MOHD. SAUD & ANOTHERversusDR. (MAJ.) SHAIKH MAHFOOZ & OTHERS

                     [2010] 14 (ADDL.) S.C.R. 84


A                    MOHD. SAUD & ANOTHER
                                    v.
             DR. (MAJ.) SHAIKH MAHFOOZ & OTHERS
               (Civil Appeal Nos.9321-9322 of 2010)
                         OCTOBER 25, 2010
B
         [MARKANDEY KATJU AND T.S. THAKUR, JJ.]

           Code of Civil Procedure, 1908 - s. 100-A - Amendment
     of, in 2002 - Effect - Interim order passed by Additional
C    District Judge in a civil suit - First appeal against the interim
     order before Single Judge of the High Court - LPA against
    judgment of Single Judge - Maintainability of - Held: After
     the amendment of s. 100-A in 2002, no litigant can have a
     substantive right for a further appeal against the judgment or
D   order of the Single Judge of the High Court passed in an
    appeal - Only an LPA filed prior to coming into force of the
     amendment would be maintainable - In the instant case, the
    LPA was filed after 2002 and hence was not maintainable -
    No merit in the contention that s. 100-A after its amendment
E   in 2002 requires that the judgment of the Single Judge should
    be a judgment and decree of such Single Judge, and since
    in the present case the Single Judge decided an appeal
     against an interlocutory order of the Additional District Judge, ·
     the judgment of the Single Judge was not a decree and LPA
F    against that judgment was not barred - This would be against
    the very purpose of object of s. 100-A, that is to curtail the
    number of appeals - In any event, an appeal is a continuation
    of the original proceedings - Since the original order of the
    Additional District Judge was an interlocutory order, hence the
    judgment of the Single Judge was also interlocutory -
G    Supreme Court does not ordinarily interfere under Article 136
    of the Constitution with interlocutory orders - Interpretation of
     Statutes - Purposive construction - Constitution of India, 1950
    - Article 136.

H                                  84
     MOHD. SAUD & ANR. v. DR.(MAJ.) SHAIKH                  85
              MAHFOOZ & ORS.
     Appeal - Right of - Held: An appeal is a creature of a       A
statute and not an inherent right - This right of appeal can
be taken away or curtailed by a subsequent enactment.

     In a civil suit, the Additional District Judge, Fast Track
Court passed an interim order, against which a first
appeal under Order 43 Rule 1 CPC was filed before a               8
Single Judge of the High Court. Against the judgment
passed by the Single Judge, a Letters Patent Appeal
(~PA) was filed. Since there was conflict of opinion
between different Division Benches of the High Court on
the point whether the LPA was maintainable, the Full              C
Bench was constituted, and by the impugned judgment
it was held that the LPA was not maintainable in view of
Section 100-A CPC as amended in 2002.

    Dismissing the appeals, the Court                             D
     HELD:1.1. An appeal is a creature of a statute and not
an inherent right. This right of appeal can be taken away
or curtailed by a subsequent enactment. After the
amendment of Section 100-A in 2002, no litigant can have
a substantive right for a further appeal against the              E
judgment or order of the Single Judge of the High Court
passed in an appeal. Only an LPA filed prior to coming
into force of the Amendment Act would be maintainable.
In the present case the LPAs were filed after 2002 and
hence they are not maintainable. [Paras 10, 11, 12, 13 and        F
14] [91-D-H; 92-A-B]

     1.2. There is no merit in the contention raised by the
appellant that Section 100-A after its amendment in 2002
requires that the judgment of the Single Judge should be          G
a judgment and decree of such Single Judge, and since
in the present case the Single Judge decided an appeal
against an interlocutory order of the Additional District
Judge, the judgment of the Single Judge was not a
                                                                  H
    86   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A decree and LP.A. against that judgment was not barred.
  It cannot be held 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. There seems to be
8 some apparent contradiction in Section 100-A as
  amendP.d 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
  of a High Court", in the following part -it is stated "no
C 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 would include even an
  interlocutory order, the later part of the Section mentions
  judgment and decree. To resolve this conflict one has to
  adopt a purposive interpretation. The whole purpose of
D 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. The LPA in
  question was not maintainable because if it is held to be
  maintainable then the result will be that against an
E interlocutory order of the District Judge there may be two
  appeals, first to the 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
  would be strange, and against the very purpose of object
F of Section 100-A, that is, to curtail the number of appeals.
  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 the purpose of Section 100A is
  understood. [Paras18, 19, 20, 21 and 22] [92-H; 93-A-H]
G
       1.3. In any event, an appeal is a continuation of the
  original proceedings. Since the original order of the
  Additional District Judge was an interlocutory order,
  hence the appeal against that order and the judgment of
H
     MOHD. SAUD & ANR. v. DR.(MAJ.) SHAIKH                  87
              MAHFOOZ & ORS.
the Single Judge in that sense was also interlocutory. It        A
is well settled that this Court does not ordinarily interfere
under Article 136 of th~ Constitution with interlocutory
orders. [Paras 26 and 27] [94-D-F]

     Garikapati Veeraya v. N. Subbiah Choudhry & Ors. AIR
                                                           8
1957 SC 540; Kamal Kumar Dutta & Ors. v. Ruby General
          ..
Hospital &.Ors. 2006 (7) SCC 613; Kamala Devi v. Khushal
Kanwar & Anr. AIR 2007 SC 663; Directorate of Enforcement
v. Deepak Mahajan & Anr. (1994) 3 SCC 440; Hindu~tan
Lever Ltd. v. Ashok Vishnu Kate & Ors. (1995) 6 JT 625 and C
Workmen of American Express International Banking
Corporation v. Management of American Express
International Banking Corporation (1985) 4 SCC 71, relied
on.

      Gandia Pannala Bhulaxmi vs. Managing Director,             D
APSRTC & Anr. AIR 2003 AP 458; Laxminarayan v. Shiv/a/
Gujar & Ors. AIR 2003 MP 49 and Kesava Pillai Sreedharan
Pillai v. State of Kera/a & Ors. AIR 2004 Ker 111 - approved.

     Sa/em Advocate Bar Association, Tamil Nadu v. Union
                                                                 E
of India AIR 2003 SC 189; Birat Chandra Dagra v. Taurian
Exim Pvt. Ltd. & Anr. 2006(11) OLR 344 and V.N.N. Panicker
v. Narayan Patil & Anr. 2006(2) OLR 349 - referred to.

                    Case Law Reference:
                                                                 F
    2006(11) OLR 344         referred to           Para 9
    2006(2) OLR 349          referred to           Para 9
    AIR 1957 SC 540          relied on             Para 10
    2006 (7) sec 613         relied on             Para 10       G

    AIR 2003 SC 189          referred to           Para 11
  · AIR 2003 AP 458          approved              Para 12

    AIR 2003 MP 49           approved              Para 12       H
    88    SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A        AIR 2004 Ker 111         approved              Para 12
         AIR 2007 SC 663          relied on             Para 13
         (1994) 3 sec 440         relied on             Para 21
         (1995) 6 JT 625          relied on             Para 21
B
         (1985) 4 sec 11          relied on             Para 21

        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    9321-9322 of 2010.
c        From the Judgment & Order dated 24.9.2008 in LP.A. No.
    7 of 2008 and order dated 25.10.2008 in LP .A. No. 8 of 2008
    of the High Court of Orissa at Cuttack.

                                WITH
D
    SLP(C) No. 13684-13685 of 2009

        S.S. Dash, Ashok Panigrahi (for Satya Mitra Garg) for the
    Appellants.

E         Dinesh Dwivedi, G. Ramakrishna Prasad, Bharat J. Joshi
    for the Respondents.

         The Judgment of the Court was delivered by

         MARKANDEY KAT JU, J.
F
    CIVIL APPEAL NOS. OF 2010

    [arising out of Special Leave Petition (Civil) Nos.2515-2516 of
    2009]

G        1. Leave granted.

        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.
H
     MOHD. SAUD & ANR. v. DR.(MAJ.) SHAIKH                   89
     MAHFOOZ & ORS. [MARKANDEY KATJU, J.]
    3. Heard learned counsel for the parties and perused the        A
record.

    4. The facts have been mentioned in the impugned
judgment of the High Court and hence we are not repeating the
same here.                                                          B
     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       c
High Court on the point whether the LPA was maintainable in
view of the amendment of Section 1OOA CPC the Full Bench
was constituted1 and by the impugned judgment it was held that
the LPA was not maintainable in view of Section 100-A CPC.
                                                                    D
     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.Ill, 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
                                                                    E
Order 43 Rule 1 being FAQ 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.
                                                                    F
    7. Before deciding the question involved in this case we
may refer to the relevant provisions in the C.P.C.

     8. Section 100-A of the Code of Civil Procedure
(hereinafter called 'the Code') was inserted by Amendment Act       G
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       H
    90     SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A        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
B        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 :
c
         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
D               decree or order is heard and decided.

          (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
E                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
F        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
G        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
H        of such single Judge."
     MOHD. SAUD & ANR. v. DR.(MAJ.) SHAIKH                  91
     MAHFOOZ & ORS. [MARKANDEY KAT JU, J.]
     9. The Full Bench by the impugned judgment has held that A
after the introduction of Section 100-A with effect from
1.7.2002, no Letters 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. B
 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 c i
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 D
 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.                                                              E

     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 F
  vide Gandia Pannala Bhu/axmi vs. Managing Director,
  APSRTC & Anr. AIR 2003 AP 458, the Madhya Pradesh High
  Court in Laxminarayan vs. Shiv/al Gujar & Ors. AIR 2003 MP
  49, and of Kerala High Court in Kesava Pillai Sreedharan
· Pillai vs. State of Kera/a & Ors. AIR 2004 Ker 111 have held G
  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.                                                      H
    92    SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.


A         13. In Kamala Devi vs. Khusha/ 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.

        14. In the present case the LPA was filed after 2002 and
    hence in our opinion they are not maintainable.
8
         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
C   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
D   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
E   in the language of Section 1OOA as initially inserted in 1976,
    and the language of the provision as substituted· in 2002. While
    the former barred an LP.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
F   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
G   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
H   of the District Judge.
     MOHD. SAUD & ANR. v. DR.(MAJ.) SHAIKH                        93
     MAHFOOZ & ORS. [MARKANDEY KAT JU, J.]

     19. It may be noted that there seems to be some apparent           A
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 of a High Court", in the following part it is
stated "no further appeal shall lie from the judgment and decree        B
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 S~ction mentions
judgment and decree.

     20. To resolve this conflict we have to adopt a purposive
                                                                        c
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   D
become apparent that the LPA in question was not
maintainable because if it is held to be mainta)9able 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        E
one appeal. This in our opinion would be strange, and against
the very 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    F
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                          G
International Banking Corporation (1985) 4 SCC 71.

     22. We are of the opinion that the apparent contradiction
in Section 1ODA 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 1ODA.                                 H
    94       SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.


A        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 201-0
B
         [arising out of Special Leave Petition (Civil) Nos.13684-
                             85 of 2009]

         24. Leave granted.

c        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
o   Court-Ill 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 proceedings. Since the original
E 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.

F         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
G direct the learned Additional District Judge to decide the suit
  expeditiously. No costs.

    B.B.B.                                      Appeals dismissed.