant is able to satisfy the court that there was sufficient cause for failure as referred to in rule 2 of order 9 cpc. as has already been observed, there was no such explanation whatsoever tendered before the trial court. thus in my view, no case for setting aside of the order dated 31.1.1983 has been made out.the civil revision being devoid of any merit is dismissed. no costs.

Judgment:
ORDER

N.K. Sud, J.

1. This civil revision is directed against the order passed by the Sub Judge, Ist Class, Gurgaon, dated 14.3.1983 dismissing the application of the petitioners for setting aside order dated 31.1.1983.

2. The suit of the petitioner was dismissed on 31.1.1983 under Order 9 Rule 2 Code of Civil Procedure in consequence of the petitioner's failure to file the summons required for service of the defendant for various dates fixed for hearing. The petitioner filed application dated 31.1.1983 for setting aside the impugned order stating as under;

'1. That the above mentioned case is pending in this Hon'ble Court since 20.4.1981 and which was fixed for today i.e. 3.1.1983.

2. That the plaintiff/applicant have been submitting the summons for service of the defendant on each and every date of hearing in this Hon'ble Court, but the service of the defendant could not make on the summons.

3. That in the case file the entries of the summons has not been made for the last four/five hearings, so the case has been dismissed on this basis alone. This is bonafide mistake.

It is, therefore, requested that the above case may kindly be heard and the order passed by your honour be set aside.'

3. The trial Court dismissed this application on the ground that no sufficient cause had been shown by the petitioner for failure to file the summons and that there was nothing on record worth the name to show that there was a bonafide mistake on the part of the applicant in not filing the summons.

4. I have heard the counsel for the petitioner and also perused the records of the case. A perusal of the zimini order shows that the matter was taken up for the first time on 3.6.1981 and summons were ordered to be issued to respondent for various dates. Finally on 14.12.1982 following order was passed.;-

'deft be summoned on filing of PF and summons within seven days for 31.1.1983'.

5. Counsel for the petitioners has not been able to dispute that no process fee or summons were filed by the petitioner in compliance with the above mentioned order. On the other hand, the application filed by the petitioner dated 31-1-1983, which was already been reproduced in full above shows that the petitioner made a wrong claim before the trial Court that he had been submitting summons for service 'on each and every date of hearing.' It is thus clear that he was claiming setting aside of the order on the ground that he had submitted summons in compliance with the order dated 14.12.1982 also. This claim is totally false as per the admitted position. In this factual background if the application is considered, it is clear that there is no explanation whatsoever for not filing the summons and process fee for 31.1.1983, An order passed under Order 9 Rule 2 CPC can only be set aside if the applicant is able to satisfy the Court that there was sufficient cause for failure as referred to in Rule 2 of Order 9 CPC. As has already been observed, there was no such explanation whatsoever tendered before the trial Court. Thus in my view, no case for setting aside of the order dated 31.1.1983 has been made out.

The Civil revision being devoid of any merit is dismissed. No costs.