Delhi High Court
Prof.P.K. Sharma vs Ms. Kamlesh Sharma & Ors. on 17 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 349/2014
Reserved on: 05.05.2014
Pronounced on: 17.07.2014
PROF.P.K. SHARMA ..... Appellant
Through: Appellant in person.
Versus
MS. KAMLESH SHARMA & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
: MS.G.ROHINI, CHIEF JUSTICE
1. This appeal is preferred under Clause10 of the Letters Patent against
the order dated 18.03.2014 passed by the learned Single Judge disposing of
an application for stay filed by the respondents herein pending RFA
No.562/2011.
2. The appellant, Prof.P.K.Sharma is the plaintiff in Suit No.30/2007
filed before ADJ, Delhi seeking a decree for possession of the suit schedule
property, i.e., Flat bearing No.271, 3rd Floor, Pocket-2, Sector-23, Rohini,
Delhi as well as mesne profits. By judgment and decree dated 20.05.2011,
the suit was decreed to the extent of possession of the suit schedule property.
However, the claim for mesne profits was dismissed. The counter claim
made by the defendants for specific performance against the plaintiff
directing him to execute a sale deed in respect of the suit schedule property
was also dismissed.
3. Aggrieved by the same, the defendants/respondents herein preferred
RFA No.562/2011. Pending the said appeal, the appellants sought stay of
execution of the judgment and decree under appeal. Having taken note of
the fact that the plaintiff/decree holder had already taken possession of the
suit schedule property, the learned Single by order dated 18.03.2014
disposed of the application for stay recording the undertaking of the
plaintiff/decree holder that he would not create any third party interest with
regard to the suit schedule property or encumber in any manner during the
pendency of the appeal.
4. The said order dated 18.03.2014 is assailed before us by the
plaintiff/decree holder contending inter alia that the learned Single Judge
ought to have dismissed the application for stay as infructuous since the
possession of the suit schedule property had already been delivered to him.
Placing reliance upon the judgement in National Institute of Mental Health
& Neuro Sciences Vs. C.Parameshwara, AIR 2005 SC 242, it is further
contended that the order passed by the learned Single Judge cannot be traced
even to the inherent powers conferred under Section 151 of CPC.
5. We do not think it necessary to express any opinion on merits of the
case since according to us the appeal itself is not maintainable under law.
6. It is to be noticed that the order under appeal came to be passed by the
learned Single Judge in a Regular First Appeal preferred under Section 96 of
CPC against the judgment and decree of the trial Court. That being so,
further appeal is barred by Section 100-A of CPC which reads as under:
"100-A. No further appeal in certain cases. -
Notwithstanding anything contained in any Letters Patent
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 of such single Judge."
7. It is clear from the above provision that the Letters Patent Appeal has
been specifically excluded where any appeal from an original or appellate
decree or order is heard and decided by a Single Judge of a High Court. The
effect of Section 100-A of CPC as amended by Act 22 of 2002 providing for
a specific exclusion of Letters Patent Appeal has been considered by the
Supreme Court in P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC
672 and the object of the said amendment has been explained.
8. However, it is further sought to be contended by the appellant, who
appeared in person, that the appeal is maintainable under Section 10 of the
Delhi High Court Act, 1966 which empowers the Division Bench to exercise
the appellate jurisdiction against the order of the Single Judge. We are
unable to agree with the said contention. Section 10 of the Delhi High Court
Act reads as under:-
"10. Powers of Judge - (1) Where a single Judge of the High
Court of Delhi exercises ordinary original civil jurisdiction
conferred by sub-Section (2) of Section 5 on that Court, an
appeal shall lie from the judgment of the single Judge to a
Division Court of that High Court.
(2) Subject to the provisions of sub-section (1), the law in
force immediately before the appointed day relating to the
powers of the Chief Justice, single Judges and Division Courts
of the High Court of Punjab and with respect to all matters
ancillary to the exercise of those powers shall, with the
necessary modifications, apply in relation to the High Court of
Delhi"
9. A plain reading of the above provision shows that the appeal shall lie
to a Division Bench from the judgment of the Single Judge where the Single
Judge exercises ordinary original civil jurisdiction conferred by Section 5(2)
of the said Act.
10. Admittedly, this is not a case where the learned Single Judge passed
the order under appeal in exercise of the ordinary original civil jurisdiction
conferred by Section 5(2) of the Act. As noticed above, the suit for recovery
of possession preferred by the appellant was decreed by the trial Court by
judgment and decree dated 20.05.2011 and as against the said judgment and
decree, the respondents herein preferred RFA No.562/2011 under Section 96
of the CPC. Therefore, the bar under Section 100-A of CPC is attracted.
11. To substantiate his contention that the appeal is maintainable, the
appellant has further relied upon the decision in Public Trustee Vs.
Rajeshwar Tyagi, AIR 1972 Delhi 302. In the said decision, a Division
Bench of this court was dealing with the question as to whether the order
which was appealed against was a „judgment‟ within the meaning of Clause
10 of the Letters Patent of High Court of Lahore or of the High Court of
Punjab & Haryana or of the High Court of Delhi. Following the ratio laid
down by a Full Bench of five Judges in University of Delhi and Anr. v.
Hafiz Mohd. Said and Ors., AIR 1972 Delhi 102, it was held that the order
assailed cannot be regarded as a judgment within the meaning of Clause 10
of the Letters Patent and therefore the appeal was not maintainable. The
ratio laid down in the said decision according to us is of no assistance to
uphold the appellant‟s contention with regard to the maintainability of the
present appeal.
12. For the aforesaid reasons, the appeal is dismissed as not maintainable.
No order as to costs.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
JULY 17, 2014
anb
