Dismissed

Smt. Laltoomoni Mohanty v. Brahamagadi Gosain Sarala Devi

Orissa HC18 Mar 2021WA/80/2019

Case brief

AI extract

What is this about?

The Division Bench dismissed a writ appeal as not maintainable, holding that Section 100-A of the Code of Civil Procedure, 1908 bars further appeals to the Division Bench against orders passed by a Single Judge in review applications filed after July 1, 2002, citing Supreme Court precedents.

What did the court decide?

The writ appeal was dismissed as not maintainable.

Smt. Laltoomoni Mohanty Vs Brahamagadi Gosain… — Civil Procedure and Limitation | Orissa HC (2021)

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W.A. No.80 of 2019

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3 18.3.2021. Smt.Laltoomoni Mohanty ………. Appellant. Versus Shree Brahamagadi Gosain Sarala Devi and others ……… Respondents. Advocate for the Appellant : Mr.D.P.Mohanty Mr.P.K.Mohanty Advocate for the Respondents: None

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Heard Mr. D.P.Mohanty, learned counsel for the sole Appellant, on the question of maintainability of this intra court appeal.

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In this appeal, the appellant has assailed the order dated 27.8.2018 passed by the learned Single Judge in RVWPET No.269 of 2016. The Review Petition was filed under Section 114 read with Order 47, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code” for brevity) for review of the judgment dated 19.9.2016 passed in Regular Second Appeal No.73 of 2003.

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AKB

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Learned counsel for the Appellant has relied upon the Constitution Bench Judgment of the Supreme Court in the case of State of West Bengal and Ors. V. Committee for Protection of Democratic Rights, West Bengal and Ors.; reported in AIR 2010 SUPREME COURT 1476. The ratio decided in that case is to the effect that the powers of judicial review conferred upon the High

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Court is in a way wider in scope. Such an observation has been made by the Hon’ble Supreme Court while answering a reference whether the High Court in exercise of the jurisdiction under Article 226 of the Constitution of India can direct the Central Bureau of Investigation established under the Delhi Special Police Establishment Act, 1946 to investigate into a cognizable offence which is alleged to have taken place within the territorial jurisdiction of the State. So the ratio decided in the said judgment is not applicable.

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Section 100-A of the Code reads as follows:

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“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 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, decision or order of such Single Judge.”

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Thus, it is very clear that intra court appeal filed after the amendment of the Code of Civil Procedure, which came into effect on 01.7.2002 is not maintainable against the order passed by the learned Single Judge in an appeal from the original or appellate decree. Thus as a necessary corollary, an appeal to Division Bench will not lie from an order in a review application passed by the Single Judge arising out of a judgment of an appeal against the

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decree of a original or appellate court. However, any intra court appeals, i.e. W.A., L.P.A. and A.H.O. are maintainable if it is filed prior to the aforesaid date which seeks to assail a judgment or order passed by a Single Judge of a High Court. Our view is fortified by the judgments of the Hon’ble Supreme Court in the case Mohd. Saud and another v. Dr. (Maj.) Shaikh Mahfooz and others reported in (2010) 13 SCC 517, in the case of Vasanthi v. Venugopal (Dead) through Legal Representatives reported in (2017) 4 SCC 723 and in the case of Kamala Devi v. Kushal Kanwar and another reported in (2006) 13 SCC 295.

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The Hon’ble Supreme Court in the case of Mohd. Saud and another v. Dr. (Maj.) Shaikh Mahfooz and others (supra) has held that the hole purpose of introducing Section 100-A was to reduce number of appeals, as public in India was being harassed by numerous appeals provided in the statute. The Hon’ble Supreme Court further held that Letters Patent Appeal is not maintainable, because if it is held to be maintainable, then the result will be that against interlocutory order of District Judge, there may be two appeals, first to Single Judge and then to Division Bench but against a final judgment of District Judge there can be only one appeal. The Hon’ble Supreme Court further held that after amendment of Section 100-A w.e.f. 1.7.2002, no Letters Patent Appeal shall lie against the judgment or order passed by Single Judge in Appeal. Similar view has also been taken by the

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Hon’ble Suprme Court in the case of Vasanthi v. Venugopal (Dead) through Legal Representatives (supra ) and in the case of Kamala Devi v. Kushal Kanwar and another(supra.)

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In that view of the matter the Writ Appeal is not maintainable and is dismissed.

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Urgent certified copy of this order be granted on proper application.

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………..………….. S.K.Mishra, J

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…………………….. Savitri Ratho, J

Smt. Laltoomoni Mohanty v. Brahamagadi Gosain Sarala Devi

Case brief

What is this about?

What did the court decide?

Smt. Laltoomoni Mohanty v. Brahamagadi Gosain Sarala Devi

Case brief

What is this about?

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