Letters Patent Appeals – Yet Another Example of Loose Drafting
The history of statutory intervention in the system of letters patents (which basically were appeals from decisions of a single judge of a High Court to a Division Bench) dates back to 1976, when the Code of Civil Procedure was amended to introduce section 100A, which read-
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 appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal. [emphasis supplied]
Thus, by this amendment, the constitutionality of which was upheld by the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India [AIR 2003 SC 189], no appeals could lie from appellate decisions of single judges of a High Court. The rationale for this, as explained by the Supreme Court, was that intra-court appeals unnecessarily increased the workload of the Court. This was especially so, since most of the appellate matters heard by single judges involved very small matters. In 1999, the section was amended to disallow appeals even from decisions of a single judge in ‘any writ, direction or order is issued or made on an application under Article 226 or Article 227 of the Constitution’. But for this addition, the provision was substantially identical. However, this amendment was not brought into force (arguably wisely). Finally, in the development at issue in the discussion here, the provision was again amended in 2002 to read as follows-
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. [emphasis supplied]
At first sight, the provision seems substantially identical to the original provision introduced in 1976. However, there are two notable changes- first, appeals from original decrees and orders are also included within the scope of the provision. Secondly and more importantly, the decisions of the single judge from which appeals are barred have been narrowed to ‘judgment and decree’ as opposed to ‘judgement, decision or order’. While mere semantics in lay terms, legally speaking, there is a world of a difference between these two phrases. It was the issue of whether this world of difference should be attributed to legislative intent that was considered by the Supreme Court in Mohd. Saud v. Dr. Shaikh Mahfooz, MANU/SC/0893/2010.
In the case before the Court (the detailed facts are not mentioned in the judgment), there had been an interim order by a Civil Judge, from which an appeal had been filed before a Single Judge of the Orissa High Court. Against this decision, an LPA was sought to be filed before a Division Bench of the Court. The civil suit before the Civil Judge was still pending. This would fall straight within the scope of the provision as it stood in 1976. However, a creative argument for the appellant arose from the amended section 100A.
The counsel for the appellant argued that the decision of the Single Judge of the High Court was neither a ‘judgment’ nor a ‘decree’. While there has been more of a debate on the meaning of these terms than can be effectively summarised here, these terms usually refer to a decision which is a final disposal of the matter at hand. Interim orders are not classified as judgments or decrees. Thus, the argument was that orders passed by a single judge have been excluded by the 2002 amendment and hence an LPA against them can lie. Unfortunately for the literalists (whom I share sympathies with), while the Court considered this argument “plausible”, it ultimately rejected it as having “no merit”.
However, refreshingly, the rejection of the argument was not based on an antipathy to textual arguments but was based on the text of the provision itself, and the absurdity which the argument proffered would result in.
First, the Court observed that the first part of the provision spoke of appeals to the Single Judge from ‘decrees or orders’ but disallowed appeals only from ‘judgements and decrees’. While it is possible, in very specific fact scenarios, for this contradiction to make sense, the Court held that mentioning appeals from orders would not make sense of decisions from those orders were not within the scope of the section 100A bar.
Secondly, the Court rightly looked at the anomalous position that this interpretation would result in. It would mean that “against an interlocutory order of the District Judge there may be two appeals, first to the learned Single Judge and then to the Division Bench of the High Court, but against a final judgment of the District Judge there can be only one appeal”. This clearly could not have been the legislative intent, and hence, interpreting the provision purposively, the Court held that even orders by the Single Judge fall within the scope of section 100A.
Now, this decision certainly reads something into section 100A which does not appear from its text. Especially given that the 1976 and the 1999 versions had the same language, the changed language in 2002 stands out. Since legislative intent is to be gleaned from the text, and not from what is thought best, one may very persuasively argue that nothing should be read into section 100A. However, in cases like this one, the Court seems to have hardly any option. The discomfort of the Court is seen in the penultimate observation by the Court that “We are of the opinion that the apparent contradiction in Section 100A as amended in 2002 was only due to bad drafting”. There are many cases where the legislative intent is not clear when applying this doctrine could lead to problematic results. Whether the Court should step beyond the bounds of the statute and read in what the legislature supposedly intended is the subject of a never-ending debate. The least that the legislature can do is reduce the number of times we need to engage in that debate.