RAJALAKSHMI ASSOCIATES Vs. MEENAKSHI PAPERS
HIGH COURT OF KERALA
MESSRS RAJALAKSHMI ASSOCIATES
MESSRS MEENAKSHI PAPERS
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(1.) These appeals have been preferred under S.5(2) of the Kerala High Court Act, 1958 against the judgment of learned single Judge of this court. Maintainability of the appeals has been questioned in view of S.100A introduced by the Code of Civil Procedure (Amendment) Act 2002 with effect from 1.7.2002. S.100A of the Code of Civil Procedure is extracted below for easy reference.
100A. 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.
Contention was raised that in view of the provisions of S.100A of the C.P.C. (Amendment) Act, 2002 appeals filed after 1.7.2002 under S.5(2) of the Kerala High Court Act are not maintainable and only those appeals which were filed prior to 1.7.2002 would alone be maintainable. Scope of S.100A with regard to pending appeals preferred under Cl.10 of the Letters Patent came up for consideration before a Full Bench of the Madhya Pradesh High Court in Laxminarayan v. Shivlal Gujar (2003 (1) Indian Law Decisions 64). Above question came up for decision before a Division Bench of the Andhra Pradesh High Court in S. Shiva Raja Reddy and others v. S.Raghu Raj Reddy and others (2002 (4) CCC 75 (AP)) wherein the impact of S.100A with respect to appeals preferred under Cl.15 of the Letters Patent 1865 was also examined. Full Bench of the Madhya Pradesh High Court as well as the Division Bench of Andhra Pradesh High Court have taken the view, after elaborate consideration of the law on the point, that in view of S.100A of the C.P.C. (Amendment) Act 2002 appeals filed after 1.7.2002 are not maintainable and only such Letters Patent Appeals saved are those filed prior to 1.7.2002 whether they have been admitted or not. The decision rendered by the Full Bench of the Madhya Pradesh High Court as well as the Division Bench of the Andhra Pradesh High Court have reduced our burden in examining the scope of S.100A viz - a - viz S.5(2) of the Kerala High Court Act, 1958. After examining both the decisions at length and hearing the counsel on either side, we fully concur with the views expressed by those High Courts with regard to the scope and ambit of S.100A as amended by Act 22 of 2002.
(2.) We may point out that Full Bench of the Madhya Pradesh High Court as well as the Division Bench of Andhra Pradesh High Court were dealing with appeals filed under Letters Patent. Our High Court is not a chartered court and was not a court in British India. Kerala High Court was established after the formation of the new State under the States Re - organization Act, 1956. Therefore, High Court of Kerala has no letters patent. Kerala High Court Act, 1958 regulates the business and the exercise of powers of the High Court of the State of Kerala. High Court of Kerala has in exercise of the powers conferred by Art.225 of the Constitution of India, S.122 of the Code of Civil Procedure, 1908 and all other powers enabling in this behalf, has also published Rules of the High Court of Kerala 1971. The Kerala High Court Act and the Rules framed thereunder regulate the business and exercise of powers thereunder. The Kerala High Court Act, 1958 has been enacted by the State Legislature in exercise of the powers conferred under Entry III List II read with Art.225 of the Constitution of India. Administration of justice has been transferred from Entry 3 of List II to Concurrent List 11 - A of List III of VII Schedule. Constitutional validity of the Kerala High Act came up for consideration before this court in 1960 KLT 109 . Same question again came up before a Full Bench of this court in Kochupennu Kochikka v. Kochikka Kunjipennu ( 1961 KLT 275 ) and the Full Bench held that the State Legislature is undoubtedly competent to enact a law to define and regulate the jurisdiction and power of the High Court in the matter of administration of justice. Jurisdiction and powers of the High Court was regulated by the Rules of the High Court of Kerala 1971. Art.225 states that subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the court shall be the same as immediately before the commencement of the Constitution. Entry administration of justice has been transferred from Entry 3 List II from the Concurrent List and inserted as Entry 11A of List III of VII Schedule.
(3.) S.100A has employed a non obstante clause stating that 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 no further appeal shall lie against judgment and decree of a learned single Judge. Before the introduction of S.100A appeal to the Division Bench is regulated by S.5(2) of the Kerala High Court Act. The question is whether S.100A has taken away intra court appeal provided under S.5(2) of the Kerala High Court Act 1958 and whether it is legal. In Ittyavira Mathai v. Varkey Varkey ( AIR 1964 SC 907 ) the Supreme Court observed that no party has vested right to have an appeal heard by specified number of Judges. Again in Mohd. Meera Lebbai v. Thirumalaya Gounder Ramaswamy Gounder and others ( 1966 (1) SCR 574 ) the Apex Court reiterated that no party has vested right to have an appeal heard by one Judge of the High Court. In Shyamsunder v. Ramkumar ( 2001 (8) SCC 24 ) the Apex Court observed that no party has vested right to have his appeal heard by more than one Judge of the High Court. Contention was raised by the appellants placing reliance on the decision in Colonial Sugar Refining Co. v. Irving ( AIR 1905 PC 369 ), Sadar Ali and others v. Doliluddin ( AIR 1928 Cal. 640 (FB)) and Garikapati Veerava v. N. Subbiah Choudhury ( AIR 1957 SC 540 ) and contended that the institution of a suit carries with it with the implication all rights of appeal are preserved to the parties till the rest of the career of the suit. The Constitution Bench of the Apex Court in Garikapati Veeravas case (supra) however laid down the following principles.
1) That the legal pursuit of a remedy suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
2) The right of appeal is not a mere matter of procedure but is a substantive right.
3) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
4) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
5) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
It is therefore evident from the aforementioned decisions that though right of appeal is vested one same can be taken away by subsequent enactment if it so provides expressly or by necessary intendment. Therefore, the question that falls for consideration is whether S.100A takes away right of appeal accrued at the time of institution of the suit which impliedly carried with it all rights of appeal then in force including under S.5(2) of the High Court Act.;
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