Skip to content


Saraswathula Kameswaramma and anr. Vs. Radhakrishna and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCase Referred No. 40 of 1973
Judge
Reported inAIR1975AP65
ActsAndhra Pradesh Civil Courts Act, 1972 - Sections 17(1)
AppellantSaraswathula Kameswaramma and anr.
RespondentRadhakrishna and Co. and ors.
Appellant AdvocateK.V. Subrahmanya Narsum, Adv.
Respondent AdvocateK. Srinivasa Murthy and ;K. Nagaraja Rao, Advs.
Excerpt:
civil - operation of statute - section 17 (1) of a.p. civil courts act, 1972 - whether provision of act prospective or retrospective in operation - change in law adversely affecting right of suitor presumed not retrospective - postponement clause in act indicate that retrospective intent not to be inferred - statue to be retrospective in operation should state same in express words - held, statute not retrospective in operation as provision does not indicate its retrospective operation. - - 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. we have, therefore, to examine 'the language of the enactment to determine..........of sri justice s. r. das to suggest ways and means be reduce the accumulation of arrears in high courts suggested, among, others, the enhancement, of the appellate jurisdiction of district judges upto rs. 10,000/-. this will have the effect of reducing the heavy file of first appeals in the high court to a large extent. the government of india have accepted this recommendation and suggested that this may be implemented by the state government by amending the civil courts act suitably so as to enhance the appellate jurisdiction of the district judges upto rs. 10,000/-, with a provision to fix the same at such lower limit as the state government may. by notification, determine in consultation with the high court. further, this will give an opportunity to the district judges to.....
Judgment:

Chennakesav Reddy, J.

1. In this reference made by the District Judge, Visakapatnam under Section 113 C. P. C. the issue that requires resolution is whether the provisions of the Andhira Pradesh Civil Courts Act. 1972 (Act 19 of 1972) are only prospective or retrospective in operation.

2. The facts giving rise to the reference are these: Aggrieved against the judgment and decree in O. S. No. 226 of 1971 on the file of the Court of the Subordinate Judge. Visakhapatnam the plaintiffs preferred an appeal to the District Court Visakapatnam. The appeal was valued at Rs. 12,795/-. The suit itself was instituted in the Court of the Subordinate Judge. Visakhapatnam on 4-11-1971. Tht value of the suit was Rs. 12,000/-. After the institution of the suit, the Andhra Pradesh Civil Courts Act. 1972 (hereinafter referred to as the Act') was passed and the said Act came into force on 1-11-1972. The suit was disposed of by the learned Subordinate Judge after the Act came into force on 30th June. 1973. Under Section 17(1) of the Act an appeal lies only to the District Court against the decree of the Court of the Subordinate Judge when the amount or value of the subject matter of the suit or proceedings is not more than Rs. 15,000/-. Since the value of the suit was below Rs. 15,000/-the plaintiffs preferred an appeal to the District Court. The office took an objection that the District Court had no pecuniary jurisdiction to entertain the appeal. On behalf of the plaintiffs-appellants it was argued that as the suit was disposed of after the new Act came into force the appeal was maintainable.

3. In view of the conflicting decisions of this High Court in I. Venkata Reddy v. J. Ayodhyamma, 1973-2 APLJ 250. and in V. Venkavamma v. P. Rama-lakshmi. (1973) 1 APLJ (Short Notesl 97 on the one hand, and in Kotina Papavva v. Samminga Appala Naidu. (1960) I An WR 100 on the other on the question whether the operation of the Act is retros-pectivle or prospective find as an appeal lav to the High Court prior to the present Act under Section 13 of the Madras Civil Courts Act. 1873 (Central Act III of 1873) if the value of the appeal was above Rs. 10,000/-. 'the learned District Judge made this reference under Section 113 C. P. C.

4. The law regarding such type of Questions as the present one whether the benefit conferred under a statutory provision was prospective or retrospective is plenty. Courts have Invariably leaned very strongly against applying a new Act to a pending action when the express language of the Act itself does not compel to do so. In the Colonial Sugar Refining Co. Ltd. v. living, 1905 AC 369 Lord Macnaghten in delivering the judgment of the Judicial Committee, observed as follows :--

'to deprive a suitor in a spending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing 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.'

The rule in the above case was accepted and applied by the Supreme Court in Garikapati Veerayya v. Subbaiah Chou-dury. : [1957]1SCR488 . After an exhaustive review of the earlier authorities. S. R. Das C. J. deduced the following five propositions:--

'(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 proceedings:

(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 ere 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 ispronounced 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 filing of appeal ;

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

In Mukund Deo v. Mahadu : AIR1965SC703 Shah. J. (as he then was) speaking for 'the Supreme Court observed as follows:--

'It is true that as a general rule, alterations in the law of procedure are retrospective, but a right of appeal to a particular forum is a substantive right and is not lost by alteration in the law unless provision is made expressly in that behalf, or a necessary implication arises.'

5. The above decisions are authorities for the proposition that any change in the law relating to appeals after the institution of original proceedings which adversely touches the vested right in a suitor, is presumed not to be retrospective in the absence of anything in the enactment that would compel Courts to hold otherwise. We have, therefore, to examine 'the language of the enactment to determine whether the intendment of the Legislature was clearly and positively to bring within reach of the enactment even pending proceedings. The suit in this case was instituted on 4-11-1971. The value of the suit was Rs. 12,000/-. On the data of the institution of the suit the rights of the parties to an appeal were governed' by the Madras Civil Courts Acts 1873 (Central Act III of 1873). Under Section 13 of 'the said Act, the parties had a right of appeal the the High Court if the value of the appeal was above Rs. 10,000/-. By Section 17 (1) of the new Act which came into force on 1-11-1972 an appeal was provided to the District Court if the value of the appeal was below Rs. 15,000/-that is the pecuniary jurisdiction of the District Court to entertain appeals against the decrees of the subordinate Courts was enhanced by the new Act By Section 34 (1) of the Act, the Andhra Pradesh (Andhra Area) Civil Courts Act. 1873. the Andhra Pradesh (Telangana Areal Civil Courts Act. 1954 and Section 17 of the Andhra Pradesh (Telangana Area) Small Causes Courts Act, 1330 fasli are repealed. By Sub-section (2) of Section 34. the provisions of sections 8 and 18 of the Andhra Pradesh General Clauses Act 1891 are made applicable upon such appeal. Therefore by the application of Section 8 of the General Clauses Act a rieht of appeal to the High Court which accrued to the litigant and existed as on the date of the institution of the suit under Section 13 of the Madras Civil Courts, Act 1873 is preserved to the litigant. The dominant intention of the Legislature is thus clearly and distinctly expressed that the Act would not prejudicially affect vested rights by the express provision of Clause 2 of Section 34 of the Act. Therefore, we have no hesitation in holding that the Act is only prospective and not retrospective.

To the same effect is the decision of this Court in (1973) 2 APLJ 250. which has again been applied in an unreported decision of this court in S. R. No. 31046 of 1973 dated 15-6-1973 ('Venkayamma V. Rama Lakshmi, (1973) 1 APLJ (Short Notes) 97.

6. In (1960) 1 An WR 100 the learned Judges held that the Madras Civil Courts (Andhra Amendment) Act. 1955 (Act I of 1956) was retrospective in its application and would apply even to suits which had been instituted before the Act came into force. In that case an amendment to 'the Madras Civil Courts Act. 1873, (Central Act III of 1873) was brought about by the Amendment Act. of 1955. By the said Amendment Act an appeal was provided to the District Court against a decree of the Court of the Subordinate Judge if the value of the appeal does not exceed Rs. 10,000/- whereas, prior to the amendment, an appeal lav to the High-Court if the valuation was above Rupees 5,000/-. The learned Judges in coming to the conclusion that the Legislature intended the Act to have retrospective operation relied firstly on the postponement clause in the Act itself that the Act would come into operation on the date to be notified by the State Government, and Secondly, on the statement of objects and reasons which revealed an anxiety on the part of the Legislature to reduce the heavy file of first appeals in the High Court by the enhancement of the appellate jurisdiction of the District Judges upto Rs. 10,000. It is true that in the present Act also there is a postponement clause. Section 1 (3) enacts that the Act shall come into force in such area and on such date as the Government may by notification appoint : and they may appoint different dates for different areas and/or different provisions of this Act. But postponement clause by itself is not decisive or the matter whether a statute is prospective or retrospective in operation. Retrospective operation cannot be taken to be intended unless that intention is manifested by express words or necessary implication. In this context the following principle of construction contained in Craies Statute Law. 5th Edition, at page 363. may profitably be read :

'A postponement clause in an Act has been sometimes said to the an indication against the presumption that a retrospective intent is not to be inferred.'

In (1960) 1 An WR 100 it seems to us the learned Judges leaned very heavily on the statement of objects and reasons in coming to the conclusion that the Act was intended to be retrospective in operation. In that case the Statement of objects and reasons was in the following terms :

'The High Court Arrears Committee constituted by the Government of India under the Chairmanship of Sri Justice S. R. Das to suggest ways and means be reduce the accumulation of arrears in High Courts suggested, among, others, the enhancement, of the appellate jurisdiction of District Judges upto Rs. 10,000/-. This will have the effect of reducing the heavy file of first appeals in the High Court to a large extent. The Government of India have accepted this recommendation and suggested that this may be implemented by the State Government by amending the Civil Courts Act suitably so as to enhance the appellate jurisdiction of the District Judges upto Rs. 10,000/-, with a provision to fix the same at such lower limit as the State Government may. by notification, determine in consultation with the High Court. Further, this will give an opportunity to the District Judges to assess the judicial work of the Subordinate Judges, which has become impracticable after the commencement of the Madras Civil and Village Courts (Amendment! Act. 1951 (XVI of 1951). The bill seeks to give effect to the above suggestion.'

It is thus abundantly clear that the learned Judges were impelled by the strong surrounding circumstances to draw the inference that the intendment was to have retrospective operation. But in this case there are no such strong circumstances that would compel us to draw the presumption that the intendment of the present Act was to have a retrospective operation. The preamble of the Act merely recites that the Act is to consolidate and amend the law relating to the civil Courts subordinate to the High Court in the State of Andhra Pradesh. We, therefore, hold that the Act is not retrospective in operation and the appeal, therefore, preferred before the District Court is not maintainable.

7. The reference is answered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //