REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS 9321-9322 OF 2010 [arising out of Special Leave Petition (Civil) Nos.2515-2516 of 2009]

Mohd. Saud & Another ……      Appellants  -versus-

Dr.(Maj.) Shaikh Mahfooz & Others …….      Respondents WITH

CIVIL APPEAL NOS. 9323-9324 OF 2010 (Special Leave Petition (Civil) Nos.13684-13685 of 2009)

J U D G M E N T

Markandey Katju, J.

CIVIL APPEAL NOS.  9321-9322     OF 2010 [arising out of Special Leave Petition (Civil) Nos.2515-2516 of 2009]

1. Leave granted.

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2. These  appeals  have  been  filed  against  the  impugned  

judgments of the Orissa High Court dated 24.9.2008 in LPA No.7 of  

2008 and dated 25.10.2008 in LPA No.8 of 2008.

3. Heard learned counsel for the parties and perused the record.

4. The facts have been mentioned in the impugned judgment of  

the High Court and hence we are not repeating the same here.

5. The  short  question  in  the  case  is  whether  a  Letters  Patent  

Appeal  (for  short  `LPA’)  is maintainable before the Division Bench  

against the judgment of the learned Single Judge of the High Court.  

Dated  6.8.2008.    Since  there  was  conflict  of  opinion  between  

different Division Benches of the High Court on the point whether the  

LPA was maintainable in view of the amendment of Section 100A  

CPC the Full Bench was constituted, and by the impugned judgment  

it  was  held that the LPA was not maintainable in view of Section  

100-A CPC.

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6. It  may  be  mentioned  that  the  proceedings  arose  out  of  an  

interim order dated 9.9.2005 passed by the Additional District Judge,  

Fast Track Court No.III, Bhubaneswar  in Civil Suit No.498 of 2004.  

The Civil Suit is still pending, but against the aforesaid interim order  

dated  9.9.2005  a  first  appeal  under  Order  43  Rule  1  being  FAO  

No.386 of 2007 was filed before a learned Single Judge of the High  

Court  who  decided  it  on  6.8.2008.   Against  the  judgment  of  this  

learned Single Judge dated 6.8.2008 the LPA was filed.  It has been  

held to be not maintainable by the impugned judgment.

7. Before deciding the question involved in this case we may refer  

to the relevant provisions in the C.P.C.

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8. Section 100-A of the Code of Civil Procedure (hereinafter called  

`the Code’) was inserted by Amendment Act 104 of 1976.  The said  

Section initially read as follows:

Section 100-  A   : No further appeal in certain cases : Notwithstanding anything contained in any Letters Patent  for any High Court or in any other instrument having the  force of law or in any other law for the time being in force,  where any appeal from an appellate decree or order is  heard and decided by a single Judge of a High Court, no  further  appeal  shall  lie  from  the  judgment,  decision  or  order of such single Judge in such appeal or from any  decree passed in such appeal.”

The said Section was amended by Amendment Act  46 of 1999 as follows :   

Section 100-  A   : No further appeal in certain cases : Notwithstanding anything contained in any Letters Patent  for any High Court or in any other instrument having the  force of law or in any other law for the time being in force,  (a) Where any appeal from an original or appellate decree  

or order is heard and decided.

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(b) Where any writ, direction or order is issued or made  on an application under Article 226 or Article 227 of  the Constitution,  

by  a  single  Judge of a High Court, no further appeal shall  lie  from  the judgment, decision or order of such single Judge.”

This amendment was however not given effect to.

Again Section 100-A of the Code was amended by  Act  22  of  2002  and  the  amended  Section  reads  as  follows:-

Section 100-  A   : 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.”  

9. The Full Bench by the impugned judgment has held that after  

the introduction of Section 100-A with effect from 1.7.2002, no Letters  

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Patent Appeal shall  lie against the judgment or order passed by a  

learned Single Judge in an appeal.  The Full Bench has held that the  

decision of the Division Bench of the High Court  in  Birat Chandra  

Dagra vs. Taurian Exim Pvt. Ltd. & Anr. (vide page 5) 2006(11) OLR  

344 does not lay down the good law while the decision of Division  

Bench  in V.N.N. Panicker vs. Narayan Patil & Anr. 2006(2) OLR 349  

lays down the correct law.  The Full Bench has further held that after  

the amendment  of  Section  100-A w.e.f.  1.7.2002 no LPA shall  lie  

against the order or judgment passed by a learned Single Judge even  

in an appeal arising out of a proceeding under a Special Act.

10. It has been held in a catena of decisions of this Court that an  

appeal  is  a  creature  of  a  statute  and  not  an  inherent  right  vide  

Garikapati Veeraya vs. N. Subbiah Choudhry & Ors.   AIR 1957 SC  

540.   This  right  of  appeal  can  be  taken  away  or  curtailed  by  a  

subsequent enactment vide in Kamal Kumar Dutta & Ors.  vs. Ruby  

General Hospital & Ors. 2006 (7) SCC 613.

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11. The validity of Section 100-A C.P.C. has been upheld by the  

decision  of  this  Court  in  Salem Advocate  Bar  Association,  Tamil  

Nadu vs. Union of India AIR 2003 SC 189.  

12. The  Full  Benches  of  the  Andhra  Pradesh  High  Court  vide  

Gandla Pannala Bhulaxmi  vs.  Managing Director, APSRTC & Anr.  

AIR 2003 AP 458, the Madhya Pradesh High Court in Laxminarayan  

vs.  Shivlal Gujar & Ors. AIR 2003 MP 49,  and of Kerala High Court  

in  Kesava Pillai Sreedharan Pillai  vs.  State of Kerala & Ors. AIR  

2004 Ker 111 have held that after the amendment of Section 100-A in  

2002 no  litigant  can  have a  substantive  right  for  a  further  appeal  

against the judgment or order of the learned Single Judge of the High  

Court passed in an appeal.  We respectfully agree with the aforesaid  

decisions.   

13. In Kamala Devi  vs.  Khushal Kanwar & Anr. AIR 2007 SC 663,  

this Court held that only an LPA filed prior to coming into force of the  

Amendment Act would be maintainable.

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14. In the present case the LPA was filed after 2002 and hence in  

our opinion they are not maintainable.

15. Learned  counsel  for  the  appellant,  however,  submitted  that  

Section 100-A does not bar a LPA against a judgment of the learned  

Single Judge who had decided an appeal  under Order  43 Rule 1  

against an interlocutory order of the District Judge.  He submitted that  

Section 100-A after its amendment in 2002 requires that the judgment  

of learned Single Judge should be a  judgment and decree of such  

Single  Judge.   He  further  submitted  that  in  the  present  case  the  

learned Single Judge was hearing an appeal against an interlocutory  

order of the learned Additional District Judge and hence when the  

learned Single Judge decided the appeal  he was not  passing any  

decree because the suit was still pending.

16. Learned  counsel  submitted  that  there  is  a  difference  in  the  

language  of  Section  100A  as  initially  inserted  in  1976,  and  the  

language of the provision as substituted in 2002.  While the former  

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barred an L.P.A.  even against  a  judgment,  decision  or  order  of  a  

learned single Judge which was not a decree, the latter bars only a  

judgment which is also a decree.   Since the judgment of the learned  

Single Judge dated 6.8.2008 was not a decree he submitted that the  

L.P.A. against that judgment was not barred.

17. While at  first  glance this argument may appear plausible but  

when we go deeper into it, we will realize that it has no merit.

18. It  would  be  strange  to  hold  that  while  two  appeals  will  be  

maintainable against interlocutory orders of a District Judge, only one  

appeal  will  be maintainable against a final  judgment of the District  

Judge.

19. It  may  be  noted  that  there  seems  to  be  some  apparent  

contradiction in Section 100-A as amended in 2002.  While in one  

part of Section 100-A it is stated “where any appeal from an original  

or appellate decree or order is heard and decided by a Single Judge  

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of a High Court”, in the following part it is stated “no further appeal  

shall lie from the judgment and decree of such Single Judge”.  Thus  

while one part of Section 100-A refers to an order, which to our mind  

would include even an interlocutory order, the later part of the Section  

mentions judgment and decree.

20. To  resolve  this  conflict  we  have  to  adopt  a  purposive  

interpretation.  The whole purpose of introducing Section 100-A was  

to reduce the number of appeals as the public in India was being  

harassed by the numerous appeals provided in the statute.  If we look  

at the matter from that angle it will immediately become apparent that  

the LPA in question was not maintainable because if it is held to be  

maintainable then the result will be that against an interlocutory order  

of the District Judge there may be two appeals, first to the learned  

Single Judge and then to the Division Bench of the High Court, but  

against a final judgment of the District Judge there can be only one  

appeal.   This in our opinion would be strange, and against the very  

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purpose of object of Section 100-A, that is to curtail the number of  

appeals.

21. It  is  well  settled  that  the  modern  method of  interpretation  is  

purposive vide  Directorate of Enforcement  vs.  Deepak Mahajan &  

Anr.  (1994) 3 SCC 440,  Hindustan Lever Ltd.  vs.  Ashok Vishnu  

Kate  &  Ors. (1995)  6  JT  625  (vide  page  631)  and  Workmen  of  

American  Express  International  Banking  Corporation vs.  

Management of American Express International Banking Corporation  

(1985) 4 SCC 71.

22. We are of the opinion that the apparent contradiction in Section  

100A as amended in  2002 was only  due to  bad drafting,  and not  

much can  be made out  of  it  once  we understand  the  purpose  of  

Section 100A.   

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23. For the reasons given above we are of the opinion that the Full  

Bench of the High Court has taken a correct view.  Thus there is no  

force in these appeals, which are accordingly dismissed.  No costs.  

CIVIL APPEAL NOS. 9323-9324 OF 2010 [arising out of Special Leave Petition (Civil) Nos.13684-85 of 2009]

24. Leave granted.

25. These appeals have been filed against the order of the learned  

Single Judge dated 6.8.2008 in first appeal from order no.386 of 2007  

of  the  Orissa  High  Court.   The  appeal  before  the  learned  Single  

Judge  arose  out  of  an  interlocutory  order  passed  by  the  learned  

Additional District Judge, Fast Track Court-III in a suit which is still  

pending.

26. In our opinion, though the judgment of the learned Single Judge  

is a final judgment, it is in another sense an interlocutory order as it is  

well  settled  that  an  appeal  is  a  continuation  of  the  original  

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proceedings.   Since  the  original  order  of  the  learned  Additional  

District Judge was an interlocutory order, hence the appeal against  

that order and the judgment of learned Single Judge in that sense  

was also interlocutory.

27. It  is  well  settled  that  this  Court  does  not  ordinarily  interfere  

under Article 136 of the Constitution with interlocutory orders.

28. For the reasons given above, we dismiss these appeals without  

going into the merits of the case.  However, we direct the learned  

Additional District Judge to decide the suit expeditiously.    No costs.  

……………..……………….J.  (MARKANDEY KATJU)

…………………………..….J.  (T. S. THAKUR)

NEW DELHI; 25th OCTOBER, 2010  

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