Holding

A Letters Patent appeal filed before the commencement of the 2002 amendment is maintainable; Section 100‑A does not have retrospective effect.

Summary

The appeal concerned a special Letters Patent appeal filed before the CPC (Amendment) Act 2002 came into force. The appellant argued that Section 100‑A of the Code of Civil Procedure, which bars further appeals from a single‑judge decision, should apply retrospectively and thus invalidate the pending appeal. The Supreme Court examined the nature of the statutory right of appeal, the saving clause in Section 104(1) of the CPC, and the legislative intent behind the 2002 amendment. Relying on earlier decisions that a statutory right of appeal can be removed only by express provision and that Section 100‑A was intended to apply prospectively, the Court held that the amendment does not have retrospective effect. Consequently, a Letters Patent appeal filed prior to the amendment remains maintainable. The appeal was dismissed.

Issues considered

Whether Section 100‑A of the Code of Civil Procedure, 1908, applies retrospectively to a Letters Patent appeal filed before the amendment came into force.
Whether a Letters Patent appeal filed prior to the 2002 amendment is maintainable.

Legislation cited

Code of Civil Procedure, 1908s. 100-A, s. 104(1), s. 115, s. 89
Indian Succession Acts. 299

Subjects

Letters Patent appealSection 100-Aretrospective effectCPC amendment 2002maintainabilitystatutory right of appealcivil procedure

Judgment

KAMLADEVI A
v.
KHUSHAL KANWAR AND ANR.

DECEMBER 15, 2006

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Code of Civil Procedure, J908:

s. 100-A - Decision of Single Judge of High Court in appeal - Further
appeal before Division Bench - Held, a Letters Patent appeal filed prior to C
coming into force of CPC (Amendment) Act No. 22 of 2002, would be
maintainable.

A special appeal against the decision of a Single Judge of the High Court
in an appeal was filed before the Division Bench of the High Court in the D
year 1992. The special appeal was decided by the judgment dated 19.9.2005.
Meanwhile CPC (Amendment) Act No. 22 of2002 substituting s.100-A came
into force.

In the present appeal it was contended for the appellant that s.100-A of
the Code not only barred filing of an appeal but would be attracted even in a E
pending appeal.

Dismissing the appeal, the Court

HELD: Keeping in view the principles of law enunciated in the decision
of this Court, it is evident that a letters patent appeal, which was filed prior to p
coming into force of the 2002 Act would be maintainable. It cannot be said
that s.100-A of the Code of Civil Procedure, 1908 will have retrospective effect
so as to bring within its fold even the appeals preferred prior to coming into
force of the said Act. [1155-H; 1156-A-BI

P.S. Sathappan (dead) by Lrs. v. Andhra Bank Ltd. And Ors., [2004) l 1 G
sec 672, followed.
Bento De Souza £gipsy (dead) by Lrs. v. Yvette Alvares Colaco and Ors.,
[2004] 13 sec 438, relied on.

1147 H
•
1148 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A Salem Advocate Bar Association, T.N. etc. v. Union of India, [20031 1
SCC 49; Mis. Hoosein Kasam Dada (India) Ltd. v. The State of Madhya
Pradesh and Ors., AIR (1953) SC 221; Shiv Shakti Co-op. Housing Society,
Nagpur v. Mis. Swaraj Developers and Ors., AIR (2003) SC 2434; Subal Paul
v. Malina Paul and Anr., [2003) 10 SCC 361; Municipal Corporation of
B Brihanmumbai and Anr. v. State Bank ofIndia, (199911SCC123; and Kamal
Kumar Dutta and Anr. v. Ruby General Hospital Ltd. And Ors., (2006) 7
SCALE 668, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5838 of2006.

From the Final Judgment and order dated 19.9.2005 of the High Court
C of Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Civil) No. 22/
1992.

Ajay Choudhary, Nimish Gupta, Karola Jain, Rajat Mahajan for the
Appellant.

D Praveen Swamp for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted.

E Application of Section 100-A ofthe 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 l 992.

The father of Appellant indisputably was the owner of the property. He r
F 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 28.0 l .1977 in favour of Respondent No. 1 herein.
An application for grant of probate in respect of the said Will came to be filed
G by her in favour of Respondent No. I 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
H and Testament dated 28th January, 1977, nor was she physically and

•
KAMLA DEVI v. KHUSHAL KANWAR [S.B. SINHA, J.] 1149

mentally fit to execute any Will and Testament as she had been A
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 B
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 C
Shrimati Karola Devi, Shrimati Nihal Kanwar and Shrimati Kushal
Kanwar and a wife Shrimati Anandi Devi and Shri Ganeshi Lal
Upadhyaya expired on July 3, 1973, at Jhansi (UP).

(B) That Shri Ganeshi Lal Upadhyaya gifted to Shrimati Karola Devi
a portion of open plot bearing area 34 ft. x 25 Yi fit. of Anand D
Bihar now bearing AMC No. 258 I 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 E
Karola Devi got construction erected by her and her husband's
means in December, 1963.

(C) That except the property of Shrimati Karola Devi described in
para No. 2 above, late Shri Ganeshi Lal had the property namely
Anand Bihar bearing AMC 258 situated at Rajendrapura, Hathi F
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 G
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 H
movable property including gold and silver ornaments, two motor
1150 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 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
B any Will although she never did, never execute the Will of her
only Y. 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
C passed by the learned District Judge, Ajmer, opining that although Respondent
No. I 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. I was dismissed by a learned Single Judge of the High Court of Judicature
D 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
E 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 I OOA in the Code of Civil Procedure by
p· Section 38 of Act No. 104 of 1976, which was substituted by Section 4 of Act
No.22 of2002, 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. I herein before a Division
Bench of the Rajasthan High Court was maintainable.
G
Submission of the learned counsel appearing on behalf of the appellant
is that Section 1OOA not only bars filing of an appeal, but would be attracted
even in a pending appeal.

Constitutionality of Section 1OOA of the Code of Civil Procedure came
H to be questioned before this Court in Salem Advocate Bar Association, TN.
etc. v. Union ofIndia, [2003] I SCC 49, wherein this Court upheld the validity
KAMLA DEVI v. KHUSHAL KANWAR (S.B. SINHA, J.] 1151

thereof, stating : A
"14. Section I OOA 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 ordP.r. 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 B
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 C
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 D
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 prevision
Section I OOA." E
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 F
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 G
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. H
1152 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A This Court in Messrs. Hoosein Kasam Dada (India) Ltd v. The State
of Madhya Pradesh and Ors., AIR (1953) SC 221, opined:

"I I. The above decisions quite finnly 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
B is not merely a matter of procedure. I! 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 CJ. in Nana v. Shaikh (supra) to disturb an

c 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 manifest~d by express words or necessary implication."

Whether Section I OOA takes away such a right is the question. In our
D
opinion, it does not. An appeal, as is well known, is a continuation of the
original proceedings.

In Shiv Shakti Co-op. Housing Society, Nagpur v. Mis Swaraj
Developers and Ors., AIR (2003) SC 2434, this Court held:
E
"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
F so. As was observed in The State of Kera/av. 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 c:ase of revision, whatever
G 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 Girdharilal Chowdhury that the distinction between the
appeal and a revision is a real one. A right of appeal carries with it
H a right of re-hearing on law as well as fact, unless the statute conferring
KAMLA DEVI v. KHUSHAL KANWAR [S.B. SINHA, J.] 1153

the right of appeal limits the re-hearing in some way, as has been done A
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 B
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 Paulv. Malina Paul and Anr., [2003] IO SCC 361, wherein this Court C
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 D
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, E
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." p
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. G
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:
H
•

. ,.
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1154 SUPREME COURT REPORTS (2006] SUPP. JO S.C.R.
I
...
A "The appellate and revisional jurisdiction of superior courts is jlo.

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
B 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
c Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinnhji
Solanki and Ors."

In Municipal Corporation of Brihanmumbai and Anr. v. State Bank
of India, [1999] 1 SCC I23, this Court held:

D "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
E 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 Ors., [2004]
I I SCC 672, a Constitution Bench of this Court, albeit in reference to Section
F I 04 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
1OOA are not by way of abundant caution. By the Amendment Acts
of 1976 and 2002 a specific exclusion is provided as the Legislature
G 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 1OOA
reads as follows:

H "lOOA. No further appeal in certain cases.-Notwithstanding
~' KAMLA DEVI v. KI-IUSI-IAL KANWAR [S.B. SINHA, J.) 1155
anything contained in any Letters Patent for any High Court or A
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."
B
To be noted that here again the Legislature has provided for a specific
exclusion. It must be stated that now by virtue of Section IOOA 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 I OOA nor Section
104(2) barred a Letters Patent Appeal."
c
It was furtbennore 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 D
relation thereto. Such a bar has now been created by reason of
-r. 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
E
another statute."

In Kamal Kumar Dutta and Anr. 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
F
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 JOOA of the Code of Civil Procedure, by amending
Act 22of2002 with effect from I. 7.2002, took away the Letters Patent G
power of the High Court in the matter of appeal against an order of
learned single Judge to the Division Bench ..."

--.j [Emphasis suppliedl

--''\ Keeping in view the principles of law as enunciated in the aforementioned H
_.
/
1156 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 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
Ors., [2004] 13 SCC 438 and Sanjay Z. Rane and Ors. v. Saibai S. Dubaxi
B (Dead) Through LRs., [2004] 13 SCC 439, wherein this Court opined that
Section l OOA of the Code has no retrospective effect.

We, therefore, are unable to accept the contentions of the learned i-
counsel for the appellant that Section J OOA of the Code will have retrospective
C 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.

RP. Appeal dismissed.

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