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Vallabhaneni Lakshmana Swamy and anr. Vs. Valluru Basavaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberAS Nos. 376 and 697 of 1987
Judge
Reported in2004(5)ALD807; 2004(5)ALT755
ActsAndhra Pradesh Civil Courts Act, 1972 - Sections 9 and 17; Andhra Pradesh Civil Courts (Amendment) Act, 1989; Code of Civil Procedure (CPC) - Sections 24; Andhra Pradesh General Clauses Act - Sections 8 and 18
AppellantVallabhaneni Lakshmana Swamy and anr.
RespondentValluru Basavaiah and ors.
Advocates:P.V.R. Sharma, ;E. Kalyan Ram, ;K.V. Reddy, ;M. Lakshmana Sharma, ;M.S.R. Subrahmanyam, ;Mohd. Osman Shaheed, ;M.V.K. Moorthy, ;A. Ananth Reddy, ;M.V. Ramana Reddy, ;R. Venugopal Reddy, ;E.P. Malikarj
Excerpt:
- practice & procedure repeal of act; [bilal nazki, c.v. ramulu & d. appa rao, jj] rules framed under the old (repealed) act held, rules framed under the repealed act do not remain in force once the act is repealed unless repealing act provided otherwise. - the dominant intention of the legislature was thus clearly and distinctly expressed that the act would not prejudicially affect the vested rights by the expressed provisions of clause 2 of section 34 of the act. the division bench was of the view 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 the case dealt with the matter in kameshwaramma's case (supra), the division bench found that there are no such strong.....1. the judicial somersault for a decade in the hands of the division benches and the full bench and the decisional upheavals inherent in the system continue to make the litigant under the perennial predicament and speculation. this is one such instance, we are called upon to clear the riddles.2. the matter is brought before us on a reference made by a learned single judge (bprj) in regard to the decision rendered by the full bench of this court reported in motichand jain v. jaikumar m, : air2004ap136 (fb).3. the issue that arises for consideration is(a) whether a.p. civil court (amendment) act, 30 of 1989 is retrospective or prospective in operation?(b) whether there is any distinction between vested right and right to forum? 4. the andhra pradesh civil court act, 1972 was brought into.....
Judgment:

1. The judicial somersault for a decade in the hands of the Division Benches and the Full Bench and the decisional upheavals inherent in the system continue to make the litigant under the perennial predicament and speculation. This is one such instance, we are called upon to clear the riddles.

2. The matter is brought before us on a reference made by a learned Single Judge (BPRJ) in regard to the decision rendered by the Full Bench of this Court reported in Motichand Jain v. Jaikumar M, : AIR2004AP136 (FB).

3. The issue that arises for consideration is

(a) Whether A.P. Civil Court (Amendment) Act, 30 of 1989 is retrospective or prospective in operation?

(b) Whether there is any distinction between vested right and right to forum?

4. The Andhra Pradesh Civil Court Act, 1972 was brought into statute book with effect from 1.11.1972. The pecuniary jurisdiction of Courts both original and appellate and as also the forum are being amended from time to time. By A.P. Civil Court (Amendment) Act, 30 of 1989 under which pecuniary jurisdiction to entertain the appeal inter alia to the District Court/ Chief Judge, City Civil Court, Hyderabad was raised from the then existing Rs. 30,000/-to Rs. 1 lakh. The amendment became effective from 2.12.1989. It is also to be noted that by a further amendment, the pecuniary limits to entertain the appeal was raised to Rs. 3 lakhs with effect from 1.11.2000. We would discuss the details at a little later point.

5. The following are the circumstances under which the matter has come to be dealt with at various levels:

A plaint came to be filed before the II Additional Judge, City Civil Court, Hyderabad in O.S. No.28 of 1980 for specific performance of Agreement of Sale and the value of the subject-matter of the suit was Rs. 45,000/-. However, the suit was dismissed by the learned Judge on 30.12.1990. By the date of the judgment of the lower Court, Amendment Act 30 of 1989 came into effect with effect from 2.12.1989. Therefore, the plaintiff filed an appeal before the revised forum namely Chief Judge, City Civil Court, Hyderabad consequent on the amendment. The Office took an objection on the maintainability of the appeal and the learned Chief Judge, City Civil Court, Hyderabad by an Order dated 26.4.1991 held that he had no jurisdiction and that the plaintiff ought to file an appeal before the High Court. Against the said Order, the plaintiff filed CMA No. 1454 of 1991. When the matter reached before the learned Single Judge, it was referred to Full Bench on the premise that the dicta laid down by this Court in S. Kameswaramma v. M/s. Radhakrishna and Company, : AIR1975AP65 and K. Hara Gopal v. K. Venkata Ratna Kumar, : 1993(1)ALT482 (DB), and subsequent cases following the aforesaid cases required reconsideration.

6. The Full Bench considered the matter at length and by an Order dated 24.10.2003 held that right to appeal is a vested right while the right to forum is governed by procedural law and hence the provision creating appellate forum under the Act is retrospective and consequently held that the Chief Judge is having jurisdiction to entertain and decide the appeals.

7. During the interregnum, number of appeals were filed before the High Court in pursuance of law declared by the Division Bench right from Kameswaramma's case (supra). The result is that some of the appeals were disposed of and number of appeals are still pending disposal. The learned Single Judge (BPRJ) while dealing with such appeals expressed the view that the decision of the Full Bench has a greater ramifications on very large number of pending appeals and was of the opinion that matter requires reconsideration by a Larger Bench for an authoritative pronouncement. Thus, we are required to deal with the issue now.

8. Before going into the actual matrix, we find it appropriate to refer to the historical background of A.P. Civil Courts Act, 1972 (Act XIX of 1972). This is an Act to consolidate and amend the law relating to the Civil Courts subordinate to High Court in the State of Andhra Pradesh. It was enforced with effect from 1.11.1972. The said Act repealed (a) The Andhra Pradesh (Andhra Area) Civil Court Act, 1873, (b) Andhra Pradesh (Telangana Area) Civil Court Act, 1954, (c) Section 17 of Andhra Pradesh (Telangana Area) Small Causes Courts Act, 1330 Fasli. Sections 8 and 18 of the Andhra Pradesh General Clauses Act, 1891 were made applicable to such repeal.

9. The appellate forum as also the pecuniary limits was prescribed under Section 9, which reads thus:

'9. Forum for appeals :--(1) An appeal shall, when it is allowed by law, lie from any decree or order in a civil suit or proceeding--

(i) of the Chief Judge or the Additional Chief Judge of the City Civil Court, to the High Court;

(ii) of the Senior Civil Judge of the City Civil Court,

(a) to the Court of the Chief Judge, when the amount or value of the subject-matter of suit or proceeding is not more than Rs. 15,000/-.

(b) to the High Court in other cases; and

(iii) of the Junior Civil Judge of the City Civil Court to the Court of the Chief Judge

(2) The Chief Judge may, subject to the orders of the High Court transfer for disposal any appeal filed in the City Civil Court to any Additional Chief Judge or any Senior Civil Judge.

(Note: The pecuniary limits have been revised from time to time)

10. The hierarchy of Appellate Courts in Districts is stipulated in Section 17, in the following terms:

'17. Appeals from the decrees and orders of Courts in the Districts:--(1) An appeal shall, when it is allowed by law, lie from any decree or order in a civil suit or proceeding:--

(i) of the District Court, to the High Court; (ii) of the Court of Senior Civil Judge,--

(a) to the District Court, when the amount or value of the subject-matter of the suit or proceeding is not more than Rs. 15,000/-.

(b) to the High Court; in other cases; and

(iii) of the Court of Junior Civil Judge, to the District Court.

(2) The District Judge may, subject to the orders of the High Court transfer for disposal any appeal from the decree or order of a Court of Junior Civil Judge preferred in the District Court, to any Court of Senior Civil Judge within the district.

(3) Where a Court of Senior Civil Judge is established in any district at a place remote from the seat of the District Court, the High Court, may, with the previous sanction of the Government, direct that an appeal from the decree or order of any Court of Junior Civil Judge within the local limits of the jurisdiction of such Court of Senior Civil Judge shall be preferred in the said Court of Senior Civil Judge:

Provided that the District Judge may, from time to time, transfer to his own Court, any appeal so preferred, and dispose it of himself.'

11. The pecuniary limits were being raised from time to time through Amending Acts by substituting the quantum of amounts representing the value of the appeal. The following diagram will make the matter clear:

----------------------------------------------------------------------------------------------

Act Appeal from the decree or Order of Effective date

----------------------------------------------------------------------------------------------

Act 19 of 1972 Chief Judge/Additional Chief Additional Judge, City 1.11.1972

Judge/D.J to the High Court Civil Court/S.C.J. to

(if the value of the subject- C.J./D.J. if the value

matter is more than of the appeal is not

Rs. 15,000/-) more than Rs. 15,000/-

Act 19 of 1984 More than Rs. 30,000/- Not more than Rs. 30,000/- 21.5.1984

Act 30 of 1989 More than Rs. 1,00,000/- Not more than Rs. 1,00,000/- 2.12.1989

Act 28 of 2000 More than Rs. 3,00,000/- Not more than Rs. 3,00,000/- 1.11.2000

----------------------------------------------------------------------------------------------

12. By Section 34(1) of the Act, the Andhra Area Civil Court Act, 1973. A.P. (Telangana Area) Civil Court Act, 1954. Section 17 of A.P. (T.A) Small Causes Courts Act, 1330F were repealed. By Sub-section (2) of Section 34, the provision of 8 and 18 of the A.P. General Clauses Act, 1891 were made applicable to such repeals.

13. The question that calls for consideration is whether the amendment has retrospective effect and whether it has the effect on the pending appeals as on the date of the respective amendment Acts coming into force.

14. The learned Counsel for the parties have virtually traced the entire case-law on the subject right from Colonial Sugar case, the decision of the Supreme Court and also the decision of this Court. Therefore, it became necessary to refer those decisions in material particulars.

15. Mr. Challa Sitaramaiah, Senior Counsel, J.V. Suryanarayana, S.S. Prasad, P. Raghuram, V.S.R. Anjaneyulu, Nooty Rammohan Rao and host of Advocates appeared opposing the decision of the Full Bench. Mr. Vilas V. Afzalpurkar had to put a solo fight in support of the principles laid down by the Full Bench.

16. The decisions of this Court and other High Courts directly touching the Act would be referred in the first instance.

17. In Kotina Papayya v. Samminga Appalanaidu, 1960 (1) An.WR 100, the District Court, Visakhapatnam referred the matter to the High Court under Section 113 read with Order 46, Rule 1 of Code of Civil Procedure as to whether Madras Civil Courts (Andhra Amendment) Act, 1955 (1 of 1956) raising the monetary jurisdiction of the subordinate Appellate Courts coming into force from 1st April, 1956 has retrospective effect so as to affect the right of appeal to the High Court arising out of the pending suits. The State Government issued notification after consulting the High Court specifying the amount or value of the subject-matter of the suit not more than Rs. 7,500/- for the purpose of appeals to the District Court from the decree and the Orders of the Subordinate Judge and District Munsif and also fixing 1st April, 1956 as on the date on which the provision would come into force. Prior to the amendment, the appeal would lie to the High Court if the valuation was Rs. 5,000/- after the Amendment Act, the appeal will have to be filed only in the District Court if the valuation does not exceed Rs. 10,000/-. The question arose before the High Court was whether it would be within the competence of the District Court to take cognizance of the appeals whose value exceeds Rs. 5,000/- and below Rs. 7,500/-. The Division Bench after referring to Colonial Sugar Refining Company Limited v. Irving, 1905 AC 369 and Garikapati Veerayya v. Subbiah Choudhry, : [1957]1SCR488 , the statement and the reasons of the Amendment Act observed that the Amendment Act was retrospective in its application and would apply to the cases instituted before the Act came into force. Again similar matter came up for consideration before the Division Bench of this Court in S. Kameswaramma 's case (supra). The issue that came up for consideration was whether the provision of A.P. Civil Courts Act, 1972 (19 of 1972) are only prospective or retrospective in operation. The Division Bench again referring to the principles laid down in Garikapati Veeraiah's case (supra) and also Kotina Papayya (supra), observed that any change in the law relating to appeals after 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.

18. The Division Bench observed that a right of appeal to the High Court, which accrued to the litigant and existed as on the date of institution of the suit under Section 13 of Madras Civil Courts Act, 1873 was preserved to the litigant. The dominant intention of the Legislature was thus clearly and distinctly expressed that the Act would not prejudicially affect the vested rights by the expressed provisions of Clause 2 of Section 34 of the Act. Therefore, the Division Bench ruled that the Act was only prospective and not retrospective. The Division Bench distinguished the principle laid down by the earlier Division Bench in Kotina Papayya's case (supra) observed that the learned Judges in coming to the conclusion that the Legislature intended the Act to have retrospective operation relied on the postponement clause that the Act would come into the force on the date notified by the State Government and secondly on the statement and objects and reasons which would reveal the intention on the part of the Legislature to reduce the heavy files of first appeals in the High Court by the enhancement of the Appellate Court jurisdiction of the District Judges upto Rs. 10,000/-. It further observed that, it is true that as. per the present Act, there is also 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 different dates may be appointed for different areas and/or different provisions of this Act. But, postponement clause by itself is not decisive of 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. The Division Bench was of the view 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 the case dealt with the matter in Kameshwaramma's case (supra), the Division Bench found that there are no such strong circumstances that would compel to draw the presumption that the intendment of the 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 and accordingly held that it is not retrospective in operation and the appeal therefore, preferred before the District Court was not maintainable.

19. In Hara Gopal's case (supra), the Division Bench has to consider the Andhra Pradesh Civil Courts (Amendment) Act, 1984 (Act 19 of 1984). In the said amendment, the appellate jurisdiction of the District Court was raised from Rs. 15,000/- to Rs. 30,000/-with effect from 21.5.1984. The Division Bench held that right of appeal to a particular forum is a substantive right and is not lost by alteration in law unless provision is made in that behalf expressly or by implication arises in that behalf. Prior to Amendment Act 19 of 1984, the District Court had jurisdiction to entertain an appeal against the judgment of Subordinate Court if the value is not more than Rs. 15,000/-. By virtue of Amending Act, increasing the value to Rs. 30,000/-, the jurisdiction of the Chief Judge/District Judge is entitled to entertain an appeal if value of the suit is less than Rs. 30,000/- and an appeal lies to the High Court, if the value is more than Rs. 30,000/-. The amendment has come into force on 21.5.1984. The suit value was Rs. 22,950/- when it was instituted on 23.4.1983. As on the date of the filing, the suit was covered by Act 19 of 1972, the appeal therefrom lies to the High Court only. Therefore, the Division Bench observed that right to prefer an appeal to the High Court was not taken away by the Amending Act 19 of 1984.

20. One of us (BRSRJ) in Maddileti Alivelamma v. Saraswathamma, : 2001(2)ALD605 , while considering the effect of Andhra Pradesh Civil Courts Act, 1972 (as amended by Act 29 of 1997) observed that the amendment to the provisions as amended in Act 29 of 1997 was prospective in nature and the amendment provisions have no application to suits already instituted and pending on the file of the competent Court of jurisdiction. The law as on the date of filing of the suit will govern until disposal of the suit. Following the decision in Ham Gopal's case (supra), the learned Judge held that the Senior Civil Judge where the suit was instituted was entitled to consider the suit de hors the amendment raising the pecuniary jurisdiction of the District Munsif Court from Rs. 50,000/- to Rs. 1 lakh. He further held mat the provisions of the Act as in force as on the date of the institution of the suit will apply in respect of such suits instituted until their final determination. In the circumstances, the proceedings of the District Judge withdrawing and transferring the suit to the Court of the learned Principal Junior Civil Judge was set aside. Following the same decision, the Division Bench in Duggireddy Ramakrishna Reddy v. A.P. State Co-operative Societies Act, Government of A.P., : 2001(4)ALT270 , held that the Amendment Act 29 of 1997 had no application to the suits pending in the competent Courts, the law as on the date of filing of the suit governs until the disposal of the suit.

21. It is apt to refer to a Full Bench decision of Nagpur High Court reported in Radhakisan Laxminarayan Toshnival v. Shridhar Ramchandra Alshi, AIR (37) 1950 Nag. 177 (FB), where vested right and procedural law was discussed. The issue that was referred to Full Bench was 'Does an Appellant who filed Second Appeal before 27th May, 1949 obtain a vested right to have the appeal heard by a Division Bench of two Judges with the result that the amendment to the Rules of this Court effected on 27th May, 1949 will not apply to him?' and in Paras 11, 12 and 13 observed thus:

'11. The reference to a Full Bench has arisen because of an objection taken to the hearing of this appeal by a Single Judge pursuant to the amendment of Rule 1(b), Chapter I, Part I of the High Court Rules. The Original rule read as follows:

'1. The following matters shall ordinarily be heard and disposed of by a Judge sitting alone:

(b) An appeal from an appellate decree of a District Court in which the value of the appeal or of the appeal and any cross-objection therein under Order 41, Rule 22 of the Code of Civil Procedure, does not exceed Rs. 2,000/-.' By the amendment of 27th May, 1949 the Rule was renumbered as (1)(a), and all words after 'District Court' were deleted. The result was that if the unamended rule had stood this appeal, is also all second appeals above Rs. 2,000/- in value, would have gone before two Judges. Now this appeal, as also all Second Appeals irrespective of the value of the claim involved, go before a Judge sitting alone.

12. In the case out of which this reference arises an objection was taken to the rule on the ground that the subject-matter of the appeal is now worth over a lower Appellate Court of rupees and that if a Single Judge hears the appeal, the parties will lose, what was called 'a vested right of appeal' to the Federal Court by reason of the operation of Section 111, Code of Civil Procedure. An affidavit has been sworn in support of the contention that the value of the claim in the appeal is now over a lower Appellate Court of rupees.

13. The learned Chief Justice who heard the objection referred the question to a Full Bench'

The Full Bench reiterating the rules of interpretation expressed difficulty in distinguishing the procedure and vested right. It held in Paras 26 to 28, thus:

'26. It is a well-established rule of interpretation of statutes that in general when the law is altered during the pendency of an action the substantive rights of the parties remain unaffected and are decided according to law as it existed when the action was begun, unless the new amendment is made retrospective either expressly or impliedly. It is equally well settled that if the statute merely deals with procedure and does not affect the substantive rights of the parties it is held to apply prima facie to all actions pending as well as future.

27. Now, for the purpose of this rule of interpretation, an appeal is a continuation of the original action initiated by the filing of a plaint. As was observed by West J. in Chinto Joshi v. Krishnaji Narayana (3 Bom. 214 at p. 216), 'the legal pursuit of a remedy, suit, appeal and Second Appeal, are really but steps in a series of proceedings connected by intrinsic unity.'

28. What pertains to procedure and what to the domain of substantive rights is at times difficult to say. The line of demcarcation between the two is not always easy to draw. It is now settled authoritatively that a right to continue a duly instituted suit or a right of appeal are not mere matters of procedure but are substantive rights: See Venugopala Reddiar v. Krishnaswami Reddiar (1943 F.C.R. 39 = AIR (30) 1943 f.c.24). The leading case on the subject that an appeal is a substantive right is Colonial Sugar Refining Company v. Irving, (1905) A.C. 369) (74 L.J. P.C. 77) in which Lord Macnaghten laid down that to deprive a suitor in a pending action of an appeal to a Superior Tribunal, which belonged to him as of right, was a very different thing from regulating procedure. I shall examine the facts of this case later.'

The Full Bench speaking through Hidayatullah J., (as he then was) while distinguishing vested right as between a right of appeal and the appeal at the discretion of the Court observed:

'47. Now if any distinction is to be made between appeals as of right and appeals either as of grace or in the discretion of Courts, it is obvious that the only appeal which cannot be taken away except by the clearest piece of legislation is an appeal which vests in a party as of right. Every tenuous possibility of leave which might be granted is not to be confused with a substantive right like an appeal which belongs to a litigant as of right. A difference must, therefore, be made between those cases in which the appeal is such an absolute fact that it can be said to vest in a litigant the moment his case is before the Court and those cases in which the litigant has no immediate right and the appeal can only be taken to the Superior Court when the Court itself decides that the case is fit for a decision of the King in Council. It may be that the litigant may have the right to draw the attention of the Court that his is such a case, but since the determination of this question is entirely in the discretion of the Court and the fitness of the case depends not on any monetary valuation, the right cannot be said to be substantive or to vest in the litigant when the case was filed.

48. An appeal is nothing more than a method of passing from one Tribunal to another so that the errors of the inferior Tribunal may be corrected by the Superior Tribunal. In this process we have on the one hand a class of cases in which the right is absolute, not depending in any way upon the discretion of the inferior Court (as for example in these cases where the subject-matter of the appeal is of a certain value), and those cases in which the appeal can only be filed if the Court considers the case fit for decision by a Superior Tribunal. I cannot but describe this right as contingent and not self-supporting. Whether the grace is exercised by the Superior Court or the discretion is exercised by the inferior Court is not much to the purpose. The appeal is merely a contingency and in this matter cannot be distinguished from a Letters Patent Appeal from one Judge to two Judges under Clause 10, Letters Patent.'

While dealing with the procedural law, the Full Bench after referring to English cases observed in Para 49 thus:

'49. An appeal is merely a limitation of a Court's jurisdiction to pronounce a final decision on matters litigated. On the one hand that limitation is imposed ab extra where the decision is as of right appealable. On the one (other?) hand the limitation arises from the violation of the Court itself, privilege having been granted to the Court to reserve cases for decision by a Superior Tribunal if the Court exercising its own discretion thinks fit. It is wrong to confuse the two aspects of the question and to think that the exceptional privileges or discretion conceded to a Court is a right of the litigant. By a change in procedure (which is always retrospective) I do not consider that the right (much less a vested right) of the litigant is at all affected. The case then is governed by the rule that a statute dealing with procedure only, unless the contrary is expressed, applies to all actions, whether commenced before or after the passing of the statute. This rule has been affirmed in several leading cases. In Wright v. Hale, (1860) 6 H & n, 227 = (30 L.J. Ex. 40) Pollock C.B. stated:

'When an Act of Parliament alters the proceedings which are to prevail in the administration of justice, and there is no provision that it shall not apply to suits then pending, I think it does apply to such actions.'

The rule was again stated by Wild B. in the same case as follows:

'But, where the enactment deals with procedure only unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act. That this is the principle appears from the cases that have been referred to on both sides.

This rule was followed by A.L. Smith L.J. in the leading case of The Ydun, (1899) P. 236, at p. 245 = 68 L.J. P. 101, See also: Kimbrav v. Draper, (1868) 3 Q.B. 160 at pp. 162, 163 = (37 L.J.K.B. 80); In re. Joseph Suche & Co., (1875) 1 Ch.D. 48 - (45 L.J.Ch.12). In the leading case of James Gardner v. Lucas, 1878. 3 A.C. 582 at p. 603, Lord Blackburn stated the rule in the following words:

'I think it is perfectly settled that if the Legislature intended to frame a new procedure, that instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.'

And finally, it held that:

'insofar as appeals above the appealable limit are concerned the rule, though merely a rule of produce, deprives them of a substantive right of appeal which vested in the litigants before the rule was amended, but that in cases below the appealable limit the rule touches no such right. My answer to the question propounded by my Lord the Chief Justice is:

'An appeal who filed his Second Appeal before 27.5.1949 obtained a vested right to have the appeal heard by a Bench of two Judges, with the result that the amendment of rule of this Court effected on 27.5.1949 will not apply to him provided his case satisfies the condition of valuation prescribed in Section 109, Clauses (1) and (b) read with Section 110, Civil Procedure Code. This would not apply to those appeals which are below the mark and which are appealable only under Clause 3 of Section 109 Civil Procedure Code.'

22. A reference is also made to the Division Bench decision of Orissa High Court reported in Duryodhan Samal v. Smt. Uma Dei, AIR 1986 Ori. 30, wherein the Division Bench held that the suit for valuation of Rs. 20,000/- or less was filed before the enforcement of the Act. Appeal subsequent to the enforcement of the Act lay before the District Judge and not in the High Court. It was held that statute altering forum is retrospective. The Division Bench relied on the decision of the Supreme Court reported in New India Insurance Company Ltd. v. Smt. Shanti Misra, : [1976]2SCR266 . In that case, the suit for partition was filed in the Court of Subordinate Judge, Badrak on 6.10.1978 and it was disposed of by a judgment and decree dated 28.2.1985 and decree dated 30.3.1985. This appeal valued at Rs. 5,900/- and the appeal was filed before the Orissa High Court. The objection relating to maintainability of the appeal was raised in view of the provisions contained in Section 16(2) of Orissa Civil Court Act. The said Act was assented from the President of India on 30.1.1985 and it was given effect from 1.1.1985. Under Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, in its application to State of Orissa was repealed. Consequently, the new Act came to be governed in Orissa State. The question that arose for consideration was irrespective of decree or Order of the appeal shall from the Subordinate Judge to the District Judge, where the value of the original suit in which or in any proceedings out of which the decree or Order was made did not exceed Rs. 20,000/- as per the provisions of Section 16(2). Under Section 16(1), the appeal proviso and the Court to which the appeal lies is stipulated which reads thus:

'4. Section 2(1) of the Act enumerates classes of Civil Courts. Section 16 of the Act which provides the forum of appeal is quoted for proper appreciation:

'16(1) Save as otherwise provided by any enactment for the time being in force,--

(a) an appeal from a decree or Order of a District Judge or Additional District Judge shall lie to the High Court;

(b) an appeal shall not lie to the High Court from a decree or Order of an Additional District Judge in any case, in which if the same had been made by the District Judge an appeal would not lie to the High Court.

(2) Save as aforesaid, an appeal from the decree or Order of a Subordinate Judge shall lie-

(a) to the District Judge, where the value of the original suit in which or in any proceeding arising out of which the decree or Order was made, did not exceed twenty thousand rupees; and

(b) to the High Court, in any other case,

(3) Save as aforesaid, an appeal from the decree or Order of a Munsif shall lie to the District Judge.

(4) Whether the function of receiving any appeals which lie to the District Judge under Sub-section (2) or Sub-section (3) has been assigned to an Additional District Judge, the appeals may be preferred in the Court of such Additional District Judge.

(5) The High Court may, by notification, direct that any or all appeals referred to in Sub-section (3) shall be preferred in the Court of any Subordinate Judge mentioned in the notification, and the appeals shall, thereupon, be preferred accordingly.

5. It would be seen from a plain reading of the section that appellate jurisdiction of the District Judge has been enhanced to Rs. 20,000/- which was previously Rs. 5,000/- under the Bengal, Agra and Assam Civil Courts Act, 1887, and where the value of the decree passed by Subordinate Judge did not exceed Rs. 20,000/-, the appeal shall lie to the District Judge. It has been argued at the Bar that since the right of appeal is a vested right and such right accrued to the parties on the date of the institution of the suit in the year 1978 in accordance with the provisions of the Bengal, Agra and Assam Civil Court Act, 1887, the said right of appeal shall continue to exist and to that extent the old law must govern the exercise and enforcement of that right. It has also been argued that since the Act is not retrospective in operation, the Appeal against the decree passed in any suit instituted prior to 1.1.1985 (the date on which the Act came into force) must be continued to be filed in this Court in accordance with the provisions of the Bengal, Agra and Assam Civil Court Act, 1887.'

The Division Bench held that under the Act, appeal arising out of the suits or proceedings valued at Rs. 20,000/- or less in which decrees have been passed or Orders have been made irrespective of whether suits or proceedings have been subsequent or prior to Act coming into force, shall lie to the District Court and not the High Court.

23. We may have a look at the foreign decision and the authoritative and acknowledge texts.

24. The legal genesis of the subject is traceable to Colonial Sugar's case (supra), which is being followed by both the English Courts and Indian Courts consistently. In that case, Collector of Customs acting under Excise Tariff Act, 1902 called upon the appellants to pay certain excise duty basing on the quantity of sugar. The claim was disputed and there upon after depositing the money with the Collector, they brought an action before the Supreme Court of Queensland against the Collector for recovering the sum. The writ was issued on 25.10.1902. As on the said date, right of appeal to His Majesty in Council from the judgment of the Supreme Court was available under the Order in Council dated 30.6.1860. The Full Court recorded the opinion on 4.9.1903 in favour of Collector. However, in the meanwhile, Judicial Act, 1903 was passed on and it received the Royal assent on 25.8.1903 i.e., about 10 days before the judgment was delivered by the Supreme Court. By Section 38 of the Act, the jurisdiction of the High Court of Australia in certain specified matters was made exclusive of jurisdiction of several Courts of State and by Section 39, it was made exclusive in all other matters except therein provided. Sub-section (2) of Section 39 provided that several Courts of the State would be invested with federal jurisdiction in all the matters mentioned therein except those specified in Section 38 subject to certain conditions and restrictions, one such condition was that every decision of a Court of a State from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council should be final and conclusive except so far as an appeal might be brought to the High Court. The result of this Act was that Her Majesty in Council ceased to be a Court of Appeal from the decision of the Supreme Court and the only appeal from the Supreme Court under the Act lay to the High Court of Australia. The Supreme Court of Queensland having granted leave to the Appellants under the Order in Council of 1860, the Appellants filed the appeal in the Privy Council. The respondent filed a petition before the Privy Council for dismissal of the appeal on the ground that right of appeal to His Majesty in Council by virtue of the Order in Council of 1860 under which the leave had been granted had been taken away by the Judiciary Act, 1903 and that the only appeal from the decision of the Supreme Court of Queensland lay to the High Court of Australia. In fact, it was the contention of the Appellant that provisions of the Judiciary Act, 1903 were not retrospective so as to defeat the right in existence at the time when the Act received the royal assent. However, Their Lordships of the Privy Council dismissed the respondent's petition and observed thus:

'As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It stems to their Lordships that the question does not admit of doubt. 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 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.'

25. The aforesaid proposition of law has been firmly established in English jurisprudence and is accepted as sound and cited with approval in leading textbooks. The decision has been followed and applied in numerous decisions in England and India and its correctness or otherwise has not been questioned so far. The said principle was also followed in Delhi Cloth and General Mills Company Ltd. v. Income Tax Commissioner, Delhi, AIR 1927 PC 242. The facts of the case as could be traced are that the two assessment Orders were made, one on June 12, 1923 and on March 23, 1924. In each case, the sum in dispute exceeded Rs. 10,000/-. On the request of the assessee two cases were stated by the Commissioner to the High Court under Section 66 of Indian Income Tax Act. The High Court affirmed the decisions of the Commissioner in January, 1926. Thereafter, the assessee applied for leave to appeal to the Privy Council. On April 1, 1926, the amendment was brought to Indian Income Tax Act, 1926 wherein Section 66A was added which gave right of appeal. The learned Judges of the High Court were of opinion that the petitioners had a right of appeal to His Majesty in Council provided they could in effect bring their cases within the requirements of Section 109(c) of the Code of Civil Procedure but not otherwise. The High Court dealt with the applications for certificates on that footing but dismissed them as it refused to certify that the case was a fit one for appeal to His Majesty in Council. The company applied to the Privy Council for special leave to appeal from the two orders of the High Court passed in January, 1926. It will be noticed that in January, 1926 when the orders were made by the High Court Sections 66 and 66A was not in the Act at all and it has been held by the Privy Council in Tata Iron and Steel Company Limited v. Chief Revenue Authority, 50 Ind App 212 = (AIR 1923 PC 148) (D), that there was no right of appeal from a judgment delivered by the High Court under Section 66 of the Indian Income Tax Act. Therefore the orders of the High Court were final when they were made in January 1926. Such was the position until April 1, 1926 when Section 66A was added to the Act. The question arose was whether Section 66A destroyed the finality, that had attached to the orders when they were made and gave any right of appeal at all from the orders of the High Court. Their Lordships observed thus:

'The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in 1905 AC 369 (A), where it is in effect laid down that, while provision of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force were final, are provisions which touch existing right. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. On the contrary, they think there is a clear suggestion that a judgment of the High Court referred to in Sub-section (2) is one which under Sub-section (1) has been pronounced by 'not less than two Judges of the High Courts', a condition which was not itself operative until the entire section came into force.'

The question of finality of order was considered by this Court in the case of Indira Sohanlal v. Custodian of Evacuee Property, Delhi 1955-2 SCR 1117. In that case the facts shortly stated were as follows: On 10.10.1947 the appellant had arranged with a Pakistani for the exchange of certain properties she left behind at Lahore at the time she migrated to India after the partition for certain lands in a village in the State of Delhi belonging to that Pakistani. On 23.2.1948, the appellant applied to the Additional Custodian for confirmation of the transaction under Section 5-A of the East Punjab Evacuees (Administration of Property) Act, 1947 as amended in 1948. Section 5-B, of that Act provided that it the original order under Section 5-A was passed by an Additional or Deputy Custodian of Evacuee Property, any person aggrieved by such order might appeal within 60 days from the date of the order to the Custodian would be final and conclusive. For some reason or the other the appellant's application for confirmation was not taken up promptly, but was adjourned from time to time. In the meantime the East Punjab Evacuees' (Administration of Properly) Act, 1947 was repealed by ordinances, which in their turn were eventually replaced by the Administration of Evacuee Property Act 1950, (Central Act XXXI of 1950). Section 27(1) of the Act empowered the Custodian General, either on his own motion or on application made to him in this behalf, to call for the record of any proceeding in which any District Judge or Custodian had passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and to pass order in relation thereto as he thought fit. In other words Section 27(1) of the new Act gave a power of revision to the Custodian General on 20.3.1952 the Additional Custodian acceded to the appellant's application and confirmed the exchange. On 5.5.1952 the appellant appliedto be put in possession, thereupon a notice was issued under Section 27(1) of the Central Act XXXI of 1950 to the appellant to show-cause why the order of the Additional Custodian dated 20.3.1952 should not be set aside. On 20.5.1953 the Custodian General passed an order setting aside the order of confirmation passed by the Additional Custodian on the ground, inter alia, that notice had not been served on all parties interested and directed the Custodian to decide the case on notice to all parties interested. The petitioner obtained special leave to appeal to this Court against the order of the Custodian General or, Evacuee Property. At the hearing of the appeal the learned Counsel for the appellant contended that according to the principle laid down by the Privy Council in Colonial Sugar Refining Co. Ltd. v, Irving (A) (supra), she had, on the filing of her application for confirmation in 1948, acquired a vested right to have it determined under Section 5-A with the attribute of finality and conclusiveness attaching to the order when made just as a litigant acquired a vested right of appeal on the commencement of his suit or proceeding and that vested right could not be taken away by subsequent statute except by express provision or by necessary intendment. There was according to the appellant, nothing in Section 27 of the Administration of Evacuee Property Act 1950 (Central Act, XXXI of 1950), which expressly or by necessary intendment took away that vested right. It will be noticed that at the date of the commencement of the Central Act XXXI of 1950 no order had actually been made to which the attribute of finality could attach. In these circumstances this Court repelled the contention of the appellant with the following words:

'However this may be, it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action-though we do not so decide- no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action. By the very terms of Section 5-B of East Punjab Act XIV of 1947, finality attaches to it on the making of the order. Even if there be, in law, any such right at all as the right to a determination with the attribute of finality, it can in no sense be a vested or accrued right. It does not accrue until the determination is in fact made when alone the right to finality becomes an existing right as in ILR 9 Lah. 284. We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. v. Irving (A) (supra) cannot be invoked in support of a case of the kind we are dealing with.'

However, it has to be seen that the Supreme Court left open the question whether the right of appeal in respect of the pending action could be treated as substantive right vesting in the litigation on the commencement of the action. Therefore, for this purpose, the Supreme Court in Garikapati Veeraya 's case (supra), went into this aspect and laid down appropriate principles.

26. In the words of Craies on Statute law,

'One of the most well-known statements of the rule regarding retrospectively is contained in this passage from the judgment of R.S. Wright J, in Re. Athhumney: '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.' The rule has, in fact, two aspects, for it 'involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.

If, however, the language or the dominant intention of the enactment so demands, the Act must be construed so as to have a retrospective operation, for 'the rule against the retrospective effect of statutes is not a rigid or inflexible rule but is one to be applied always in the light of the language of the statute and the subject-matter with which the statute is dealing'

In Re A. Solicitor's Clerk (1957) 1 W.L.R. 1219, it was held thus:

'The clerk was convicted in 1953 on four charges of larceny but the charges did not relate to money or property of his employer or employer's client, and so an order prohibiting solicitors from employing him could not be made under the provisions of Section 16 of the Solicitors Act, 1941. The Solicitors (Amendment) Act, 1956, Section 11, amended Section 16 so as to include convictions of larceny irrespective of ownership. The Divisional Court held that the amendment was not a true retrospective provision. 'It enables an Order to be made,' said Lord Goddard C.J. (at pp.1222, 1223), 'disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause of reason for the making of the Order, but the Order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the Order was made should be void or voidable or if a penalty were inflicted for having acted in this or any other capacity before..... This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the Appellant in the past.'

In Waugh v. Middleton, (1853 8 Ex. 352), reads thus:

'The Bankruptcy Act, 1849, which made a deed of arrangement 'now or hereafter' entered into by a trader with six-servants of his creditors binding on the non-executing creditors at the expiration of three months after they should have notice of it, was held to apply only to deeds executed after the passing of the Act. To apply the statute to past transactions would have been so unjust that it was expedient to get rid of the apparent effect of the word 'now' by any possible means: and it was accordingly understood as restricted to arrangements not completed, but yet binding in equity, at the time when the Act was passed.'

With regard to change of law during the pendency of action, it is stated thus:

'In general, when the substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights.'

Maxwell on Interpretation of Statutes 12th Edition, reads thus:

'But, if the necessary intendment of a statute is to affect the rights of parties to pending actions, the Court must give effect to the intention of the Legislature and apply the law as it stands at the time of the judgment even though there is no express reference to pending actions. This principle was applied to the Landlord and Tenant (Rent Control) Act, 1949 in Hutchinson v. Jauncey (1950) 1 K.B. 574), the Court of Appeal taking the view that Sir George Jessel M.R. had gone too far when he said that express terms alone could alter the rights of parties by taking away or conferring any pending right of action (Re. Joseph Suche and Company Ltd. (18.75) 1 Ch.D.48).

The effect of a change in the law between a decision at first instance and the hearing of an appeal from that decision was discussed by the House of Lords in Att. Gen. v. Vernazza. (1960) A.C. 965). Lord Denning said (at p.978) that it was 'clear that in the ordinary way the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings (Re. Debtor (No. 490 of 1935) (1936) Ch.237). But, it is different when the statute is retrospective either because it contains clear words to the effect or because it deals with matters of procedure only, for then Parliament has shown an intention that the Act should operate on pending proceedings, and the Court of Appeal are entitled to give effect to this retrospective intent as well as a Court of first instance.' For this purpose, however, a statute which actually takes away the right of appeal is not to be regarded as affecting mere matters of procedure (Colonial Sugar Refining Company Ltd. v. living (1905) A.C. 369).

In respect of procedural Acts, the presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the Courts. No person has a vested right in any course of procedure (Republic of Costa Rica v. Erlanger (1874) 3 Ch.D.62, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode (Wright v. Hale (1860) 39 L.J. Ex.40). 'Alterations in the form of procedure are always retrospective, unless there is some good reasons or oilier why they should not be.' (Gardner v. Lucas (1878)3 App. Cas. 582)'

Even in declaratory statute, the principle that the statute is not to be construed so as to take away. Previously vested is not applicable. In principles of Statutory Interpretation 5th Edition by G.P. Singh at Page 315, it is stated thus:

'The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES and approved by the Supreme Court:

For modem purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word 'declared' as well as the word enacted.'

In Maxwell on interpretation of Statutes, 12th Edn.(1969), the learned author has made the following observations based on various decisions of different Courts, specially in Athlumney, Re, (1989)2 QB 547 = (1895-9) All.E.R. Rep. 329, at preparation 551, 552:

'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 matters 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'. The rule has, in fact, two aspects, for it, 'involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary'.

27. It is cardinal principle of construction that every Statute prima facie prospective, unless it is expressly or by necessary implication made to have retrospective operation. But, the rule in general is applicable where the object of statute is to effect the vested right or to impose new burdens to impair existing obligations. It is said that nova constitutio futuris formam imponere debet non praeteritis. In the words of Lord Blanesburg, the provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express indendment or necessary intendment. (Delhi Cloth Mills's case (supra) and Colonial Sugar's case (supra).

28. It is not possible to point out as to when the substantive law ends and procedural law commences and vice versa. It does not therefore, appear that the substantive law determines rights and procedural law deals with remedies is wholly valid, for neither the entire law of remedies belong to procedure nor are rights merely confined to substantive law because the rights are hidden even 'in the interstices of procedure. In the words of G.P. Singh also, the rule against retrospectivily has also been stated in recent years avoid the classification of statutes into substantive and procedural and avoiding use of words like existing or vested.

29. In Ram Singha v. Shankar Dayal, ILR 50 All. 965 = AIR 1928 All. 437 (FB), the suit for rent was filed on July 12, 1926, when North Western Provinces Tenancy Act, 1901 (U.P. Act II of 1901) was in force. Section 177 of the Act gave right of appeal from the decision of the Asst. Collector to the District Judge, when the amount or value of the subject-matter of the suit exceeded Rs. 100/-. On 7th September, 1926, Agra Tenancy Act came into force repealing 1901 Act. Section 240 of the New Act reproduced Section 175 of the Old Act. Provided that no appeal would lie to the decree or Order passed by any Court under this Act, except as provided in this Act. The material portion reads thus:

'An appeal shall lie to the District Judge from the decree of an Asst. Collector of the first class or of a Collector in any of the suits included in Group A of the Fourth Schedule in which--

(a) the amount or value of the subject-matter exceeds rupees two hundred; or

(b) ................................On December 23, 1926 i.e., after the new Act came into force, the suit was decreed by the Asst. Collector. The defendant presented an appeal to the District Judge and the said appeal was returned. The defendant presented a memorandum of appeal before the Collector of Etawah and that Officer was of the opinion that he had no jurisdiction to entertain the appeal and referred the case to the High Court under Section 267 of Agra Tenancy Act. The following was referred to the Full Bench: 'Whether the question of filing of an appeal was governed by the law obtaining at the date of institution of a suit or by the law that may prevail at the date of the decision of it, or at the date of the filing of the appeal?

The Full Bench expressed the following opinion:

'In our opinion, the point is concluded by the pronouncement of their Lordships of the Privy Council in the case of the Colonial Sugar Refining Co. Ltd. v. Irving (A). In that case ordinarily an appeal lay to their Lordships of the Privy Council from an order of the Supreme Court. While the matter was pending in that Court, the law was amended so as to allow an appeal to the High Court. Their Lordships of the Privy Council held that the new Act could not deprive the party of his right to appeal to the Privy Council. Lord Macnaghten remarked at Page 372: '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 thing from regulating procedure.'

'It was observed that the language of the new Act, which came into force before the decree was passed, was not regarded as containing anything which expressly or by necessary intendment took away the right of appeal which vested in the parties on the date of the institution of the suit on the mere ground that the decree had been made after the new amendment came into force. Thus, this case clearly establishes that the right of appeal vests in the parties at the date of the suit and is governed by the law prevailing at that time and the date of the decree or of the filing of the appeal does not affect this right unless some subsequent enactment takes away this right expressly or by necessary intendment. Further, the language of the New Act namely Section 242(1) namely, 'An appeal shall lie to the District Judge from the decree of an Assistant Collector......' could not be construed as covering the decree passed after the date of the new Act in a suit instituted before its date.'

30. In Hoosein Kasam Dada (India) Limited v. State of Madhya Pradesh, : 1983(13)ELT1277(SC) , on November 28, 1947, the appellants submitted returns to the Sales Tax Officers. At that time Section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947 provided that no appeal against the Order of assessment should be entertained unless it was shown that such amount of tax as the appellant might admit to be due from him has been paid. Pending the assessment on the appellant's return the Act was amended on November 25, 1949 which provided that no appeal would be admitted unless such appeal was accompanied by satisfactory proof of payment of tax in respect of which the appeal had been preferred. The Asst. Commissioner to whom the return was transferred for disposal made an assessment on April 8, 1950, the Appellant preferred an appeal on May 10, 1950 without depositing the amount of tax in respect of which he has filed an appeal and which came into force from 24.11.1949. The Board of Revenue was of the opinion that Section 22(1) as applied to the case as the assessment was made and appeal was preferred after the amendment came into force. The Supreme Court held that the right of appeal was a matter of substantive right and not merely a right of procedure, that this right became vested in a party when the proceedings were first initiated and that such right could not be taken away except by express enactment or necessary intendment. Accordingly, it was held that the appellant had a vested right of appeal when the assessment were initiated in 1947 that his right of appeal was existed on that date. That the Amendment of 1950 could not be regarded as a mere alteration in procedure or an alteration regulating the exercise of the right of appeal, if it whittled down the right itself and that it had no retrospective effect as the Amended Act of 1950 did not expressly or by necessary intendment give it retrospective effect and the appeal could not, therefore, be rejected for not-payment of tax in respect of which the appeal was preferred.

31. All the aforesaid cases and some other eases came to be considered by the Supreme Court in Garikapati Veeraiah's case (supra). It was a case where the suit was instituted on April 20, 1949 in the Sub-Court of Bapatla, which was then within the jurisdiction of Madras High Court. Judgment of the Trial Court was passed on 14.11.1950 dismissing the suit. The plaintiff filed an appeal on October 1, 1953, when Andhra State was formed and a new High Court was established under Section 28 of the Andhra State Act, 1953 (Act XXX of 1953). The High Court accepted the appeal and reversed the decree of Trial Court and decreed the suit. The application for leave to appeal to the Supreme Court was dismissed on the ground inter alia that the value of the property was Rs. 11,400/- and did not come up to Rs. 20,000/-. The petitioner contended that the judgment being one of the reversal being value above Rs. 10,000/- he was entitled, as a matter of right to come up to before the Supreme Court and that right had been denied to him by the High Court. The Supreme Court should exercise in its discretion to grant Special Leave under Article 136 of the Constitution of India. It was the contention that as from the date of the institution of the suit, plaintiff acquired vested right of appeal to Federal Court, which has been replaced by the Supreme Court. The Supreme Court after referring to catena of decisions referred to above carved out the following principles. Para 23 is relevant, which is extracted below:

'23. From the decisions cited above the following principle clearly emerge:

(i) That 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 it 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.

The Supreme Court in Paras 24 and 25 further observed as follows:

'24. In the case before us the suit was instituted on April 22,1949 and on the principle established by the decisions referred to above the right of appeal vested in the parties thereto at that date and is to be governed by the law as it prevailed on that date that is to say, on that date the parties acquired the right, if unsuccessful, to go up in appeal from the sub-Court to the High Court and from the High Court to the Federal Court under the Federal Court (Enlargement of Jurisdiction) Act, 1947 read with Clause 39 of the Letters Patent and Sections 109 and 110 of the Code of Civil Procedure provided the conditions thereof were satisfied. The question for our consideration is whether that right has been taken away expressly or by necessary intendment by any subsequent enactment. That respondents to the application maintain that it has been so taken away by the provisions of our Constitution.

25. In construing the article of the Constitution we must bear in mind certain cardinal rules of construction. It has been said in Hough v. Windus, 1884-12 QBD 224 at P.237 (V) that 'statutes should be interpreted, if possible, so as to respect vested right. 'The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation it cannot be to construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. Leeds and County Bank Ltd. v. Walker, (1883) 11QBD 84 at Page 91(W); Moon v. Durden, (1848) 2 Ex 22:76 RR 479 at p.495 (X). The following observation of Rankin C.J. in Sadar Ali v. Dalimuddin, (K) (supra) at P.520 (of ILR Cal) : (at P.643 of AIR) is also apposite and helpful: 'Unless the contrary can be shown the provision which takes away the jurisdiction is itself subject to the implied saying of the litigant's right. 'In Janardan Reddy v. The State, : [1950]1SCR940 (Y) Kania C.J. in delivering the judgment of the Court observed that our Constitution is generally speaking prospective in its operation and is not to have retroactive operation in the absence of any express provision to that effect. The same principle was reiterated in Keshavan Madhava Menon v. State of Bombay, : 1951CriLJ680 (Z) and finally in Dajisaheb Mane v. Shankar Rao Vithal Rao, : [1955]2SCR872 (Z1) to which reference will be made in greater detail hereafter.'

This decision is consistently ruling the field.

32. The decisions subsequent to Veeraiah's case (supra), continued to lay down the principle that substantial rights cannot be taken away by amendment retrospectively, unless the statute itself clearly expressed the intention of doing so or by necessary intendment.

33. In State of Bombay v. Supreme General Films Exchange Limited, : [1960]3SCR640 , certain amendments were made to Court Fee Act as applied to Bombay instead of fixed Court fee payable on a plaint etc., ad valorem fee become payable. The amendment came into force from 1.4.1954, but there was no provision, express or by necessary intendment for giving them retrospective effect. In respect of appeals filed after that date against the decrees passed in suits instituted before that date, the question arose as to whether the Court fee payable on the memoranda of appeal were according to the law in force at the date of the filing of the suits or according to the law in force at the date of the filing of appeals. It was held that the Court fee payable on the memoranda of appeal were according to the law as it stood at the date of the filing of the suits. The Supreme Court observed that the impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment, which does, so is not retrospective unless it says so expressly or by necessary intendment.

34. In Lakshmi Narain v. First Additional District Judge, Allahabad, : [1964]1SCR362 , the question for determination was whether the provisions of the U.P. Civil Laws (Reforms and Amendment) Act (U.P. XXIV of 1954) - a first appeal in a suit decided prior to the enactment of the Act, involving a valuation of less than Rs. 10,000/- could be transferred for hearing and disposal to a District Judge or Additional District Judge. The Appellant as a plaintiff instituted Suit No. 7 of 1949 in the Court of the Civil Judge, Mathura, for possession of certain properties on 26.1.1949. The suit was dismissed on 27.11.1951. The plaintiff preferred a first appeal to the High Court of Judicature at Allahabad, and it was numbered First Appeal No. 37 of 1952. It was pending in the High Court from 8.2.1952 to 23.4.1952 when it was notified to the parties that the appeal had been transferred to the Court of the District Judge, Allahabad, for hearing. This order was passed by the learned Chief Justice under Section 24(1)(a) of the Code of Civil Procedure, on his own motion. The Order reads thus:

'It is hereby ordered that first appeals mentioned in the list annexed hereto transferred under orders of this Court to the Court of the District Judge, Allahabad, are now transferred from that Court to the Court of the 1st Additional District Judge at Allahabad.

This is one of the appeal, which forms part of the list. It appears that the orders were passed in view of the recent legislation of which amended large number of statutes, one of them being the Bengal, Agra and Assam Civil Courts Act (XII of 1887). Section 21, Clause (a) of Sub-section (1) was amended so as to substitute 'ten thousand rupees' for 'five thousand rupees', thus enabling District Courts to entertain first appeals up to a valuation of ten thousand rupees. The appellant appeared before the Court and raised a preliminary objection as to the jurisdiction of that Court to hear the appeal. The Court overruled the preliminary objection as to its jurisdiction by its order dated 31.5.1962, observing that it could not contravene the orders of the High Court. Thereupon, the appellant moved the High Court under Articles 226 and 227. The writ petition was dismissed on the basis of the decision of the Division Bench already existing as on that date. Therefore, even the appeal filed before the Division Bench was dismissed on the ground that the question raised was already concluded. The Division Bench also referred the question to the Larger Bench. Appellant then moved High Court for Special Leave, which was granted. The Supreme Court observed thus:

'The High Court emphasised the fact that appeals like the one before them had been transferred to the District Courts not under the provisions of the Act but under Section 24 of the Code of Civil Procedure. In this connection, the High Court proceeded to make the following observations:

'It is enough that the U.P. Amending Act contains no provision taking away our power to transfer the appeals under Section 24,C.P.C., or no provision laying down that the District Judges are not competent to hear appeals arising out of suits instituted prior to its enforcement. There is nothing in the provisions of Section 3 of the Act to render the District Judges incompetent to hear them. Sub-section (1) reserves rights acquired prior to the enforcement, but as we have explained earlier if the right of the parties to the appeals is affected, it is not on account of our enforcing any provision of it but on account of our exercising our power under Section 24 C.P.C.'

With all respect, the High Court has completely misdirected itself in interpreting the provisions of Section 3(1) of the Act, which must govern this case. That section runs as under :

The Supreme Court observed thus:

'Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any release or discharge of or from any debt, decree, liability, or any jurisdiction already exercised, and any proceeding instituted or commenced in any Court prior to the commencement of this Act shall, notwithstanding any amendment herein made continue to be heard and decided by such Court.'

The High Court has not given effect to the words 'any proceeding instituted or commenced in any Court prior to the commencement of this Act shall, notwithstanding any amendment herein made continue to be heard and decided by such Court.' Now, giving full effect to the words just quoted of Section 3(1) of the Act, the High Court and the High Court alone would be competent to hear and decide the appeals pending before it. In other words, the District Courts were not competent to hear such appeals, and, therefore, the High Court could not have transferred those appeals to be heard by the District Judge or Additional District Judge, inasmuch as Section 24 postulates that the Court to which the suit or appeal or other proceeding is transferred should be competent to try or dispose of the same. On the date the appeal in question was preferred in the High Court, the District Courts were not competent to hear such a case. The competency of those Courts to hear such cases rises by virtue of the amendment to Section 21 of the Civil Courts Act, aforesaid. We are here not concerned with the question whether in the absence of a saving clause, like the one introduced by Section 3(1), the High Court would have been right in taking recourse to ' Section 24 of the Code of Civil Procedure. But in the face of Section 3(1) of the Act, it is impossible to hold that the District Courts were competent to hear appeals of the valuation of ten thousand rupees or less in suits decided before the Act came into force, and appeals from which were pending before the High Court.'

Ultimately, the Supreme Court held that the Order of High Court transferring the appeal to the District Judge or Additional District Judge is illegal and directed that the appeal be heard by the High Court in the absence of any law to the contrary.

35. In Ittyavira Mathai v. Varkey Varkey, : [1964]1SCR495 , the suit was instituted before the repeal of Travancore High Court Act, an Appeal was filed after repealing Act came into force. The question arose whether the appeal could be heard by Bench of three Judges or under the New Act? The Supreme Court held that the appeal could be heard by the two Judges as provided under the Travancore High Court Act was untenable.

36. It was sought to be contended that the forum of appeal is merely a matter of procedure and therefore, it can be amended retrospectively. The Supreme Court observed in Paras 15 and 16 as follows:

'15. Having thus failed on all the contentions on merits learned Counsel has sought to urge a new point before us. The point is that the appeal before the High Court should have been heard not by a Division Bench of merely two Judges, but by a Bench of three Judges, as provided in Section 11(1) of the Tranvancore High Court Act, 1099 (IV of 1099). Learned Counsel admits that the appeal was heard not by the Travancore High Court but by the High Court of Travancore Cochin which came into being after the merger of the two States of Travancore and Cochin. He admits that the Travancore High Court Act, 1099 was repealed by Ordinance II of 1124 which was re-enacted by Act V of 1125; but he says that Section 25 of that Act provided that a Full Bench will hear and decide all appeals from the decrees of the District Courts in which the amount or value of the subject-matter is in excess of Rs. 5,000.00. This provision was also repealed before the appeal in question was even preferred. According to him, however, the appellants were entitled to prefer an appeal before a Tribunal which existed when the suit itself was instituted. The rights of parties to a suit in the matter of preferring an appeal are governed by the law as it obtained when the suit was instituted and, therefore, according to him, as under the law in a suit of that kind an appeal lay before a Bench of three Judges, it could be heard only by such a Bench and not one consisting of a lesser number of Judges.

16. There are two reasons why this argument cannot be accepted. In the first place, the High Court of Travancore was itself abolished as a result of the merger and a new High Court came into being - the High Court of Travancore-Cochin. The rights of parties to prefer appeals to that High Court were governed initially by Ordinance II of 1124 and later by Act V of 1125. These provisions came into being subsequent to the institution of the suit. Therefore, the rights of a person aggrieved by the decision of a suit instituted prior to the coming into force of Act V of 1125 were only those which were conferred by that Act. A litigant has no right to contend that a Tribunal before whom he should have taken an appeal when he instituted the suit should not be abolished. The Legislature has full power to enact a law of that kind and it is not contended before us that the repeal of the Travancore High Court Act was unconstitutional. It would, therefore, follow that whatever rights may have vested in the party in the matter of filing an appeal were abrogated by competent Legislature. New rights were conferred in place of those which were taken away and it is only the new rights which could be availed of. After the new rights were conferred even they were modified in one respect and that was with regard to the hearing of certain kinds of appeals by a Full Bench. The rights to have the appeal heard by a Full Bench by virtue of the provisions of Act V of 1125 had never vested in any of the parties to the present litigation. Therefore, their abrogation by a later law cannot entitle them to make a complaint. There is yet another reason why the argument of the learned Counsel cannot be accepted. That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of Judges is merely a matter of procedure. No party has a vested right to have his appeal heard by a specified number of Judges. An appeal lay to the High Court and the appeal in question was in fact heard and disposed by the High Court and, therefore, no right of the party has been infringed merely because it was heard by two Judges and not by three Judges. No doubt in certain classes of cases, as for instance, cases which involves an interpretation as to any provision of the Constitution, the Constitution provides that the Bench of the Supreme Court hearing the matter must be composed of Judges who will not be less than five in number. But it does not follow from this that the legal requirements in this regard cannot be altered by a competent body. We therefore overrule the contention of the learned Counsel and hold that the appeal was rightly heard and decided by a Bench of two Judges.'

37. In Bharat Barrel and Drum Manufacturing Company Limited v. Employees State Insurance Corporation, : (1971)IILLJ647SC , the following questions were referred by the Supreme Court to the High Court of Bombay:

'(1) Whether Rule 17 of the Employees' State Insurance Rules is ultra vires the rule making power of the State Government under Section 96(1) of the Employees State Insurance Act?

(2) If yes, what, if any, limitation applies to applications filed by the Corporation to the Employees' Insurance Court?.'

The Supreme Court observed thus:

'The topic of procedure has been the subject of academic debate and scrutiny as well as of judicial decisions over a long period but in spite of it, it has defied the formulation of a logical test or definition which enables us, to determine and demarcate the bounds where procedural law ends and substantive law begins, or in other words it hardly facilitates us in distinguishing in a given case whether the subject of controversy concerns procedural law or substantive law. The reason for this appears to be obvious because substantive law deals with right and is fundamental while procedure is concerned with legal process involving actions and remedies which Salmond defines 'as that branch of law which governs the process of litigation', or to put it in another way, substantive law is that which we enforce while procedure deals with rules by which we enforce it.

The present tendency is that where a question of limitation arises, the distinction between so-called substantive and procedural statutes of limitation may not prove to be a determining factor but what has to be considered is whether the statute extinguishes merely the remedy or extinguishes the substantive right as well as the remedy. Instead of generalising on a principal the safest course would be to examine each case on its own facts and circumstances and determine for instance whether it affects substantive right and extinguishes them or whether it merely concerns a procedural rule only dealing with remedies, or whether the intendment to prescribe limitation is discernible from the scheme of the Act or is inconsistent with the rule making power etc.'

38. In Jose DA. Costa v. Bascora Sadashiva Sinai Narcornin, : AIR1975SC1843 , the plaintiff filed a suit in 1961 in accordance with the Portuguese Laws, then in force in Territories of Goa, Daman and Diu for ejectment of the defendant from the suit property. The Trial Court passed a decree of ejectment directing the defendant to remove their super-structures or in the alternative to receive from the plaintiff a sum of Rs. 1,084/- which was found to be the value of the material. Aggrieved by the decree, the defendant preferred an appeal before the learned Additional Judicial Commissioner and the appeal was dismissed affirming the decree of the Trial Court. Therefore, an appeal was preferred to the Supreme Court. In this regard, it has to be noted that under the Portuguese Law a person aggrieved by a nullity in judgment of the Court of second instance, was not entitled to get redress by directly filing a further appeal, to such a judgment to the Portuguese Supreme Court, he was to approach the same Court under Article 669 for rectification of the 'nullity' and if he still felt aggrieved by the decision rendered in reclamacae, he could go in further appeal (agravo) under Article 722 against such a decision to the Portuguese Supreme Court at Lisbon. The Territories of Goa, Daman and Diu were made part of India with effect from 20th December, 1961.

39. The point arose for consideration was: Are the provisions of the Portuguese Civil Code relating to Rcclamaca0 merely matters of procedure? Or, do they create or affect vested rights and remedies? That is to say does a Reclamacao have all the attributes of a substantive right of appeal existing at the commencement of the suit? Did the Superior Court of Appeal at Lisbon stand abolished as an appellate forum in relation to Goa, Daman and Diu from 20-12-1962? If so, what is its effect on the right of appeal given by Articles 677 and 722 of the Portuguese Civil Code and their application to the present case? Was the Portuguese Supreme Court at Lisbon succeeded by the Supreme Court of India, for the purpose of the aforesaid Articles 677 and 722 of the Portuguese Code? If so, did this position hold good after 15-6-1966? Does the Central Act 30 of 1965 read with Notification No. S.O.1597, issued thereunder, expressly or impliedly, make inapplicable the provisions of the Portuguese Civil Code in the matter of Reclamacao in respect of a decision or judgment rendered by the Court of Judicial Commissioner after 15-6-1966? That is to say, have the rights, remedies or obligations arising out of the, Portuguese Law relating to Reclamacao saved by any of the Clauses (a), (b) or (c) of the first Proviso to Section 4(1) of Act 30 of 1965? The Supreme Court observed as follows:

'It may be noted that while a right of appeal from Court to Court is a substantive right which under the then law, exists on and from the date of the institution of the suit, the same cannot be said with regard to Reclamacao. The provisions of the Portuguese Civil Code relating to Reclamacao lay down only special rules of procedure which have to be gone through before a litigant is entitled to raise in appeal a material point left undecided by the lower Court. The object of requiring a party aggrieved by a 'nullity' is to save the time of the Appellate Court by precluding a party to reagitate in appeal pleas that had been left undecided by the lower Court. It also minimises the necessity of remands to the lower Court for trial of particular issues and thus shortens litigation. The requirement or obligation to file a Reclamacao is not an obligation in esse or/ and from the institution of the suit. Nor is the procedural right to file Reclamacao - if at all it can be called a 'right' - a vested right existing from the date of the suit. The filing of a Reclamacao is dependent upon the happening of an uncertain event. It arises only when a judgment suffering from a 'nullity' is passed. Such a contingency may or may not arise. On the other hand in the case of a suit it can be predicated that it would normally result in a decree entitling the aggrieved party to have the suit reheard and redecided in a higher forum by filing an appeal provided of course such a right is available under the law prevailing at the institution of the suit.

In the present case, the judgment of the Additional Judicial Commissioner in which the alleged 'nullity' or 'omission to adjudicate' on the point of prescription occurs was delivered on 20-1-1968, that is, long after the extension of Articles 132, 133 and 134 of the Constitution Rules framed under Article 145 of the Constitution and Sections 109 and 110 of the Code of Civil Procedure to Goa, Daman and Diu. The procedural provisions of the Portuguese Code relating to Reclamacao, and appeal from a decision on Reclamacao, from the High Court in Goa, Daman and Diu stood repealed and superseded by the extended Indian Laws when the judgment now under appeal was rendered.'

The Supreme Court held that the provision of the Portuguese Civil Code Act was not applicable to the case with effect from 15.6.1966 when the Central Act 30 of 1965 came into force. If that be the correct position, there is no legal hurdle in the way of Appellant to the re-agitation in this Court as to prescription left undecided by the Court below. The Supreme Court finally summed up saying since on and from 15-6-1966 the Portuguese Law relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under that repealed law within the meaning of the first proviso to Section 4(1) of Act 30 of 1965, the appellants cannot be debarred from canvassing in this appeal under Article 136. The plea of prescription notwithstanding the fact that they did not file any Reclamacao in the Court of the Judicial Commissioner.

40. In New India Insurance Company Limited v. Smt. Shanti Misra, : [1976]2SCR266 , the question of law which fell due for determination was whether an application for compensation under Section 110-A of the Motor Vehicles Act arising out of an accident which occurred more than 60 days before the Constitution of the Motor Accident Claims Tribunal could be entertained by the Tribunal or the remedy of the aggrieved person was to institute a civil suit.

41. By virtue of amendment with effect from 16.2.1956, Section 110 was deleted and new Sections 110 to 110-F were introduced, while considering the scope of Sections 110-A and 110-F, the Supreme Court observed thus:

'On the plain language of Sections 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e., a change of adjectival or procedural law and not of substantive law. It is a well-established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away: Otherwise the general rule is to make it retrospective. The expressions 'arising out of an accident' occurring in Sub-section (1) and 'over the area in which the accident occurred', mentioned in Sub-section (2) clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred.'

42. In Maria Christine De. Souza Soddar v. Maria Zurna Pereira Pinto, : AIR1979SC1352 , which was relied on by the Full Bench, an interesting complex question arose before the Supreme Court namely what was the Law of Limitation applicable to the Union Territories of Goa, Daman and Diu. The proceedings launched therein prior to and pending at the date of liberation in respect of the partitions of properties of one Portuguese gentleman. There was a partition among the family members on 28.1.1941, when one of the daughters was a minor, on 15.3.1960. The said minor daughter together with her husband filed a suit against the other members of the family in the Comarca Court at Margao attacking the partition effected on 28.1.1941 stating that certain items of properties were not properly valid which resulted in loss to the plaintiff. The learned Trial Judge by a judgment and decree dated 8.3.1968 decreed the suit and also counter claim. Aggrieved by the said decree, the defendants therein filed First Appeal No. 6 of 1968 before the Judicial Commissioner Court at Goa on 6.6.1968. The objections which were raised before the Appellate Court was

(a) that the appeal had not been filed in proper Court?

(b) that the appeal was barred by Law of Limitation. It is the contention of the objector that as per the provisions of Portuguese Code, the appeal was required to file in the Court which decided the suit and as such the Appellants could not have lodged the appeal in the Court of Judicial Commissioner. Further in Portuguese Court, the period of limitation for filing an appeal was 8 days from the service of the judgment or order of the Trial Court and the appeal admittedly was filed beyond 8 days.

To this objection, the Appellants sought to support their contention with reference to the events that took place, it has to be noted that during the pendency of the suit, the following events were occurred:

(a) the territories of Goa, Daman and Diu were liberated and became a part of the Union of India with effect from 20.12.1961.

(b) the Limitation Act, 1963 was enacted by the Parliament was in force with effect from 1.1.1964 and became applicable to the whole of India including the Union Territory of Goa, Daman and Diu;

(c) the Parliament also enacted the Goa, Daman and Diu (Extension of the Code of Civil Procedure, 1908 and Arbitration Act, 1940) Act, 1965 (Act XXX of 1965) whereunder the provisions of the Indian Code of Civil Procedure, 1908 were extended to the territories of Goa, Daman and Diu with effect from 15.6.1966 repealing Portuguese Code.

(d) the Legislative Assembly of Goa, Daman and Diu enacted the Goa, Daman and Diu Civil Courts Act, 1965 (Act XVI of 1965) which came into force on 15.6.1966. Under Section 34(2) of Goa enactment (Act XVI of 1965) the pending suit before the Comarca Court at Margao stood transferred to the corresponding Court of Senior Civil Judge and it was continued and ultimately it was decreed. Since the property involved in the suit was of value exceeding Rs. 10,000/- an appeal from the decision lay direct to the High Court which expression under Section 2(f) of the Act meant the Judicial Commissioner's Court.'

On the basis of these events, it was sought to be contended that the appeal was properly laid and it was also within limitation as the Limitation Act came into force in Goa, Daman and Diu from 1.1.1964 when the suit was pending before the lower Court. The learned Judicial Commissioner held that the Forum of Appeal will be as provided in the Indian Code, however, did not express any firm opinion and disposed of the appeal on the point of limitation holding that Indian Law did not effect the right acquired under the repeal Part of Portuguese Court and that the legal proceedings or remedies in respect of that right could be enforced as if Indian Code had not been passed. It was held that the appeal was barred by limitation. Therefore, the matter went to the Supreme Court at the instance of the aggrieved party-Appellants.

43. On the basis of the aforesaid facts, the Supreme Court repelled the contention that right of appeal conferred by the provisions of Portuguese Act, the forum that could be, lodged appeal would govern by the Portuguese Code and observed that right of appeal is a substantial right and it gets vested in a litigant, no sooner the Us is commenced in the Court of the first instance and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof. By Clauses (b) and (c) of Sub-section 4 of the Central Act 30 of 1965, the usual effect of repeal as contended in Section 6(c) and (e) were made applicable. The Supreme Court taking into consideration the Colonial Sugar's case (supra), Garikapati Veeraiah's case (supra), accepting the aforesaid proposition, but however, observed that the forum where such appeal can be lodged is indubitably a procedural matter and therefore, the appeal, the right under which Repeal Act will have to be lodged in a forum provided for by the repealing Act that the forum of appeal and also the limitation for it or matters to be pertaining to procedural law and referred to the following passage from Salmond's Jurisprudence (12th Edn.), at Page 462 thus:

'Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection such rights are among the ends of the administration of justice; but in what Courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the Courts fulfil their functions.'

The Supreme Court observed thus:

'that Section 4 of Central Act 30 of 1965 (which corresponds to Section 6(e) of the General Clauses Act, 1897) provided that a remedy or legal proceeding in respect of a vested right like a right to an appeal may be instituted, continued or enforced as if this Act (Repealing Act) had not been passed. But this provision merely saves the remedy or legal proceeding in respect of such vested right, which it is open to the litigant to adopt notwithstanding the repeal, but this provision has nothing to do with the forum where the remedy or legal proceeding has to be pursued. If the Repealing Act provides new forum, where the remedy or the legal proceeding in respect of such vested right can be pursued after the repeal, the forum must be as provided in the Repealing Act and thus held that under the repealing enactment (Act 30 of 1965) read with Goa Enactment (Act 16 of 1965), the appeal lay to the Judicial Commissioner's Court and the same was accordingly filed in proper Court.'

44. In Gurbachan Singh v. Satpal Singh, : 1990CriLJ562 , the Supreme Court held in Paras 35 and 36, thus:

'(35) It has been contended on behalf of the accused-respondents that Section 113A of the Indian Evidence Act was inserted in the Statute Book by Act 46 of 1983 whereas the offence under Section 306, I.P.C. was committed on 23.6.1983 i.e., prior to the insertion of the said provision in the Indian Evidence Act. It has, therefore, been submitted by the learned Counsel for the respondents that the provisions of this Section cannot be taken recourse to while coming to a finding regarding the presumption as to abetment of suicide committed by a married woman, against the accused persons.

(36) The provisions of the said Section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case.'

45. In Vinod Gurudas Raikar v. National Insurance Company Limited, : [1991]3SCR912 , an accident took place on 22.1.1989. The Motor Vehicles Act, 1939 was repealed by Section 217(1) of Motor Vehicles Act, 1988 which came into force from 1.7.1989. The period of limitation for filing a claim petition both under the old Act and the new Act being six months expired on 22.7.1989. The claim petition of the appellant, however, was filed belatedly on 15.3.1990 with a prayer for condonation of delay. The Accident Claims Tribunal held that in view of provisions of Sub-section (3) of Section 166 of the new Motor Vehicles Act, the delay of more than six months could not be condoned. The application was accordingly dismissed. The injured unsuccessful challenged the decision before the High Court. It was contended that since the accident had taken place when the old Act was in force, the proceedings before the Claims Tribunal must be held to be governed by the old Act, and petition cannot be dismissed on the basis of the provisions in the new Act. The difference in the two Acts which are relevant in the present case was in regard to the provisions relating to condonation of delay. In view of the proviso to Sub-section (3) of Section 166 of the new Act, the maximum period of delay which can be condoned is six months which expired on 22.1.1990. If the new Act is held to be applicable the Appellant's petition filed in March had to be dismissed. The case of the Appellant is that the accident having taken place before the new Act came into force, the proceeding is governed by the old Act, where there was no such restriction as in the new Act. The question is as to which Act is applicable. The Supreme Court observed in Paras 6,7 and 11 as follows:

'(6) Even independent of the General Clauses Act, it is firmly established that unless a new statute expressly or by necessary implication says so, it will not be presumed that it deprives a person of an accrued right. On the other hand, a law which is procedural in nature, and does not affect the rights, has to be held to be retrospectively applicable. The question is whether the appellant has been deprived of an accrued right or privilege in the present case.

7. It is true that the appellant earlier could file an application even more than six months after the expiry of the period of limitation, but can this be treated to be a right which the appellant had acquired. The answer is in the negative. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly enforceable as a right. So far the period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act -subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is whether the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it unpractical for him to avail of the remedy. This principle has been followed by this Court in many cases and by way of illustration we would like to mention New India Insurance Co., Ltd. v. Smt. Shanti Misra, : [1976]2SCR266 .

(11) In the case before us the period of limitation for lodging the claim under the old as well as the new Act was same six months which expired three weeks after coming in force of the new Act. It was open to the appellant to file his claim within this period or even later by 22-7-1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitution of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no change in the position under the new Act. In this background the appellant's further default has to be considered. If in a given case the accident had taken place more than a year before the new Act coming in force and the claimant had actually filed his petition while the old Act was in force but after a period of one year, the position could be different. Having actually initiated the proceeding when the old Act covered the field a claimant could say that Ms right which had accrued on filing of the petition could not be taken away. The present case is different. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enactment presupposes applicability of the enactment when the need arises to take its benefit. In the present case the occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause' also relates to the time after the repeal. The benefit of the repealed law could not, therefore, be available simply because the cause of action for the claim arose before repeal. 'Sufficient cause' as a ground of condonation of delay in filing the claim is distinct from 'cause of action' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. We accordingly hold that the High Court was right in its view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. The appeal is dismissed, but in the circumstances, without costs.'

46. In Ramesh Chandra v. III Additional District Judge, : [1992]1SCR349 , while dealing with the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972), the Supreme Court held that the Act does not apply to the premises in respect of which cases are pending as on the date of the suit, when 10 years period had expired. Therefore, it was held that law applicable as on the date of the institution of the suit alone governs the suit and the mere fact that the statutory period of 10 years expires during the pendency of the suit/appeal/ revision, the Act does not become applicable.

47. The Supreme Court aptly observed in Commissioner of Income Tax, Orissa v. Dhadi Sahu, 1994 Supp. (1) SCC 257, that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or the Court of first instance and unless the Legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different Tribunals or forums.

48. In K.S. Paripoornan v. State of Kerala, : AIR1995SC1012 , the Constitutional Bench by majority observed that while holding that in respect of the acquisition proceedings initiated prior to the date of commencement of Amending Act, the additional amount payable under Section 23 (1-A) will be restricted to matters referred to in Clause (a) and (b) of Sub-section (1) of Section 30 of the Amending Act, it observed that a statute dealing with a substantive right differ from a statute which relates to procedure or evidence or is declaratory in nature inasmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the Legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxations of the law, whether relating to form or to substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. The question whether a particular statute operates prospectively only or has retrospective operation also will have to be determined on the basis of the effect it has on existing rights and obligations, whether it creates new obligations or imposes new duties or levies new liabilities in relation to past transactions. For that purpose it is necessary to ascertain the intention of the Legislature as indicated in the statute itself.

49. It further held that in relation to pending proceedings, the approach of the Courts in England and in India is that the same unaffected by the changes in the law so far as they relate to the determination of the substantive rights and in the absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an action fall to be determined by the law as it existed when the action was commenced and this is so whether the law is changed before the hearing of the case at the first instance or while an appeal is pending. It further held that in order that the provisions of a statute dealing with the substantive right may apply to pending proceedings the Courts have insisted that the law must speak in language which expressly or by clear intendment, takes in every pending matters.

50. In Hitendra Vishnu Thakur v. State of Maharashtra, : 1995CriLJ517 , the Supreme Court evolved certain principles for determination as to when the Amendment Act operates retrospectively. The Supreme Court observed thus:

'The illustrative though not exhaustive, principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:

(I) A statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas a Statute which merely affects procedure, unless such a construction is textually impossible is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits.

(II) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature.

(III) Every litigant has a vested right in substantive law, but no such right exists in procedural law.

(IV) A procedural Statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished.

(V) A Statute which not only changes the procedure but also creates a new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.'

51. In R. Rajagopal Reddy v. Padmini Chandrasekharan, : [1995]213ITR340(SC) , the issue before the Supreme Court was 'whether Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 can be applied to suit claim or action to enforce any right in property held benami against person in whose name such property is held or any person, if such proceeding is initiated by or on behalf of a person claiming to be real owner thereof, prior to the coming into force Section 4(1) of the Act. The Supreme Court while answering the issue in negative held that Section 4(2) was not retrospective in operation. However, even if suit claim or action filed by the ostensible owner on the basis of the Sale Deed or title deed prior to the Act coming into operation of Sub-section (2), the defendant-real owner cannot be allowed to raise defence based on any right in respect of the property held by benami. The expression 'No defence ...... shall be allowed' means such defence shall not be allowed for the first time after coming into operation of Sub-section (2) and therefore, such defence can be allowed if the same already allowed in a pending suit prior to coming into operation of Sub-section (2). The Supreme Court held thus:

'The Act was enacted to efface the then existing right of the real owners of properties held by others benami. Such an Act was not given any retrospective effect by the Legislature. In this respect clear legislative intention is seen from the words 'no such claim, suit or action shall lie', in Section 4(1) meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). The word 'lie' in connection with the suit, claim or action having not been defined by the Act, going by the dictionary meaning it would mean that such suit, claim or action to get any property declared benami will not be admitted on behalf of such applicant against the defendant concerned in whose name the property is held on and from the date on which this prohibition against entertaining of such suits conies into force. The view that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the Section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). The Legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act. It is however, true as held by the Division Bench of the Supreme Court in Mithilesh Kumari v. Prem Behari Khare : [1989]177ITR97(SC) , case that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and hence after Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive. But from this it does not logically follow that the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive.'

While dealing with the provision Section 4(1), the Supreme Court observed thus:

'There is no substance in the contention mat when the law nullifies the defences available to the real owners in recovering the benami property from the benamidar, the law must apply irrespective of the time of the benami transactions and that the expression 'shall lie' under Section 4(1) and 'shall be allowed' in Section 4(2) are prospective and shall apply to present (future stages) and future suits, claims or action only. The words 'no suit shall lie' as found in Section 4(1) and 'no defence based on rights in respect of property shall be allowed' as found in Section 4(2) have limited scope and operation and consequently this consideration also cannot have any effect on the conclusion which can be reached in this case.

Future defences of real owners against benamidars holders have been nullified as are covered by the sweep of Section 4(2) and not others. Rights of the parties to a suit would be determined on the basis of rights available to them on the date of filing of the suit.'

Considering the scope of Section 4(1) and 4(2), the Supreme Court observed in Para 11 as follows:

'On the contrary, clear legislative intention is seen from the words 'no such claim, suit or action shall He', meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, the word 'lie' has been defined in connection with suits and proceedings. At Page 848 of the Dictionary while dealing with Topic No. 9 under the definition of term 'lie' it is stated as under :

'FOR an action, claim appeal etc., to subsist; be maintainable or admissible'.

Finally, the Supreme Court held in Para 21 thus:

'As a result of the aforesaid discussion it must be held, with respect, that the Division Bench erred in taking the view that Section 4(1) of the Act could be pressed in service in connection with suits filed prior to coming into operation of that Section. Similarly the view that under Section 4(2) in all suits filed by persons in whose names properties are held no defence can be allowed at any future stage of the proceedings that the properties are held benami, cannot be sustained. As discussed earlier Section 4(2) will have a limited operation even in cases of pending suits after Section 4(2) came into force if such defences are not already allowed earlier. It must, therefore, be held, with respect, that the decision of this Court in Mithilesh Kumari's case : [1989]177ITR97(SC) does not lay down correct law so far as the applicability of Section 4(1) and Section 4(2) to the extent hereinabove indicated, to pending proceedings when these sections came into force, is concerned. Accordingly, the question for consideration is answered in the negative. Registry will now place all these matters before an appropriate Division Bench for disposing them off on merits in the light of the answer given by us.'

52. In Ramesh Singh v, Cinta Devi, : [1996]2SCR1036 , the short question that arose for consideration was: does a right of appeal accrue to a claimant under the Motor Vehicles Act, 1939 notwithstanding its repeal by the Motor Vehicles Act, 1988. In other words, does the right of appeal under the Old Act survive even after its repeal by the New Act. An accident took place on 27-5-1988 which gave rise to a claim for a compensation under the Old Act. The claim application was filed on 23-12-1988 and the New Act came into force with effect from 1-7-1989. The claim application which was instituted under the Old Act was disposed of on 29-6-1992 after the New Act came into force. That gave rise to a right to file an appeal. The appeal was preferred under the Old Act on 25-9-1992. However, the Division Bench of the High Court by the impugned order dismissed the appeal on the ground that the appellant had not deposited the amount as required by the proviso to Section 173 of the New Act, which prescribes a condition that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he deposited with it a sum of Rs. 25,000/- or 50% of the amount so awarded, whichever is less. The Supreme Court taking into consideration the Sub-section 4 of Section 217 of the New Act, which preserves Section 6 of the General Clauses Act and also following the decision of the Supreme Court in Hoosein Kasam Dada (India) Limited v. State of M.P., : 1983(13)ELT1277(SC) , State of Bombay v. Supreme General Films Exchange Limited, : [1960]3SCR640 , and Vitthalbhai Naranbhai Patel v. C.S.T., : AIR1967SC344 , held that unless the New Act expressly or by necessary implication makes the provision applicable retrospectively, the right of appeal will crystallize in the appellant on the institution of the application in Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the New Act. In other words, the appellant would be entitled to file the appeal without being required to make the deposit under the proviso to Section 173 of the New Act.

53. In Rajendra Kumar v. Kalyan, : AIR2000SC3335 , the Supreme Court observed that it is well settled that no person has vested right in procedural aspect. One has only a right of prescription or defence in the manner prescribed by the law for the time being and in the event of any change of procedure by Act of Parliament one cannot possibly have any right to proceed with the pending proceeding excepting as altered by the new Legislation and as such we need not dilate on the issue. The Supreme Court observed in Paras 20 and 21 as follows;

'20. We do feel it expedient to record that the analysis as effected by the High Court stands acceptable and as such we refrain ourselves from dilating on this aspect of the matter any further. It is pertinent to add in this context that some differentiation exists between a procedural statute and statute dealing with substantive rights and in the normal course of events, matters of procedure are presumed to be retrospective unless there is an express ban on to its retrospectivity.

In this context, the observations of this Court in the case of Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, : AIR1975SC1843 is of some relevance. This Court in Paragraph 31 of the Report observed :

'Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well-established principles. The first is that while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment (Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, AIR 1927 PC 242).

The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule, viz., (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect, and (2) when the Court to which appeal lay at the commencement of the suit stands abolished (Garikapati Veeraya v. N. Subbiah Choudhary, : [1957]1SCR488 and Colonial Sugar Refining Co. Ltd. v. Irving, (1905) AC 369)'.

21. Still later this Court in Gurbachan Singh v. Satpal Singh, : 1990CriLJ562 expressed in the similar vein as regards the element of retrospectivity. The English Courts also laid that the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect the vested rights: It does not apply to statutes which alter the form of procedure or the admissibility of evidence, or the effect which the Courts give to evidence: If the new Act affects matters of procedure only, then, prima facie, it applies to all actions pending as well as future. In Halsbury's Laws of England (4th Edition: Vol. 44: Para 925, page 574) upon reference to Wright v. Hale, (1860) 6 II and N 227 and Gardner v. Lucas, (1878) 3 App. Cas 582 along with some later cases including Blyth v. Blyth (supra) it has been stated: 'the presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence, on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament'.

54. In Shyam Sunder v. Ram Kumar, : AIR2001SC2472 , the Supreme Court referring to Maxwell on Interpretation of Statutes and also Garikapati Veeraiah 's case (supra), Hitendra Vishnu Thakur's case (supra) and K.S. Paripoornan's case (supra), observed thus:

'When a repeal of an enactment is followed by a fresh legislation such legislation does not effect the substantive rights of the parties on the date of suit or adjudication of suit unless such a legislation is retrospective and a Court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned they remain unaffected by the amendment in the enactment.

Therefore, where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not effect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. Further there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless amending Act provides otherwise.

A reading of substituted Section 15 would show that the words used therein are plain and simple and there is no ambiguity in them. The words used in the section do not give rise to more than one meaning. It is also not possible to find that the amending Act either expressly or by necessary implication is retrospective. If it is held that the amending Act is retrospective in operation, it would be re-legislating the enactment by adding words which are not to be found in the amending Act either expressly or by necessary intendment and it would amount doing violence with the spirit of the amending Act. For these reasons, the application of rule of benevolent construction is wholly inapplicable while construing substituted Section 15.

There is no such rule of construction that a beneficial legislation is always retrospective in operation, even though such legislation either expressly or by necessary intendment is not made retrospective. '

Ultimately, it was held that the amending Act being retrospective in operation does not affect the rights of the parties to the litigation on the date of adjudication or preemption of the suit and the appellate Court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act.

55. In Raminder Singh Sethi v. D. Vijayarangam, : [2002]3SCR213 , it was held that Karnataka Rent Act, 1999 has no retrospective effect. It was observed that ordinarily the rights of the parties to litigation stand crystallised on the date of the commencement of the lis. Section 70 of the new Act which speaks of repeal and savings and which also makes provision for the new Act being applicable to certain cases and proceedings, does not speak of the new Act being applicable to the appeal or proceedings pending before the Supreme Court.

56. In R. Kapilnath v. Krishna, : [2002]SUPP5SCR66 , one of the contentions raised before the Supreme Court was that Karnataka Rent Control (Amendment) Act, 1994 exempting from the operation of the Act premises belonging to religious or charitable institutions regardless of whether such institutions were under the management of State Governments which came into force during revision stage of suit for eviction of the respondent, Manager of Temple against Appellant, held that the management would not cause Court of Munsif to lose jurisdiction to try the suit. The Supreme Court observed in Para 4 thus:

'The above submission of the learned Counsel has been stated only to be rejected. It is pertinent to note that the proceedings in the Court of Munsif had already stood concluded by the time the amendment came into force. It is not disputed that Amendment Act No. 32 of 1994 has not been given a retrospective operation and there is nothing in the Act to infer retrospectively by necessary implication. The Act has been specifically brought into force with effect from the 18th day of May, 1994. The learned Counsel for the appellant cited a number of decisions laying down the law as to how an amendment in legislation brought into force during the pendency of legal proceedings has to be given effect to. Without stating the decisions so cited, suffice it to observe that all those decisions deal with substantive rights having been created or abolished during the pendency of legal proceedings and depending on the legislative intent and the language employed by the Legislature in the relevant enactment, this Court has determined the impact of the legislation on pending proceedings and the power of the Court to take note of change in law and suitably mould the relief consistently with the legislative changes. So far as the present case is concerned, the only submission made by the learned Counsel for the appellant is that the effect of the amendment is to deprive the Court of Munsif of its jurisdiction to hear and decide proceedings for eviction over such premises as the suit premises are. In other words, it is a change in forum brought during the pendency of the proceedings. The correct approach to be adopted in such cases is that a new law bringing about a change in forum does not affect pending actions, unless a provision is made in it for change over of proceedings or there is some other clear indication that pending actions are affected. (See Principles of Statutory Interpretation, Justice G. P. Singh, 8th edition, 2001, p.442). We have already indicated that the Act does not bring about a change in forum so far as the pending actions are concerned. Moreover by the time the amendment came into force, the proceedings before the Munsif had already stood concluded and the case was pending at the stage of revision before the Additional District Judge. Further we find that an objection laying challenge to forum's competence was not raised before the learned Additional District Judge nor the objection was taken before the High Court in the civil revision preferred by the appellant. It was not taken as a ground in the special leave petition. It has been taken only by way of a separate petition filed subsequently and seeking leave to urge additional grounds. Such an objection cannot be allowed to be urged so belatedly. However, we have already held the argument based on 1994 amendment as of no merit.'

57. In Shiv Shakti Co-operative Housing Society, Nagpur v. Swaraj Developers, : [2003]3SCR762 , the maintainability of the revision application after the Amendment Act 46 of 1999, which was given effect from 1.7.2002 was, the issue considered. The Supreme Court observed in Paras 15 and 16 thus:

'15. Language of Sections 96 and 100 of the Code which deal with appeals can be compared with Section 115 of the Code. While in the former two provisions specifically provide for right of appeal, the same is not the position vis-a-vis Section 115. It does not speak of an application being made by a person aggrieved by an order of Subordinate Court. As noted above, it is a source of power of the High Court to have effective control on the functioning of the Subordinate Courts by exercising supervisory power.

16. An appeal is essentially continuation of the original proceedings and the provisions applied at the time of institution of the suit are to be operative even in respect of the appeals. That is because there is a vested right in the litigant to avail the remedy of an appeal. As was observed in K. Eapen Chako v. The Provident Investment Company (P) Ltd., AIR 1976 SC 2610 only in cases where vested rights are involved, a legislation has to be interpreted to mean as one affecting such right to be prospectively operative. The right of appeal is only by statute. It is necessary part of the procedure in an action, but 'the right of entering a Superior Court and invoking its aid and interposition to redress the error of the Courts below. It seems to this paramount right, part of the progress of the inferior Tribunal.' (Per Westbury See: Ag v. Sillem, 33 J.Ex 209). The appeal, strictly so-called, is one in which the question is, whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it' (Per Lord Devuil Ponnamal v. Arumogam, 1905 AC 390. The right of appeal, where it exists, as a matter of substance and not of procedure (Colonial Sugar Refining Company v. Irving, 1905 AC 368).

Finally, the Court held:

'32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32 (2) (i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32 (2) (i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.

33. Section 6 of the General Clauses Act has no application because there is no substantive vested right available to a party seeking revision under Section 115 of the Code. In Kolhapur Canesugar Works Ltd. and another v. Union of India and Ors., : 2000(119)ELT257(SC) it was observed that if a provision of statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, there is no scope for granting it afterwards. There is modification of this position by application of Section 6 of the General Clauses Act or by making special provisions. Operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in the statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the Legislature is that the pending proceedings shall continue but a fresh proceeding for the same purpose may be initiated under the new provision.'

58. In a recent judgment of the Division Bench of this Court in S. Shiva Raja Reddy v. S. Raghu Raj Reddy, : 2002(5)ALD181 (DB), in which one of us (BRSRJ) is a party has to consider 'Whether Section 100-A C.P.C. is retrospective and no Letters Patent Appeal will lie against a judgment is of a Single Judge passed in an appeal from an original decree or order and whether all such of those Letters Patent Appeals filed prior to 1.7.2002 alone are saved?'

59. It is to be noted that by virtue of Act 46 of 1999, Section 100-A was substituted in place of Section 100-A of 1976 Act. Section 100-A of 1976 reads thus:

'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 a High Court, no further appeal shall He from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal'.

and the substituted Section vide Act 46 of 1999 reads thus:

'100-A. No farther 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;

(a) where any appeal from an original or 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'.

(b) ...............'

Under Section 32(g) of Chapter 4 of Act 46 of 1999, all those appeals admitted prior to the Act coming into force were saved. However, Section 100 was further amended and were brought to Code of Civil Procedure through Act No. 22 of 2002 and Section 100-A of the Principal Act was also substituted by the following:

'100--A. No further appeal in certain cases :--Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original, or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge'

The said provision fell for consideration before the Division Bench. The substituted provision came into force with effect from 1.7.2002. The question was as to whether the provision is retrospective in its nature and if so, the extent of its retrospective operation.

60. The Division Bench referred to various decisions. Some of them are referred to hereinabove and concluded that taking away right of a party to prefer a further appeal as against the decree and judgment of a learned Single Judge of the High Court to a Division Bench, would not amount to taking away substantive right of any fundamental importance. The right of appeal is against the decree and judgment against the decree of a Subordinate Judge was well protected and was not taken away by the amended provision. While deliberating on the issue as to whether any party to a Us has a vested right to have his appeal to be heard by more than one Judge of the High Court, the learned Division Bench observed that right of appeal is not a mere right of procedure, but is a substantial right and also a vested right and such a right to enter the Superior Court accrues to the litigant and exists as on from the date of the lis commences. The right is to be governed by law prevailing at the date of institution of the suit. But, however, such a right of appeal can be taken by an enactment either by expressly or necessary intendment and observed that a provision may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pending suits, when the language of the statute does not compel them to do so. Interpreting the expression, 'no further appeal shall lie from the judgment and decree of such Single Judge', the Bench observed that retrospective operation of Section 100-A would not extend to and be . applicable even to such of those Letters Patent Appeals which are already admitting and pending adjudication and that the provision is limited to the extent of taking away the right accrued in favour of a litigant to prefer Letters Patent Appeals arising out of the suits instituted or filed before 1.7.2002 and finally, the Division Bench observed that no further appeal against an order of the Single Judge shall He and be entertained after 1.7.2002.

61. Finally, the Division Bench held that the appeals already filed, admitted and pending final disposal are in no way affected by the newly amended provision. Its retrospective effect is not so sweeping even to affect those appeals. Those appeals were subjected to threshold scrutiny and having found a prima facie case for correction of the judgments rendered by the learned Single Judge. The Division Bench admitted the same and they are awaiting final adjudication. There is nothing either expressly or by necessary implication in order to hold that the newly inserted provision affects even the appeals that were already admitted and accordingly, declared that all the Letters Patent Appeals presented or filed before 1.7.2002 are maintainable whether they have been admitted or not. To this extent, these appeals are excluded from the operation of the newly inserted provision.

62. From the aforesaid case law and the statements made by various Law Lords, the following principles (illustrative not exhaustive) would emerge:

1. Every legislation is a prima fade prospective unless it is expressly or by necessary implication made to have retrospective effect on the principle of 'Nova comtitutio futuris formam imponere debet now Paranteritus' means - A new law ought to regulate which is to follow, not the past.

2. All laws which effect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect the vested right and obligation unless the legislative intent is clear and unambiguous.

3. While considering the question of retrospective operation of the statute, the right affected must be first considered, whether there is a vested right. The amendment must be considered as a prospective so as to not to cause vested right and if the right is merely procedural, normally it is not treated as a vested right.

4. The intention of the Legislature is always be to gather the words always used by it in plain, grammatical meaning.

5. Retrospective operation of a statute is not to be given so as to impair the existing right or obligation, otherwise than as regards a matter of procedure, unless that effect cannot be effected without doing violence to the knowledge of the enactment. A statute, which impairs vested right or legality of the past transactions or the obligation of a contract should not be held to be retrospective.

6. Even in respect of the amendments, substantive rights cannot be taken away by subsequent amendment, unless specifically enacted by the legislation.

7. The law which only affects the procedural rights is presumed to be retrospective, unless such a construction is textually inadmissible.

8. A statute, which not only changes the procedure, but also creates new rights and obligations, shall be construed to be prospective unless otherwise provided either expressly or by necessary implication.

9. Whether the amendment is brought during the pendency of the suits or actions, whether such amendment has retrospective effect or prospective effect has to be considered with reference to object of the amendment, unless it is expressly provided in the statute. But, however, if the rights and procedures are dealt with together, if the procedural alterations are inextricably linked with the changes simultaneously, it is not permissible to give retrospective effect of operation. Unless, Legislature has enacted such an intention, there is always general presumption that the statute is deemed to be prospective unless otherwise expressly provided.

10. The question whether statute or any provisions in it has retrospective operation has to be determined with reference to the intention of the legislation and it is to be gathered from the language with reference to the object and nature of the rights affected the circumstances under which the statute came to be. The statute which is not declaratory of pre-existing law nor the matter relating to procedure, but affects vested rights cannot be given a greater prospective, retrospective effect than it renders necessary. The test when decided a particular provision of law has to be given retrospective effect or not is not merely considered whether a law of procedure or substantive law, but also any alleged questions existing rights including the rights of action which are substantive rights. If a law destroys an existing right or places language a restriction on it, no retrospective effect would be given unless statute is expressly enacted to that effect.

11. No person can have a vested right in the course of procedure and the plaintiff or defendant has a right of prosecution or defence in the manner prescribed for the time being and if the procedure is altered during the pendency of action, the altered procedure ought to be adopted. Legislature can always provide that pending proceedings shall be effected by an amendment Act, though in the absence of such any express provision amending Act cannot be held to be govern the pending proceedings.

12. A new law bringing about a change in forum does not affect pending actions unless there is clear expression to the said effect.

13. Right of appeal is substantive right and it cannot be impaired as taken away by a statute retrospectively unless by specific provision in enactment or by necessary intendment, This right vests with the suitor at the time of institution of original proceedings. Any change in the law relating to appeals after institution of original proceedings which adversely touches this right is presumed not to be retrospective.

14. A change of forum except in pending proceedings is a matter of procedure and therefore, if a new Act requires certain type of original proceedings to be instituted before a special Tribunal constituted under the Act to the exclusion of Civil Court, all proceedings of that type whether based on old or new causes of action will have to be instituted before the Tribunal.

15. The statutes providing for new remedies for enforcement of a existing right are treated as procedural and applied to future as well as the past causes of action.

16. The classification of statute as either substantive or procedural does not necessarily determine whether it may have a retrospective operation. But, a statute of limitation is generally regarded as procedural. However, if its application to a past cause of action has effect of reviving or extinguishing a right of suit such an operation cannot be said to be procedural. Consequently such procedural law is prospective in operation.

17. In the words of Dixon CJ 'The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption'.

18. In the words of S.R. Das, the cordinal rule of construction, however, in the absence of anything in the enactment to show that it has a retrospective operation, it cannot be so construed as to have altering the law applicable to a claim in litigation at the time when the Act was passed. Therefore, if Legislature intends to apply a statute to the pending proceedings, it must indicate an express provision to that effect.

19. In matters of substitution by an amendment, it has to be construed that there is no real distinction between the repeal and an amendment. Whether a provision of an Act is omitted by an Act and the said Act simultaneously re-indicates new provision which substantively covers with certain modifications. In that event, such re-enactment is recorded as having force continuously and modification are treated as changes with effect from the date of the enforcement of the re-enacted provision.

20. It makes no difference in application to these principles that the amendment is by substitution or otherwise. However, the statutes dealing with the procedures in contrast with the substantive rights are presumed to be retrospective, unless such a conclusion is textually inadmissible. If the new Act affects the matters of procedure, then only prima facie it applies to all actions pending as well as future.

21. While the law relating to forum and limitation is procedural in nature while the law relating to right of action and right of appeal even though remedial is substantive in nature, that a procedural statute should not generally be speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. A statute which not only changes the procedure but also creates new rights and obligations shall be construed to be prospective, unless otherwise provided either expressly or by necessary implication,

22. A statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions already past must be presumed to be intended not to have a retrospective effect and as a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, and there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary.

23. Where the rights and procedure are dealt with together, the intention of Legislature may well be that old rights are to be determined by the old procedure and the new rights under substituted section by the new procedure. If the procedural alteration is closely and inextricably linked with the changes simultaneously introduced, it is not possible to give retrospective effect to the procedure unless the Legislature has indicated such an intention either by express words or by necessary implication.'

63. Keeping in view the aforesaid principles, it has to be considered whether the amendment Act is retrospective in operation. The Andhra Pradesh Civil Court Act is a consolidated Act, which came into effect with effect from 1.11.1972. The Act repealed certain Acts referred to supra. The pecuniary and territorial jurisdiction as well as appellate jurisdiction together with fora is contained in various provisions of the Act. A right to appeal is a substantive right and it inheres to the party from the date when action is instituted and enures till the end of the litigation viz., appeal, second appeal etc. The pecuniary limits together with fora were being awarded from time to time by appropriate amendments. Initially, the appeal against the decree of Additional Judge, City Civil Court laid before the Chief Judge if the value of appeal was not more than Rs. l5,000/-and to the High Court if the value is more than Rs. 15,000/-. Subsequently, the value was being substituted as Rs. 30,000/-, Rs. 1,00,000/-and presently Rs. 3,00,000/-.

64. It is beyond pale of controversy that a vested right cannot be affected by an amending Act retrospectively unless specifically expressed or by necessary intendment. Per contra a procedural law or adjectival law is presumed to have retrospective effect. But, as already observed in various cases, the clear cut distinction between laws of procedure and substantive law is not possible and hence the language, object and reasons and the circumstances under which the adjectival law is brought into effect has to be considered. It is not a rule of thumb that procedural law is always retrospective. In the picturesque aphorsm of Therman Arnold 'Substantive law is canonised procedure. Procedure is unfrocked substantive law' (XLV Harvard Law Journal 617 and 645). Even a procedural law which not only changes the procedure but also creates new rights and obligations have to be construed to be prospective as such a law cannot have the effect on vested rights which were already accrued and put into action. The Supreme Court in a very recent case Kapilnath 's case (supra) has categorically held that even the procedural law if it is sought to be made applicable to the pending matter, the legislation has to specifically contain such expression and in the absence of such a provision, the adjectival law has to be construed to be prospective and not retrospective in operation

65. Even if we go by the language of the amendment, the Act contained expression as 'an appeal shall lie' would only refer to action in futuro and not in presenti. As early as 1909 the English Court in Smithies v. National Association of Operative Plasterers, while agreeing with Lord Chief Justice, Vaughan Williams LJ, said 'We are all agreed on this point. It is a proposition founded in common sense that, where vested rights have already accrued, and legislation is passed which uses words expressive of futurity, such as 'shall' or 'shall not', which prima facie would appear to be meant to be applicable to future cases, it is not to be construed retrospectively so as to affect those vested rights, unless terms are used which clearly compel the Court to give it that construction, This is only to impute common sense to the Legislature; any reasonable person would say that clear terms ought to be used, if it is intended to divest a vested right. It is stated in Maxwell on the Interpretation of Statutes, 3rd Ed. P.333, that, where a statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable. I suggested to Mr. Shearman that he might base an argument on this passage, but he did not receive the suggestion with enthusiasm. I am clearly of opinion that the Trade Disputes Act, 1906, Section 4 is not declaratory so as to prevent the general rule against construing a statute retrospectively from applying. It is impossible, I think, to suppose that the Legislature meant that, where an action was already commenced, the passing of the Act should stop it. I think that on this preliminary point the Lord Chief Justice was quite right.'

66. To the same effect, the decisions of the Supreme Court in Rajagopal Reddy 's. case (supra) and Ramesh Singh's case (supra).

67. Consequent on every amendment, there was change of forum coupled with the value of the subject-matter. It is only in case of merely procedural laws unconnected with the rights, the said law is construed to be retrospective. But, if the law is inextricably an admixture of right and remedy, such law has to be construed as having prospective operation as the vested rights cannot be interfered with except specifically expressed or by necessary implication. The right to remedy and the forum when presumed by law in an integrating manner, the later follows the former as the same is a vested right. A right of remedy without forum or vice versa, would be an ineffective right and therefore, they always travel together. In the case on hand, the right to file appeal with pecuniary limitation is intrinsically coupled with the forum. In such an event, it is not possible to divide vested right and fora and apply substantive law to the right and adjectival law to the forum. Further, we find that the destination between substantive law and procedural law is rather difficult to make out and hence any effort on the part of the Court to make an effort to divide there two areas is unwarranted. The only course left for the Court is to see whether the adjectival statute extinguished merely the remedy or the substantive right as well as the remedy. For such determination, each case has to be considered on its own facts and circumstances.

68. There is yet another reason to hold that the amendment is not retrospective. The amendment is only a substitution of the value of the appeal. No specific repeal provisions were enacted. Therefore, when substitution takes place it merely gets embebbed in Section 9 and other provisions of the Act apply from the date of substitution. The Andhra Pradesh Civil Court Act while repealing other Acts applied Sections 8 and 18 of Andhra Pradesh General Clauses Act, by which any right, privilege, obligation or liability acquired or incurred under any enactment so repealed is unaffected.

69. It is to be noted in this regard that in Maria Christiane's case (supra) the maintainability of the appeal was the subject-matter before the Supreme Court. Though, it was presented, not admitted, but continued to be in the fold of Appellant Court. The forum was constituted with effect from 15.6.1966. As on the date of the disposal of the matter, Portuguese Code was no more in existence and the Court of Judicial Commissioner was equated with that of the High Court and therefore, as on the date when the suit was dismissed on 6.6.1968, it stood transferred to Senior Judge's Court by virtue of the provisions contained in the Goa Act 6 of 1965 and in such circumstances, the Supreme Court held that the forum as created under the Goa Act has to be availed off. The Supreme Court did not consider the aspect as to whether the right to forum created has restospetive effect or prospective effect. Therefore, taking into consideration the principle laid down by the Supreme Court in this case with reference to the facts in the present case, on the date when the suit was decreed, the amended provisions relating to the pecuniary jurisdiction of Appellate Court as also the forum came into existence and therefore, the decision on the other hand, supports the case of the appellants rather than defendant and therefore, it has to be held that inasmuch as the amended Civil Court Act did not specify that the provisions would effect the pending cases, it has to be only inferred that the intention of the legislation was not to affect the cases or the appeals which were presented as also pending on the date of the amendment came into force.

70. Even the assistance sought to be taken from the judgment of the Supreme Court reported in Mukund Deo (dead) by his LRs. Kasibai v. Mahadu, : AIR1965SC703 , the same cannot be made applicable to the facts of this case. In that case, one Mr. Beli Ram, who was having certain lands died leaving his wife Rukhma Bai and his daughter Vitha Bai. On his death, the property devolved on his wife Rukhma Bai as a limited owner. By a deed dated 26.7.1916, she sold the lands to Mukund Deo and delivered the possession. Rukhma Bai died in the year 1940. However, the sons of Vitha Bai, daughter of Rukhma Bai brought an action if February, 1944 assailing transfer and for a decree of possession of the lands sold by Rukhma Bai, The Trial Court decreed the suit against which an appeal was filed before the Additional Sub-Judge, who reversed the decree of the Trial Court. In the Second Appeal before the High Court of Hyderabad, the judgment of the lower appellate Court was reversed restoring the decree of the Trial Court. The legal representative of Mukund Deo preferred the civil appeal before the Supreme Court. The contention before the Supreme Court was that the High Court in Second Appeal had no jurisdiction to set aside the finding of fact recorded by the first appellate Court as per Section 100 of Code of Civil Procedure. But the contention was repelled by the Supreme Court stating that when the suit was filed the lands in dispute were situate within the territory of H.E.E. the Nizam of Hyderabad and the suit filed by the respondents had to be heard and disposed of according to the relevant provisions of the Code of Civil Procedure in force in the State of Hyderabad and under Section 602 of Hyderabad Civil Court Act, the second appeal shall lie to the High Court from every decree which is passed in first appeal, thereby implying that second appeal lie with regard to the question of fact as well as the question of law.

71. The Supreme Court observed that 'it is true that as a general rule, alteration 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 or by necessary implication. Therefore, the Supreme Court referred to Colonial Sugar's case (supra), Delhi Cloth and General Mills's case (supra) and Garikapati Veeraiah's case (supra), observed that vested right of appeal is a substantive right and is governed by the law prevailing at the time of commencement of the suit, and comprises all successive rights of appeal from Court to Court, which really constitute one proceeding. Such a right may be taken away by a subsequent enactment expressly or by necessary intendment. The Supreme Court held that Code of Civil Procedure to the Territory of State of Hyderabad either by express or by necessary intendment invested Section 100 of the Code with retrospective operation and that the power of the High Court to deal with the appeal before it must' be with reference to procedure contained in Hyderabad Code without reference to Section 100 of Code of Civil Procedure, 1908. Thus, the Supreme Court held under the Hyderabad Code, second appeal can be raised on questions of fact and law, while under Code of Civil Procedure only substantial question can be entertained and vested right which accrue under Hyderabad code cannot be taken away retrospectively. Therefore, what was observed by the Supreme Court in this case is vested right of the Appellant in the second appeal relating to both fact and law and merely as on the date when the Code of Civil Procedure was made applicable, it cannot deny the vested right of the appellant to agitate the same before the High Court, both the questions of law and fact. But, this case also is of no avail.

72. Therefore, we are of the considered view that the reliance placed on Maria Christine De. Souza Soddar's case (supra) and Kasi Bai 's case (supra), is inappropriate to the fact situation of the present case. A principle in abstract without reference to the facts and circumstances cannot be applied to other cases. It is also to be noted that it is a case of substitution and not a complete repeal. The pecuniary jurisdiction of the Court were altered and consequently the forum also changed. Therefore, it is not a case as a case of right of appeal was taken away, while not disturbing the substantive right, if the forum is changed and the right of the appeal in the forum are so inextricable that they cannot be separated by clear cut measure. It has to be that the right of appeal as well as the forum are both substantive rights and therefore, they only apply to the cases in future and not applied to the pending cases.

73. Therefore, we reached the following conclusions :

1. That the Civil Court (Amendment) Act 30 of 1989 is applicable prospectively from 1.12.1989.

2. Even in case of suits which were filed earlier to the amendment and they are pending disposal as on the date of the amendment came into force, the appeal if any has to be necessarily filed before the Forum created under the amended Act depending on the pecuniary limits. To this limited extent, the decision in Kotina Papaiah's case (supra) and Kameshwaramma 's case (supra) and Haragopal's case (supra) stand modified.

3. Any appeal having been presented before date of amended Act coming into force and the appeals pending as on the said date are required to be disposed of by the Courts, wherever they were pending and the amendment will not have any effect on pending appeals either presented or pending.

4. The suits or petitions in which decrees were passed prior to 1.12.1989, they will be dealt with in accordance with the pre-amended procedure.

5. In the cases before us, even after the amendment came into force on 1.12.1989, number of appeals having value less than Rs. one/3 lakhs were admitted by this Court and some of them were disposed of by virtue of the judgment of the Division Bench in Kameshwaramma's case (supra) subsequent cases though in fact they do not fall within the category of either pending appeals or appeals presented, before the amendment. The pecuniary limits and forum go together and the amendment being prospective in operation, the appeals ought to have been filed before the amended forum. But, taking into consideration that large number of appeals were already admitted by this Court, and they are pending for a considerable length of time and keeping in view the maxim that 'Actus curiae neminem gravabit' (An act of the Court shall prejudice no man), we declare that such of the cases which were filed subsequent to amendment are deemed to have been transferred to this Court under Section 24 of Code of Civil Procedure for their disposal in accordance with law.

74. The judgment of the Full Bench in Motichand Jain's case (supra) declaring that the Amendment Act 30 of 1989 falling under adjectival law has retrospective effect stands overruled subject to the aforesaid conclusion.

75. The Registry shall list the cases before the appropriate Court for disposal.

76. Before parting with the cases, we would like to place on record our appreciation for the able and matured submissions made by all the Counsel appearing for both the parties and the case-law cited by them has assisted this Court to clear the riddle, which has been lingering for the decades.

77. No costs.


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