@JUDGMENTTAG-ORDER
A.K. Patnaik, C.J.
The facts giving rise to this reference are that a Civil Suit No. 1-A/81 filed by the husband and father of respondents 1(a) and 1(b) respectively, late Chhotelal Agrawal for certain reliefs was decreed by judgment and decree dated 22.2.1991 passed by the learned Additional District Judge, Harda Camp Sohagpur. The appellants filed First Appeal No. 86 of 1991 and a learned single Judge of this Court by judgment and decree dated 7.2.1996 dismissed the appeal. Aggrieved, the applicants filed Letters Patent Appeal No. 62 of 1997 under Clause 10 of the Letters Patent. By order dated 12.9.2005, the Division Bench dismissed the Letters Patent Appeal because by Section 2 of the M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 (for short ''the 1981 Adhiniyam''), Clause 10 of the Letters Patent had been abolished with effect from 1st July 1981. Thereafter, the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (for short ''the 2005 Adhiniyam'') was enacted by the Legislature of the State of Madhya Pradesh. Sub-section (2) of Section 1 of the 2005 Adhiniyam provides that the 2005 Adhiniyam shall be deemed to have come into force on the 1st day of July, 1981. Sub-section (1) of Section 2 of the 2005 Adhiniyam provides that an appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two judges of the same High Court. In the proviso to Sub-section (1) of Section 2 of the 2005 Adhiniyam, it is stated that no appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Sub-section (1) of Section 4 of the 2005 Adhiniyam repeals the 1981 Adhiniyam and Sub-section (2) of Section 4 of the 2005 Adhiniyam states that notwithstanding such repeal, anything done or any action taken under or in pursuance of the said Act and which has attained finality shall not be reopened in any court of law.
The applicants filed M.C.C. contending that with the repeal of the 1981 Adhiniyam which abolished the appeals under Clause 10 of the Letters Patent, the right of the applicants to file an appeal under Clause 10 of the Letters Patent was revived and accordingly prayed that Letters Patent Appeal No. 62 of 1997 be restored to file and be heard on merits. The respondent No. 2, on the other hand, contended that by the 2005 Adhiniyam, appeals under Clause 10 of the Letters Patent were not revived but only appeals against the orders passed by a learned single Judge of this Court under Article 226 of the Constitution were revived because in Section 2 of the 2005 Adhiniyam, only appeals to the Division Bench of the High Court from judgments and orders of learned single Judge made in exercise of original jurisdiction under Article 226 of the Constitution was provided for with effect from 1st July 1981 and the 2005 Adhiniyam did not provide for any appeal against any order, judgment or decree passed by the learned single Judge in exercise of any other jurisdiction to the Division Bench.
By order dated 10.10.2006, the Division Bench referred this matter to the Full Bench. Since the question referred to the Full Bench has not been appropriately worded, we re-formulate the question as follows:
Whether an application for restoration/revival would be maintainable in respect of an appeal under Clause 10 of the Letters Patent against a judgment and decree passed by learned single Judge in exercise of appellate jurisdiction u/s 96 of the CPC on the basis of the 2005 Adhiniyam
We have heard Mr. Manoj Chaturvedi, learned Counsel for the applicants, Mr. Manoj Sanghi, learned Counsel for respondent No. 2 and Mr. Kumaresh Pathak, learned Deputy Advocate General for the State.
We find that Sections 1 and 2 of the 1981 Adhiniyam by which appeal under Clause 10 of the Letters Patent was abolished were to the following effect:
1. Short title and commencement (1) This Act may be called the Madhya Pradesh Uchcha Nayaylaya (Letters Patent Appeals Samapti) Adhiniyam, 1981.
(2) It shall come into force at once. Abolition of appeal from judgment or order of one Judge of the High Court made in exercise of original or appellate jurisdiction - (1) No appeal, arising from a suit or proceeding which includes a writ petition under Article 226 and/or article 227 of the Constitution of India, instituted or commenced whether prior or subsequent to the commencement of this Act, shall lie to the High Court from a judgment, order or decree of one Judge of the High Court made in exercise of original jurisdiction or in exercise of appellate jurisdiction in respect of a judgment, order or decree made by a court subject to the superintendence of the High Court, notwithstanding anything to the contrary contained in Clause 10 of the Letters Patent of His Majesty dated the 2nd day of January 1936 constituting High Court of Judicature at Nagpur, or any other law.
(2) Notwithstanding anything contained in Sub-section (1), all appeals pending before the High Court on the date immediately preceding the date of commencement of this Act shall continue to lie and be heard and disposed of as hereto before, as if this Act had not been enacted.
The language of Sub-section (2) of Section 1 of 1981 Adhiniyam, quoted above, made it clear that the 1981 Adhiniyam came into force at once i.e. from 1st July 1981 and Section 2 of the 1981 Adhiniyam provided that no appeal arising from a suit or proceeding including a writ petition under Article 226 and/or Article 227 Constitution of India, was to lie to the High Court from a judgment, order or decree of one Judge of the High Court made in exercise of original jurisdiction or in exercise of appellate jurisdiction in respect of judgment, order or decree made by a court subject to the superintendence of the High Court, notwithstanding anything to the contrary contained in Clause 10 of the Letters Patent or any other law. Sub-section (2) of Section 2, however, stated that notwithstanding such abolition of appeals under Clause 10 of the Letters Patent, all appeals pending before the High Court on the date immediately preceding the date of commencement of the 1981 Adhiniyam was to continue to lie and be heard and disposed of as if the 1981 Adhiniyam had not been enacted. The legal effect of the 1981 Adhiniyam thus was that with effect from 1st July 1981, all appeals under Clause 10 of the Letters Patent were abolished except appeals which were pending before the High Court on the date immediately preceding the date of the commencement of the 1981 Adhiniyam on 1st July, 1981.
Sections 1, 2 and 4 of the 2005 Adhiniyam, which are relevant for deciding the reference are extracted herein below:
1. (1) This Act may be called the Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005.
(2) It shall be deemed to have come into force on the 1st day of July, 1981.
(1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two judges of the same High Court.
Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
(2) An appeal under Sub-section (1) shall be filed within 45 days from the date of order passed by a single Judge.
Provided that any appeal may be admitted after the prescribed period of 45 days, if the petitioner satisfies the Division Bench that he had sufficient cause for not preferring the appeal within such period.
Explanation-The fact that the petitioner was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section.
(1) The Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam 1981 (No.29 of 1981) is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under or in pursuance of the said Act and which has attained finality shall not be reopened in any court of law.
It will be clear from Sub-section (2) of Section 1 of the 2005 Adhiniyam that the 2005 Adhiniyam was to come into force with retrospective effect from first day of July, 1981 i.e. with effect from the date from which the appeals under Clause 10 of the Letters Patent were abolished by the 1981 Adhiniyam. It will be further clear from Section 2 of the 2005 Adhiniyam that under the 2005 Adhiniyam, appeal was provided for only from a judgment and order passed by a learned single Judge in exercise of original jurisdiction under Article 226 of the Constitution of India to a Division Bench comprising of two judges of the High Court and no appeal was provided for from the judgment and order passed by a learned single Judge of this Court in exercise of any other jurisdiction of the High Court. It will also be clear from Section 4 of the 2005 Adhiniyam that Sub-section (1) of Section 4 repealed the 1981 Adhiniyam. The question which has to be answered in this reference is whether by the repeal of the 1981 Adhiniyam by Section 4(1) of 2005 Adhiniyam, appeals under Clause 10 of the Letters Patent against judgment and decree passed by the learned single Judge in exercise of its jurisdiction u/s 96 of the CPC would now be revived even though the 2005 Adhiniyam does not provide for any such revival.
The answer to this question lies in Section 12 of the M.P. General Clauses Act, 1957, which is quoted herein below:
12. Revival of repealed enactmentIn any Madhya Pradesh Act, it shall be necessary for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose.
A reading of Section 12 of the M.P. General Clauses Act, 1957, quoted above, would show that the Legislature must expressly state that the repealed Act is either wholly or partially revived. Section 12 of the M.P. General Clauses Act, 1957 was interpreted by P.V. Dixit, C.J. of this Court in The Amalgamated Coalfields Ltd. Calcutta and Ors. v. The State of M.P. and Anr. 1966 M.P.L.J. 842 in the following language:
The only manner in which a repealed enactment can be revived is by enacting a fresh statute or by enacting a statute expressly saying that the Act is herewith revived. In this connection it would be pertinent to refer to Section 12 of the Madhya Pradesh General Clauses Act, 1957, which lays down that in any Madhya Pradesh Act, it shall be necessary for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose.
According to Dixit, C.J., therefore, the only manner in which a repealed enactment can be revived is by the statute expressly saying that the repealed Act is revived.
Section 12 of the M.P. General Clauses Act contains almost the same language as Section 11(1) of the Interpretation Act, 1889 of England, which is quoted herein below:
Repeal of repealing Acts, no reviver 11. (1) Where an Act passed after the year one thousand eight hundred and fifty, whether before or after the commencement of this Act, repeals a repealing enactment, it shall not be construed as reviving any enactment previously repealed, unless words are added reviving that enactment.
Referring to the change of law brought about by Section 11(1) of the Interpretation Act, 1889 with effect from 1850, Maxwell on The Interpretation of Statutes (Twelfth Edition) says:
The common law on the point was altered in 1850, by a provision now to be found in Section 11(1) of the Interpretation Act 1889 : where an Act passed after 1850 "repeals a repealing enactment, it shall not be construed as reviving any enactment previously repealed, unless words are added reviving that enactment.
Similarly in Craies on ''Statute Law'' (Seventh Edition), it is stated:
...But the present rule, now embodied in Section 11(1) of the Interpretation Act 1889 is that where an Act passed after the year 1850 repeals a repealing enactment, it shall not be construed as reviving any enactment previously repealed, unless words are added reviving that enactment.
From the aforesaid authorities, it is clear that where an Act is passed repealing a repealing enactment, it shall not be considered as reviving any enactment previously repealed unless words are added reviving that enactment.
The Supreme Court also discussed in
The general rule of construction is that the repeal of a repealing Act does not revive anything repealed thereby. But the operation of this rule is not absolute. It is subject to the appearance of a "different intention" in the repealing statute. Again, such intention may be explicit or implicit.
On a reading of Section 2 of the 2005 Adhiniyam, we find that the section provides for appeal only from a judgment and order passed by a learned single Judge of this Court in exercise of jurisdiction under Article 226 of the Constitution to a Division Bench of the High Court and it does not provide for any appeal against any other judgment or decree or order passed by the learned single Judge in exercise of any other jurisdiction of the High Court. There is also no other provision in the 1981 Adhiniyam from which the Court can hold that the 2005 Adhiniyam expressly or implicitly revived appeals under Clause 10 of the Letters Patent from an order, judgment or decree of the learned single Judge to the Division Bench in cases other than those in which the learned single Judge has exercised original jurisdiction under Article 226 of the Constitution.
In the absence of any express or implicit provision in the 2005 Adhiniyam providing for appeal from a judgment, decree or order passed by learned single Judge u/s 96 of the CPC to a Division Bench, we hold that by virtue of the repeal of the 1981 Adhiniyam u/s 4 of the 2005 Adhiniyam, appeals under Clause 10 of the Letters Patent from a judgment and decree passed by learned single Judge in exercise of appellate jurisdiction u/s 96 of the CPC are not revived.
Since we have answered the reference, the application will now be placed before the appropriate Bench for disposal in accordance with law.
