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Vilas Vasantrao Mahajan Vs. the Central Bank of India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number First Appeal Nos. 52, 53 and 104 of 1981
Judge
Reported in(1982)84BOMLR171; 1982MhLJ139
AppellantVilas Vasantrao Mahajan
RespondentThe Central Bank of India
Excerpt:
.....orders and decrees passed after the act or further successive appeals if any, arising out of such pending proceedings are not intended to be regulated by the unamended provisions and not protected from the operation of the amending provisions.;reghunath v. sadashiv [1951] a.i.r. bom. 270, prabhakar v. usha [1953] a.i.r. bom. 189, ratanchand shrichand v. hanmanta shivbakas (1969) 6 b.h. c.r. 166, distinguished.;nona aba v. sheku andu (1908) 10 bom. l.r. 330, held to run counter to ratio in indira sohanlal v. custodian of evacuse property [1956] a.i.r. s.c. 77.;appeals from decrees or orders arising out of suits pending on january 1, 1978 in which amount or valuation of the subject-matter does not exceed rs. 25.000/- should be filed in the district court. - code of criminal procedure,..........are intended to be immune from the effect of amendments. this is how the rights in respect of the pending proceedings and proceedings not pending, but arising out of the order and decrees passed before january 1, 1978, covered by the said cases can be said to have been saved from the impact of the amending provisions as the heading of section 19 itself indicates. this saving provision in respect of the appeals, against orders and decrees passed before the act, clearly reflects the legislative intent not to save any other rights of appeals. such positive saving provision also secondly imply in application of saving provision in the general clauses act.12. then the clear implication of these provisions must be that the appeals, arising out of the suits or other proceedings covered by the.....
Judgment:

V.S. Deshpande, C.J.

1. This group of appeal raises a short question whether appeals against decree or orders passed after January 1, 1978 lie to the High Court or District Court. The valuation of the claim in the suit giving rise to the appeals exceeds Rs, 10,000 but is less than Rs. 25,000. The Maharashtra Civil Courts (Enhancement of Pecuniary Jurisdictions and Amendment) Act, 1977 (No. XLVI of 1977), hereinafter referred to as the Amendment Act, amending the Bombay Civil Courts Act, 1869 (No. XIV of 1869) hereinafter referred to as the Act, was enforced on January, 1, 1978. But for this amendment, appeals against decrees involving such valuation in excess of Rs. 10,000 could have been entertained by the High Court alone. The amended Section 26 of the Act dealing with appeals to the High Court substituted the figure of Rs. 25,000 in place of Rs. 10,000. Resultantly decrees or orders arising out of suits in which amounts or valuation of the subject matter exceed Rs. 25,000 alone could be entertained by the High Court. Other appeals against decrees in suits of lesser valuation would lie to the District Court under Section 8 of the Act.

2. Appeal memos in such cases filed in the High Court were earlier returned for presentation to the proper Court by an order of a Division Bench dated January 23, 1980. Decrees in all these appeals also are passed after January 1, 1978. When these appeals were being so returned, the appellants objected. The appeals were, therefore, placed before one of us (Gadgil, J.) on September 23, 1980 for orders. Such return appeared prime facie to be contrary to the ratio of a Division Bench judgment in Raghunath v. Sadashiv : AIR1951Bom270 . The point was, therefore, referred to the Division Bench for consideration, which has in turn referred it to the Full Bench.

3. Shri Kherdekar, Shri Sohoni and Shri Masodkar the learned Advocates for the appellants in all these appeals, contend that suits in these cases were filed before January 1, 1978 and their right to appeal to the superior court, such as the High Court, vested in the appellants on the date of the suit cannot be affected by the amendments. They rely on the ratio of Raghunath's case (supra), and the cases relied on therein and also a subsequent Division Bench judgment in Prabhakar v. Usha : AIR1953Bom189 in support of their contention. Mr. Vyawahare, the learned Advocate for respondents, on the other hand contends that right to appeal is not the same thing as the right to have the said appeal decided by any particular forum. According to him, no suitor can claim any vested right in any forum, it being a matter of procedural law. He relied on the judgments of Shah Sulaiman, Ag. C.J. in Hazari v. Mt. Maktula : AIR1932All30 , and of Chagla C.J. in Shiv Bhagwan v. Orikarmal : AIR1952Bom365 , and Veerswami, J. in V.C.K. Bus Service v. H.D. Sethes : AIR1965Mad149 in support of his contention. He secondly contends that even if such a right is held to be a matter of substantive law, the Amendment Act must be deemed to have taken it away, only saving Section 19 of it, indicating no trace of intent to preserve it,

4. The question raised in Raghunath's case (supra) was no doubt identical. The same Section 26 of the Act was amended under the Amendment Act of 54 of 1949 alongwith certain other sections, enhancing the jurisdiction of trial and appellate courts under the Act. Till then the decrees of orders in suits involving the valuation is excess of Rs. 5000 were appealable to the High Court. Under amended Section 26 appeals to the High Court would lie only if such valuation was in excess of Rs. 10,000, The appeal in question was preferred against a decree in a suit instituted prior to the enforcement of the Amendment Act. The suit involved valuation in excess of Rs. 5000, the decree was passed after the enforcement of the Amended Act. The question was if the High Court could entertain such an appeal when the valuation was less than Rs. 10,000 as required under amended law. The Division Bench held that, it could. It was held that right of appeal to superior court stood vested in the suitor on the date of suit and it was liable to be governed by the law in existence on that date, unless taken away by any express provision of the amending Act or by necessary implication thereof. The Division Bench relied in this behalf on the Privy Council judgment in Colonial Sugar Refinery Company Ltd. v. Irving (1905) A.C. 369, and the earlier Full Bench judgment of this Court in Ratanchand Shrichand v. Hanmanta Shivbakas (1869) 6 B.H.C. C.R. 166 and the Division Bench Judgment at in Nana Aba v. Sheku Andu : (1908)10BOMLR330 . The question is how far ratio of this case is relevant here.

5. It is now well settled that procedural laws always operate retrospectively, while the laws dealing with substantive rights operate prospectively. The right of appeal is not a matter of a procedural law. It is accepted to be a substantive right and as such the litigant can claim to have a vested right therein from the date of the initiation of the proceedings in any court. Mere such right of appeal to have the case reheard by some superior court, however, is distinctly different from closely interlinked right of having the said appeal decided by a particular court or a particular forum, provided for in the Act in force on the date of the suit. In Colonial Sugar Refining Co.'s case (supra) the Privy Council has no doubt expressly held even such a right to the forum as being a matter of substantive law. Though short and brief, the judgment is nonetheless of the Privy Council and is entitled to weight. It is based on the views of great jurists referred to therein. The impugned Act therein did not seek to abolish the appeal. Only forum for such appeal was transferred for the Privy Council thereunder to the High Court in Australia. The right to the forum alone thus was directly in question before the Privy Council. The Privy Council did hold it to be a vested right of substantive law and not a matter of procedural law to be affected retrospectively by the subsequent amending law, unless taken away expressly or by necessary implication thereby. Eminent authors have also quoted passages from this judgment to support the same proposition. It has been invariably followed by all the Courts including our Supreme Court.

6. Even so, there is a cleavage of judicial opinion on the question of right to forum also being such a vested right, as distinguished from the right of appeal simpliciter. The recent cases relied on by Mr. Vyawahare do strike a discordant note. The basic principles of law are after all dynamic and possess inherent capacity to adapt to the changing needs of the society. Our attention was not drawn to any judgment of the Supreme Court in which the right to a particular forum is accepted as a vested right or right of substantive law, in the same way as the right of mere appeals, is so accepted, being immune from the retrospective effect of the procedural law. The dictum of Sugar Co.'s case (supra) is quoted only in support of the right of appeal being a vested right.

7. It is, however, not necessary for the purposes of this case to consider whether the right to a particular forum is or is not a matter of substantive law. We will proceed in this case on the basis that a suitor has not only a vested right of appeal, but also a further vested right of having his appeal decided by the Court indicated in the law that was in existence on the date of the suit. It is, however, equally well settled that even such vested rights as to appeal and as to the forum can be taken away by the legislature by express provisions or by necessary implication. Colonial Sugar Company's case (supra) itself so lays down. It will be sufficient for this case if Mr. Vyawahare's alternative contention as to the true impact of Section 19 is found to be sound.

8. Section 19 of the Amended Act of 1977 reads as follows:

The amendments made by this Act in any of the Acts aforesaid shall not have any effect in respect of and apply to any suits, appeals or other proceedings of a civil nature filed and pending before any court on the date of commencement of this Act, and such proceedings shall be continued and disposed of by that court, as if this Act had not been passed; and any appeal, revision application or other proceedings of a civil nature in respect of any decree or order passed by any Court before the date of commencement of this Act shall be filed before and heard and disposed of by the Court competent to entertain such proceedings before such commencement, as if this Act had not been passed.

9. It is pertinent to note that Amendment Act No. XLVI of 1977 introduces an amendment not only in the Bombay Civil Courts Act, 1869 but in certain other enactments also. Several provisions of the Bombay City Civil Courts Act, 1948 and the Presidency Small Cause Courts Act, 1882, also have been amended under this very enactment, the enactment being aimed at providing for the enhancement of pecuniary jurisdiction of the Civil Courts in the whole of the State of Maharashtra. It is well known that the occasion to enhance the jurisdiction arose because of the abnormal rise of the valuations of the properties during the period of 30 years from 1949 when the Act was amended by Act No. LIV of 1949 to meet the identical problems. This in turn is aimed at reducing the congestion of cases and growing arrears in the Higher Courts which could be attributable to such inflation and artificial rise in the prices. This aspect shall have to borne in mind in this context.

10. Section 19 can be conveniently divided into two parts. The first part deals with suits, appeals and other proceedings already pending in any court on commencement of this Act, on January 1, 1978. The second part deals with appeals and revision application or other proceedings of civil nature, in respect of any decree or order passed by any court before January 1, 1978, but not already filed and therefore not pending. The second part obviously deals with cases which should and could, have been filed before the date of the commencement of the Act, the right to file an appeal or revision having already arisen on the very date on which the decree or order was passed before January 1, 1978. Filing' of an appeal gets delayed for variety of reasons beyond the control of the litigant, such as, availability of copies and services of a legal adviser and arrangement of the money required. This part is obviously intended to meet the instances where the right to file an appeal or revision had arisen or accrued before the commencement of the Amendment Act but which could not be availed of till then because of the unavoidable impediment in the way.

11. Pending matters adverted to in the first part and matters not so pending or to be filed, referred to in second part are expressly required, under both the parts of Section 19, to be disposed of 'as if this Act had not been passed.' In other words, cases covered by either of the parts are intended, as expressly indicated, to be covered by the unamended and not by the amended provisions of the Act. The appeals referred to in both the parts are intended to be immune from the effect of amendments. This is how the rights in respect of the pending proceedings and proceedings not pending, but arising out of the order and decrees passed before January 1, 1978, covered by the said cases can be said to have been saved from the impact of the amending provisions as the heading of Section 19 itself indicates. This saving provision in respect of the appeals, against orders and decrees passed before the Act, clearly reflects the legislative intent not to save any other rights of appeals. Such positive saving provision also secondly imply in application of saving provision in the General Clauses Act.

12. Then the clear implication of these provisions must be that the appeals, arising out of the suits or other proceedings covered by the first part against the order and decree passed after the (Amendment) Act, or further successive appeals, if any, arising out of such pending proceedings are not intended to be regulated by the unamended provisions and not protected from the operation of the amended provision. The very fact that appeals and revisions, not filed till the date of the commencement of the Act, are expressly saved in the second part, clearly goes to show that other appeals, filed after January 1, 1978 not covered by the said second part, are not intended to be saved at all and are intended, on the other hand, to be regulated and governed by the amended provisions of the Act. This, in our opinion, should be the plain interpretation of Section 19, and it is difficult to conceive of any other interpretation in view of the language employed in the provision.

13. Even if the ratio of the Privy Council case of Colonial Sugar Refining Company v. Irving (supra) is held to be applicable to the situation arising in the cases before us, as vehemently urged by Shri Kherdekar, Shri Sohoni and Shri Masodkar, the conclusion would in no way be different. The dictum of the Privy Council itself contemplates cases where the right even with regard to the forum of appeal, held to be substantive, can be taken away by the legislature under express provision or by necessary implication. Under this interpretation of Section 19, even such a vested and substantive right to the forums, must be deemed to have been taken away by necessary implication of the scheme of Section 19. As observed earlier, this Act does not deal with the amendments of the Bombay Civil Courts Act alone. The Act introduces amendments in two other enactments aimed at achieving the same objective, namely, of enhancement of pecuniary jurisdiction of the Civil Courts and reducing the congestion of the cases in the higher courts accumulated because of the sheer rise in the valuation of the property involved. While interpreting the provisions of Section 19, this scheme and the objective of the enactment also cannot be lost sight of.

14. It is true that the language of the saving provision of Section 19 of this Act closely resembles the language of the saving provision of Section 6, in Raghunath's case (supra). Clause (a) of Section 6 saved suits and other pending proceedings of a Civil nature and Clause b(i) thereof saved appeals and proceedings then pending from the effect of the Amendment Act. Clauses (a) and b(i) of Section 6 are thus on par with the first part of Section 19. Clause b(ii) saved the appeals that were not filed but were expected to be filed from the orders and decrees passed before the commencement of the said amending Act. This is on par with the second part of Section 19. The scheme of Section 6 thus is analogous substantially to the scheme of Section 19.

15. There are, however, two distinguishing features which make material difference to the points that arise for our consideration. The first part of Section 19, combining therein the scheme covered by Section 6(a) and 6(b)(i) in Raghunath's case, requires pending cases to be disposed of 'by that court'. In other words, pending suits, appeals and other proceedings are contemplated to be disposed of by the Court in which the same were pending on January 1, 1978. The words 'by that Court' cannot have any reference to the Courts which would be competent to decide the appeals arising after January 1, 1978 from such suits. The language of the first part on the face of it is inappropriate to spell out reference to any such appellate courts and therefore is incompatible with the suggestion of the word 'suit' in first part including in its sweep the appeal arising therefrom after January 1, 1978. This obviously prevents, appeals in pending suits or other proceedings, arising after January 1, 1978, being covered by the first part of Section 19, as was held in Raghunath's case by reference to Section 6(a). Section 6(a) and 6(b)(i) did not contain any words of such restrictive import. The word 'suit' in Section 6(a) therefore could be construed by the Division Bench to include appeal arising out of the same and as such being the saving provision to protect the said right of appeal from the effects of amending provisions even if the decree is passed and appeal is filed after the enforcement of the amending Act. The additional words 'by that Court' in Section 19 prevent its being construed in that way. The restrictive words indicate legislative intent to take away the vested right as to the forum of the appeal, the right of appeal itself not being affected thereby.

16. Secondly, Section 6 in Raghunath's case opened with an injunction preventing Section 2 to 5 of the Amendment Act No. LIV of 1949 from having any effect on the proceedings covered by Clause (a) and (b) thereof. Section 26 was required under this mandate to be read is its unamended form for the suits, 'pending' and covered by the Clause (a) of Section 6. The Division Bench in Raghunath's case was at pains to explain, in para. 4 and 5 of the judgment, how the appeals arising out of pending suits because of these opening words of Section 6 were required to be regulated by the unamended and not by amended Section 26. These two points of distinction, to our mind make the ratio in Raghunath's case in applicable to the situation arising in the present cases, notwithstanding identity of the situations and the language substantially.

17. Reliance is also placed in Raghunath's case on the Full Bench judgment in Ratanchand's case. Suffice it to note that wording of Clause (5) quoted and amended clause of Letters' Patent relied on therein has no semblance with the language of Section 19 herein. The ratio of the Division Bench judgment in Nana Aba v. Sheku Andu (supra) relied on in Raghunath's case is slightly different though relevant indirectly. Revisional powers conferred on the collector subsequent to the date of suit were held ineffective to disturb the finality attached to the order under Mamlatdar's Court Act as the Act stood on the date of the suit. This view, however, runs counter to the ratio of the recent judgment of the Supreme Court in the case of Indira Sohanlal v. Custodian of Evacuse Property : [1955]2SCR1117 . The revisional powers under Section 27 of the Act by amendment effected after the initiation of the proceedings were held effective enough to interfere with the order passed in proceeding instituted before the Section 27 was introduced in the Act. For all these reasons, the ratio of Raghunath's case cannot be applicable to the situation arising in the present case. Prabhakar's case merely follows the ratio in Raghunath's case and the cases relied on therein. This Court had no occasion to interpret any saving provision like Section 19 in the said case.

18. Our attention was drawn by the learned Advocates to a few other cases. We do not think it worthwhile to refer to any of these cases as our view in the present cases is based mainly on the construction of Section 19 of the Amendment Act No. XLVI of 1977. We are of the view that the- appeal arising out of the orders and decrees passed after the commencement of the Act will be governed by the amended provisions and not by the unamended provisions. The earlier order of the Division Bench returning the appeal memo to the appellants for presenting the same to the proper court appears to us to be correct, We answer the reference accordingly.

19. Shri Kherdekar, Shri Sohoni and Shri Masodkar applied for leave to appeal to the Supreme Court. Leave refused.


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