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Letters patent appeal abolition

(Querist) 17 April 2014 This query is : Resolved 
Hi I just came across THE MAHARASHTRA HIGH COURT (HEARING OF WRIT PETITIONS BY DIVISION BENCH AND ABOLITION OF LETTERS PATENT APPEALS) ACT, 1986 which came into force from 18th March 2013.

As per my reading u/s 3 of the Act appeals from under any statute instituted or commenced, whether before or after the commencement of this Act, shall lie to the High Court from a judgment, decree or order of a Single
Judge of the High Court made on or after the commencement of this Act, whether in the exercise of
the original or appellate jurisdiction of the High Court.

hence in such a case an appeal against an order to conditional leave to defend will lie to the Supreme Court and not to the Division Bench of the Hon'ble Bombay High Court?

Please help..!!
Devajyoti Barman (Expert) 17 April 2014
Academic query..no reply.
ajay sethi (Expert) 17 April 2014
academic query
Dr J C Vashista (Expert) 18 April 2014
Academic query.
Annapurna (Querist) 18 April 2014
Dear Sirs,

What is your opinion on the matter. It is of high importance to know that the Act will abolish Appeals to Division Bench from Suits as well as Writ Petition. The Courts have been wrongly interpreting the statute and limiting the Act to Writ Petitions only; whereas the Act extends to Suits also. For your convenience I reproduce the act below:

PREAMBLE

An Act to provide for hearing of Writ Petitions by Division Bench and for abolition of Letters Patent Appeals in the High Court of Judicature at Bombay.

WHEREAS it is expedient to provide for hearing of writ petitions by Division Bench and for abolition of Letters Patent Appeals in the High Court of Judicature at Bombay. It is hereby enacted in the Thirty-sixth Year of the Republic of India as follows :

Section 1 - Short title and commencement
(1) This Act may be called the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986.

(2) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.

NOTES

Object and Reasons.- The Act inter alia provides that after its commencement every application under Art. 226 or Art. 227 or Art. 228 shall be heard and disposed of by a Division Bench. The High Court may by rules made specify that such of the applications referred to above may be heard and disposed of by a Single Judge.

Secondly notwithstanding the provisions of the Letters Patent (Bom.) after commencement of the Act no appeal shall lie to the High Court from a judgment, decree or order of a Single Judge whether in exercise of the original or appellate jurisdiction. Appeals pending at the commencement of the Act are saved.

The Act is to come into force on the date to be notified by the State Government. It seems that as on 14.3.1986 the Act is not enforced.

The provisions of the Maharashtra Act 17 of 1986 are on the lines of the M. P. Uchcha Nyayalaya (Letters Patent Appeals Samapti Adhiniyam, 1981 (29 of 1981) as per Statement of Objects and Reasons of the Mah. Act). The M. P. Act 29 of 1981, is declared ultra viresby the Full Bench of the M. P. High Court. (See AIR 1985 M. P. 42) and appeals against the said decision is pending before the Supreme Court.

For Act 17 of 1986 - See Mah. Govt. Gaz., 16.3.86, Pt. IV, pp. 71-72 and for its Statement of Objects and Reasons see Mah. Govt. Gaz., 13.2.86, Pt. V, p. 47.

Section 2 - Writ petitions, etc., in the High Court to be heard by Division Bench
Notwithstanding anything contained in any aw for the time being in force or in any instrument having the force of law, every application for the issue of any direction, order or writ under Article 226 of the Constitution of India and every application invoking the jurisdiction of the High Court under Article 227 or Article 228 of the Constitution of India, pending before the High Court of Judicature at Bombay, on the date of commencement of this Act, or filed on or after the said date, whether the matter in dispute is or has arisen in Greater Bombay or outside Greater Bombay, shall be heard and disposed of by a Division Bench to be appointed by the Chief Justice of the High Court :

Provided that, the High Court may by rules made after previous publication 1[* * *] prescribed that such of the applications referred to above, arising in Greater Bombay or outside Greater Bombay, as may be specified in the rules, may be heard and disposed of by a Single Judge appointed by the Chief Justice.

_________________

1. The words “and with the previous approval of the State Government” were deleted by Mah. 27 of 2008, section 2 (w.e.f. 1.7.1987).

Section 3 - Abolition of appeal from judgment or order or Single Judge of High Court made in exercise of original or appellate jurisdiction
(1) Notwithstanding anything contained in the Letters Patent for the High Court of Judicature at Bombay, dated the 28th December, 1865 and in any other instrument having the force of law or in any other law for the time being in force, no appeal 1[arising from the applications referred to in section 2 or an appeal under any statute instituted or commenced], whether before or after the commencement of this Act, shall lie to the High Court from a judgment, decree or order of a Single Judge of the High Court made on or after the commencement of this Act, whether in the exercise of the original or appellate jurisdiction of the High Court :

2[Provided that, the judgment or orders passed by the High Court during the period commencing from the 1st July, 1987 and ending on the date of commencement of the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) (Amendment) Act, 2008 (Mah. XXVII of 2008), in any appeal against judgment or order passed by a Single Judge in any such application or appeal, shall be deemed to have been validly passed and shall not be called in question in any court on the ground that no appeal was provided against such judgment or order of a Single Judge.]

(2) Notwithstanding anything contained in sub-section (1), all such appeals pending before the High Court, on the date immediately preceding the date of 3[commencement of the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) (Amendment) Act, 2008 (Mah. XXVII of 2008)] shall be continued and disposed of by that Court, as if this Act had not been passed.

_________________

1. These words and figures were substituted for the words, brackets and. figure “arising from a suit or other proceeding (Including the applications referred to in section 2) Instituted or commenced”, ibid., section 3(a).

2. Proviso was added by Mali. 27 of 2008, section 3(b).

3. These words, brackets and figures were substituted for the words “commencement of this Act”, ibid., section 3(c).
Annapurna (Querist) 18 April 2014
Till date the Hon'ble Bombay High Court is entertaining LPAs; howevre after enactment of this Act and after its notification by the Govt. on 18 March 2013 LPAs from Suits should not be maintainable before the Division Bench from judgement from a Single Bench.

More specifically in cases under Order 37 of CPC when conditional leave is granted the appeal against such an order should technically lie to the Hon'ble Supreme Court and not to the Division Bench of the same high Court..!!

Kindly guide me through the same; is my interpretation of the statute correct..??
Devajyoti Barman (Expert) 18 April 2014
AS PER MY UNDERSTANDING , THE ACT APPLIES TO WRIT PETITIONS ONLY, NOT SUITS.
Rajendra K Goyal (Expert) 18 April 2014
Academic query.
R.K Nanda (Expert) 18 April 2014
consult local lawyer.


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