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TMI Blog2003 (6) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent having refused to accede to the transfer of 55 equity shares and in view of the provisions of article 40A of the articles of association of the company which stipulate that the ownership of shares of the respondent is essential for the occupation of a flat, the appellants moved an application before the Company Law Board under section 111 of the Act. The Company Law Board held in favour of the appellants by its order dated 23rd February, 2001. In April 2001, an appeal was filed before the learned Single Judge by the respondent under section 10F of the Companies Act, 1956. The appeal was allowed by an order dated 14th February, 2003. 3. The amended provisions of section 100A of the Code of Civil Procedure came into force on 1st July, 2002. Section 100A as amended provides as follows : " 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equally a matter of settled principle that the vested right of appeal can be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 6. Section 100A of the Code of Civil Procedure was initially inserted by an Amendment Act of 1976. The Statement of Objects and Reasons indicated that Letters Patents Appeals lie in certain cases against the decision of a Single Judge in a second appeal. Such an appeal in effect amounted to a third appeal. Consequently, "for the purpose of minimising delay in the finality of adjudication" the legislature considered that "it is not desirable to allow more than two appeals". Therefore, section 100A was inserted to provide that there should be no further appeal against a decision of a single Judge in a second appeal. Section 100A as it was introduced with effect for 1st February, 1977 provided that no further appeal shall lie from a judgment, decision or order of a Single Judge of a High Court, where an appeal from an appellate decree or order is heard and decided by the single Judge. The provision contained a non obstante clause so that it had effect notwithstanding anything contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge of a High Court after 1st July, 2002, no further appeal would be maintainable. To hold otherwise would run contrary to the plain intendment as well as the object and underlying purpose of section 100A. Undoubtedly, the general principle of law is that an appeal is a matter not of procedure but of substantive right. However, the right to file an appeal which accrues on the institution of a lis can be taken away either by express words or by necessary intendment. There can be no gainsaying the fact that in introducing the amended provisions of section 100A, the legislature was concerned as much with the existing backlog of cases as the accretion to the backlog that would accrue by the institution of fresh cases after the amended provisions were brought into force. Consequently, it would be unreasonable to attribute to the legislature the intendment that while seeking to bring into effect a provision which was intended to cure the delays of litigation, the legislature would have intended to exempt from its purview all cases which had been filed prior to the date on which the amendment was brought into force. Therefore, the necessary intendment of section 100A is that its prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 of the Cr.PC. preserve a substantive right of appeal conferred by a special law. Hence, inasmuch as the Trade and Merchandise Act, 1958 is a special law and sub-section (5) of section 109 expressly confers a right of appeal against an order of a Single Judge of the High Court to a Division Bench, that right has not been taken away by the amended provisions of section 100A. 11. In taking this view, the Full Bench of the Gujarat High Court inter alia relied upon the decision of the Supreme Court in Municipal Corpn. of Brihanmumbai v. State Bank of India AIR 1999 SC 380. Under section 217(1) of the Bombay Municipal Corporation Act, 1888 an appeal against a rateable value or tax fixed or charged lies before the Chief Judge of the Small Causes Court. Against the Appellate order of the Chief Judge of the Small Causes Court, an appeal is provided for to the High Court under section 218D. A Bench of three Learned Judges of the Supreme Court held that under the Bombay Municipal Corporation Act, no further appeal has been provided against the judgment of a learned single Judge of the High Court, deciding the second appeal under section 218D of the Act against an appellate order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute must be given effect to. Those words mean what they say - where an appeal is heard and decided by a Single Judge from an original or appellate decree, no further appeal shall lie. The learned single Judge delivered judgment on 14th February, 2003 which was after the date of the enforcement of the amended provisions of section 100A on 1st July, 2002. The appeal is not maintainable. 15. This is not really a provision regarding the ouster of jurisdiction. The decision of the Supreme Court in Bhatia International v. Bulk Trading S.A. [2002] 4 SCC 105 does not advance the case of the appellants. 16. Before concluding the judgment, we must advert to the judgment of a Division Bench of this Court in Shri Chandreshwar Bhuthanath Devastan of Paroda v. Subiraj Prabhakar Naik [2003] 105(2) Bom. L.R. 915. The Division Bench has held there that the amended provisions of section 100A would apply also to appeals which have been filed and were admitted before 1st July, 2002 and are pending for final disposal and that even such appeals would be rendered as not being maintainable. We have reservations about the correctness of the view expressed by the Division Bench. However, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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