Tikam Chand JaIn Vs. State Government of Haryana 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. s.p. goyal, j.1. the petitioner, a director in m/s. swadesh rubber industries (p.) ltd. filed a suit against the respondents restraining them from enforcing the liability of the company against him on account of state and central sales tax. along with the suit, he also filed an application for an ad interim injunction to the same effect. the stand taken by the respondents was that he being the director of the company during the years when the amount became due, it could be recovered from him. both the courts below upheld the defence and declined the ad interim order.2. learned counsel for the respondents could not point out any provision of law either in the companies act or in the sales tax act which made the director liable personally for the amount due from the company nor has been able to cite any authority.3. learned counsel for the petitioners, on the other hand, relied on the judgment of d.s. tewatia j. in civil writ no. 2010 of 1976 (kundan singh v. moga transport co. p. ltd.) decided on aprils, 1983, [1987] 62 comp cas 600 (p & h), wherein it was held that neither in the company law nor in the industrial disputes act is there any provision making the managing director personally liable for recovery of the dues against the limited company. it is, therefore, apparent that both the courts below because of misconception of law acted illegally in exercise of their jurisdiction in declining the prayer for issue of ad interim injunction. this petition is accordingly allowed and the impugned order reversed. no costs.