JHARKHAND HIGH COURT ISSUES ORDER ON SURENDRA KUMAR SHARMA AND ANR. V/S SHAKUNTALA KUNWAR AND ORS.

RANCHI, India, Nov. 25 -- Jharkhand High Court issued the following order on Oct. 29:

1. Mr. Akhouri Prakhar Sinha, learned counsel appearing for the respondents has made a preliminary objection with respect to the maintainability of this Letters Patent Appeal as according to him this appeal arises out of order passed in Misc. Appeal No.15 of 2004 under Section 299 of the Indian Succession Act and therefore, the present appeal is not maintainable. In such context he has referred to an order passed in L.P.A. No. 552 of 2023 dated 17.01.2024.

2. Mr. Kundan Kumar Ambastha, learned counsel for the appellants has submitted that the present Letters Patent Appeal is maintainable and he has referred to the judgment in the case of "Subal Paul v. Malina Paul" reported in (2003) 10 SCC 361.

3. This Letters Patent Appeal is directed against the order dated 29.01.2019 passed by the learned Single Judge in Misc. Appeal No. 15 of 2004 whereby and where under the appeal preferred by the appellants under Section 299 of the Indian Succession Act against the order refusing to grant probate has been dismissed.

4. Mr. Kundan Kumar Ambastha has relied on the case of "Subal Paul v. Malina Paul (Supra) and the same has been considered by a Division Bench of this Court in L.P.A. No. 552 of 2023 and the relevant reads as follows:-

"10. In LPA No. 208 of 2011, a coordinate Bench of this Court has held that after incorporation of section 100-A, intra-court appeal against the order of a learned Single Judge passed under section 299 of the Indian Succession Act shall not lie and, that, the judgment in "Subal Paul" shall not apply to the proceedings under section 299 of the Indian Succession Act after the amendment in the Code of Civil Procedure.

11. In LPA No. 208 of 2011, this Court has held as under:

"This was a case under special statute where the proceeding originated under a special act and appeal was also provided in that wherein no further appeal was provided and objection was that instead of approaching the Supreme Court the party should approach first to the Division Bench of the High Court by preferring an appeal as LPA which objection has been rejected by the Hon'ble Supreme Court for the reason mentioned above which we have narrated indicating that in special statute where appeal is provided by that very statute to the Single Bench of the High Court and the provision of intra court appeal in Letters Patent remains, by virtue of Section 100A C.P.C., the right of appeal under Letters Patent has been taken away. In view of the above legal position, the argument of the learned counsel for the appellant that only appeals which have been provided by the C.P.C. under the provisions of Section 96, 100 or 43 Rule 1 etc. are the matters where the L.P.A. is not maintainable, has no force.

The same view has been taken by the Hon'ble Supreme Court in the case of Geeta Devi & Anr. (Supra) wherein appeal arising out of the Award passed by the Motor Accident Claims Tribunal under Special Statute, the Motor Vehicles Act Hon'ble Supreme Court held that the Division Bench of the High Court rightly dismissed the appeal holding it not maintainable.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=%2FE3WiyNUWFIaR1oBGE62WgtUIFywJl%2FwJs0KjAAJUcEWAp0nvdBs62PcJ0hmx08s&caseno=LPA/441/2019&cCode=1&cino=JHHC010205782019&state_code=7&appFlag=)

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