Letters Patent Appeal No.229 of 2005,First Appeal No.624 of 2002

12th December, 2007

Petitioner Counsel: Shri. SUNIL V. MANOHAR
Respondent Counsel: Mrs. SMITA DESHPANDE

Cases Cited:
Gangwani and Co. Vs. Mrs. Saraswati, 2001(3) ALL MR 370 (F.B.)=2001(3) Mh.L.J. 6 [Para 10,14]
Naranbhai Dayabhai Patel Vs. Suleman Isubji Dadabhai, AIR 1996 SC 1184 [Para 10]
AIR 1970 Bom. 278 [Para 14]
Secretary of State Vs. Mt. Geeta, AIR 1939 Nagpur 122 [Para 16]
Sharda Devi Vs. State of Bihar, 2003(2) ALL MR 319 (S.C.)=(2002)3 SCC 705 [Para 18,19]
Chandra Kanta Sinha Vs. Oriental Insurance Co. Ltd., (2001)6 SCC 158 [Para 22]
Laxminarayan Vs. Shivlal Gujar, AIR 2003 M.P. 49 (F.B.) [Para 26]
Rahul Sharad Vs. Ratnakar Trimbak, 2004(3) ALL MR 896=2004(3) Mh.L.J. 706 [Para 27]
Bhenoy Dembla Vs. Prem Kutir P. Ltd., 2003(4) ALL MR 575=2003(4) Mh.L.J. 883 [Para 29]
M.P.D Corpn. Ltd. Vs. Dabhol Power Co., AIR 2004 Bombay 38 [Para 31]
Fazal Ali Vs. Amna Khatun, 2005 ACJ 29 [Para 34]
Jindal Vijaynagar Steel Vs. Jindal Praxair Oxygen Co. Ltd., (2006)11 SCC 521 [Para 39]

JUDGMENT

R. C. CHAVAN, J.:- This appeal is directed against the judgment whereby the learned single Judge, deciding First Appeal No.624 of 2002, remanded the matter to the Motor Accident Claims Tribunal, Nagpur, for reconsidering the liability of insurance company to pay compensation for motor accident.

2. The facts in the context of which the learned Member, Motor Accident Claims Tribunal remanded the matter back are as under:

On 11.04.1991 the appellant met with an accident by truck No.NLM-8876, which was allegedly insured with the respondent. She suffered several injuries to her thigh, legs etc. One of her thighs was crushed. She had to undergo several operations and even after treatment was left disabled. She, therefore, filed petition claiming compensation before Motor Accident Claims Tribunal, Nagpur, against the owner of the truck and the present respondent/ insurer. She had stated in Clause 13 of paragraph 4 of her petition that the respondent had provided insurance cover to the truck under policy No.751 valid for 18.03.1991 to 17.03.1992, presumably as per information which she had received from the police papers. This petition filed on 11.10.1991 was accompanied by an application for compensation under Section 140 of the Motor Vehicles Act as well.

3. The respondent Insurance Company filed reply on 29.04.1992. It admitted the contents of Clause Nos. 12 and 13 in paragraph 4 of the petition. In addition in paragraph 12 of the reply the Company explicitly admitted that it had provided insurance to truck No.NLM 8876, though it denied that any such accident occurred due to the said truck.

4. The respondent company filed an application for amendment to the reply filed on 22.09.1997 i.e. Five years after the initial reply, whereby it sought to replace the word "admitted" appearing in paragraph 9 of the reply (to clauses 12 and 13 of the petition) by the word "denied" stating that the word "admitted" was a typing mistake due to oversight. There is however, no whisper about the admission in paragraph 12 of the reply where the respondent company had specifically stated that it admitted that respondent No.3 was insurer of truck No.NLM 8876. The learned Member, Motor Accident Claims Tribunal did not allow the application for amendment. By a pursis dated 07.08.2002 the respondent adopted the reply dated 29.04.1992 as the written statement.

5. Evidence of the petitioner and her witnesses was over by 07.08.2002. On 09.08.2002 on behalf of the respondent, its Administrative Officer Shri. Lokhande, was examined as a witness. Though the amendment to the written statement had not been permitted this witness stated in his examination in chief that they had admitted in the written statement about the validity of the policy due to oversight. Thus, it is not that the respondent was not permitted to tender evidence about the absence of policy for want of pleadings. The learned Member, Motor Accident Claims Tribunal, upon consideration of the evidence tendered before him, awarded compensation of Rs.5,23,000/- to the appellant by his judgment dated 26th August, 2002 (i.e. about 11 years after the accident).

6. The respondent company challenged this judgment by preferring First Appeal No.624 of 2002 which came to be disposed of by impugned judgment dated 5th August, 2005 whereby the learned single Judge remanded the matter back to the Tribunal, allowing the application for amendment. The reasons given by the learned single Judge are to the following effect :

"......It is also not in dispute that the insurance company had filed amendment application along with the notice to produce the insurance policy vide Exh.16 which were rejected by the Tribunal on 16/3/2003. Therefore, though the insurance company has admitted in the written statement that the truck was insured with it, this Court is of the considered opinion that it was not proper on the part of the Tribunal to reject the amendment application filed by the insurance company. The Tribunal ought to have granted opportunity to the insurance company to adduce the evidence on record, but in view of the fact that the said amendment application was rejected, this matter deserves to be remanded to the Tribunal with a direction to give proper opportunity to the insurance company to lead evidence in support of its contentions."

7. The appellant/claimant has, therefore, preferred this appeal. As the facts recounted above would show, the respondent company had admitted having provided insurance cover to the vehicle at two places in its reply dated 29.04.1992. The amendment application dated 22.09.1997 sought to correct the admission only at one place, leaving other admission in explicit terms intact. Though the application was rejected by the Tribunal, in fact, the respondent's witness Shri. Lokhande had been permitted to depose that the company had not provided insurance cover to the vehicle and that admission in the written statement was due to oversight. When the observations of the learned single Judge are seen in this background it would appear that the correct facts had not been unfolded before him. We have no manner of doubt that had the learned single Judge noticed that in spite of absence of pleadings the witness for the insurance company had been permitted to depose that insurance cover was not provided, the learned single Judge would not have been persuaded to remand the matter, pertaining to disablement suffered by a twenty one year old girl in an accident in the year 1991 for a fresh trial in the year 2005 i.e. almost 14 years after the accident.

8. While there can be no doubt that public sector insurance companies must be vigilant about their funds and in appropriate cases challenge awards, if such awards are found to be unwarranted burden on the company's finances, we can not endorse the course adopted by the respondent insurance company in the present proceedings to have a matter in respect of disablement suffered by a young lady remanded back 14 years after the disablement. First, no party could be permitted to easily retract an admission. Secondly, in this case, the company had not retracted the admission in entirety. Lastly, in spite of absence of pleadings, it had tendered evidence about absence of insurance cover, and so, there was absolutely no justification for remanding the matter.

9. Yet since the learned Advocate for the respondent insurance Company raised a very serious objection to the tenability of this intra court appeal under Clause 15 of the Letters Patent, we would examine whether such an appeal is tenable, in order to find out if the judgment of the learned single Judge can be corrected by us in exercise of appellate jurisdiction.

10. Learned Advocate Mrs. Smita Deshpande for the respondent contended that letters patent appeal was not tenable in view of the decision of this Court in Dhondubai Vs. J. K. Sugar Factory, reported at 1991 Mh.L.J. 624 and Gangwani and Co. Vs. Mrs. Saraswati, reported at 2001(3) Mh.L.J. 6 : [2001(3) ALL MR 370 (F.B.)], as also decision of the Apex Court in Naranbhai Dayabhai Patel Vs. Suleman Isubji Dadabhai, reported at AIR 1996 SC 1184.

11. In Naranbhai's case the Apex Court was considering the tenability of the Letters Patent Appeal from the judgment of the Single Judge in a matter arising out of the provisions of Bombay Public Trusts Act. The question was of registration of the trust. Against the registration the appellant had preferred an appeal before the Charity Commissioner under Section 70 of the Act. The Charity Commissioner dismissed the appeal. This order was challenged before the District Judge. The District Judge confirmed the order of the Charity Commissioner. The appellants, therefore, further carried the matter in appeal before Single Judge of the High Court. A Letters Patent Appeal was taken out against the order of the single Judge, and the Division Bench reversed the findings of the single Judge. In this context, the Court observed in paragraphs 4 and 5 of the judgment as under :

"4. The question then is : whether the Division Bench was right in interfering with the order ? It is contended that clause 15 of the Letters Patent Act is not available to the respondent and that, therefore, the Letters Patent Appeal would not lie. This point is squarely covered by the judgment of this Court in Ramchandra Goverdhan Pandit Vs. Charity Commissioner of State of Gujrat {(1987)2 SCR 1083) : (AIR 1987 SC 1598)}. In that case on suo motu enquiry under the Act, the Deputy Commissioner had held that the properties were of public interest. On appeal, the Charity Commissioner confirmed and dismissed the appeal. Appeal under Section 72 of the Act was preferred to the District Court and the District Court dismissed the same. When the first appeal was filed in the High Court, the learned single Judge dismissed the appeal. In the Letters Patent Appeal the question arose :

Whether an appeal would lie against the decision of the learned single Judge. This Court examined the controversy and concluded at page 1089, thus :

The power of this District Court in exercising jurisdiction under Section 72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has powers to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to the District Court while deciding an application under Section 72. To decide this case we must be guided not only by the nomenclature used by the section for the proceedings but by the essence and content of the proceedings. That being so, we have no hesitation to hold that the proceedings before the District Court under Section 72(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under Section 72(1). Consequently, the single Judge of the High Court while deciding the appeal, from the order of the District Court deals with a matter made by the District Judge in the exercise of an appellate jurisdiction by a Court subject to the superintendence of the High Court and hence clause 15 of the Letters Patent is directly attached."

5. Consequently, this Court had held that the Letters Patent Appeal against the decision of the learned single Judge did not lie. The same ratio applies to the facts in this case. Leave of the learned single Judge was admittedly not obtained for filing the appeal. Consequently, since the appeal of the learned single Judge arises under the Act by virtue of the statutory conferment of supervisory jurisdiction, by operation of earlier part of clause 15 of the Letters Patent Act would vest in him. The Letters Patent Appeal would not lie to the Division Bench unless the certificate of the learned single Judge has been granted for leave to appeal. In that view, the appeal to the Division Bench was incompetent and is accordingly set aside."

12. It may be seen that the it was held that the proceedings before the District Court under Section 72 of the Bombay Public Trusts Act are in the nature of an appeal and the District Court exercised appellate jurisdiction. Consequently, it was observed that single Judge of the High Court passed a judgment "in the exercise of appellate jurisdiction" in respect of a decree or order made in the exercise of an appellate jurisdiction by a Court subject to the superintendence of the High Court. Hence, obviously appeal would not lie to the High Court from the judgment of one of the judges in view of the specific exclusionary matter contained in clause 15 of the Letters Patent, unless a certificate was granted by the learned Single Judge as required in the second part under Clause 15 of the Letters Patent. Such is not the present case. The order or award passed by the Member, Motor Accident Claims Tribunal is decidedly not in exercise of appellate jurisdiction. Therefore, this decision may be of no help to the respondent.

13. In Dhondubai Vs. J. K. Sugar Factory, the Division Bench of this Court was considering the appeal arising out of the provisions of Workmen's Compensation Act. The Court held that the Commissioner under the Workmen's Compensation Act could not be a Civil Court and therefore, Letters Patent Appeal would not lie. The observations in paragraphs 10 and 11 of the judgment can be usefully quoted as under :

"10. .... We have no hesitation to record a conclusion that the Commissioner could not be a Civil Court as envisaged under clause 16 of the Letters Patent. As such, the resultant judgment delivered by a Single Judge in an appeal under section 30 of the Act would not be in pursuant to section 108 of the Act of 1915 as envisaged under clause 15 of the Letters Patent. We, therefore, hold that the Letters Patent Appeal against such decision would not lie.

11. We then proceed to deal with the next question as to whether the scheme of the Act does approve further appeal beyond the stage of section 30.

Appeal under section 30 is to be decided and disposed as per the procedure and practice prescribed by the rules. As per the relevant rule, hearing and disposal of such appeal is entrusted to a Single Judge. The Supreme Court in South Asia Industries (P) Ltd. Vs. S. B. Sarup Singh and others, AIR 1965 SC 1442 laid down that the appeal disposed of by a Single Judge of the High Court and appeal from the judgment to the Division Bench thereof are different appeals. There are in law and fact different appeals one given by the statute and other by Letters Patent.

Once an appeal as per the procedure and practice is decided by the Single Judge, then the remedy as provided under section 30 of the Act is completely exhausted. Further appeal under Letter Patent is not continuation of an appeal under section 30. The remedy as provided under clause 15 is independent of one given by section 30 of the Act.

Remedy under clause 15 of the Letters Patent is subject to the provisions of the Act. The Act, true it is, does not specifically attach finality to a decision in appeal under section 30. It has also not created an express bar, analogous to section 100-A of the Civil Procedure Code, prohibiting further appeal." (Emphasis supplied)

14. This judgment had been duly considered by Full Bench in Gangwani & Co. Vs. Mrs. Saraswati [2001(3) ALL MR 370 (F.B.)] (referred above) where too the question of tenability of Letters Patent Appeal in proceedings arising out of Workmen's Compensation Act had arisen. Reference to the Full Bench had become necessary because of conflict in an earlier judgment reported at AIR 1970 Bom. 278 and one in Dhondubai Vs. J. K. Sugar Factory which has been referred to above. The question which was referred to the Full Bench is as under :

"Whether Commissioner under the Workmen's Compensation Act is a Court and his order a judgment and order passed by the Single Judge of the High Court under Section 30 of the Workmen's Compensation Act is a judgment within the meaning of Clause 15 of the Letters Patent (Bombay)?"

15. Several decisions had been considered by the Full Bench including one relating to provisions of Section 110(d) of the old Motor Vehicles Act. The Full Bench held that the word "Court" used in Section 115 of the Code of Civil Procedure was to be restricted to a Civil Court and does not include "Tribunals". It concluded that the Commissioner under Workmen's Compensation Act is not a Court. The observations of the Court in para 33 of the judgment may be usefully reproduced as under :

"33. Though Section 30 of the Workmen's Compensation Act provides appeal against the order passed by the Commissioner, however, all the orders passed by the Commissioner are not appealable and the jurisdiction of the Appellate Court under this Section is limited one and can be exercised when there is a substantial question of law involved in the matter. The High Court will not interfere with the findings arrived at by the Commissioner when the same are not vitiated by substantial error of law. In this context, it appears that at the most appellate remedy provided under Section 30 of the Workmen's Compensation Act can be equated for the limited purpose with that under Section 100 of the Code of Civil Procedure since in both these cases, interference by the High Court is possible only if there is a substantial question of law involved and not otherwise. Section 100-A of the code of Civil Procedure puts an embargo on any further appeal under Letters Patent against an appellate judgment rendered by the Single Judge of the High Court. The object is to minimise delay and give finality to the adjudication. Section 100-A is inserted by the Amending Act of 1976 and after enforcement of Section 100-A, no appeal would be available from the judgment, decree or order of Single Judge in second appeal. Though the decision given by the Single Judge of the High Court in appeal under Section 30 of the Workmen's Compensation Act, in the circumstances of the case, is not a judgment as envisaged in Clause 15 of the Letters Patent (Bombay), however, even if we presume it to be so, even then the decision given by the Single Judge under Section 30 of the Workmen's Compensation Act will have same effect as that of the decision rendered by the Single Judge in second appeal and in view of Section 100-A of the Code of Civil Procedure, Letters Patent Appeal against such decision of the Single Judge will not be maintainable. The view expressed by us is also consistent with the aims and objects of the Workmen's Compensation Act."

16. The Court then proceeded to conclude that the decision by a learned single Judge in a matter arising out of Section 30 of the Workmen's Compensation Act is not a judgment as envisaged in Clause 15 of the Letters Patent and, therefore, Letters Patent Appeal, is not maintainable. Relying on a judgment in Secretary of State Vs. Mt. Geeta, reported at AIR 1939 Nagpur 122, the Court held that it was only an award and that there were only two Tribunals competent to consider the matter and entitled to pass an award namely Commissioner for Workmen's Compensation and the High Court.

17. It was pointed out by Shri. Sunil Manohar, learned Advocate for the appellant, that these two decisions are not applicable to the present case. The foundation for conclusions drawn by the Division Bench and Full Bench was that appeal under Section 30 of Workmen's Compensation Act can be compared to a second appeal under Section 100 of the Code of Civil Procedure and therefore a further appeal was not tenable. This is so because an appeal under Section 30 of the Workmen's Compensation Act can be entertained only on a substantial question of law. Since such is not the present case of appeal under Section 173 of the Motor Vehicles Act, the learned Advocate for the appellant is right in submitting that ratio of these two cases would not apply to the present case.

18. Shri. Sunil Manohar, learned Advocate further expressed reservation about the observations regarding availability of only two fora - two "tribunals" of Commissioner and the High Court - under Section 30 of Workmen's Compensation Act, and whether upon decision of an appeal by a Single Judge the remedy of "an appeal" under Section 30 of the Workmen's Compensation Act stands exhausted as held by the Division Bench in Dhondubai. He submitted that even under the Land Acquisition Act, the proceedings initiated before the Land Acquisition Officer ends in an award. It may be legitimate to hold that reference to District Court also ends in an award, amenable to an appeal under Section 54 of the Land Acquisition Act before the High Court. Yet the Apex Court has categorically ruled in Sharda Devi Vs. State of Bihar, reported at (2002)3 SCC 705 : [2003(2) ALL MR 319 (S.C.)], that Letters Patent Appeal against order of single Judge in appeal under Section 54 of the Land Acquisition Act is tenable.

19. In Sharda Devi Vs. State of Bihar, reported at (2002)3 SCC 705 : [2003(2) ALL MR 319 (S.C.)], on which learned Advocate Shri. Sunil Manohar placed reliance, the Apex Court was considering the following question :

"5. When this matter reached hearing on 31.1.2002 the following order had been passed by this Court :

"One of the questions that arises for consideration in this case is as to whether letters patent appeal was maintainable before the Letters Patent Bench against the judgment and decree of the learned Single Judge of the High Court passed in an appeal preferred under Section 54 of the Land Acquisition Act. In Baljit Singh V. State of Haryana a Bench of two Judges of this Court held that no letters patent appeal is maintainable against the judgment of the learned Single Judge of the High Court whereas in the case of Basant Kumar Vs. Union of India a Bench of three Judges, without adverting to the decision in Baljit Singh Vs. State of Haryana held that such an appeal is maintainable."

The expression, which came up for interpretation before the Court was "an appeal shall only lie" appearing in Section 54 of the Land Acquisition Act, which reads as under :

"54. Appeals in proceedings before Court : Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order 45 thereof."

20. It was contended that the words "an appeal shall only lie" would mean that there can be only one appeal to the High Court. Further expression in Section 54 to the effect that 'on such appeal as aforesaid an appeal shall lie to the Supreme Court' would conclude that there can be no intermediate appeal between 'an appeal' to the High Court and further appeal to the Supreme Court. It was, therefore, submitted that there can be no Letters Patent Appeal against the judgment passed by the Single Judge of the High Court in an appeal under Section 54 of the Land Acquisition Act. The Apex Court held in paragraph 14 of the judgment as under :

"..... By virtue of the Letters Patent "an appeal" against the judgment of a Single Judge of the High Court would lie to a Division Bench. Section 54 of the said Act does not exclude an appeal under the Letters Patent. The word "only" occurring immediately after the non abstante clause in Section 54 refers to the forum of appeal. In other words, it provides that the appeal will be to the High Court and not to any other court e.g. the District Court. The term .an appeal. does not restrict it to only one appeal in the High Court. The term "an appeal" would take within its sweep even a letters patent appeal. The decision of the Division Bench rendered in a letters patent appeal will then be subject to appeal to the Supreme Court. Read in any other manner there would be a conflict between Section 54 and the provision of a Letters Patent. It is settled law that if there is a conflict, attempt should be made to harmoniously construe the provisions." (Emphasis supplied)

21. Learned Advocate Shri. Sunil Manohar submitted that the Full Bench deciding Gangwani Vs. Saraswati (and approving Dhondubai) on 12.04.2001 did not have the benefit of judgment of Apex Court in Sharda Devi decided on 13.03.2002. However, in view of conclusions reached in Sharda Devi, he doubted whether Gangwani Vs. Saraswati, approving Dhondubai could still be said to reflect the correct view. It is not necessary to go into the question of implications of judgment of Apex Court in Sharda Devi on tenability of LPAs. in cases under Workmen's Compensation Act now. Suffice it to say that the causation applied by the Division Bench in Dhondubai and approved by the Full Bench in Gangwani would not be applicable to the instant case.

22. Learned Advocate Shri. Sunil Manohar for the appellant further submitted that question whether letters patent appeal could be filed against judgment of Single Judge in appeal against orders of Motor Accident Claims Tribunal has already been dealt with by the Apex Court in Chandra Kanta Sinha Vs. Oriental Insurance Co. Ltd., reported at (2001)6 SCC 158. The Court had considered Section 100 of the Code of Civil Procedure and Clause 10 of the Letters Patent of Patna High Court which was found to be in iisdem terminis with clause 15 of the Letters Patent of the Bombay High Court. The Court had also considered the provisions of Section 100-A of the Code of Civil Procedure barring appeals in the Letters Patent against judgment by one Judge of the High Court to a Division Bench. It was contended before the Apex Court that a judgment of a learned single Judge passed in appellate jurisdiction was not amenable to an appeal to a Division Bench under the Letters Patent. The Apex Court held as under :

"..... In other words, from a judgment passed by one Judge in second appeal, under Section 100, CPC or any other provision of a special Act no letters patent appeal will lie to the High Court provided the second appeal was against a decree or order of a District Judge or a Subordinate Judge or any other Judge subject to the superintendence of the High Court passed in a first appeal under Section 96, CPC or any other provision of a special Act."

23. In view of this, the Court held that the Letters Patent Appeal against an order passed by Single Judge in a matter arising out of order under Section 140 of the Motor Vehicles Act was tenable. The Court had referred to provisions of Section 100-A of C.P.C. Towards the end of paragraph 8 of its judgment in the following words :

".....But now Section 100-A of the Code of Civil Procedure bars an appeal under the Letters Patent from the judgment of one Judge of a High Court passed in second appeal even with the leave of the Judge who passed the judgment."

It may however be noted that the entire discussion is in the context of appeal to Division Bench against order passed by single Judge on 13.04.1998. It would be necessary to examine implications of Section 100-A of C.P.C. as amended w.e.f. 01.07.2002.

24. Learned Advocate Ms. Smita Deshpande for the respondent Insurance Company submitted that in view of the amended provision of Section 100-A of the Code of Civil Procedure, there can be no further appeal from an original or appellate decree or order passed by the Single Judge of the High Court. She submitted that this provision came into force from 01.07.2002 and therefore, as from that date letters patent appeal against the judgment of the single Judge would not be tenable. She pointed out that this question was specifically raised when the appeal was admitted on 7th October, 2005 and therefore, while admitting the appeal the question of maintainability of appeal was kept open.

25. Section 100-A of the Code was first inserted w.e.f. 01.02.1977 and sought to bar further appeals from judgment of a single Judge of the High Court in an appeal from an appellate decree or order. In its reincarnation which came into force w.e.f. 01.07.2002 even appeals from original decrees have been brought in its sweep. It may be seen that the earlier version was in tune with the first part of Clause 15 of the Letters Patent in as much as it barred further appeals in appeals from appellate decrees or orders. The 2002 version however takes in its sweep even judgments of single Judge in appeals from original decrees.

26. Full Bench of the High Court of M.P. in Laxminarayan Vs. Shivlal Gujar, AIR 2003 M.P. 49 (F.B.) had considered the question of tenability of appeals in view of the amended provision of Section 100-A of the Code of Civil Procedure and had held that no appeal, which is covered within the ambit and sweep of language used under Section 100-A of the Code, would lie after 01.07.2002. The Full Bench also held that vested rights of suitor who filed suits before the said date is not saved but the fate of the pending appeals before cut off date remains unaffected.

27. The same question had been considered by Full Bench of this Court in Rahul Sharad Vs. Ratnakar Trimbak, reported at 2004(3) Mh.L.J. 706 : [2004(3) ALL MR 896 (F.B.)] on which learned Advocate Shri. Sunil Manohar for the appellant placed reliance. The conclusion of the Full Bench in paragraph 41 of the judgment may usefully be reproduced as under :

"41. The result of the foregoing discussion may here be shortly summarised:

(i) Section 100-A in the Civil Procedure Code, 1908 substituted by section 4 of the Code of Civil Procedure (Amendment) Act, 2002 takes away the right of Letters Patent Appeal on and from 1st July, 2002 in respect of the suit filed before that date where the judgment or order of the learned Single Judge of the High Court in appeal against an original decree or order from such suit is rendered on and after 1st July, 2002 i.e., the date on which the amendment is brought into force. Put it briefly, no Letters Patent Appeal shall lie from the judgment, decree or order of a Single Judge in the first appeal (or by whatever name called) given on or after coming into force of the new section 100-A i.e. 1st July, 2002.

(ii) The provisions of section 100-A in the Code of Civil Procedure, 1908 substituted by section 4 of the Code of Civil Procedure (Amendment) Act, 2002 shall not apply to the judgment and order of the Single Judge of the High Court in appeal against an original decree or order rendered before 1st July, 2002, and the Letters Patent Appeal preferred against such judgment or order on or after 1st July, 2002.

(iii) In relation to the suit instituted prior to 1st July, 2002 and the judgment or order of the Single Judge of the High Court in appeal against an original decree or order rendered before 1st July, 2002, the pending Letters Patent Appeal as on 1st July, 2002 preferred against such judgment and order of the Single Judge shall remain unaffected by section 100-A of the Code of Civil Procedure, 1908 as substituted by section 4 of the Code of Civil Procedure (Amendment) Act, 2002.

iv) In other words, section 100-A as substituted by Code of Civil Procedure (Amendment) Act, 2002 has a limited retrospectivity as indicated in clause (i) above and to that extent vested right of the parties to the suit filed prior to 1st July, 2002 is extinguished. The fate of Letters Patent Appeal arising out of any appeal from an original decree or order heard and decided by a Single Judge prior to 1st July, 2002 remains unaffected by the new section 100-A of the Code." (Emphasis supplied)

28. While drawing these conclusions the Full Bench clarified in paragraph 37 as under:

"37. We clarify that we are not concerned with the question whether section 100-A of the Code as substituted by the Amendment Act, 2002 is applicable to the appeal before the Division Bench against the Judgment and order of a Single Judge of the High Court in exercise of appellate jurisdiction under special statute and to that extent we do not express any opinion about the Full Bench decision of Andhra Pradesh High Court and the Division Bench decision of this Court in Bhenoy G. Dembla. However, insofar as the view has been taken in Bhenoy G. Dembla that the necessary intendment of section 100-A is that its provision will apply even if a suit was instituted prior to 1st July, 2002 so long as the judgment and order of a learned Single Judge of the High Court in appeal against an original decree or order has been rendered on and after the date on which the amendment was brought into force is correct." (Emphasis supplied)

29. Since this appeal is one arising out of a lis under a special statute namely Motor Vehicles Act, this clarification in respect of the observations by Division Bench of this Court in Bhenoy Dembla Vs. Prem Kutir P. Ltd., reported at 2003(4) Mh.L.J. 883 : [2003(4) ALL MR 575] on which learned Advocate for respondent placed reliance would be significant. In that case a Division Bench of this Court was considering the question whether the Letters Patent Appeal was maintainable against an appellate order by a learned Single Judge delivered on 14th February, 2003 in proceedings under Section 10-F of the Companies Act, 1956 against the order of Company Law Board. The Bench observed that right of appeal is a matter of substance and not of form, but added that it was equally a matter of settled principles that vested right of appeal can be taken away by subsequent enactment if it so provides expressly or by necessary intendment. The Court then considered legislative intent in restricting number of appeals and held that an appeal to Division Bench was not maintainable against the order of single Judge under Section 10-F of the Companies Act. While so holding the Division Bench observed as under in paragraph 12 of the judgment :

"12. The principle of law which emerges is that unless a special statute expressly confers and recognizes a right of appeal before the Division Bench against the judgment and order of a single judge of the High Court in the exercise of the appellate jurisdiction, no such appeal would lie upon the enforcement of the amended provisions of section 100-A against a judgment of the Single Judge rendered on and from 1st July, 2002. In other words, where the decision of the Single Judge in the exercise of the appellate jurisdiction, against an original or appellate decree is rendered on and after 1st July, 2002 no further appeal, would lie unless the special statute in question expressly recognizes a further right of appeal to the Division Bench."

30. This judgment had been noticed and dealt with by the Full Bench in Rahul Vs. Ratnakar in paragraph 37 of the judgment, already quoted. The Full Bench refused to express any opinion about appellate jurisdiction under special statute referred to in the Division Bench decision in Bhenoy Dembla's case.

31. The decision in Bhenoy's case was also considered by another Division Bench of this Court in M.P.D Corpn. Ltd. Vs. Dabhol Power Co., reported at AIR 2004 Bombay 38. The Division Bench considered the provisions of Section 100-A of the Code of Civil Procedure and Section 10-F of the Companies Act and observed in paragraph 22 as under :

"We are also not inclined to accept that Section 100-A of the Code of Civil Procedure is the specific provision to the contrary within the meaning of Section 4(1) of the said code which limits or otherwise affects the right of appeal provided under Section 483 of the Companies Act which would be the special law applicable. Firstly, what Section 100-A bars is an appeal from the judgment and decree of a single judge. In the present case, the Company Court exercising power under Section 10-F, passes no judgment and decree. The Company Court exercising jurisdiction under Section 10-F, in the first place, is not sitting in appeal from an original decree and order as is the first requirement of Section 100-A. The term order in this context must mean an order defined under Section 2(14) of the Code which requires it to be that of the Civil Court. The Company Law Board exercising jurisdiction under Section 397 and 398 of the Companies Act is not a Civil Court. Secondly, the order of the company Judge in a 10-F Appeal is not a judgment and decree within the meaning of the Code of Civil Procedure. No other provision to limit or affect the rights under Section 483 is shown to us."

32. This observation came after the Court noticed in para 18 of its judgment, the conclusions drawn by the Division Bench in Bhenoy Dembla's case, and in this context observed towards the end of paragraph 21 of the judgment as under :

"......With reference to submission of Mr. Manmohan, it is not possible to accept that Section 100-A of the Civil Procedure Code itself is the contrary provision. Besides, as explained by us, the view being taken by us is not contrary to the ratio of the Division Bench in Bnenoy Demble's case."

The Bench then held the appeal to be tenable and admitted it.

33. In the light of the facts that (i) observations in paragraph 12 of Bhenoy Dembla were general observations, not contributing to the question before the Court in respect of appeals arising from proceedings under Section 12-F of the Companies Act, (ii) the Division Bench in M.P.D. Corporation noticed the decision in Bhenoy Dembla and yet proceeded to entertain a Letters Patent Appeal and lastly (iii) Full Bench in Rahul Sharad did not express any opinion on observations in Bhenoy Dembla though it had an occasion to do so, it cannot be said that observations in paragraph 12 of Bhenoy Dembla could be applied as a binding precedent to resolve the present controversy.

34. The learned Advocate for the appellant submitted that a decision directly considering the question of tenability of a Letters Patent Appeal in the proceedings arising out of Motor Vehicles Act in the light of the provisions of Section 100-A of the Code of Civil Procedure, was available but it is rendered by a Division Bench of the High Court of Rajasthan in Fazal Ali Vs. Amna Khatun, reported at 2005 ACJ 29. The Division Bench of High Court of Rajasthan was specifically considering the effect of Section 100-A of the Code of Civil Procedure introduced w.e.f. 01.07.2002 on tenability of an appeal before the Division Bench from an order of a single Judge. The Court was considering the provisions of Section 18 of the Rajasthan High Court Ordinance, 1949, which is substantially similar to clause 15 of the Letters Patent. The Division Bench referred to Section 4 of the Code of Civil Procedure which saves provisions of special or local law. The Court then considered expressions subordinate Court, Tribunal and concluded in paragraphs 32 to 34 of the judgment as under :

"32. Section 100-A, Civil Procedure Code which contains non obstante clause giving overriding effect over the Acts or other instruments having the force of law, would not have impact on Motor Vehicles Act, for the reason that the Tribunal is not a civil court and secondly Letters Patent is not an enactment. It is a Charter of the High Court. A non obstante clause of such nature cannot cover the Charter of the high Court. Similar contention was rejected by the Apex Court in Sharda Devi's case, AIR 2002 SC 1357. It would be convenient to extract para 11 of the said judgment as follows :

"..... A Letters Patent is not an enactment. It is the Charter of the High Court. A non obstante clause of this nature cannot cover the Charter of the High Court."

33. On the conspectus of the entire matter, we are of the view that section 100-A, Civil Procedure Code will not take away the Letters Patent jurisdiction of the High Court as the Tribunal under the Motor Vehicles Act is not a civil court as contemplated under the Civil Procedure Code. The provision contained under section 100-A, Civil Procedure Code is applicable to only decree or order passed by a civil court, even those arising under the special enactments but not the orders passed by the Tribunals. Even the use of words "notwithstanding anything contained in any other law for the time being in force" does not take away the substantive right of appeal before a Division Bench of this court, where such appeal is against the decision of single Judge in exercise of the appellate jurisdiction or decision of the Tribunal or quasi-judicial authority.

34. Accordingly, we hold that a special appeal against a judgment or order of a single Judge in an appeal preferred under section 173 of the Motor Vehicles Act is maintainable and the amended provision of section 100-A, Civil Procedure Code, introduced by the Code of Civil Procedure (Amendment) Act, 2002 has no impact on the power of a Division Bench to entertain and adjudicate the same."

35. While Division Bench of Rajasthan High Court had addressed the basic question whether provisions of Section 100-A of the Code of Civil Procedure at all apply to the proceedings arising from Tribunals under special enactment, the Division Bench of this Court deciding Bhenoy Dembla did not consider the same. Full Bench deciding Rahul Sharad left the question untouched. This is why we have to enter this nebulous area.

36. Section 100-A of the Code can obviously govern proceedings to which the Code applies. According to Advocate Mrs. Smita Deshpande learned counsel for the respondent, under Section 169(2) of the Motor Vehicles Act the Claims Tribunal has all the powers of the Civil Court and is deemed to be a civil Court for certain purposes. Therefore, she submitted that Tribunal is a Civil Court. Consequently, according to her, an award by the Tribunal would be "an order" as defined in Section 2(14) of the Code, attracting provisions of Section 100-A of the Code to appeals arising from such orders.

37. As rightly pointed out by her learned adversary, the very foundation of this causation is shaky. In Dhondubai, on which learned Advocate Mrs. Smita Deshpande herself relied, the Bench was considering a clause in Section 23 of the Workmen's Compensation Act, which is similarly worded as Section 169(2) of the Motor Vehicles Act. In spite of conferment of some powers of civil Court and deeming fiction for certain purposes, the bench held that Commissioner under Workmen's Compensation Act was not Civil Court. Further, under the power to make rules conferred under Section 176 of the Motor Vehicles Act, the State Government has made rules. Rules 275 and 276 of these rules deal with vesting of powers of civil Court and procedure to be followed by the Claims Tribunal. These rules do not make tribunal a civil Court and confer all the powers of civil Court on a Tribunal, or in conduct of enquiries before such Tribunals, subject the Tribunal to the procedure prescribed in the Civil Procedure Code. On the other hand, these rules enumerate specific provisions of the Code and schedule thereto which apply to proceedings before the tribunals. Therefore, the contention of learned Advocate Mrs. Smita Deshpande for the respondent that Claims Tribunal is a civil Court and its award is "an order" referred to in Section 100-A of the Code of Civil Procedure has to be rejected.

38. It may not be permissible to restrict appeals permissible under the Letters Patent by amending Code of Civil Procedure which only consolidates "laws relating to the procedure of the Courts of Civil Judicature". The fields covered by Code of Civil Procedure and Letters Patent are distinct and different as held by Apex Court in paragraph 51 of the judgment in Jindal Vijaynagar.

39. In Jindal Vijaynagar Steel Vs. Jindal Praxair Oxygen Co. Ltd. reported at (2006)11 SCC 521 the controversy pertained to jurisdiction under Arbitration and Conciliation Act, 1996. Yet, the observations of the Court in paragraph 51 to 53 of the judgment would squarely settle the issue of nature of Letters Patent and may be usefully reproduced as under:

"51. Our attention was drawn to the decision of a Constitution Bench of this Court in P.S. Sathappan Vs. Andhra Bank Ltd., in para 32 this Court has held as follows : (SCC p.709)

"To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar case and Sharda Devi case a Letters Patent is the charter of the High Court. As held in Shah Babulal Khimji case a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in the aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure Code is a general law applicable to all courts. It is well-settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail."

52. Thus neither CPC nor its principles can be made applicable to the Letters Patent qua Sections 16, 17 and 20, CPC. It is therefore not only impermissible but also unnecessary to apply CPC or import the principles of Section 20, CPC into the Letters Patent more so when the Court has already held in Food Corpn. Case that the jurisdiction of the civil court under Section 20, CPC is different from the jurisdiction of the High Court under clause 12 of the Letters Patent.

53. The appellant has urged that P.S. Sathappan case will apply only in case there is a conflict between the Letters Patent and CPC and that there is no conflict. Such a submission, in our view, is clearly fallacious for the following reasons :

(i) The Letters Patent and CPC operate in separate fields i.e. the Letters Patent specifically conferring jurisdiction on the Chartered High Courts and CPC conferring jurisdiction on all other courts.

(ii) There is clearly a difference between the scope of the Letters Patent and CPC. The difference being evident upon a plain reading of Section 100, CPC."

40. To sum up, we hold that :

(a) Section 100-A of the Code of Civil Procedure would apply on to the proceedings governed by the Code;

(b) Proceedings under Sections 140, 163-A or 166 of the Motor Vehicles Act are not governed by the Code and Claims Tribunal is not a Civil Court;

(c) Award by Tribunal is not a decree or order of a Civil Court;

(d) Such award is not a decree or order made in exercise of appellate jurisdiction by a Court subject to superintendence of the High Court;

(e) A single judge of this Court hearing appeals under Section 173 of the Motor Vehicles Act from awards of Claims Tribunal consequently does not deliver a judgment in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction;

(f) It would, therefore, follow that such judgment of Single Judge would be subject to an appeal under Clause 15 of the Letters Patent.

41. As we have already indicated, the learned Single Judge was not justified in remanding the proceedings back to the Claims Tribunal to consider a half baked plea, sought to be raised by the respondent, particularly when, the respondent is not shown to have been prevented from tendering evidence in respect of such a plea. Therefore, the learned single Judge, hearing the appeal, could have disposed of the appeal finally with such material as was available. Considering the effect of the half baked plea raised and evidence tendered thereupon (sic). We, therefore, allow the appeal by setting aside the impugned judgment.

42. Considering the fact that the accident took place in the year 1991, i.e. 16 years ago, and the First Appeal itself is five years old, we would request the learned single Judge, before whom the appeal may now be placed, to accord due priority to it.

Appeal allowed.