Jammu & Kashmir High Court - Srinagar Bench
Lpa No. 225/2023 vs National Insurance Company Limited on 30 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
1
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 225/2023 in
[Mac App No. 69/2021]
C/w
LPA No. 224/2023
Reserved on:28.05.2025
Pronounced on: 30.05.2025
1. LPA No. 225/2023
Attiqa Bano, Aged 38 Years
D/o Abdul Gaffar Wani
R/o Trehgam, Kupwara
A/P Batmaloo, Srinagar.
..... Appellant/petitioner(s)
Through: -
Mr. A. A. Wani, Advocate
V/s
1. National Insurance Company Limited
Through its Divisional Manager, At Srinagar.
2. Branch Manager, National Insurance Company Limited
Bari Brahmna, Jammu.
3. Nazir Ahmad Malik
S/o Subhan Malik
R/o Shumnag, Kupwara, (Driver)
4. M/S Surinder Singh, Company Digiana Camp, Jammu (Owner)
..... Respondent(s)
Through: -
Ms. Anisa, Advocate vice Mr. N. A. Dendru, Advocate
Mr. Aatir Javid Kawoosa, Advocate
Attiqa Bano, Aged 38 Years
D/o Abdul Gaffar Wani
R/o Trehgam, Kupwara
A/P Batmaloo, Srinagar.
..... Appellant/petitioner(s)
Through: -
Mr. A. A. Wani, Advocate
V/s
1. National Insurance Company Limited
Through its Divisional Manager, At Srinagar.
2. Branch Manager, National Insurance Company Limited
Bari Brahmna, Jammu.
3. Nazir Ahmad Malik
S/o Subhan Malik
R/o Shumnag, Kupwara, (Driver)
4. M/S Surinder Singh, Company Digiana Camp, Jammu (Owner)
..... Respondent(s)
Through: -
Ms. Anisa, Advocate vice Mr. N. A. Dendru, Advocate
Mr. Aatir Javid Kawoosa, Advocate
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE SANJAY PARIHAR, JUDGE
(JUDGMENT)
01. In these two appeals filed under Clause 12 of Letters Patent,
challenging an order and Judgment dated 1st of September, 2023 passed
by the learned Single Judge of this Court ['the writ Court'] in Mac App.
No. 71/2021 and Mac App. No. 69/2021, a question with regard to the
maintainability of these appeals has arisen for determination. On these
appeals coming up for consideration, Mr. Aatir Kawoosa, learned
counsel appearing for the respondent No. 1, raised the preliminary
objection with regard to the maintainability of these appeals under
Clause 12 of Letters Patent in view of the clear provisions of Section
100-A of the Code of Civil Procedure, 1908 ["CPC"].
02. Before we advert to the preliminary objection raised by learned
counsel for the respondent No. 1, a brief introduction to the facts of the
case would be necessary.
03. The appellant before us was the claimant before the Motor
Accident Claims Tribunal, Kupwara ['the Tribunal' for short] in a claim
petition filed against the respondents for seeking compensation for the
permanent disablement suffered by her in a motor vehicle accident. The
Tribunal vide its award dated 30.11.2019, awarded a compensation of
Rs. 5,45,600/- with interest @ 7.5% per annum to be reckoned from the
date of filing of the petition. This award was called in question by the
appellant herein in Mac App. No. 69/2021. The respondent Insurance
Company too assailed the award in Mac App. No. 71/2021. The learned
Single Judge clubbed both the appeals and decided the same by a
common order and Judgment dated 1st of September, 2023. The learned
Single Judge reduced the compensation to a sum of Rs. 2,33,200/- and
maintained the interest of 7.5% awarded by the Tribunal. In this way,
the learned Single Judge dismissed the appeal filed by the appellant and
partially allowed the appeal filed by the respondent Insurance
Company.
04. The order dated 1st of September, 2023, deciding the two
appeals aforementioned is challenged before us under Clause 12 of the
Letters Patent.
05. Having heard learned counsel for the parties at some length and
regard being had to the preliminary objection to the maintainability of
these appeals, raised by Mr. Aatir Javid Kawoosa, learned counsel for
respondent No. 1, we are of the view that a following question calls for
determination in these appeals:
"Whether an intra Court appeal under Clause 12 of
Letters Patent is maintainable against an order passed
by the learned Single Judge of this Court in exercise of
its appellate jurisdiction whether against an original or
appellate decree or order passed by the Courts
subordinate to the High Court?"
06. The answer to this question is not far to seek. Ordinarily, the
appeal before the High Court from an order, Judgment or decree of the
High Court is not maintainable, unless a statute prescribes remedy of
appeal before the Division Bench/Larger Bench from an order,
Judgment or decree passed by the learned Single Bench. Clause 12 of
the Letters Patent is one such statutory provision, which provides an
appeal to the High Court from the "Judgment" of one Judge of this
Court or one Judge of any Division Court. However, a judgment passed
by a Single Bench in the exercise of appellate jurisdiction in respect of
a decree or order made in the exercise of appellate jurisdiction by a
Court subject to the superintendence of this Court is not maintainable.
07. Going by the bare provisions of Clause 12 of Letters Patent, an
appeal against an order or Judgment of learned Single Judge passed in
the exercise of appellate jurisdiction in respect of a decree or order
made by the Court subordinate to the High Court on the original side is
maintainable. However, Section 100-A of the Code of Civil Procedure,
creates a bar against the maintainability of appeal under Clause 12 of
Letters Patent against an order and Judgment passed by the learned
Single Judge in the exercise of its appellate jurisdiction against an order
or decree of the Court below passed, either in the exercise of original or
appellate jurisdiction. For facility of reference Section 100-A of CPC is
set out below:-
"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."
08. From the plain reading of Section 100-A, it is evident that the
"non-abstante" clause i.e., "notwithstanding" gives Section 100-A
overriding effect over the Letters Patent of this Court. It establishes the
precedence of S.100 A over Clause 12of Letters Patent to the extent of
conflict. And it clearly provides that 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 appal shall lie from the Judgment and decree of
such Single Judge. This is so even where LPA is preferred against the
Judgment rendered by a Single Judge in an appeal arising out of special
enactment like Motor Vehicles Act, 1989, in the case on hand.
09. Indisputably, the impugned order, challenged in these appeals,
is passed by the learned Single Judge of this Court in the exercise of its
appellate jurisdiction, exercised while hearing and deciding an appeal
from an award passed by the Tribunal under Motor Vehicles Act. It is
pertinent to note that in terms of Section 169(4), the award passed by
the Tribunal is to be treated as a decree.
10. Be that as it is, the fact remains that the impugned order has
been passed by the learned Single Judge, deciding the appeals against
an original decree/order passed by the Tribunal and, therefore, in view
of clear provisions of Section 100-A, further appeal is not maintainable.
11. In view of aforesaid discussion, it is held that an intra Court
appeal under Clause 12 of Letters Patent is not maintainable against an
order passed by the learned Single Judge of this Court in exercise of its
appellate jurisdiction against an original or appellate decree or order
passed by the Courts subordinate to the High Court.
12. Offshoot of the discussion made above, is that both these appeals are
held not maintainable and the same are, accordingly, dismissed.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR
30.05.2025
"Mohammad Yasin Dar"
Whether the Judgment is reportable: Yes/No.
