A right of appeal under the Code is statutory

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 27th January 2020

Kamala Devi v. Khushal Kanwar (AIR 2007 SC 663)

Facts of the Case:

1. The father of Appellant indisputably was the owner of the property. He 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 28.01.1977 in favour of Respondent No. 1 herein. An application for grant of probate in respect of the said Will came to be filed by her in favour of Respondent No.1 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.
2. Appellant herein raised objections for this on grounds that, Shrimati Anandi Devi Upadhyaya neither executued any Will and Testament dated 28th January, 1977, nor was she physically and mentally fit to execute any Will and Testament as she had been 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.
3. The said suit was dismissed by a judgment and order dated 29.08.1987 passed by the learned District Judge, Ajmer, opining that although Respondent No.1 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 there-against by Respondent No.1 was dismissed by a learned Single Judge of the High Court of Judicature 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.
4. An intra-court appeal was preferred there-against. By reason of the impugned judgment, the judgment and order passed by the learned Single Judge was set aside. An application for review filed there-against was also dismissed.   

Judgment:

1. Constitutionality of Section 100A of the Code of Civil Procedure came to be questioned before this Court in Salem Advocate Bar Association, T.N. etc. v. Union of India^[1] wherein this Court upheld the validity thereof, stating: 

“Section 100A deals with two types of cases which are decided by a Single Judge. One is where the Single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated. Where, however, an appeal is filed before the High Court against the decree of a trial court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a Single Judge or by a Division Bench of the High Court. Where the regular first appeal so filed is heard by a Division Bench, the question of there being an intra-court appeal does not arise. It is only in cases where the value is not substantial that the rules of the High Court may provide for the regular first appeal to be heard by a Single Judge. In such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily. We do not find that any prejudice would be caused to the litigants by not providing for intra-court appeal, even where the value involved is large. In such a case, the High Court by Rules, can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be found with the amended provision Section 100A.” 

• 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 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.
• 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. 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:

“The appellate and revisional jurisdiction of superior courts is 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 procedure of that court including any general right of appeal or revision against its decision is attracted”.

It was held that by virtue of Section 100A no Letters Patent appeal would be maintainable. Thus it is evident that a Letters Patent Appeal, which was filed prior to coming into force of 2002 Act, would be maintainable.     

^[1] (2003) 1 SCC 49