In simple words leters patent appeal is an intra court appeal. it is an appeal before two judges of same high court against judgment of single judge. subject to minor diferences in diferent High Court Rules, normally a judgment and order passed under Art 226 of the Constitution is appealable as LPA and judgment and order passed under Art 227 is not appealable under this category .
Letters Patent Appeal - actual meaning
Letters Patent Appeal is an appeal to a Division Bench filed against the order passed by a Single Judge of the High Court. It is filed under Clause X of the Letters Patent. Limitation provided for filing such appeal is thirty days. Such appeal lies only against order passed in Civil Writ petitions. It was a remedy provided when high courts were first created in India by Letters Patent in 1865. It is the only remedy available against the decision of a single judge of the high court, otherwise the remedy would lie with the Supreme Court.
The right of appeal against the judgment of a Single Judge is given by the Letters Patent which have been continued in force by Article 225 of the Constitution. If under the Rules of the High Court, a matter is heard and disposed of by a Single Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some other enactment.
The maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context.
“It is to be borne in mind how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straight-jacket formula for the same. Needless to say, the High Court while exercising jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by this Court”, the judgment said.
How Letters Patent Appeal is to be exercised?
The Supreme Court of India in Sh Jogendrasinhji Vijaysinghji Vs. State of Gujarat dated July 6, 2015 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 Court’s 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 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.
A bench comprised of Justice Dipak Misra and Adarsh Kumar Goel summarises their conclusions on the above questions of law as follows:-
(A) 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. The Court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court.
(B) 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 and as per the pronouncement in Radhey Shyam & Anr. v. Chhabi Nath & Ors., 2015 (3) SCALE 88, no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable.
(C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party.
(D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal.
What is a Letters Patent Appeal? How does it differ from the routine appeals?
Sanjay S/O Mahadeo Kelo Vs. Vidya W/O Sanjay Kelo
2006(4) ALLMR 265; 2006(6) BomCR 398; 2006(4) MhLj 805
..... by the counsel for the applicant.8. in the instant case, it is not in dispute that the suit filed by the non-applicant-wife formaintenance against the applicant-husband was compromised and compromise decree was passed by the trial court on 20-7-1997. it is also not in ..... her reasonable wants. it is, therefore, evident that after determining the amount of maintenance if the decree is passed accordingly or by agreement ..... (2) of section 23 of the act, which provides for relevant factors to be considered by the court while determining the amount of maintenance required to be granted to a wife, children or aged or infirm parents under this act. these factors are as follows : (a) the position and status of the ..... source;(e) the number of persons entitled to maintenance under this act.it is, therefore, evident that one of the consideration to be kept in mind by the court while determining the amount of maintenance to a wife is the earning/income, if any, of the wife and whether it is sufficient or otherwise to fulfil ..... of the parties the amount of maintenance is fixed, however, at .....
Haridas Vs. Girija
.... well. so all these things will go to show that, he is having the capacity to earn and pay maintenance to the wife, and in spite of that, he is not paying any amount. merely because he had filed an application for maintenance against the son which is r.p. (f.c.) no.482 of 2014 8 under ..... .no.24/2014 on the file of the family court, ottapalam, is the revision petitioner herein.2. the petition for maintenance was filed by the respondent herein, who is none other than the wife of the petitioner. it is alleged in the petition that, the marriage between the revision petitioner and the respondent was solemnized ..... the capacity to pay the maintenance. so the courts below were perfectly justified in holding that the respondent is not having any income ..... the consideration is not a ground to deny maintenance to the wife, if on the basis of evidence, if it is proved that, he is having ..... further he had taken life insurance polices in the name of the petitioner, that shows that he was affectionate towards the wife. he has no income of his own and he had filed an application for maintenance against the son and that is pending. so under the circumstances, the court below was not justified in allowing .....
Smt. Shehnaz Arvind Mudbhatkal Vs. Dr. Arvind Ramkrishna Mudbhatkal
..... aforesaid findings, we are inclined to observe that in the year 2005, when the learned judge was required to decide the quantum of permanent maintenance, the wife was earning a sum of rs.45,000/- per month and she had received a sum of rs.11 lakhs as and by way of back wages ..... she further submitted that the learned judge of the family court has considered the earning capacity of wife as well as husband and has rightly rejected the prayer of wife for maintenance. 32. so far as the grievance made by the wife in the appeal memo as regards the maturity proceeds of nri bonds, the ..... , which are appearing in paragraph 38 of the impugned judgment. learned advocate for the husband submitted that wife is earning sufficient amount to maintain herself and, therefore, there is no need to grant maintenance to the wife. it was also pointed out to the court that at the time of filing of the petition, ..... was @ rs.9,000/- per month. learned advocate ms. karnik submitted that thewife is earning amount which is sufficient to maintain herself and that there is no need to pass an order directing the husband to pay her maintenance. learned advocate for the husband, submitted that at the stage of recording of evidence ..... learned judge of the family court has for reasons mentioned in the judgment and order observed that the wife is sufficientlyearning and as such she is not entitled to any maintenance. 19. so far as issue no.4 by which an injunction was sought against the husband in terms of prayer clause .....
Suryakant Alias Suresh Laxmishanker Vs. Indumati Vithaldas Daiya
(1973)14GLR169
..... open the floodgates of speculative suggestion by the husband which the section does not permit. if the existing income is the criterion for determining the right of the wife to maintenance, her potential capacity to earn either at the very time or at some future date, will have to be simultaneously examined. if that way the matter is not examined, it would lead ..... means of the husband to maintain her, including the ability or capacity of the husband. the income or the ability or capacity of the wife to earn and provide maintenance to herself is an irrelevant consideration. the income of the wife from any other source would not be a relevant consideration at all.11. now, assuming that i am not right in my conclusion ..... teacher, or if she is further qualified a clerical job or even if not at all qualified even as maid servant. now, if such a wife was to earn rs. 20/- per month she would be disentitled to maintenance forthwith. such was never the intention of the legislature in enacting section 488.12. once it is held that the only relevant considerations, while ..... . therefore, examining the case from any angle, no case is made out for interfering with the quantum of maintenance awarded to the discarded wife. unless, therefore, the court comes to this conclusion that discarded wife is earning rs. 250/- per month and as her husband is earning only rs. 330/- per month, and is not only having an obligation to maintain his companion and his .....
Gaurav Gupta Vs. Radhika Gupta
..... rent for the tenanted premises. the child was growing up and studying in senior school but according to the wife, child's education was being hampered due to insufficient funds. the hon'ble supreme court held that having regard to appellant'swife earning, maintenance awarded by high court need not be enhanced, bur considering the facts that the child being daughter of a ..... gaurav to hide his real income by asserting that his yearly income is only rs.13,25,525/-. it is sufficiently proved that gaurav has financial capacity to pay maintenance to his wife radhika and his minor daughters. 37. expression ??any proceedings ? referred to in section 24 of the act cannot be restricted only to the proceedings under the act but should ..... deal with the submissions advanced by the counsel for the parties on the earning capacity of the husband in extenso and accepting the husband's statement that he was getting rs.30,000/- per month, fixed an amount of rs.12,000/- per month as interim maintenance to the wife. considering the qualification, experience and other factors with regard to the husband, the ..... highly placed officer, exorbitant fee structure in good schools and cost of living, respondent-husband is liable to pay rs.5,000/- per month to appellant-wife for maintenance of the child with effect from 01 .....
indu Dhari Singh Vs. Dr. Rita Singh and anr.
..... husband's average income. however, in the case of smt. sheh prabha v. ravinder kumar, 1995 sc 2170. which was under section 20 of the hindu adoption and maintenance act, though the wife was earning handsome salary and more than the husband, as because the two daughters were living with their mother, the apex court directed the husband to pay rs. 4000/- per ..... and expenses of proceedings by the husband to the wife. section 24 adopts those principles and goes one radical step further when ..... under the act and to provide for her maintenance and support pending the disposal of such proceeding. it is also recognised that when the wife has separate means sufficient for her defence and subsistence she should not be entitled to alimony nor costs during the proceeding; and if the husband has neither property nor earning capacity the court would not award any ..... interim alimony. on these principles that the law relating to matrimonial causes provides for rules for payment of maintenance pendete lite .....
Landmark judgments related to maintenance to earning wife
Ag Vs. Shiv Kumar Yadav and Anr.
..... defend the case of such an under trial as per the new scheme and design in accordance with his acumen and legal expertise. 23. the high court made a reference to he criminal law amendment act, 2013 providing for trial relating to offences under section 376 and other specified offences being completed within two months from the date of filing of the charge sheet. reference has also ..... reasons for the same in the case diary and hand over a copy of the same to the magistrate. 10.5. medical examination of the victim: section 164-a crpc inserted by act 25 of 2005 in crpc imposes an obligation on the part of investigating officer to get the victim of the rape immediately medically examined. a copy of the report of such ..... be impermissible, it was observed : 13. .. in order to appreciate the stand of the appellant it will be worthwhile to refer to section311 crpc, as well as section 138 of the evidence act. the same are extracted hereunder: section 311, code of criminalprocedure 311. power to summon material witness, or examine person present. any court may, at any stage of any inquiry, trial or ..... have a fast-track procedure for dealing with cases of rape and gang rape lodged under section 376 ipc with the result that such heinous offences are repeated incessantly.4. we are of the considered opinion that there is pressing need to introduce drastic amendments to crpc in the nature of fast-track procedure for fast track courts and here is an occasion .....
Shimbhu and anr. Vs. State of Haryana
..... to be a ground for the court to exercise the discretionary power under the proviso of section 376(2) of ipc. 23) it is imperative to mention that the legislature through the criminal law (amendment) act, 2013 has deleted this proviso in the wake of increasing crimes against women. though, the said amendment will not come in the way of exercising discretion in this case, on perusal of ..... years, the same cannot be reduced to the period already undergone merely because the victim has entered into a settlement with the accused. he also brought to our notice the criminal law (amendment) act, 2013, which not only deleted the proviso which enables the court to reduce the minimum sentence by giving adequate and special reasons but also enhanced the minimum sentence to twenty years ..... status of the victim or the accused. it must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. crimes of violence upon women need to be severely dealt with. socio-economic status religion race caste or creed of the accused or the victim are irrelevant considerations in sentencing ..... let us consider the relevant provision, as it stood on the date of the incident, and various decisions of this court. sentencing policy under section 376(2)(g) of ipc:9. the crucial stage in everycriminal proceeding is the stage of sentencing. it is the most complex and difficult stage in the judicial process. the indian legal system confers ample discretion .....
Jitender Singh Vs. State and anr.
..... a ground for the court to exercise the discretionary power under the proviso of section 376(2) of indian penal code.23. it is imperative to mention that the legislature through the criminal law (amendment) act, 2013 has deleted this proviso in the wake of increasing crimes against women. though, the said amendment will not come in the way of exercising discretion in this case, on ..... kya kar rahe ho?, but without saying anything he forcibly did galat kaam? with her. she requested for legal action against her brother-in-law jitender.5. during investigation, statement of respondentno.2 under section 164 crpc was recorded. however, during investigation of this case, she again filed an application for re-recording of her statement but the request was declined ..... by the respondentno.2 but at the same time, it cannot be ignored that her statement under section164 crpc has also been recorded during investigation. it may be apposite to quote the observation of apex court in shimbhu & anr. v. state of haryana 2013 (10) scale595wherein the issue involved was whether the high court of punjab & haryana was justified in ..... taking recourse to section 376(2) ipc to impose the sentence less than the prescribed minimum. while summarising the law .....
Shiva and Another Vs. State of M.P.
Judgments related to section 23 Criminal Law (Amendment) Act 2013
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