Exclusive HOLI Discounts!
Get Courses and Combos at Upto 50% OFF!
Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Prakash Yedhula (Lawyer)     11 April 2009

SOME RECENT SUPREME COURT JUDGMENTS OF PUBLIC IMPORTANCE

 1. On 13th October, 2008, a two Judges Bench in Siddhapal Kamala Yadav vs State of

Maharashtra [Crl. A. No.1602 of 2008] held that "under Section 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors."


"The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section", the Bench said.


Learning

 15 Replies

Prakash Yedhula (Lawyer)     11 April 2009

 2. On 16th October, 2008, a two Judges Bench in Maganlal son of Kishanlal Godha vs Nanasaheb son of Udhaorao Gadewar [C.A. No. 6125 of 2008] while examining the order recorded by the Rent Controller granting permission to the landlord under Clause 13(3) (iv) and (vi) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, held that "the notice issued by the Advocate on behalf of the appellant-landlord prior to filing of the application for eviction of the respondent-tenant under Clause 13 (3) (vi) was not a mandatory requirement postulated under the provisions of the Rent Control Order."



The Bench observed that "as there was no statutory requirement that the landlord should issue a notice of eviction to the tenant before initiating proceedings under clause 13(3) of the Rent Control Order, the Division Bench of the High Court was not right in drawing an inference against the appellant-landlord for not stating the ground of bona fide requirement of the premises in the notice dated 12.07.1982 issued to the respondent-tenant before the institution of eviction proceedings which commenced on 30.09.1982."

Prakash Yedhula (Lawyer)     11 April 2009

3. On 7th November, 2008, a two Judges Bench in Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. vs. M/s. DVS Steels & Alloys Pvt. Ltd. & Ors. [C.A. No.6565 of 2008] held that "when the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper, to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them."


The Bench observed that "a stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues. Having regard to the very large number of consumers of electricity and the frequent moving or translocating of industrial, commercial and residential establishments, provisions similar to clause 4.3(g) and (h) of Electricity Supply Code are necessary to safeguard the interests of the distributor."


The Bench did not "find anything unreasonable in a provision enabling the distributor/supplier, to disconnect electricity supply if dues are not paid, or where the electricity supply has already been disconnected for non-payment, insist upon clearance of arrears before a fresh electricity connection is given to the premises."


It is the "duty of the purchasers/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises. They can also incorporate in the deed of sale or lease, appropriate clauses making the vendor/lessor responsible for clearing the electricity dues up to the date of sale/lease and for indemnity in the event they are made liable", said the Bench. 

Prakash Yedhula (Lawyer)     11 April 2009

 4. On 12th November, 2008, a two Judges Bench in Deepak Bajaj vs State of Maharashtra& Anr [Writ Petition (Crl.) No.77 of 2008] held that the "reputation of a person is a facet of his right to life under Article 21 of the Constitution." "If a person is sent to jail then even if he is subsequently released, his reputation may be irreparably tarnished", the Bench observed.

Prakash Yedhula (Lawyer)     11 April 2009

 5. On 12th December, 2008, a two Judges Bench in U.P. Pollution Control Board vs Dr.Bhupendra Kumar Modi & Anr. [Crl. A. No.2019 of 2008] held that since escalating pollutionlevel of environment "affects on the life and health of human beings as well as animals, thecourts should not deal with the prosecution for offences under the pollution and environmental Acts in a causal or routine manner." The Bench observed that the Courts "cannot afford to deal lightly with cases involving pollution of air and water."

Prakash Yedhula (Lawyer)     11 April 2009

6. On 12th December, 2008, a two Judges Bench in M/s. Harman Electronics (P) Ltd. & Anr. vs M/s. National Panasonic India Ltd. [Crl. A. No. 2021 of 2008] while examining the territorial jurisdiction of a court to try an offence under Section 138 of the Negotiable Instruments Act, 1881,observed that "a banking institution holding several cheques signed by the same borrower can not only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-à-vis the provisions of the Code of Criminal Procedure."

Prakash Yedhula (Lawyer)     11 April 2009

 7. On 16th December, 2008 a two Judges Bench in M/s. Kumar Exports vs M/s. Sharma Carpets [Criminal Appeal No.2045 of 2008] held that "the accused in a trial under Section 138 of the Negotiable Instruments Act, 1881 has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt,apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant."

haridasmandal (service)     12 April 2009

I would like to file a PIL on running of URC( unit run canteens selling CSD goods at subsidised rates )by the CDA staff/est ( 38 in numbers at various stations in India . CSD goods are sold by armed forces URCs to the eligible categories. Govt employees of the Controllers of Defence Accts are NOT eligible. It is claimed that those civilian employees paid out of defence estimates were allowed to draw goods as goodwill gesture ( for their devoted work ) from the URCs run by military units. No auth /permission exists to run CDA URCs. My queries to spell out exact auth has not been provided. In my opinion this is the extreme mode of appeasement by the military auth /Min OF Defence to allow the auditors of the defence forces to run their own canteens. This is exactly the worst ever undetected civil collar crimes . It is the root cause of many evils and ordinarily the root cuases for the intended lapses on the part of the CDA sTAFF to be lenient in their duties to scrutinise purchase documents . It has BOFORS . HDW etc etc to name a famous few which has helped scamters looting the exchequers . bEING a citizen of this great country i intend to file a PIL against such abuse of ministerial / secretarial powers . Pl help me to file the PIL at HYDERABAD.

Fraud_victim (Manager)     25 March 2010

sir, can you help in giving any judgement citation of any court on Nullity of marriage under section 12 HMA please

girishankar (manager)     25 March 2010

Prakash Ji,

Can pl give Citations of SC regarding Probate of a Will......

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     25 March 2010

every case decides on it's own merits and demerits.

Therefore the act is much more important than the citation. However citation help to build up / constract the urguement strong.

I AM ALSO SEEKING CITATIONS ON THE MATTER NULTY OF MARRIAGE.

THANKS MR PRAKASH FOR THE ABOVE CITATIONS.

girishankar (manager)     25 March 2010

Hello A.K.G  Ji, {Long time No see} Happy ur bck,

Pl let me know is every Judgement given by the HC or SC is according to Law or Citiation.......Can citiation help to kill Law......

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     25 March 2010

thanks mr girishankar.

not every, but most of the judgements, supports the basic law, which popularly known as bare act.

citation can not kill the law, base of any citation is bare acts. petitioner's and respondent's claim how far according to law is the judgement.

girishankar (manager)     25 March 2010

Dear Arup Ji,

Please go thru the Judgement attached and go thru Bare act of the mentioned law and please explain me. I am very much confused whether to see the Bare Act or a Dictionary to know abt it,,,


Attached File : 22 22 petitioner.doc downloaded: 82 times

girishankar (manager)     26 March 2010

Dear sirs,

Please explain abt this Judgement b'cous I dont know legal wordings Pl explain me in short form to understand ....Thank You.......

 

 

Kamla Devi (Petitioner ) v Khushal Kanwar and Another (Respondent)
Case No.: Appeal (Civil) 5838 Of 2006 - Date Of Judgment: 15/12/2006 - Bench: S.B. Sinha & Markandey Katju

 

Judgment: [Arising out of SLP (Civil) No. 236 of 2006] S.B. SINHA, J : Leave granted.

Application of Section 100-A of the Code of Civil Procedure, 1908 (for short, 'the Code') is involved in this appeal which arises out of a judgment and order dated 19.09.2005 passed by a Division Bench of the High Court of Rajasthan, Jaipur Bench, Jaipur in D.B. Special Appeal No. 22 of 1992.

The father of Appellant indisputably was the owner of the property. He died on 03.07.1973 leaving behind his widow Smt. Anandi Devi and the parties hereto. He allegedly gifted a portion of the house known as 'Anand Vihar' in favour of the appellant. On 22.02.1977, Smt. Anandi Devi died. She is said to have executed a Will on 28.01.1977 in favour of Respondent No. 1 herein. An application for grant of probate in respect of the said Will came to be filed by her in favour of Respondent No.1 herein. Appellant entered into caveat in the said proceeding. The application for grant of probate was registered as Probate Case No. 31 of 1978 which was converted into a suit. Appellant herein raised the objections, inter alia, on the following grounds :

"1. That Shrimati Anandi Devi Upadhyaya neither executued any Will and Testament dated 28th January, 1977, nor was she physically and mentally fit to execute any Will and Testament as she had been suffering from Cancer since January, 1976 and had been confined to bed in a very critical and serious condition since December, 1976 until her death. Moreover, Shrimati Anandi Devi had been mentally and physically handicapped and was not of sound disposing state of mind. Hence the execution of the alleged Will and Testament is emphatically denied and the petitioner be put to strict proof of it. Moreover Shrimati Anandi Devi had no right or title to execute any will and Testament of the proportion described in the annexed affidavit due to the reasons below :

(A) That late Shri Ganeshi Lal Upadhyaya had three daughters namely Shrimati Kamla Devi, Shrimati Nihal Kanwar and Shrimati Kushal Kanwar and a wife Shrimati Anandi Devi and Shri Ganesh Lal Upadhyaya expired on July 3, 1973, at Jhansi (UP).

(B) That Shri Ganeshi Lal Upadhyaya gifted to Shrimati Kamla Devi a portion of open plot bearing area 34 ft. x 25 < fit. of Anand Bihar now bearing AMC No. 258 / 1 on the eve of her marriage in Kanyadan and he had made a note of the abovesaid gift in his daily diary dated 6th May, 1956, which is in the possession of the petitioner and also mentioned in an application to the Municipal Council, Ajmer, dated November 11, 1970. Shrimati Kamla Devi got construction erected by her and her husband's means in December, 1963.

(C) That except the property of Shrimati Kamla Devi described in para No. 2 above, late Shri Ganeshi Lal had the property namely Anand Bihar bearing AMC 258 situated at Rajendrapura, Hathi Bhata, Ajmer in his own exclusive possession and ownership as the said property was got constructed by late Shri Ganeshi Lal by his own means on the land purchased by him in his own name.

(D) That the late Shri Ganeshilal was survived by three daughters namely Shrimati Kamla Devi, Shrimati Nihal Kanwar and Shrimati Kushal Kanwar and his wife Shrimati Anandi Devi.

(E) That on February 22, 1977, Shrimati Anandi Devi died at Ajmer and thus three daughters, being the only survivors, jointly inherited the property AMC 12/258 Anand Bihar, Ajmer and movable property including gold and silver ornaments, two motor cars, utensils etc.

(F) That after the death of late Shri Ganeshi Lal the said immovable and movable properties were inherited by four survivors namely his wife Shrimati Anandi Devi and his three daughters. Consequently, Shrimati Anandi Devi, if ever wished to execute any Will although she never did, never execute the Will of her only < share in the immovable property. But as she did not execute so, the property has been inherited by her three surviving daughters."

The said suit was dismissed by a judgment and order dated 29.08.1987 passed by the learned District Judge, Ajmer, opining that although Respondent No.1 had proved that the Will had duly been executed, the map annexed thereto was changed after execution of the Will and, thus, the propounded Will was tampered. A First Appeal preferred thereagainst by Respondent No.1 was dismissed by a learned Single Judge of the High Court of Judicature at Rajasthan by a judgment and order dated 13.02.1992, holding that the execution of the Will was doubtful inasmuch as the map which was said to have been annexed therewith was not the same which was found to have been attached at the time of its registration.

An intra-court appeal was preferred thereagainst. By reason of the impugned judgment, the judgment and order passed by the learned Single Judge was set aside. An application for review filed thereagainst was also dismissed.

Parliament inserted Section 100A in the Code of Civil Procedure by Section 38 of Act No. 104 of 1976, which was substituted by Section 4 of  Act No.22 of 2002, which came into force with effect from. 01.07.2002.

The core question which arises for consideration in this appeal is as to whether the Special Appeal filed by Respondent No.1 herein before a Division Bench of the Rajasthan High Court was maintainable.

Submission of the learned counsel appearing on behalf of the appellant is that Section 100A not only bars filing of an appeal, but would be attracted even in a pending appeal.

Constitutionality of Section 100A of the Code of Civil Procedure came to be questioned before this Court in Salem Advocate Bar Association, T.N. etc. v. Union of India (2003) 1 SCC 49], wherein this Court upheld the validity thereof, stating :

"14. Section 100A deals with two types of cases which are decided by a Single Judge. One is where the Single Judge hears an appeal from an appellate decree or
order. The question of there being any further appeal in such a case cannot and should not be contemplated. Where, however, an appeal is filed before the High Court against the decree of a trial court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a Single Judge or by a Division Bench of the High Court. Where the regular first appeal so filed is heard by a Division Bench, the question of there being an intra-court appeal does not arise. It is only in cases where the value is not substantial that the rules of the High Court may provide for the regular first appeal to be heard by a Single Judge.15. In Such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily. We do not find that any prejudice would be caused to the litigants by not providing for intra-court appeal, even where the value involved is large. In such a case, the High Court by Rules, can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be found with the amended provision Section 100A."

However, it was opined that the modalities were required to be formulated in respect of the manner in which Section 89 of the Code and for that matter, the other provisions which have been introduced by way of amendments, may have to be operated. For the said purpose, a Committee headed by the Chairman, Law Commission of India, was constituted so as to ensure that the amendments become effective and result in quicker dispensation of justice. It submitted a report. We are, however, not concerned therewith herein.

A right of appeal under the Code is statutory. Such right of appeal is also conferred under the Letters Patent of the High Court or the statutes creating the High Court.

An appeal, as is well known, is the right of entering a superior court invoking its aid and interposition to redress an error of the Court below. The central idea behind filing of an appeal revolves round the right as contra-distinguished from the procedure laid down therefor.

This Court in Messrs. Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Others [AIR 1953 SC 221], opined :
"11. The above decisions quite firmly establish and our decisions in Janardan Reddy v. The State and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd., uphold the principle that a right of appeal is not merely a matter of procedure. It is matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins C.J. in Nana v. Shaikh (supra) to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication."

Whether Section 100A takes away such a right is the question. In our opinion, it does not. An appeal, as is well known, is a continuation of the original proceedings. In Shiv Shakti Co-op. Housing Sociedty, Nagpur v. M/s Swaraj Developers and Others [AIR 2003 SC 2434], this Court held : "17. Right of appeal is statutory. Right of appeal inherits in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so. As was observed in The State of Kerala v. K.M. Charia Abdulla and Co., the distinction between right appeal and revision is based on differences implicit in the two expressions. An appeal is continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power. It was noted by the four-Judges Bench in Hari Shankar and Ors. v. Rao Girdhari Lal Chowdhury that the distinction between the appeal and a revision is a real one. A right of appeal carries with it a right of re-hearing on law as well as fact, unless the statute conferring the right of appeal limits the re-hearing in some way, as has been done in second appeals arising under the Code. The power of hearing revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Reference was made to Section 115 of the Code to hold that the High Court's powers under the said provision are limited to certain particular categories of cases. The right there is confined to jurisdiction and jurisdiction alone."

A question in relation to maintainability of a Letters Patent Appeal under the Indian Succession Act came up for consideration before this Court in Subal Paul v. Malina Paul and Another [(2003) 10 SCC 361], wherein this Court opined :
"17. It is not disputed that Section 299 of the Act expressly provides for an appeal to the High Court. The right of appeal, therefore, is not conferred under Section 104 of the Code of Civil Procedure. The words "save as expressly provided by any other Act" were inserted in the said provisions in 1908 having regard to difference of opinions rendered in the judgments of various High Courts as regards the applicability of letters patent. The High Courts of Calcutta, Madras and Bombay following the decisions of the Privy Council in Hurrish Chunder Chowdhry v. Kalisunderi Devi [(1883) 9 Cal. 482 : 10 I.A. 4] held that Section 588 of the Code of Civil Procedure, as it then stood, did not take away the jurisdiction of Clause 15 of the Letters Patent whereas the Allahabad High Court in Bannu Bibi v. Mehdi Husain [(1889) 11 All. 375] held to the contrary. The said words were, therefore, added in the 1908 Act to give effect to the Calcutta, Madras and Bombay High Courts' decisions."

It was further held :
"21. If a right of appeal is provided for under the Act, the limitation thereof must also be provided therein. A right of appeal which is provided under the Letters Patent cannot be said to be restricted. Limitation of a right of appeal in absence of any provision in a statute cannot be readily inferred. It is now well-settled that the appellate jurisdiction of a superior court is not taken as excluded simply because subordinate court exercises its special jurisdiction. In G.P. Singh's 'Principles of Statutory Interpretation', it is stated: "The appellate and revisional jurisdiction of superior courts is not taken as excluded simply because the subordinate court exercises a special jurisdiction. The reason is that when a special Act on matters governed by that Act confers a jurisdiction to an established court, as distinguished from a persona designata, without any words of limitation then, the ordinary incident of procedure of that court including any general right of appeal or revision against its decision is attracted."

22. But an exception to the aforementioned rule is on matters where the special Act sets out it a self-contained Code the applicability of the general law procedure would be impliedly excluded. [See Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinnhji Solanki and Ors."

In Municipal Corporation of Brihanmumbai and Another v. State Bank of India [(1999) 1 SCC 123], this Court held: "This section has been introduced to minimize the delay in the finality of a decision. Prior to the enactment of the above provision, under the letters patent, an appeal against the decision of a Single Judge in a second appeal was in certain cases, held competent, though under Section 100 of the Code of Civil Procedure, there was some inhibition against interference with the findings of fact. The right of taking recourse to such an appeal has now been taken away by Section 100-A of the Code of Civil Procedure "

In P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank Ltd. and Others [(2004) 11 SCC 672], a Constitution Bench of this Court, albeit in reference
to Section 104 of the Code, held :

"It is thus to be seen that when the Legislature wanted to exclude a Letters Patent Appeal it specifically did so. The words used in Section 100A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 C.P.C. Thus now a specific exclusion was provided. After 2002, Section 100A reads as follows:

"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." To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a Letters Patent Appeal."

It was furthermore observed :
" We may notice that when a first appeal or second appeal was disposed of by a Single Judge, a Letters Patent Appeal had been held to be maintainable therefrom only because there existed no bar in relation thereto. Such a bar has now been created by reason of  Section 100-A of the Code. No appeal would, therefore, be maintainable when there exists a statutory bar. When the Parliament enacts a law it is presumed to know the existence of other statutes. Thus, in a given case, bar created for preferring an appeal expressly cannot be circumscribed by making a claim by finding out a source thereof in another statute."

In Kamal Kumar Dutta and Another v. Ruby General Hospital Ltd. & Ors., [2006 (7) SCALE 668], it was observed :

"So far as the general proposition of law is concerned that the appeal is a vested right there is no quarrel with the proposition but it is clarified that such right can be taken away by a subsequent enactment either expressly or by necessary intendment. The Parliament while amending Section 100A of the Code of Civil Procedure, by amending Act 22 of 2002 with effect from 1.7.2002, took away the Letters Patent power of the High Court in the matter of appeal against an order of learned single Judge to the Division Bench..." [Emphasis supplied]

Keeping in view the principles of law as enunciated in the aforementioned decisions of this Court, it is evident that a letters patent appeal, which was filed prior to coming into force of the 2002 Act would be maintainable. Our attention has, furthermore, been drawn to the two decisions of this Court in Bento De Souza Egipsy (Dead) by LRs. v. Yvette Alvares Colaco and Others [(2004) 13 SCC 438] and Sanjay Z. Rane and Others v. Saibai S. Dubaxi (Dead) Through LRs. [(2004) 13 SCC 439], wherein this Court opined that Section 100A of the Code has no retrospective effect. We, therefore, are unable to accept the contentions of the learned counsel for the appellant that Section 100A of the Code will have retrospective effect so as to bring within its fold even the appeals preferred prior to coming into force of the said Act. The appeal is dismissed. No costs.

Print This Judgment


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register