Sh. Ashok Kumar Pandhi and ors. Vs. Ashwani Kumar Pandhi 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. - opd 4. whether the suit is bad for non-joinder of necessary parties? opp 7. whether the suit is bad for mis-joinder of cause of action?mahesh grover, j.1. delay of 3 days in filing the appeal is condoned. this is plaintiffs second appeal directed against the judgments of the learned trial court dated 21.11.1998 and the first appellate court dated 21.7.2008.2. the appellants and respondent no. 1 are descendants of one sham dass pandhi whose estate is in dispute. appellants no. 1 and 2 filed a suit for issuance of perpetual injunction restraining the appellant no. 3 and respondents from carrying on the business of rice shelling, sale of paddy and agriculture products under the name and style of m/s krishna rice mills, fatehgarh churian along with rendition of accounts upto 17.2.1989 and the profits earned by them after the death of sham lal pandhi. it was alleged that said sham dass pandhi was carrying on the partnership business of the said firm and was having 35% share in the firm. he was allegedly having 35% share in the immovable properties of the said firm and he died on 17.2.1989 leaving behind the parties to inherit his estate in equal shares. it was further alleged that the deceased had a sum of rs. 1,90,000/- to his credit in the books of account of the firm and after his death the parties were entitled in equal shares to the goodwill, assets and other properties of the firm as per the share of their deceased father and were also entitled to the amount lying to his credit along with the profits earned. upon notice, appellant no. 3 and respondent no. 2 filed written statement admitting the claim of the plaintiffs/appellants while the suit was contested by respondent no. 1, who set up a will dated 31.12.1988 to contend that the same was to the exclusion of the appellants and they are not entitled to the relief claimed. both the parties went to trial on the following issues:1. whether the plaintiffs are entitled to the injunction prayed for? opp2. whether the plaintiffs are entitled to rendition of accounts of the firm? opp3. whether the plaintiffs have got no locus standi to file the present suit? opd4. whether the suit is bad for non-joinder of necessary parties? opd5. whether the suit is not maintainable in the present form? opd6. whether the suit is properly valued for the purposes of court fee and jurisdiction? opp7. whether the suit is bad for mis-joinder of cause of action? opd8. whether he suit is barred u/o 2 rule 2 c.p.c.? opd9. whether sham dass executed a valid will in favour of defendant no. 3? if so its effect? opd10. relief.on the basis of evidence before it, the learned trial court concluded that the will in question was a valid piece of document executed in favour of respondent no. 1 and to the exclusion of the appellants.3. in appeal, the findings of the learned trial court were affirmed.4. in the present regular second appeal, learned counsel for the appellants has contended that there are numerous factors which point out to the suspicious nature of the document. he contended that the will was executed on 31.12.1988 and there was interpolation in the will as the last digit in figure '1989' was converted into '1988' and that further late sham dass pandhi was a propertied man and all his previous transactions were scribed by a particular scribe who had been rendering service to the deceased, but in so far as the will in question is concerned, it was scribed by a different scribe who even did not recognize the testator of the will. it was next contended that there was no reason to exclude the appellants from the will and that the will being an unregistered document when viewed in this perspective cannot be said to be worth reliance.5. i have heard the learned counsel for the appellants and have perused the impugned judgments.6. both the courts below have concluded that the will was a valid piece of document. the testator, shri sham dass pandhi while excluding the appellants from the purview of the will had broadly given the following reasons which have also been delineated in the reasons given by the courts below:(i) sufficient money is spent by him on the marriage of ashok kumar, hari krishan and kanchan bala.(ii) he has also given property to all of them even after their marriage.(iii) all three of them started litigation with him, resultantly disreputation for him.(iv) all three of them are following their own way and are not obeying deceased sham dass pandhi.7. there is no denial to the fact that the appellants were litigating with the deceased which alone can be a sufficient factor to oust a particular heir or a particular set of heirs from inheritance. the mere fact that last digit occurring in figure '1989' has been converted into '1988' will not render a document suspicious and not worthy of reliance as this can be termed to be a simple human error and similarly the fact that it was scribed by a different scribe and not by the scribe who used to write documents for the testator, would ipso facto be not termed to be a suspicious circumstance, if the will has been proved by other means and by following the process of law. a perusal of the impugned judgments shows that the contents of the will were proved and therefore it can safely be to be a reflection of the testator's desire.8. no ground to interfere.dismissed.