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Sonya Dagdu and anr. Vs. Manhu Dagadu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Appln. No. 706 of 1978 in Letters Patent Appeal St. No. 3083 of 1978 in Second Appeal No. 924
Judge
Reported inAIR1980Bom62; (1980)82BOMLR119; 1980MhLJ17
ActsCode of Civil Procedure (CPC), 1908 - Sections 96, 100 and 100A; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 38, 97(2) and 97(3); Judiciary Act, 1903; General Clauses Act, 1897 - Sections 6
AppellantSonya Dagdu and anr.
RespondentManhu Dagadu and ors.
Appellant AdvocateR.M. Agarwal, Adv., appointed Amicus Curiae;A.V. Sawant, Adv.
Respondent AdvocateA.H. Vaishnav, Adv.
Excerpt:
.....v. commr., sales tax,. nagpur [1967] a.i.r. s.c. 344, followed.;the legal pursuit of a remedy, suit, appeal, and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. the right of appeal is not a mere matter of procedure but is a substantive right. the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgement is pronounced such right is to be governed by..........an important question and one having direct impact and consequence in the field of appeals and/or leave applications under clause 15 of the letters patent in respect of any appeal from an appellate decree or order passed by a single judge of a high court.2. it is needless to relate all the facts. suffice to state that the original suit filed in 1068 was one for declaration of title and possession. defence was denial of title. holding plaintiffs' title proved, the trial court decreed the suit. appeal to the district court failed. second appeal therefrom was dismissed by me on 7th feb. 1978. the defendants now pray for leave to prefer against my judgment, appeal under the letters patent.3. mr. vaishnav for the opponents a preliminary objection viz., that having regard to the relevant.....
Judgment:
ORDER

1. This petition for leave under the Letters Patent raises an important question and one having direct impact and consequence in the field of appeals and/or leave applications under Clause 15 of the Letters Patent in respect of any appeal from an appellate decree or order passed by a single Judge of a High Court.

2. It is needless to relate all the facts. Suffice to state that the original suit filed in 1068 was one for declaration of title and possession. Defence was denial of title. Holding plaintiffs' title proved, the trial Court decreed the suit. Appeal to the District Court failed. Second appeal therefrom was dismissed by me on 7th Feb. 1978. The defendants now pray for leave to prefer against my judgment, appeal under the Letters Patent.

3. Mr. Vaishnav for the opponents a preliminary objection viz., that having regard to the relevant provisions of Act No. 104 of 1976 (hereinafter the Amending Act) introducing manifold amendments in the Civil P. C., 1908, this leave application was not maintainable and was liable to be dismissed in limine. Mr. Savant for the petitioners sought to repel this objection contending that right to appeal, including appeal under the Letters Patent, was one which vested in the petitioners in the year 1968 itself when the suit originated and this vested right remained untrammelled, notwithstanding the Amending Act. Mr. Agarwal appearing amicus curies set forth submissions supporting the preliminary objection.

4. Now, it is indeed axiomatic that a pre-existing right to appeal is a vested right which inheres in a party. Lis once originated gives birth to a vested right to take the lis to its ultimate end or terminus a quo in due course of the existing law. It contains in itself the implication that all appeals then in force under the existing law are preserved to it throughout the rest of its journey. Retroactive legislation is generally not favoured. However, equally well set is the position that even a vested right of appeal can be abrogated either explicitly or by implicit intendment. Though legislation is generally effective prospectively affecting the hereafter and not the hereto-: fore, it is not the law that a statute cannot be retrospective. On the contrary, it can retroact. But to do so or to be so, it must expressly say so or by clear implication mean it. Intention to impair or imperil an existing right must be express or, in any event, implicit in the words that speak the intention. The impugned clog must be self-evident and not left to be gathered by a long process of involved ratiocination. As noted by Maxwell:

'It is a fundamental rule of English law -- same is the rule In India --that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.' (Interpretation of Statutes -- 12th Edition -- Page 215).

5. Leading case on the subject is Colonial Sugar Refining Co., Ltd. v. Irving, 1905 AC 369. The company challenged levy of excise duty by the Collector of Customs. The first Court viz., the Supreme Court of Queensland, held against the company and for the Collector. The defeated company applied for leave to appeal to His Majesty in Council. Leave accordingly was granted. The respondent viz., the Collector, moved the Privy Council to dismiss the appeal on the ground that prior to the grant of leave aforesaid, the right to appeal to the Privy Council had itself been abolished by the Judiciary Act, 1903, and that appeal from a decision of the Supreme Court of Queensland lay thereafter only to the High Court of Australia. The Privy Council held that a right to appeal

'.....is a very different thing from regulating procedure',

and if it be more than a matter of procedure, then

'.....in accordance with a long line of authorities extending from the time of Lord Coke to the present day', such a right is 'a right in existence', which cannot be interfered with save and except by express enactment or necessary intendment. There was no dispute that the Judiciary Act was not retrospective either expressly or impliedly. The company's 'right in existence' was, therefore, held not affected by the said Act and the Collector's objection application was consequently rejected. Lord Macnaghten, delivering the judgment of Their Lordships, further held as follows:-- 'To deprive a suitor in a pending action of an appeal to a superior Tribunal which belonged to him as of right is a very different tiling from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that 'statutes are not to be held to act retrospectively unless a clear intention to that effect is,, manifested.'

6. This principle was reiterated by the Privy Council in the case of Delhi Cloth and General Mills Co. v. Commr. of Income-tax . It has also been followed by Full Benches of several High Courts of our country viz., (a) Sadar Ali v. Doliluddin : AIR1928Cal640 ; (b) Ram Singh v. Shankar Dayal, : AIR1928All437 {FB), (c) Kirpa Singh V. Rasalidar, AIR 1928 Lah 627 (FB), (d) In re: Vasudeva Samiar, AIR 1929 Mad 381 (SB); (e) Radhakisan v. Sridhar, AIR 1950 Nag 177 (FB); (f) Gordhandas v. Governor-General in Council, AIR 1952 P&H; 103 (FB). This principle was applied also by this High Court in Nana Aba Katkar v. Sheku ILR (1908) 32 Bom 337, in which a Full Bench ruling of this Court in Ratanchand v. Hanman-tray, (1869) 6 Bom HCR (ACJ) 166, has also been referred to. The ratio of the Colonial Sugar Refining Company's case has also been referred to with approval in several decisions of the Supreme Court which, inter alia, are (a) Hoosein Kasam Dada (India) Ltd. v. State of Madh Pra, : 1983(13)ELT1277(SC) ; (b) Garikapati Veeraya v. Subbiah Choudhry : [1957]1SCR488 ; (c) State of Bombay v. M/s. Supreme General Films Exchange Ltd., : [1960]3SCR640 ; and (d) Vithalbhai Naranbhai Patel v. Commr. of Sales Tax, M. P. Nag., : AIR1967SC344 .

7. Principles emerging from these rulings can best be summed up in the words of the Supreme Court itself in Garikapati's case, Supra;

'(i) The legal pursuit of a remedy, suit, appeal and second appeal are: really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists 'as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise,'

To add one more;

'(vi) .....When a lis commences, allrights get crystallised and no clog upon a likely appeal can be put, unless the law was made retrospective, expressly or by clear implication,.....'

Vide Vithalbhai Naranbhai's case supra.

8. Applying then these tests to the case in hand--what is the position? When the suit was instituted in June 1968, either of the parties thereto had a right of appeal to the District Court under Section 96 of the Code as also right to a second appeal to the High Court under Section 100 of the Code as also further right to apply for leave to appeal under Clause 15 of the Letters Patent. All these rights inhered and vested in the parties on the date of the suit. The petitioners, therefore, had a right to file this leave application and unless shown that it is validly whittled down, the preliminary objection must fail.

9. The turning question, therefore, is:--

Is the petitioners' right to appeal under the Letters Patent taken away by the Amending Act which, after the President's assent on 9th September 1976, came into force, albeit by stages, soon thereafter? By then, however, the suit as also appeal therefrom to the District Court had both stood disposed of and the lis was at the second appeal stage in this Court. This second appeal stood disposed of on 7th February 1978 i.e. long after the Amending Act. The present leave application is also, therefore, obviously thereafter. The Amending Act thus becomes the crucial intercession around which revolves the fate of the preliminary objection.

10. Turning to the Amending Act, the provisions relevant to the preliminary objection are Sections 38, 97 (2) (n) and 97 (3) which, for ready reference, are as follows :--

'Section 38: Insertion of new Section 100-A -- After Section 100 of the principal Act, the following section shall be inserted, namely:--

100-A. No further appeal in certain cases:--

'Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal.'

Section 97 (2):-- (Repeal and savings)

'Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (I) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897),--

(n) Section 100-A as inserted in the principal Act by Section 38 of this Act, shall not apply to or affect any appeal against the decision of a single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the said Section 38 ; and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force.' Section 97 (3) :-- 'Save as otherwise provided in subsection (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.'

11. Taking up first Section 38 of the Amending Act or its counterpart Section 100-A of Civil P. C. -- it is not, in my view, an amending or a repealing section as such but one setting up an altogether new position taking effect hereafter. It does not per se manifest an intention to destroy an existing vested right. Rather it partakes the character of an overriding or a superseding provision operating in future. In the context of the principles already noted, Section 38 must be taken to mean and intend that an appeal under Letters Patent from the judgment, decision or order of a single Judge in a second appeal will no longer lie hereafter in a matter arising out of a post-Amending Act suit -- thus creating an absolute bar in that behalf. But Section 38 does not by itself obliterate or abrogate a pre-existing right of appeal arising out of a pre-Amending Act suit, as in the present case.

12. Provision next arising for consideration is the clear and unambiguous saving Clause (n) of Sub-section (2) of Section 97 of the Amending Act. The said provision expressly states that Section 100-A inserted in the Code by Section 38 of the Amending Act,

'.....shall not apply to or affect any appeal against the decision of a single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the said Section 38; and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force.'

This Clause thus, expressly protects and safeguards against the Amending Act, Letters Patent appeal already admitted and pending final hearing. Such, however, is not the case here because this leave petition is yet pending admission. This clause speaks nil and is silent qua post-Amending Act leave application as of the instant nature.

13. My attention was, however, invited to a decision of the Calcutta High Court in State of West Bengal v. Mir Fakir Mohammad, : AIR1977Cal285 , wherein R. Bhattacharya J. held that an admitted appeal under the Letters Patent is saved by virtue of Section 97 (2) (n) of the Amending Act. This indeed, as already seen, is the correct position. This section, however, has no application to a case as the instant one which is not of an admitted appeal but one still pending admission. The learned Judge R. Bhattacharya J. has thereafter, however, proceeded to consider a case of a pre-Amending Act leave application and has, in that context, observed:--

'An application under Clause 15 if filed even a day prior to the coming into force of Section 100-A of the Code, cannot be rejected summarily. If the application has already complied with other provisions of law for admission of the appeal, certainly the Court will consider whether it is a fit case for granting leave or certificate as prayed for.'

With great respect, I am unable to agree. In my view, a pre-Section 100-A application but still pending grant of leave or admission will no longer be maintainable and would become infructuous after the coming into force of the Amending Act and would thereafter be liable to be rejected summarily in view of Section 97 (3) of the said Act. This section does not appear to have been brought to the notice of the learned Judge.

14. Yet another ruling referred to is the one in Smt. Anusua Dhirajlal Kanakia v. Promode Kumar Banerjee : AIR1978Cal249 . M. N. Roy J. hearing the said matter, held as follows:--

'Thus after the introduction of Section 100-A as aforesaid, no appeal would be available from the judgment, decision or order of a single Judge in a Second Appeal notwithstanding anything contained in any Letters Patent for any High Court or any other instrument having the force of law or any other law for the time being in force. So, and because of the incorporation of the new section and in fact after the incorporation of the same there can be no appeal under the provisions of the Letters Patent as indicated in the section itself, subject to the exception as mentioned in Section 97 (2) (n) of the (Amending) Act of 1976 viz., if any appeal is admitted under the Letters Patent before the coming into force of the said section, the same shall be disposed of as if the said Section 38 introducing Section 100-A of the Act had not come into force.'

15. Relying on this ruling, it is contended for the opponents that Section 100-A of the Code bars the present leave application. With great respect, I find myself unable to agree with the absolute and unqualified dictum therein. Section 100-A is not so expressed as to be plainly retrospective. To give it that meaning would mean adding to or engrafting on the section, the concept of retroactive operation. On the other hand, construing and interpreting this section in the context of well-settled position regarding a vested right of appeal, the more appropriate conclusion would be that Section 100-A does not simpliciter and standing by itself or per se defeat a pre-existing right of appeal qua a pre-Amending Act suit. In the same context, Section 100-A must in law be construed to be itself subject to the implied saving of the right already or a priori in existence. A law when enacted usually looks ahead and not behind, usually affects the future and normally not the past. There is a presumption, though rebuttable, against retrospective operation of an enactment. A litigant has a right to have a pending lis heard and disposed of in accordance with law existing at the time of its original institution. If legislative intention is to prejudicially affect such a right, the law must do so expressly or by obvious implication, As observed in Craies on Statute Law, Seventh Edition, at page 389:

'No one denies the competency of the legislature to pass retrospective statutes if they think fit, and many times they have done so, but before giving such a construction to an Act of Parliament one would require that it should either appear very clearly in the terms of the Act or arise by necessary and distinct interpretation, and perhaps no rule of construction is more firmly established than this -- that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, Unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.'

16. The provision most material and relevant and which clinches the issue is Sub-section (3) of Section 97 of the Amending Act. That is the key section. Plain reading thereof results in an irresistible inference and conclusion that the Amending Act shall apply inter alia to every suit, proceeding, appeal or application, pending at the commencement of the said Act or instituted or filed after such commencement.

'......notwithstanding the fact that aright, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.'

This section clearly takes in its sweep right or cause of action even anterior or antecedent to the commencement of the Amending Act. The language is clear and unambiguous. Its mandate is express and unequivocal. There being no modifying, qualifying or altering words, the plain, explicit and unambiguous words of Section 97 (3) must receive their ordinary and natural meaning. As observed in 36 Halsbury's Laws of England, Third Edition, page 388,. paragraph 579:

'If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere todiscover their intention or their meaning.'

The positive effect consequently is the abrogation and annulment of even preexisting rights and causes of action. Though, generally speaking, law respects vested rights and courts endeavour to safeguard them, the combined effect of the clear mandate and the express language of Section 97 (3) puts teeth in the preliminary objection and renders its acceptance inevitable. The| absolute embargo in Section 97 (3) expressly renders nugatory and in fructuous leave application as of the present nature filed after the commencement of the Amending Act notwithstanding that the right to file it had accrued and vested to its holding be-' fore such commencement.

17. The rule against retroactive operation must yield to the clear intention per contra of the legislature. The said rule which is after all only a presumption stands expressly rebutted and overcome in this case, by Section 97 (3). Indeed, this provision indicates that the legislature was not oblivious but conscious of the principle that rights and causes of action vested prior to the coming into force of a new law or an amending enactment are saved unless taken away expressly or by necessary implication. It is precisely to meet this situation that Section 97 (3) has been enacted expressly abrogating inter alia the vested right in question. This alone can be the fair and reasonable interpretation also geared to the fulfilment of the legislative intent behind this provision which inter alia has been to curtail the long succession of appeal over appeal and to give finality to a lis at a stage earlier than later.

18. In the circumstances, it is not possible to accept Mr. Savant's contention that Section 97 (3) of the Amending Act does not affect the petitioners' vested right to file the present leave application. Beyond a bare abstract submission, he was unable to cite in support thereof any authority or any rule or canon of interpretation. Indeed, the well-settled position in a series of decisions noted earlier and spread over half a century and more shows that even a vested right can be abrogated expressly or by necessary implication. So interpreted and thus considered, Section 97 (3) presents an apt illustration of the said rule. It expressly takes away the petitioners' right to apply for leave to appeal under the Letters Patent.

19. In the result, qua leave application under Clause 15 of the Letters Patent in respect of any appeal or an appellate decree or order, heard and decided by a single Judge of a High Court, ray conclusions are as follows:

(1) Letters Patent appeal against the decision of a single Judge of a High Court in any appeal from an appellate decree or order and admitted before the commencement (1st February 1977) of Section 100-A of the Code shall be heard and disposed of as if the said Section 100-A had not come into force.

(2) Leave application arising out of pre-Amending Act suit or proceeding and filed prior to the said Act but still pending admission or grant of leave as on 1st February 1977 will, with effect from that date, become infructuous and will thereafter be liable to be dismissed summarily as no longer maintainable.

(3) Leave application arising out of pre-Amending Act suit or proceeding will not be maintainable ab initio if filed after the coming into force of the Amending Act.

(4) Leave application arising out of post-Amending Act suit or proceeding Is in no case maintainable.

20. The present leave application falls in category 3 aforesaid and is consequently not maintainable and is liable to be rejected in limine. The preliminary objection thus succeeds and is upheld. I may also observe, though by way of obiter, that even on the merits, I find no substance in this application. There is no question of law involved, much less any substantial question of law. Therefore, even assuming this application to be otherwise maintainable, it is nevertheless liable to be rejected also on its own merits. The application thus fails and the same is dismissed. Interim stay stands vacated.

21. Before parting, I place on record my appreciation of the industry put in by the learned Advocates Mr, A. V. Savant and Mr. A. H. Vaishnav as also by Mr. ' R. M. Agarwal, the learned Advocate appearing amicus curiae.

22. Application dismissed


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