Smadh Baba Mauzpuri and anr. Vs. Sukhdev Puri and anr. - 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. - smadh baba mauzpuri), was dismissed vide this court order dated november, 9, 1984*.it appears the defendant having failed in his designs to prolong the litigation, got the present application filed under o. 3. the learned counsel for the petitioners contended that the application was filed at the instance of the defendant who had failed earlier up to this court in civil revn. 10 of the code was not a bona fide one, but was filed at the instance of the defendant who had failed to amend his written statement up to this court, then, in that situation, the application canot be allowed. having failed to seek the amendment, it seems, he got the present application filed by mahant shukar puri on december 17, 1984,.thus, the application having been filed with an ulterior motive and being not a bona fide one, was liable to be dismissed on that ground alone.1. this revision petition is directed against the order of the trial court dated april 23, 1985, where by the application field on behalf respondent mahant shukar puri for impleading him as a party to the suit under o. 1, r. 10, civil p. c., (hereinafter called the code), was allowed.2. the plaintiff-petitioner filed the suit for declaration and permanent injunction on march 31, 1981. the case was fixed for arguments on august 24, 1984, when an application for amendment of the written statement was filed by defendant sukhdev puri. the said application was declined by the trial court vide order dated august 28, 1984. civil revn. petn. no. 2210 of 1984. civil revn. petn. no. 2210 of 1984 (mahant sukhdev puri v. smadh baba mauzpuri), was dismissed vide this court order dated november, 9, 1984*. it appears the defendant having failed in his designs to prolong the litigation, got the present application filed under o. 1, r. 10 of the code, from one mahant shukar puri on december, 17, 1984 according to the applicant, he came to know that the plaintiffs and the defendants were alleging themselves to be the mahants of the smadh baba mauzpuri. as a matter of fact, it was he who was managing the affairs of the smadh after the death of mahant sudh puri and was, thus, directly interested in the decisions of the case. therefore, it was prayed that he being a necessary party be impleaded as such to the suit. that application was contested on behalf of the plaintiffs. the defendant did not file any reply to the said application. however, the learned trial court found that if the applicant was impleaded as party to the suit, then the rights of the plaintiffs and the defendants would not be prejudiced. it was also found that the litigation was declaratory one as regards status or legal character of the parties. so, the addition of the applicant as party to the suit would enable the court to determine the controversy effectually and completely. consequently, the application was allowed vide impugned order. dissatisfied with the same, the plaintiff has filed this revision petition in this court.3. the learned counsel for the petitioners contended that the application was filed at the instance of the defendant who had failed earlier up to this court in civil revn. petn. no. 2210 of 1984, decided on november 9, 1984 (reported in (1985) 1 ren cj 79). thus, argued the learned counsel, the application was not bona fide. in any case if the applicant mahant shukar puri was interested in the litigation, he could file a separate suit to establish his right to the office. on the other hand, the learned counsel for the applicant, shukar puri, contended that in order to avoid the multiplicity of proceedings, the trial court has rightly allowed the application and there was no ground for interference in the exercise of the revisional jurisdiction therewith.4. after hearing the learned counsel for the parties, i am of the considered opinion that if once the court comes to the conclusion that the application filed by mahant shukar puri under o. 1. r. 10 of the code was not a bona fide one, but was filed at the instance of the defendant who had failed to amend his written statement up to this court, then, in that situation, the application canot be allowed. in the present case, the conduct of the defendant sukhdev puri is quite evident. the suit is pending since march, 1981. he moved the application for amendment of the written statement at the time of the hearing of the final arguments. having failed to seek the amendment, it seems, he got the present application filed by mahant shukar puri on december 17, 1984,. thus, the application having been filed with an ulterior motive and being not a bona fide one, was liable to be dismissed on that ground alone. by making the application under o. 1 r. 10 of the code, the defendant virtually wants to reopen the whole matter again which he cannot be allowed on the facts and circumstances of the present case. moreover, the applicant mahant shukar puri, does not suffer in any way if his application is declined because he is at liberty to establish his own claim, if any, to the samadh baba mauzpuri.5. under the circumstances, the petition succeeds and is allowed. the impugned order is set aside and the application under o. 1 r. 10 of the code is dismissed with costs. the parties have been directed to appear in the trial court on october 12, 1985.petition allowed.