JUDGMENT
Altamas Kabir, C.J.
1. The State Bank of India, the respondent No. 1 in the present appeal, filed Money Suit No. 12 of 1983 against the appellant and proforma respondents for recovery of its dues amounting to Rs. 6,43,663/84-P. The defendants appeared and contested the suit by filing their written statement and taking the plea that there was no cause of action for the suit, which was, therefore, not maintainable. As many as 11 issues were framed. While issues Nos. 4, 5, 6, 7 and 8 were decided against the plaintiff and in favour of the contesting defendants No. 1 to 6, issues No. 9 and 8 were partly allowed. Issue No. 3 was decided in favour of the plaintiff and so were the issues No. 1, 2 and 11. In the result, the suit was decreed in part. Aggrieved by the judgment and decree passed in the suit, the State Bank of India, filed an appeal in this Court, being FA No. 766 of 1992 R. The said appeal ultimately succeeded and by judgment dated 20th August 2004, the findings of the trial Court relating to interest payable were set aside and the suit was decreed.
2. Aggrieved by the judgment and decree passed in appeal the defendants No. 3 and 6 in the suit, Sri Satya Narayan Agiwal and Sri Bishwanath Agiwal filed the instant appeal under Clause 10 of the Letters Patent.
When the matter was placed for admission before the Division Bench on 17th March, 2005, certain questions of law relating to the maintainability of the appeal were raised having regard to the provisions of Clause 10 of the Letters Patent, read with Section 100-A and Section 104 of the Code of Civil Procedure. The matter was therefore, referred to a Full Bench of 3 Judges to consider and decide the said issues, which had been raised. The matter was thereafter taken up for consideration by the Full Bench in terms of the said reference.
3. Appearing in support of the appeal, Mr. Manjul Prasad, learned Senior Advocate, submitted that the appeal was maintainable as would be evident from the language of Clause 10 of the Letters Patent. The said question had also fallen for consideration before a Division Bench of this Court and the said issue had been decided in favour of the appellant.
4. Mr. Manjul Prasad, pointed out that Clause 10 of the Letters Patent provided that an appeal would lie to the High Court from a judgment of one Judge or one-Judge of any Division Court pursuant to Section 108 of the Government of 108 made on or before the 1st day of February, 1929 in exercise of the appellate jurisdiction by a Court subject to the superintendence of the High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal. Referring to the provisions of Section 100-A of the Code of Civil Procedure, and the non-obstante clause contained therein, Mr. Prasad submitted that a similar matter involving the non-obstante clause contained in Section 54 of the Land Acquisition Act, 1894 had fallen for the decision of a Full Bench of the Ranchi Bench of the Patna High Court in the case of State of Bihar v.- Smt. Sharda Devi, reported in 1997 (1) PLJR 155. Mr. Prasad submitted that in the said matter, the Full Bench was considering the question of maintainability of the Letters Patent Appeal having regard to the provisions of Section 54 of the Land Acquisition Act, 1894 which also contained a non-obstante clause that notwithstanding anything contained in any enactment for the time being in force, an appeal in respect of an award would lie to the High Court. Mr. Prasad urged that after considering the provisions of Clause 10 of the Letters Patent, the Full Bench came to the conclusion that a Letters Patent Appeal was not barred under Section 54 of the Land Acquisition Act. Mr. Prasad urged that the decision of the Full Bench was upheld by the Hon’ble Supreme Court in its decision in the case of Sharda Devi v. State of Bihar, reported in AIR 2002 SC 1357, in which it was observed that a Letters Patent, is not an enactment, but a Charter of the High Court and that a non-obstante clause as contained in Section 54 of the Land Acquisition Act, 1894 could not cover the charter of the High Court. The non-obstante clause had to be confined to choice of forum, rather than to the right of appeal. Thus, when a Letters Patent grants to the High Court a power of appeal against a judgment of the learned Single Judge, the right to entertain the appeal would not get excluded, unless the concerned statutory enactment excludes an appeal under the Letters Patent.
5. Mr. Prasad next contended that right of appeal Is not merely procedural, but a substantive right and that it had been consistently held by Courts that a right to appeal from a decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in and before the decision is given by the inferior Court. Mr. Prasad urged that in the case of H. K. Dada (I) Ltd. v. State of Madhya Pradesh, AIR 1953 SC 221, it was held that such a vested right cannot be taken away, except by an express enactment or intendment. In this regard, reference was also made to a Constitution Bench decision of the Hon’ble Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540, where the same views were expressed and it was repeated that the right of appeal is not a mere matter of procedure, but is a substantive right, which can be taken away only by a subsequent enactment. Mr. Prasad urged that the appeal being a continuation of the suit and having regard to the views expressed in Sharda Devi’s case regarding the overriding authority of the Letters Patent; the instant appeal against the judgment and decree of a learned Single Judge in the First Appeal would be maintainable under Clause 10 of the Letters Patent, notwithstanding the bar imposed under Section 100-A and Section 104 of the Code of Civil Procedure.
6. Reference was also made to the decision of the Hon’ble Supreme Court in the case of Subal Paul v. Malina Paul, reported in AIR 2003 SC 1928, wherein the Hon’ble Supreme Court had occasion to consider the maintainability of a Letters Patent Appeal in respect of an appeal heard by a learned Single Judge of a High Court from an order of the learned District Judge in an appeal under Section 299 of the Indian Succession Act, 1925. Mr. Prasad submitted that in the said decision the Hon’ble Supreme Court had held that Section 299 conferred a right of appeal, which was not governed by Section 104 of the Code of Civil Procedure. It was observed that Section 104 of the Code of Civil Procedure did not bar any further appeal if the same was provided for under any other Act for the time being in force.
7. Mr. Rajesh Kumar who appeared for the respondent Bank, maintained the stand taken by him earlier to the effect that the instant appeal stood barred on account of the prohibition contained in Section 100-A of the Code of Civil Procedure. It was contended by him that the said question relating to the bar imposed under Section 100-A of the Code of Civil Procedure had fallen for consideration of the Hon’ble Supreme Court in several matters, beginning from the case involving the Municipal Corporation of Brihanmumbai v. State Bank of India, reported in AIR 1999 SC 380, wherein upon an analysis of Section 100-A of the Code of Civil Procedure, it was specifically observed as follows :-
“10. 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 (supra). Since, an appeal under Section 217(1) of the Act is a first appeal in a second forum/Court and an appeal under Section* 218-D of the Act is the second appeal in the third forum/CouIrt, no further appeal would be competent before the fourth forum/Court in view of Section 100-A of the Code of Civil Procedure (supra)”.
8. Based on the said observation, the Hon’ble Supreme Court held that since in the said case, an appeal from an appellate order was heard and decided by a learned Single Judge of the High Court, no further appeal was maintainable from the judgment and order of the learned Single Judge, passed in that appeal.
9. Reference was also made to another decision of the Hon’ble Supreme Court in the case of Salem Advocates Bar Association, T.N. v. Union of India, 2003 (1) SCC 49, where also the provisions of Section 100-A were analyzed and despite the submissions made that where an original decree is reversed by a Single Judge of a High Court, there should be a provision for filing an appeal, the Hon’ble Supreme Court was of the view that no further appeal would lie, where an appeal from original or appellate decree had been heard by a Single Judge of a High Court.
10. While dealing with the provisions of Section 100-A of the Code of Civil Procedure, Mr. Rajesh Kumar also referred to the provisions of Section 104 of the Code of Civil Procedure and contended that certain appeals were saved from the ambit of Section 100, CPC by virtue of Sub-section (1) of Section 104. Mr. Rajesh Kumar urged that an appeal which had been provided for prior to the introduction of Section 100-A by way of an amendment in 2002, stood saved by Sub-section (1) of Section 104 and Sub-section (2) could, therefore, have no application to such an appeal. However, once the provisions of Section 100-A were introduced, no Letters Patent Appeal would be maintainable having regard to the non-obstante clause contained therein, which specifically excluded the operation of the provision of the Letters Patent. In this regard, reference was made to the majority decision of the Hon’ble Supreme Court in the case of P.S. Mattapan (dead) v. Andhra Bank Limited, AIR 2004 SC 5152, wherein the provision of Clause 15 of the Letters Patent as existing in the Calcutta High Court and the provisions of Section 100-A and Section 104, CPC were considered and it was held that a Letters Patent Appeal which had been filed prior to the introduction of Section 100-A would not be affected, rather would be saved. But once the provisions of Section 100-A were introduced, no Letters Patent Appeal would be maintainable on account of the fact that such a right had been specifically excluded.
11. Mr. Rajesh Kumar submitted that even in Subal Paul’s case (supra), the Hon’ble Supreme Court had, while holding that Section 299 of the Succession Act created a special right of appeal, also observed that whenever a statute provides a bar, it is expressly stated as such, as would appear from Section 100-A of the Code of Civil Procedure.
12. Mr. Rajesh Kumar concluded on the note that the Supreme Court and even a Full Bench of the Ranchi Bench of the Patna High Court had accepted the proposition that a right of appeal under the Letters Patent would be available, unless expressly barred by a special statute.
13. Having considered the submissions made on behalf of the respective parties, we are inclined to agree with Mr. Rajesh Kumar that an appeal, as provided for under Clause 10 of the Letters Patent, would be maintainable, unless expressly excluded by a special statute, in the instant case, the Code of Civil Procedure. It has been repeatedly held by the Hon’ble Supreme Court, while interpreting the provisions of Section 100-A of the Code of Civil Procedure, that when an appeal from an appellate order is heard and decided by a learned Single Judge of a High Court, no further appeal is maintainable from the judgment and order of the learned Single Judge passed in that appeal. The said view was expressed by the Hon’ble Supreme Court not only in the case, namely, the decision rendered in Salem Advocates Bar Association (supra) and Subal Paul v. Malina Paul (supra).
14. It may be noticed that the provisions of Section 100-A of the Code of Civil Procedure had not been considered either by the Full Bench of the Ranchi Bench of the Patna High Court, or the Hon’ble Supreme Court in Sharda Devi’s case, and the same had been decided in the light of the provision of Section 54 of the Land Acquisition Act, 1894, which was concerned more with the forum for appeal, rather than the right of appeal. While holding that the non-obstante clause in Section 54 of the Land Acquisition Act, 1894 bars an appeal under the Letters Patent, since the power given to a High Court under the Letters Patent Appeal are akin to the constitutional powers of High Court, the Hon’ble Supreme Court In the said decision had no occasion to consider the provisions of Section 100-A of the Code of Civil Procedure, which subsequently fell for consideration of the Hon’ble Supreme Court in the cases referred to above and are for the sake of reference set out herein below :-
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”.
15. On a plain reading of the provisions of Section 100-A of the Code of Civil Procedure, it will be obvious that the legislative intent in introducing the said provision was to minimize the delay in the finality of a decision by excluding the right to prefer a Second Appeal in the High Court from an order passed by a learned Single Judge in an appeal from an original or appellate decree.
16. We are, therefore, of the view that the instant appeal from the judgment and decree of the learned Single Judge in the First Appeal from the Money Suit is not maintainable and is barred under Section 100-A of the Code of Civil Procedure. The Appeal is, accordingly, dismissed. There will be no order as to costs.
S.J. Mukhopadhay, J.
17. I agree with their views expressed by Hon’ble CJ.
M.Y. Eqbal, J.
1. I have gone through the Judgment of my Brother, Hon’ble the Chief Justice. I, in respectful disagreement with the view taken by his Lordship, regret to agree that legislative intent in introducing Section 100-A in the Code of Civil Procedure was to minimize the delay in the finality of a decision by excluding the right to prefer Second Appeal in the High Court from an order passed by the learned Single Judge in an appeal from an original or appellate decree, wish to add of my own.
2. The question that falls for consideration before this Full Bench is whether a Letters Patent Appeal under Clause 10 of the Letters Patent against the judgment and decree passed by a learned Single Judge exercising original appellate jurisdiction is maintainable despite Section 100-A of the Code of Civil Procedure as amended by Act 22 of 2002.
3. This appeal arose out of a judgment and decree passed by learned Single Judge in a First Appeal being FA No. 766 of 1992 (R). The first Appeal No. 766 of 1992 (R) was filed by the respondent-Bank against the judgment and decree passed by a Sub-ordinate Judge in Money Suit No. 12 of 1983, which was filed for recovery of Rs. 6,43,663.84 paise.
4. Section 96 of the Code of Civil Procedure confers right and lays down the procedure for filing appeals from the original decree. Section 96 of the Code of Civil Procedure reads as under :
“96. Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall He from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decision of such Court.
(2) An appeal may lie from an original decree passed exparte
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed, (ten thousand rupees)”
5. A reading of the aforesaid provision makes it clear that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear the appeal from the decision of such Court. At this stage, I would like to refer some of the provisions of Bengal, Agra and Assam Civil Courts Act, 1887. The Bengal, Agra and Assam Civil Courts Act, 1887 was enacted in order to consolidate and establish the Civil Courts in the north western provinces of Bengal and Assam. By the aforesaid Act, the Bengal Civil Courts Act, 1871 was repealed. The provisions in regard to classification, constitution, delegation of powers are contained in local Civil Courts Act applicable to particular State or States. The provisions of the Bengal, Agra and Assam Civil Courts Act is applicable to the States of Bihar including the successor State of Jharkhand. Section 3 provides constitution of Civil Courts of the following classes :
(1) The Court of District Judge.
(2) The Court of Additional Judge.
(3) The Court of Subordinate Judge.
(4). The Court of Munsif.
6. The Act of 1887 also provides provision with regard to original jurisdiction and power of the Judges of the Civil Courts. Section 18 of the Act confers power to the District Judge or Subordinate Judge. Sections 20 and 21 reads as under :
“20. Appeals from District and Additional Judges.-(1) Saves otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or Additional Judge shall lie to the High Court.
(2) An appeal shall not lie to the High Court from a decree or order of an Additional Judge in any case in which, if the decree or order had been made by the District Judge an appeal would not lie to that Court.
21. Appeals from Subordinate Judges and Munsifs.-(1) Save as aforesaid, an appeal from decree or order of a Subordinate Judge shall lie-
(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees and
(b) to the High Court in any other case.
(2) Save as aforesaid an appeal from decree or order of a Munsif shall lie to the District Judge.
(3) Where the function of receiving any appeals which lie to the District Judge under Sub-section (1) or Sub-section (2) has been assigned to an Additional Judge, the appeals may be preferred to the Additional Judge.
(4) The High Court may, with the previous sanction of the Government, direct by notification in the official Gazette, that appeals lying to the District Judge under Sub-section (2) from all or any of the decree or orders of any Munsif shall be preferred to the Court of such Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly.”
7. The pecuniary jurisdiction of the Court- of Munsif and Subordinate Judge and also the pecuniary jurisdiction of the District Judge with regard to suits and appeals have been time to time enhanced. By recent State Amendment, the pecuniary jurisdiction of the District Judge has been enhanced whereby the Judgment and decree passed by the Court of Munsif and Subordinate Judge in respect of the suit, value of which does not exceed to Rs. Two lacs, is appealable to the District Judge. An appeal shall lie to the High Court against the judgment and decree passed in suit where the valuation exceeds to Rs. Two lacs. In other words, against the Judgment and decree passed in a suit of higher valuation (exceeding Rs. Two lacs), a First Appeal lies to the High Court under Section 96 of the Code of Civil Procedure whereas against the judgment and decree passed in a suit, valuation of which is less than Rs. Two lacs, an appeal will lie before the District Judge.
8. Section 100, CPC makes a provision for Second Appeal in the High Court against the judgment and decree passed in appeal by any Court subordinate to the High Court. In other words, against the judgment and decree passed by a District Judge in a suit of lesser value, a second forum of appeal is provided under Section 100 of the Code of Civil Procedure. After Second Appeal, no forum of third appeal has been provided in the Code of Civil Procedure even by way of Letters Patent Appeal. But in cases where a first appeal is filed in the High Court against the judgment and decree passed in a suit of higher value, a second forum of appeal by way of Letters Patent is provided. The question, therefore, arises as to whether a second forum of appeal in the High Court by way of Letters Patent has been curtailed by virtue of Section 100-A, CPC as amended by 2002 Amendment. Section 100-A reads as under :
“100-A. No further appeal in certain case.-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 High Court, no further appeal shall lie from the judgment and decree of such Single Judge.”
9. As noticed above, the legislative intent before inserting Section 100-A of the Code of Civil Procedure by 2002 Amendment Act in not providing second forum of appeal arising out of the suit of a higher valuation was that a forum was already provided under the Letters Patent and therefore against a judgment of a learned Single Judge arising out of a judgment and decree of higher valuation Letters Patent Appeal is maintainable which is as good as a forum of Second Appeal in the High Court. If that right of Letters Patent is taken away by virtue of amended provision of Section 100-A of the Code of Civil Procedure, it will create a serious anomaly inasmuch as a party to suit involving a very lesser amount is provided with two forums of appeal, one under Section 96, CPC and another under Section 100, CPC whereas a party in a suit involving a huge amount is provided with only one right of appeal in the High Court under Section 96, CPC and no further appeal under the Letters Patent of the High Court. Their Lordships of the Supreme Court in the case of Salem Advocate Bar Association, T.N. v. Union of India, (2003) 1 SCC 49, has taken notice of the anomalous situation and therefore, rightly observed :
“Section 100-A 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 Beneh, 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. In such a case to give a further right to 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 100-A.”
10. At this stage, I would like to refer Section 104 of the Code of Civil Procedure which reads as under :
“104. Orders from which appeal lies.-(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other order :-
[*****]
(ff) an order under Section 35-A;
(ffa) an order under Section 91 or 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;
(g) an order under Section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree :
(i) any order made under rules from which an appeal is expressly allowed by rules :-
[Provided that no appeal shall lie against an order specified in Clause (ff) save on the ground that no order, or an order for the payment of a less amount ought to have been made]
(2) No appeal shall lie from any order passed in appeal under this Section”
11. From bare reading for the aforesaid provision, it is clear that an appeal shall lie from the orders passed under different provisions of the Code of Civil Procedure including those orders which have been made appealable under Order XLIII Rule 1 of the Code of Civil Procedure. However, Sub-section (2) of Section 104 creates a specific bar from filing any further appeal from an order passed in appeal under the aforesaid provision. Order 43 Rule 1-A gives further right to challenge even those appellable orders even in an appeal filed against the final judgment and decree passed in the suit.
12. In P.S. Sathappan (Dead) by L. Rs v. Andhra Bank Ltd and Ors., AIR 2004 SC 5152, their Lordships, while considering whether Section 104(2) of the Code of Civil Procedure would bar a Letters Patent Appeal, held as under :
34. We find ourselves in respectful agreement with the reasoning of this Court in the aforesaid decision. The same reasoning would apply in respect of the submission that if it is held that Section 104(2) did not bar a Letters Patent Appeal an anomalous situation would arise inasmuch as if the matter were to come to the High Court a further Appeal would be permitted but if it went to the District Court a further Appeal would no lie. An Appeal is a creature of a statute. If a statue permits an Appeal, it will lie. If a statute does not permit an appeal, it will not lie. Thus, for example in cases under the Land Acquisition Act, Guardian and Wards Act and the Succession Act a further Appeal is permitted whilst under the Arbitration Act a further Appeal is barred. Thus different statutes have differing provisions in respect of Appeals. There is nothing anomalous in that. A District Court cannot be compared to a High Court which has special powers by virtue of Letters Patent. The District Court does not get a right to entertain a further Appeal as it does not have “any law for the time being In force” which permits such an Appeal. In any event we find no provision which permit a Larger Bench of the District Court to sit in Appeal against an order passed by a smaller Bench of that Court. Yet in the High Court even, under Section 104 read with Order XLIII Rule 1, CPC a Larger Bench can sit in Appeal against an order of a Single Judge. Section 104 itself contemplates different rights Appeals. Appeals saved by Section 104(1) can be filed. Those not saved will be barred by Section 104(2). We see nothing anomalous in such a situation. Consequently the plea of discrimination urged before us must be rejected.”
13. Reading together the provisions of Sections 96, 100, 100-A, 104 and Order XLIII, Rule 1-A of the Code of Civil Procedure, in my opinion it created a very anomalous situation inasmuch as a Letters Patent Appeal will lie to the Division Bench of this Court as against the judgment and order passed by the learned Single Judge exercising appellate jurisdiction under Section 104 of the Code of Civil Procedure but a Letters Patent Appeal will not lie against the judgment and order passed by the learned Single Judge exercising appellate jurisdiction against the judgment and decree passed by the subordinate Court exercising original jurisdiction. The bar created under Section 100-A, CPC is in direct conflict with the right of appeal provided under the Letters Patent of the High Court. The matter would have been otherwise, if First Appeal is placed for final hearing before the Division Bench of the High Court. The bar created under Section 100-A, CPC taking away a vested right of appeal under the Letters Patent of the High Court will cause serious prejudice to a party particularly when such right of Letters Patent Appeal has been provided in respect of cases arising out of special statute. In my opinion, therefore, unless High Court Rules is properly amended, the right conferred under Letters Patent of the High Court cannot be taken away by a bar created under Section 100-A, CPC. This Letters Patent Appeal is, therefore, held maintainable against the decree passed by the learned Single Judge.