Asa Singh Vs. the State of Haryana 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. order1. the orders of the revenue authorities resting with the final decision of the financial commissioner, revenue haryana, directing and upholding the ejectment of the petitioner from the land in dispute was impugned before us in c. w. 934 of 1971. after hearing counsel for the petitioner we dismissed the writ petition in limine on march 17, 1971. the present application has been filed by the writ petitioner for a certificate under art. 133(1) of the constitution. the application has been pressed solely on the basis of valuation. though a mention has been made in paragraph 7 of the application about the case being fit for appeal to the supreme court, the application has rightly not been pressed on that ground. the only ground on which mr. bindra has pressed the application is that of valuation. in paragraphs 4 and 5 of the application, the valuation has been worked out to be more than rupees 20,000/- on the basis of the market value of the land in dispute. no valuation of the tenancy rights of the petitioner has been disclosed in the application or in its accompanying affidavit. mr. bindra has urged that in a judgment, decree or final order relating to ejectment of a tenant, the claim or question indirectly involved relates to the property from which ejectment is sought and, therefore the petitioner is entitled to a certificate under sub-clause (b) of clause (1) of the art. 133 as our decision indirectly relates to the property itself in respect of which the claim or question involved was of ejectment. he concedes that there is no material before us on the basis of which it could be held that the valuation of the tenancy rights itself is not less than rs.20,000/-. in chittarmal v. shah pannalal chandulal, air 1965 sc 1440, it has been authoritatively held that it is clause (a) and not clause (b) which applies to a case of this type. a division bench of the calcutta high court has held in ramric lal saha v. sachindra narayan roy, air 1968 cal 316, that in a suit for eviction of a tenant by his landlord, the subject-matter in dispute is the tenancy and the value is different from that of the property involved. it was pointed out in that case that the market value of the property may be more than rs.20,000/- but the market value of the tenancy interest cannot be the same and in the absence of any material to show that the tenancy interest itself is worth more than rs.20,000/- a certificate under clause (1)(a) of article 133 of the constitution cannot be granted. we are in respectful agreement with the dictum of the calcutta high court. this application, therefore, fails and is dismissed though without any order as to costs.2. petition dismissed.

Judgment:
ORDER

1. The orders of the revenue authorities resting with the final decision of the Financial Commissioner, Revenue Haryana, directing and upholding the ejectment of the petitioner from the land in dispute was impugned before us in C. W. 934 of 1971. After hearing counsel for the petitioner we dismissed the writ petition in limine on March 17, 1971. The present application has been filed by the writ petitioner for a certificate under Art. 133(1) of the Constitution. The application has been pressed solely on the basis of valuation. Though a mention has been made in paragraph 7 of the application about the case being fit for appeal to the Supreme Court, the application has rightly not been pressed on that ground. The only ground on which Mr. Bindra has pressed the application is that of valuation. In paragraphs 4 and 5 of the application, the valuation has been worked out to be more than Rupees 20,000/- on the basis of the market value of the land in dispute. No valuation of the tenancy rights of the petitioner has been disclosed in the application or in its accompanying affidavit. Mr. Bindra has urged that in a judgment, decree or final order relating to ejectment of a tenant, the claim or question indirectly involved relates to the property from which ejectment is sought and, therefore the petitioner is entitled to a certificate under sub-clause (b) of clause (1) of the Art. 133 as our decision indirectly relates to the property itself in respect of which the claim or question involved was of ejectment. He concedes that there is no material before us on the basis of which it could be held that the valuation of the tenancy rights itself is not less than Rs.20,000/-. In Chittarmal v. Shah Pannalal Chandulal, AIR 1965 SC 1440, it has been authoritatively held that it is clause (a) and not clause (b) which applies to a case of this type. A Division Bench of the Calcutta High Court has held in Ramric Lal Saha v. Sachindra Narayan Roy, AIR 1968 Cal 316, that in a suit for eviction of a tenant by his landlord, the subject-matter in dispute is the tenancy and the value is different from that of the property involved. It was pointed out in that case that the market value of the property may be more than Rs.20,000/- but the market value of the tenancy interest cannot be the same and in the absence of any material to show that the tenancy interest itself is worth more than Rs.20,000/- a certificate under clause (1)(a) of Article 133 of the Constitution cannot be granted. We are in respectful agreement with the dictum of the Calcutta High Court. This application, therefore, fails and is dismissed though without any order as to costs.

2. Petition dismissed.