LETTERS PATENT APPEAL UNDER THE CODE OF CIVIL

PROCEDURE, 1908
(Synopsis towards the fulfilment of assessment in the subject of Commercial Transactions)

Submitted By Submitted To
Saksham Gupta Mr. Deepanker Sharma
B.A. LL.B. (Hons.) Assistant Professor
UG Semester III Faculty Of Law

Roll No: 1470

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(JULY- NOVEMBER 2017)

 Introduction
A Letters Patent Appeal is a way of appeal within the same Court. It is not prescribed as a way of
appeal in the Code of Civil Procedure. Its rules are prescribed by every High Court as the High
Court Patent Rules. It is an appeal within the same Court, from a single judge bench to a division
bench. Within the Code, Section 100A inserted in 1976 and amended in 1999 and 2002 mentions
Letters Patent Appeal.

Article 117 of the Limitation Act states that:

Under a decree order of any High Court to the same court, a Letters Patent
Appeal shall lie within thirty days of the order or decree of the High Court.

According to this Section a Letters Patent Appeal shall lie within 30 days of the judgment or the
order made by the single judge bench shall prevail.

Order 41 of the Code of Civil Procedure

In Mongru Mia1 case it was held that the procedure laid down in Order 41 shall also apply to
Letters Patent Appeal. Order 41 lays down the rules regarding Appeals.

Further Section 100-A of the code of civil procedure talks about letters patent Appeal under the
provisions and various aspects of the concept. It was was inserted in 1975, amended in 1999 and
then again in 2002. This provision lays down that

Notwithstanding anything contained in any Letters Patent for any High Court or
in any instrument having the force of law or in another 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 for the
judgment and decree of such Single Judge.

The Satish Chandra Committee and the Malimath Committee (Arrears) looked into the question
of utility of Letters Patent Appeal. At this time, since the option of a Letters Patent Appeal in most
cases, most parties would prefer to appeal to a single judge bench to a division bench. Obviously

1
Budge Budge Municipality v. Mongru Mia, AIR 1953 Cal 533

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this took up more time and hence caused unnecessary delays in disposing off suits. Thus the
Malimath Committee made the following suggestions:

1. Where the first appeal is decided by a single judge bench of the High Court in exercise of
the appellate jurisdiction, a further appeal against such decision to a Division bench of the
High Court should be abolished by suitable amending Section 100A of the Code of Civil
Procedure.

2. Central or State Legislation should be enacted in pari materia with the provision of the
Uttar Pradesh High Court (Abolition of Letters Appeal) Act, 1962 as amended up-to-date
which provides for abolition of appeals to a Division bench from the judgment or order of
a single judge of the high court made in exercise of the appellate jurisdiction in matter
arising from suit or proceedings instituted or commenced under certain specified local law.

It was suggested that a Letters Patent Appeal should lie only as a first appeal and not a second
appeal. Thus only in case the High Court is exercising its Original Jurisdiction, such an appeal
should be allowed. In cases where the case is an appeal from a lower court i.e. in furtherance of
the High Courts appellate jurisdiction shall be done away with.

Hence the Section was suitably amended and now states that a Letters Patent Appeal shall be
barred if it is sought in an appeal from a lower court.

The Section bars a Letters Patent Appeal as from the decision of the single judge in:

1. An appeal from an original decree- hence a second appeal;

2. An appeal from an Appellate decree- hence a third appeal.

Effect of Amendments Brought to Section 100A of the Code of Civil Procedure:

The amendment to Section 100A was enforced on July 1, 2002. It is explicitly mentioned that the
Section has only prospective effect not a retrospective effect. Hence all applications pending, that
were filed before July 1, 2002 for such an appeal shall not be barred keeping this condition in
mind. Further talking on the Constitutionality of Section 100A of the Code. In the Salem Bar

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Association2 case, where the question about constitutionality of the 2002 amendments was
discussed, it was held that the amendment made to Section 100A is not ultra vires the Constitution.

Maintainability of Letters Patent Appeals under the Code of Civil Procedure

The Supreme Court of India in Sh Jogendrasinhji Vijaysinghji Vs. State of Gujarat,

considered three basic compartments of questions regarding the maintainability of the
Letters Patent Appeal namely:

(i) In what context the phrase original jurisdiction appearing in Clause 15 of the Letters
Patents should be construed, that is, by taking into consideration the plain meaning of
the same as the Courts power to hear and decide the matter before any other court and
review the same; or should it be construed in the context with the power of the Court
to issue a writ under Article 226 of the Constitution of India, which is always original.

(ii) Assuming the words to issue to any person or authority as contained in Article 226
of the Constitution are interpreted so as to include the tribunal or the Court, then in
such circumstances, would it be the correct proposition of law to say that appellate
tribunal is not amenable to a writ of certiorari and the only remedy available to the
litigant to challenge the order passed by an appellate tribunal is under Article 227 of
the Constitution and, ancillary one, when a petition assails an order of the tribunal, be
it a tribunal of first instance or an appellate tribunal, should it be necessarily treated as
a petition under Article 226 of the Constitution of India in every case or it would depend
upon facts of each case,more particularly the grounds of challenge and the nature of
order passed.

(iii) Whether in a petition for issue of a writ of Certiorari under Article 227 of the
Constitution of India, the tribunal/Court whose order is impugned in a petition must be
a party to the petition so that the writ sought from the Court can be issued against the
tribunal/Court, but if the petition is for the relief under Article 227 only, then the

2
Salem Bar Association, Tamil Nadu v Union of India, AIR 2003 SC 189

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 tribunal/Court whose order is under assail need not be a party-respondent on the
reasoning that by entertaining a petition under Article 227 of the Constitution, the High
Court exercises its power of superintendence which is analogous to the revisional
jurisdiction.

Letters Patent Appeal from an Order:

Section 104 clause 2 states that No appeal shall lie from any order passed in appeal under this
Section.

In the case Babulal v. Jayaben3 it was held that:

1. When the High Court makes an order under its original jurisdiction then the appeal is
maintainable as Letters Patent.

2. When the High Court, Single Judge has decided the appeal from an order of a subordinate
court in such cases there shall be no appeal.

Appeals by Indigent Person-Order 33:

An indigent person is one who is unable to bear the cost of litigation. Order 33 deals with appeals
by indigent persons. Order 44 applies to this case.4 As such majority opinion is that an appeal by
an indigent persons shall lie even as a Letters Patent Appeal. The expession appeal as used in
order 44 is very wide and hence it may include a Letters Patent Appeal also. But there are
conflicting opinions also. A letters patent appeal lies against such an order granting or refusing to
grant leave to appeal as an indigent person.

Letters Patent Appeal from Writ jurisdiction:

Article 226 and 227 also provide for an appeal within the same Court.

The Malimath Committee (Arrears Committee) in Chapter II agreed that no appeal to a division
bench must lie from a decision of a single judge bench in writ jurisdiction under Article 226 and

3
Babulal v. Jayaben, AIR 1981 SC 1786
4
Dipo v. Wassan Singh, AIR 1983 SC 846

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227 of the Constitution of India. Such a thing was decided because it was felt that most writ
petitions do not involve such grave or such questions which require the minds of more than one
High Court judge. Further the option of an appeal to the division bench will lead to unnecessary
delays.

The Malimath Committee read the Satish Chandra Committee and came to a consensus that the
following amendments are to be made with regard to letters patent appeal:

1. Abolition of an appeal to a division bench against the decision or order rendered by a single
judge bench of the high court I a proceeding under Article 226 or Article 227 of the
Constitution of India.

2. Conferment of power on the High Courts in the matter of deciding which category of cases
under Article 226 and 227 of the Constitution must be heard by the single bench and which
one by the division bench.

Whether a letters patent appeal would lie against the order passed by the learned Single Judge that
has travelled to him from the other tribunals or authorities, would depend upon many a facet.
Further, the order passed by the civil court is only amenable to be scrutinized by the High Court
in exercise of jurisdiction under Article 227 of the Constitution of India which is different from
Article 226 of the Constitution as no writ can be issued against the order passed by the civil court
and, therefore, no letters patent appeal would be maintainable.

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