RAJALAKSHMI ASSOCIATES Vs. MEENAKSHI PAPERS

JUDGEMENT

(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.

(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.