MOHD. SAUD & ANOTHER versus DR. (MAJ.) SHAIKH MAHFOOZ & OTHERS

Citation: [2010] 14 S.C.R. 84 · Decided: 25-10-2010 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2010] 14 (ADDL.) S.C.R. 84 
MOHD. SAUD & ANOTHER 
v. 
DR. (MAJ.) SHAIKH MAHFOOZ & OTHERS 
(Civil Appeal Nos.9321-9322 of 2010) 
OCTOBER 25, 2010 
[MARKANDEY KAT JU AND T.S. THAKUR, JJ.] 
Code of Civil Procedure, 1908 - s. 100-A - Amendment 
of, in 2002 - Effect - Interim order passed by Additional 
C District Judge in a civil suit - First appeal against the interim 
order before Single Judge of the High Court - LPA against 
judgment of Single Judge - Maintainability of - Held: After 
the amendment of s. 100-A in 2002, no litigant can have a 
substantive right for a further appeal against the judgment or 
D order of the Single Judge of the High Court passed in an 
appeal - Only an LPA filed prior to coming into force of the 
amendment would be maintainable - In the instant case, the 
LPA was filed after 2002 and hence was not maintainable -
No merit in the contention that s. 100-A after its amendment 
E in 2002 requires that the judgment of the Single Judge should 
be a judgment and decree of such Single Judge, and since 
in the present case the Single Judge decided an appeal 
against an interlocutory order of the Additional District Judge, · 
the judgment of the Single Judge was not a decree and LPA 
F against that judgment was not barred - This would be against 
the very purpose of object of s. 100-A, that is to curtail the 
number of appeals - In any event, an appeal is a continuation 
of the original proceedings - Since the original order of the 
Additional District Judge was an interlocutory order, hence the 
judgment of the Single Judge was also interlocutory -
G Supreme Court does not ordinarily interfere under Article 136 
of the Constitution with interlocutory orders - Interpretation of 
Statutes - Purposive construction - Constitution of India, 1950 
- Article 136. 
H 
84 
MOHD. SAUD & ANR. v. DR.(MAJ.) SHAIKH 
85 
MAHFOOZ & ORS. 
Appeal - Right of - Held: An appeal is a creature of a 
A 
statute and not an inherent right - This right of appeal can 
be taken away or curtailed by a subsequent enactment. 
In a civil suit, the Additional District Judge, Fast Track 
Court passed an interim order, against which a first 
8 
appeal under Order 43 Rule 1 CPC was filed before a 
Single Judge of the High Court. Against the judgment 
passed by the Single Judge, a Letters Patent Appeal 
(~PA) was filed. Since there was conflict of opinion 
between different Division Benches of the High Court on 
the point whether the LPA was maintainable, the Full 
C 
Bench was constituted, and by the impugned judgment 
it was held that the LPA was not maintainable in view of 
Section 100-A CPC as amended in 2002. 
Dismissing the appeals, the Court 
HELD:1.1. An appeal is a creature of a statute and not 
an inherent right. This right of appeal can be taken away 
or curtailed by a subsequent enactment. After the 
amendment of Section 100-A in 2002, no litigant can have 
a substantive right for a further appeal against the 
judgment or order of the Single Judge of the High Court 
passed in an appeal. Only an LPA filed prior to coming 
into force of the Amendment Act would be maintainable. 
In the present case the LPAs were filed after 2002 and 
hence they are not maintainable. [Paras 10, 11, 12, 13 and 
14] [91-D-H; 92-A-B] 
D 
E 
F 
1.2. There is no merit in the contention raised by the 
appellant that Section 100-A after its amendment in 2002 
requires that the judgment of the Single Judge should be 
G 
a judgment and decree of such Single Judge, and since 
in the present case the Single Judge decided an appeal 
against an interlocutory order of the Additional District 
Judge, the judgment of the Single Judge was not a 
H 
86 
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. 
A decree and LP.A. against that judgment was not barred. 
It cannot be held that while two appeals will be 
maintainable against interlocutory orders of a District 
Judge, only one appeal will be maintainable against a 
final judgment of the District Judge. There seems to be 
8 some apparent contradiction in Section 100-A as 
amendP.d in 2002. While in one part of Section 100-A it is 
stated "where any appeal from an original or appellate 
decree or order is heard and decided by a Single Judge 
of a High Court", in the following part -it is stated "no 
C further appeal shall lie from the judgment and decree of 
such Single Judge". Thus while one part of Section 100-
A refers to an order, which would include even an 
interlocutory order, the later part of the S

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