- (1.) A suit, Title Suit No. 5 of 1986 was filed by the appellants herein as the plaintiffs in the Court of the Subordinate Judge, Palamau, Daltonganj. The said suit was dismissed by the trial Court on 29.4.1989. An appeal was filed before this Court by the plaintiffs on 24.7.1989. That appeal was dismissed by a learned Single Judge of this Court on 21.1.2002. This appeal was filed invoking Clause 10 of the Letter Patent. The Code of Civil Procedure, as amended by Act 22 of 2002 and Act 46 of 1999 was brought into force with effect from 1.7.2002. Section 100 -A of the Code of Civil Procedure introduced by Act 104 of 1976 with effect from 1.2.1977 was amended. The present appeal was filed only on 30.9.2002, after the coming into force of the amended Sec.100 -A of the Code. The question is whether this appeal is maintainable or could be entertained by this Court.
(2.) EVEN at the outset, we must express our disappointment at the assistance we received in deciding this difficult question. But, our research has shown that while the Ahdhra Pradesh, Madhya Pradesh and Kerala High Courts have taken the view that no Letters Patent Appeal filed after 1.7.2002 would he maintainable, the Orissa High Court has taken the view that the appeal would be maintainable notwithstanding, the fact that it has been filed after 1.7.2002, provided it arises out of a suit filed prior to 1.7.2002. One of us (the Chief Justice) was a party to the decision of the Orissa High Court. The Orissa High Court did refer to the decision of the Andhra Pradesh High Court, but had no occasion to advert to the judgments of the Madhya Pradesh High Court and the Kerala High Court which followed the view of the Andhra Pradesh High Court, and took a view contrary to the one taken by the Orissa High Court. In view of the general importance of the question posed, we think it proper to discuss the question in some detail. Certain fundamental aspects can be noticed even at this stage. A right of appeal is not an inherent right, but it is a conferred right. One it is conferred it becomes a vested right. Ordinarily, the filing of a suit carries with it the right of appeal that was available to the litigant as on the date of the institution of the suit. It any authority were needed for this proposition, the same could be found in the decision of the Supreme Court in the State of Bombay V/s. Supreme General Films Exchange Limited, AIR 1960 SC 980. Support can also be found from the observations of the Supreme Court in Shiv Shakti Co -operative Housing Society Nagpur V/s. Swaraj Developers, JT 2003 (4) SC 255, wherein it is observed : "An appeal is essentially continuation of the original proceedings and the provisions applied at the time of institution of the suit are to be operative even in respect of the appeals. That is because there is a vested right in the litigant to avail the remedy of an appeal." A vested right of appeal can be taken away by a retrospective amendment of the concerned statute conferring the right of appeal. But unless it is so taken away, it will be preserved especially by operation of Sec. 6 of the General Clauses Act. In such a case, as noticed by the Supreme Court in the State of Punjab V/s. Mohar Singh, AIR 1955 SC 84, the line of inquiry is not whether there is anything, in the amending statute to preserve the right, but whether there is anything in it to destroy the existing right. In other words, the line of inquiry is not whether the right is preserved, but it is whether the right is destroyed. In case of appeals, application of Sec. 6 of the General Clauses Act cannot be kept out. This is also clear from the two decisions of the Supreme Court referred to above.
(3.) NOW , we shall refer to the decisions that have been rendered on this question. The first in point of time is the decision of the Andhra Pradesh High Court dated 1.8.2001 in S. Shiva Raja Reddy and Ors. V/s. S. Raghu Raj Reddy and Ors., 2002 (4) CCC 75. After an exhaustive reference to the relevant amendments and various decisions relevant to the question. The Division Bench of the High Court summed up the decision therein thus : Malindo Marandi Versus State Of Bihar "36. In our considered opinion, the retrospective operation of Sec.100 -A is limited to the extent of taking away the right accrued in favour of a litigant to prefer Letters Patent Appeals arising out of the suits instituted or filed before 1.7.2002, what is prohibited by the newly substituted provision Sec.100 -A, Civil Procedure Code is entertainment of Letters Patent Appeal from the judgment and decree of a Single Judge arising out of an appeal from an original or appellate decree or order. The right of appeal, if any, in force at the time of institution of the suits filed prior to 1.7.2002 are not preserved. From a plain reading of the provision, it is clear that no further appeal against an order of the Single Judge shall lie and be entertained after 1.7.2002." ;