Lalita Gupta Vs. Parveen Kumar Mahajan - 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. - this distinction was clearly made by this court in promod sharma's case (supra) wherein it was held :the present case is not a case of dissolution of marriage under section 13 of the act but it is a case under section 12 of the act where the marriage between the parties has been declared a nullity and remarriage by either of the spouse is not barred either under section 15 of any other provision of the act.j.v. gupta, c.j.1. a sum of rs. 4,250/- by way of withdrawal form has been today given to the learned counsel for the appellant as arrears of maintenance by the learned counsel for the respondent, which has been duly accepted by him.2. the marriage was solemnised on july 8, 1982. the petition under section 2 of the hindu marriage act (hereinafter called the act), for getting the marriage annulled by a decree of nullity was filed on august 26, 1982, which was allowed on may 27, 1983. appeal against the said judgment and decree of the trial court was filed on april 8, 1985, but before any stay was obtained by the appellant, the respondent -had already re-married. when appeal came up for final hearing before the learned single judge he relying upon the devision bench judgment of this court in promod sharma v. radha, a.i.r. 1976 punjab and haryana 355 came to the conclusion that the second marriage solemnised after the passing of the decree of nullity under section 12 of the act before the issuance of any stay order rendered the appeal of the wife against the decree of nullity infructuous. consequently, the appeal was dismissed as such.3. the learned- counsel for the appellant submitted that simply because the respondent had married for the second time during the pendency of the appeal, it did not render the appeal infructuous and that it should have been decided on merits. in support of the contention, the learned counsel relied upon tejinder kaur v. gurmit singh a.i.r. 1988 supreme court 839.4. after hearing the learned counsel for the parties; we do not find any merit in this appeal.5. the above-said supreme court decision is distinguishable as therein the proceedings were for claiming divorce under section 13 of the act. section 15 of the act provides that when a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without any appeal having been presented or an appeal has been presented but has been dismissed, i.e. shall be lawful for either party to the marriage to marry again. however, there is no such provisions if the marriage has been declared to be a nullity as provided under section 12 of the act. this distinction was clearly made by this court in promod sharma's case (supra) wherein it was held : -'the present case is not a case of dissolution of marriage under section 13 of the act but it is a case under section 12 of the act where the marriage between the parties has been declared a nullity and remarriage by either of the spouse is not barred either under section 15 of any other provision of the act.' in view of the above-said judgment, we do not find any justification for interference in the letters patent appeal.6. apart from the above, the respondent has married again in the year 1983, and, therefore, now after a period of seven years, it will be futile to go into the merits of the appeal as it may create complications.7. consequently, this appeal fails and dismissed with no order as tocosts.