Section 100A CPC Bars Second Appeal Where Single Judge Heard Appeal From Original Or Appellate Decree Or Order: Delhi High Court
The Delhi High Court has ruled that Section 100A of the Code of Civil Procedure bars the filing of a second appeal where a Single Judge had heard an appeal from an original or appellate decree or order.A division bench of Justice Yashwant Varma and Justice Dharmesh Sharma said that the restraint on a further appeal shall operate notwithstanding anything contained in the Letters Patent of a...
The Delhi High Court has ruled that Section 100A of the Code of Civil Procedure bars the filing of a second appeal where a Single Judge had heard an appeal from an original or appellate decree or order.
A division bench of Justice Yashwant Varma and Justice Dharmesh Sharma said that the restraint on a further appeal shall operate notwithstanding anything contained in the Letters Patent of a High Court or any other law for the time being in force.
Section 100A of the CPC states that notwithstanding anything contained in any Letters Patent for any High Court or in any other law, 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.
“Section 100-A of the Code proscribes the filing of a further appeal from a decision rendered by a Single Judge of a High Court where such a Singe Judge was hearing an appeal from an original or appellate decree or order. It would thus appear to mean that where a Single Judge of a High Court has considered an appeal arising from an original or appellate decree or order, no further appeal would lie,” the court said.
It added that while the CPC could have barred the remedy available under a Letters Patent, its provisions would necessarily have to be read as being in relation to causes and appeals governed by the Code.
“We doubt that the provisions of Section 100A of the Code could be either stretched or interpreted as being intended to cover all appeals that may otherwise be presented or be available to be instituted in terms of provisions contained in special enactments,” the court said.
The bench also observed that where the appellate provisions specifically subjects the right of appeal to provisions of the CPC relating to appeals, Section 100A would clearly apply and bar the remedy of an LPA.
“Section 100A would appear to be aimed at eclipsing and shutting out the remedy of an intra court appeal which may otherwise be available under a Letters Patent when it comes to matters governed by the Code. As is evident from the Preamble of the Code itself, it seeks to consolidate the laws relating to the procedure of “courts of civil judicature”. The Letters Patent powers of High Courts were undoubtedly saved by virtue of Sections 4 and 104 of the Code,” the court said.
It added that the intent of Section 100A would be confined to a second appeal when preferred against a judgment of a Single Judge exercising appellate powers, provided it pertained to a decree or order as defined by the Code.
“The bar would thus only operate where the decree or order against which the appeal was preferred before the Single Judge was of a civil court,” the court said.
The bench also said that the LPA remedy would also not be available where the special statute subjects the appeal remedy to follow the rules applicable to appeals and embodied in the CPC.
“Once the appeal is made subject to the rules incorporated in the Code, all restrictions to an appeal including Section 100A would get attracted and attached. This since the appeal provision in such a case would be deemed to have consciously adopted all restrictions as put in place under the Code and would override the letters patent provision,” it said.
The court made the observations while dealing with two LPAs challenging a single judge order in a trademark infringement case. The single judge had ruled in favour of Armasuisse, which is a federal agency of Switzerland, and declared various marks under the name “Swiss Military” ineligible for trademark registration.
The single judge had allowed the appeals moved by Armasuisse and set aside the orders passed by the Deputy Registrar of Trademarks permitting trademark registration in favour of a private entity, Promoshirt, for the impugned marks in respect of clothing and textiles.
Promoshirt filed the LPAs challenging the single judge order. However, Armasuisse took a preliminary objection to the maintainability of the LPAs asserting that the same would not be maintainable in light of Section 100A of CPC.
Rejecting the preliminary objection, the bench observed that the appellate provision does not mandate that the appeals avenue would be subject to or be governed by the provisions of CPC.
“In the absence of any such provision either regulating or restricting the right of appeal in Section 91 of the 1999 TM Act, the LPA remedy would not be barred by Section 100A of the Code and would be applicable,” the court said while listing the appeals for consideration on September 19.
Case Title: Promoshirt SM SA v. Armassuisse and Anr and other connected matter
Citation: 2023 LiveLaw (Del) 803