Subal Paul v. Malina Paul and
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 472 of 2022 1. Neelam Singh aged about 71 years wife of Late Chandra Bhushan Singh 2. Mukul Anand aged about 42 years son of Late Chandra Bhushan Singh 3. Aparna aged about 44 years, wife of Sunil Mishra 4. Abhilasha aged about 43 years, wife of Amitoz Kumar 5. Anuradha aged about 37 years, wife of Nishant Kumar Nos. 3 to 5 daughters of Late Chandra Bhushan Singh All residents of 490/C, Ashok Nagar, P.O. and P.S. Argora, District Ranchi ......Appellants Versus 1. Dr. Sudha Sinha daughter of Late Amarnath Singh resident of Road No. 1, Rajendra Nagar, Patna, District Patna (Bihar) and permanently residing at village and P.O. Teus, P.S. Jairampur More, District Sheikhpura (Bihar) at present residing at House No. 64 E, Road No. 12, Rajendra Nagar, P.O. and P.S. Kadamkuan, District Patna (Bihar) 2. Subin Kumar son of Late Amarnath Singh resident of Village and P.O. Teus, P.S. Jairampur More, District Sheikhpura (Bihar) 3. Pravin Kumar, son of late Amarnath Singh and late Shyama Devi resident of Kadamkuan, Salinpur Ahra, P.O Kadamkuan, District Patna (Bihar) 4. Arunima Rai, wife of Rajesh Rai and daughter of late Amarnath Singh and Shyama Devi, resident of Damdam Road, Calcutta (West Bengal) ---------------
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY ... Respondents For the Appellants For the Respondents : Mr. A. K. Sahani, Advocate : Mr. Ajit Kumar, Advocate : Mr. Amit Kumar Das, Advocate : Ms. Swati Shalini, Advocate --------------- Per, Shree Chandrashekhar, J.
Decision
O R D E R 03rd October 2023 Against the order passed by a learned Single Judge of this Court in Misc. Appeal No. 123 of 2012, the present Letters Patent Appeal has been filed. 2. In LPA No. 208 of 2011, a co-ordinate Bench of this Court after having taken into consideration “Subal Paul Vs. Malina Paul and 2 L.P.A No. 472 of 2022 another” (2003) 10 SCC 361, “P.S. Sathappan Vs. Andhra Bank Ltd. and others” AIR (2004) SC (4) 5152, “Kamla Devi Vs. Kushal Kanwar and another” (2006) 13 SCC 295, “Kamal Kumar Dutta and another Vs. Ruby General Hospital Ltd. and others” (2006) 7 SCC 613, “Geeta Devi and another Vs. Puran Ram Raigar and another” (2010) 9 SCC 84 and “Mohd. Saud and another Vs. Dr. (Maj.) Shaikh Mohfooz and others” (2010) 13 SCC 517 held that an intra-Court appeal to challenge the order passed by a learned Single Judge of this Court by virtue of section 299 of Indian Succession Act shall not be available to the aggrieved party. 3. Mr. A. K. Sahani, the learned counsel for the appellants has endeavored to persuade this Court to decide the present Letters Patent Appeal on merits, particularly, in view of the order dated 02nd March 2023 passed by a co-ordinate Bench of this Court holding the present Letters Patent Appeal maintainable. 4. passed by another co-ordinate Bench of this Court is also relevant. 5. under:- In the order dated 11th May 2023, this Court has observed as However, in the above context, the order dated 11th May 2023 “We consider it appropriate to keep the questions open to be decided in the final hearing of the Letters Patent Appeal, in view of the judgment passed by the Hon’ble Supreme Court in the case of Subal Paul Vs. Malina Paul & Another, (2003) 10 SCC 361. We also take a note of the fact that the ratio of Full Bench of this Court in Satya Narayan Agiwal and Bishwanath Agiwal Vs. State Bank of India & others, 2005 3 JCR 1 (FB), is not applicable to the facts of this case as it arises out of a money suit whereas, the present appeals are arising out of the orders passed by the District Judge under the Indian Succession Act. However, without giving a definite conclusion on maintainability, we are keeping the questions open for final hearing. List these cases on 24.08.2023.” the 6. Therefore, having regard to the aforementioned decision in LPA No. 208 of 2011, LPA No. 422 of 2022 (listed alongwith the present Letters Patent Appeal) which also arose out of a probate case has been held not maintainable by an order passed on 4th September 2023. 7. The main plank of the appellants is “Subal Paul” which also arose from a proceeding under section 299 of the Indian Succession Act, 1925 wherein the Hon’ble Supreme Court held that an intra-Court appeal against an order passed by a learned Single Judge of the High 3 L.P.A No. 472 of 2022 Court under section 299 of the Indian Succession Act shall be maintainable. In paragraph no. 31 of the report, the Hon’ble Supreme Court has held that the order passed in a probate proceeding shall be a judgment within the meaning of section 2(9) of the Code of Civil Procedure. The Hon’ble Supreme Court referred to “New Kenilworth Hotel (P) Ltd. Vs Orissa State Finance Corpn.” (1997) 3 SCC 462 wherein the appeal against an order passed by a learned Single Judge in exercise of appellate jurisdiction under Order XXXIX Rule 1 of the Code of Civil Procedure was held not maintainable. 8. “Subal Paul” also referred to “Chandra Kanta Sinha Vs. Oriental Insurance Co. Ltd. and others” (2001) 6 SCC 158 wherein the Hon’ble Supreme Court held as under: “12. Learned counsel for the respondents, however, argued that clause 10 provides that an appeal shall lie to the said High Court only from ‘a judgment passed in exercise of the appellate jurisdiction not being a judgment passed in the exercise of the appellate jurisdiction’ and as the judgment of the learned Single Judge was passed in the appellate jurisdiction, a letters patent appeal was not maintainable. In our view, the contention of the learned counsel is based on a misreading of clause 10. He has overlooked the vital words, namely, ‘in respect of a decree or order made in exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court’ in the first limb of clause 10. If those words are also read along with the words relied upon by the learned counsel, it becomes clear that the appellate jurisdiction mentioned therein refers to a second appeal under Section 100 CPC (or under any provision of a special Act) which is in respect of a decree or order made in exercise of appellate jurisdiction in the first appeal, filed under Section 96 CPC (or under any provision of a special Act) by a court subject to the superintendence of the High Court. In other words, from a judgment passed by one Judge in second appeal, under Section 100 CPC or any other provision of a special Act no letters patent appeal will lie to the High Court provided the second appeal was against a decree or order of a District Judge or a Subordinate Judge or any other Judge subject to the superintendence of the High Court passed in a first appeal under Section 96 CPC or any other provision of a special Act. 13. In New Kenilworth Hotel (P) Ltd. case aggrieved by the order of the trial court passed under Order 39 Rules 1 and 2, an appeal under Section 104(1) CPC read with Order 43 Rule 1(r) was filed before the High Court which was disposed of by one Judge of the High Court. From the order/judgment of one Judge, a letters patent appeal (second appeal) was filed before the Division Bench under clause 10 of the Letters Patent of the Orissa High Court. The Division Bench of the High Court held that the letters patent appeal was not maintainable. Having regard to the provision of Section 104(2), the appeal before the Division Bench was barred. On appeal to this Court it was held: (SCC p. 466, para 10) ‘As held earlier, the right of appeal is a creature of the statute and the statute having expressly prohibited the filing of second appeal under sub-section (2) of Section 104, the right of appeal provided under clause 10 of the Letters Patent would not be available.’ 4 L.P.A No. 472 of 2022 Therefore, reliance on the judgment of this Court in New Kenilworth Hotel (P) Ltd. case will be of no avail to the respondents.” 9. The judgment in “Subal Paul” is based on the premise that a Letters Patent against a judgment of a Single Judge of the High Court shall not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent. 10. Procedure was framed in the following language: Prior to amendment, section 100-A of the Code of Civil “100-A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal.” However, after the Code of Civil Procedure (Amendment) 11. Act, 2002, section 100-A which became effective from 01st July 2002 reads as under: “100-A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, 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 from the judgment and decree of such Single Judge.” 12. The difference between the unamended section 100-A and the provision as it exists today is, that prior to its substitution by the Amendment Act, 2002 a Letters Patent was maintainable against the order of a Single Judge passed in an appeal from an original decree or order. A plain reading of the unamended section 100-A of the Code of Civil Procedure makes it abundantly clear that the prohibition in law was to the order of a Single Judge in appeal only against an appellate decree or order and not an original decree or order. Whereas, after the amendment, section 100-A provides that an intra-Court appeal shall not be maintainable against the order of a Single Judge in appeal “if an original or appellate decree or order” was heard and decided by the Single Judge of the High Court. 13. The effect of the amendment in section 100-A has been elaborately dealt with by a Constitution Bench of the Hon’ble Supreme Court in “P.S. Sathappan v. Andhra Bank Ltd.” (2004) 11 SCC 672, as under: 5 L.P.A No. 472 of 2022 “30. ……. In this context reference may be made to Section 100-A. The present Section 100-A was amended in 2002. The earlier Section 100-A, introduced in 1976, reads as follows: “100-A. No further appeal in certain cases.—Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal.” It is thus to be seen that when the legislature wanted to exclude a letters patent appeal it specifically did so. The words used in Section 100-A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the legislature knew that in the absence of such words a letters patent appeal would not be barred. The legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 CPC. Thus now a specific exclusion was provided. After 2002, Section 100-A reads as follows: “100-A. No further appeal in certain cases.—Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, 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 from the judgment and decree of such Single Judge.” To be noted that here again the legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100-A no letters patent appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100-A nor Section 104(2) barred a letters patent appeal. ……………………………………………………………………………. 67. …. We may notice that when a first appeal or second appeal was disposed of by a Single Judge, a letters patent appeal had been held to be maintainable therefrom only because there existed no bar in relation thereto. Such a bar has now been created by reason of Section 100-A of the Code. No appeal would, therefore, be maintainable when there exists a statutory bar. When Parliament enacts a law it is presumed to know the existence of other statutes. Thus, in a given case, bar created for preferring an appeal expressly cannot be circumscribed by making a claim by finding out a source thereof in another statute.” 14. In “Kamal Kumar Dutta v. Ruby General Hospital Ltd.” (2006) 7 SCC 613, the Hon’ble Supreme Court reiterated that where appeal has been decided from an original order by a Single Judge, the provision of an intra-Court appeal which was earlier there has been subsequently withdrawn by amendment in section 100-A. The Hon’ble Supreme Court has observed as under: “22. So far as the general proposition of law is concerned that the appeal is a vested right there is no quarrel with the proposition but it is clarified that such right can be taken away by a subsequent enactment, either expressly or by necessary intendment. Parliament while amending Section 100-A of the Code of Civil Procedure, by amending Act 22 of 2002 with effect from 1-7-2002, took away the Letters Patent power of the High Court in the matter of appeal against an order of the learned Single Judge to the Division Bench. Section 100-A of the Code of Civil Procedure reads as follows: 6 L.P.A No. 472 of 2022 “100-A. No further appeal in certain cases.—Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, 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 from the judgment and decree of such Single Judge.” 23. Therefore, where appeal has been decided from an original order by a Single Judge, no further appeal has been provided and that power which used to be there under the Letters Patent of the High Court has been subsequently withdrawn. The present order which has been passed by CLB and against that an appeal has been provided before the High Court under Section 10-F of the Act, that is, an appeal from the original order. Then in that case no further letters patent appeal shall lie to the Division Bench of the same High Court. This amendment has taken away the power of the Letters Patent in the matter where the learned Single Judge hears an appeal from the original order….” 15. Having regard to the statutory regime under the amended section 100-A of the Code of Civil Procedure whereunder an intra-Court appeal shall now not be maintainable against the judgment of a Single Judge rendered in appeal to the original decree, we have formed an opinion to follow the view taken by a co-ordinate Bench of this Court in LPA No. 208 of 2011 and, accordingly, would hold LPA No. 472 of 2022 not maintainable which is dismissed as such. 16. I.A. No. 9891 of 2022 filed for injunction is dismissed. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Saurav/Pankaj-