Prabir Das and Others Vs. A.B. Paul and Others
EmailAppeal: Civil Appeal No. 11884 of 1995
(With C.A. No. 11885 of 1995)
(With C.A. No. 11885 of 1995)
Petitioner: Prabir Das and Others
Respondent: A.B. Paul and Others
Apeal: Civil Appeal No. 11884 of 1995
(With C.A. No. 11885 of 1995)
(With C.A. No. 11885 of 1995)
Judges: V. N. KHARE & S. N. PHUKAN, JJ.
Date of Judgment: Mar 13, 2001
Head Note:
PRACTICE AND PROCEDURE / CIVIL LAW
Civil Procedure Code, 1908
Section 100-A (As inserted by Amend-ment Act No. 104 of 1976) with CPC (Amendment) Act, 1976 – Sec-tion 97(n) – Letters Patent Appeal – Suit for specific perfor-mance – LPA filed on 3.8.74 – Notices issued and served through Counsel – High Court ordering that if no appearance is made on next date, the LPA shall be heard and decided ex-parte – Still High Court dismissing LPA being not maintainable in view of Section 100-A, on grounds that it had not been admitted for hearing. Held that High Court was in error. Appeal had been admitted for hearing and by virtue of Section 97(n) of the Amend-ing Act, it was to be heard and disposed of as if Section 100-A has not come into force. (Paras 4, 5)
JUDGEMENT:
ORDER
1. The plaintiffs-appellants brought a suit for specific perfor-mance of the agreement for sale of the property. The trial court decreed the suit. The defendants thereafter preferred a first appeal before the Judicial Commissioner, Tripura which was subse-quently transferred to the High Court. The learned Single Judge of the High Court on 5.7.1974 allowed the appeal of the defend-ants and set aside the decree of the trial court. The plaintiffs, on 3.8.1974, filed a Letters Patent Appeal in the High Court. On 8.8.1974, notices were issued on the said Letters Patent Appeal. Notices so issued were served through the Counsel on 3.6.1975, while the said LPA was pending, the Code of Civil Procedure was amended by Act No. 104/1976 which came into force w.e.f. 1.2.1977. After the said amending Act came into force, one of the respondents in LPA – Manoranjan Paul died. As such, the appell-ants moved an application for his substitution. The substitution application was allowed on 28.4.1978. Subsequently, when the LPA came up for hearing the High Court dismissed the said appeal on the ground that it was not maintainable in view of Section 100-A of the Civil Procedure Code. It is against the said judgments, the plaintiffs have preferred these appeals.
2. Shri Har Dev Singh, learned senior Counsel appearing for the appellants urged that the view taken by the High Court that the appeal was not maintainable in view of Section 100-A of the Civil Procedure Code is erroneous and in fact the LPA was required to be heard and decided on merits by virtue of Section 97(n) of the Amending Act. We find merit in the contention. Section 100-A inserted by the Amending Act runs as under:-
“Section 100-A – 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.”
3. Section 97 of the Amending Act runs as under :
“Section 97 : Repeal and Savings
(n) Section 100-A, as inserted in the principal Act by Section 38 of this Act shall not apply to or affect any appeal against the decision of a Single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the said Section 38; and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force.”
4. A perusal of Section 97(n) shows that the pending LPA which was admitted before the commencement of the Act was required to be disposed of as if Section 100-A has not come into force. In the present case, what we found is that LPA was filed on 3.8.1974 and the High Court directed for issue of notice and on 3.6.1975 notice was served on the respondents. On 3.6.1975, a Division Bench of the High Court passed the following order:
“It is found that notice dated 8.8.74 was duly served upon Mr. J.K. Roy, the learned Counsel for the respondent in F.A. No. 11 of 1966 but he did not appear in this appeal.
If no appearance is made on 6.6.75 in this Letters Patent Appeal, the appeal will be heard and decided ex-parte. (emphasis supplied)
Inform Mr. Roy, learned Counsel accordingly.
Sd/- B. Islam
Judge
Sd/- D. Pathak
Judge”
5. All these orders if read together lead to the conclusion that in pith and substance the appeal was admitted and posted for hearing. We, therefore, find that the view taken by the High Court that since the appeal was not admitted, therefore, was not maintainable, is erroneous. We, therefore, set aside the judgment under appeal and remit the matter to the High Court for deciding the LPA in accordance with law leaving all the questions open to be canvassed by the parties before the High Court.
6. The appeals are allowed. No costs.
1. The plaintiffs-appellants brought a suit for specific perfor-mance of the agreement for sale of the property. The trial court decreed the suit. The defendants thereafter preferred a first appeal before the Judicial Commissioner, Tripura which was subse-quently transferred to the High Court. The learned Single Judge of the High Court on 5.7.1974 allowed the appeal of the defend-ants and set aside the decree of the trial court. The plaintiffs, on 3.8.1974, filed a Letters Patent Appeal in the High Court. On 8.8.1974, notices were issued on the said Letters Patent Appeal. Notices so issued were served through the Counsel on 3.6.1975, while the said LPA was pending, the Code of Civil Procedure was amended by Act No. 104/1976 which came into force w.e.f. 1.2.1977. After the said amending Act came into force, one of the respondents in LPA – Manoranjan Paul died. As such, the appell-ants moved an application for his substitution. The substitution application was allowed on 28.4.1978. Subsequently, when the LPA came up for hearing the High Court dismissed the said appeal on the ground that it was not maintainable in view of Section 100-A of the Civil Procedure Code. It is against the said judgments, the plaintiffs have preferred these appeals.
2. Shri Har Dev Singh, learned senior Counsel appearing for the appellants urged that the view taken by the High Court that the appeal was not maintainable in view of Section 100-A of the Civil Procedure Code is erroneous and in fact the LPA was required to be heard and decided on merits by virtue of Section 97(n) of the Amending Act. We find merit in the contention. Section 100-A inserted by the Amending Act runs as under:-
“Section 100-A – 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.”
3. Section 97 of the Amending Act runs as under :
“Section 97 : Repeal and Savings
(n) Section 100-A, as inserted in the principal Act by Section 38 of this Act shall not apply to or affect any appeal against the decision of a Single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the said Section 38; and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force.”
4. A perusal of Section 97(n) shows that the pending LPA which was admitted before the commencement of the Act was required to be disposed of as if Section 100-A has not come into force. In the present case, what we found is that LPA was filed on 3.8.1974 and the High Court directed for issue of notice and on 3.6.1975 notice was served on the respondents. On 3.6.1975, a Division Bench of the High Court passed the following order:
“It is found that notice dated 8.8.74 was duly served upon Mr. J.K. Roy, the learned Counsel for the respondent in F.A. No. 11 of 1966 but he did not appear in this appeal.
If no appearance is made on 6.6.75 in this Letters Patent Appeal, the appeal will be heard and decided ex-parte. (emphasis supplied)
Inform Mr. Roy, learned Counsel accordingly.
Sd/- B. Islam
Judge
Sd/- D. Pathak
Judge”
5. All these orders if read together lead to the conclusion that in pith and substance the appeal was admitted and posted for hearing. We, therefore, find that the view taken by the High Court that since the appeal was not admitted, therefore, was not maintainable, is erroneous. We, therefore, set aside the judgment under appeal and remit the matter to the High Court for deciding the LPA in accordance with law leaving all the questions open to be canvassed by the parties before the High Court.
6. The appeals are allowed. No costs.
