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Behari Lal and anr. Vs. Keshri Nandan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. First Appeal Nos. 32 and 51 of 1969
Judge
Reported inAIR1970All201
ActsConstitution of India - Articles 111, 133 and 357(1); Uttar Pradesh Civil Laws Amendment Act, 1968 - Sections 3; Bengal, Agra and Assam Civil Courts Act, 1887 - Sections 21(1) and 21(1A); Bengal, Agra and Assam Civil Courts (Amendment) Act - Sections 21
AppellantBehari Lal and anr.
RespondentKeshri Nandan
Advocates:A. Banerji, Adv.
Excerpt:
.....but done by president - not in violation of constitution - no specific provision for high court to decide matters based on question of fact or question of law. (ii) amendment - section 21 of bengal, agra and assam civil courts act, 1887 - legislature to grant retrospective effect to amendment - high court can transfer appeal to district court even before commencement of act. - - under article 356 of the constitution, the president may issue a proclamation in case of failure of constitutional machinery in states. firstly, even if the valuation of the suit is rupees 20,000, the condition laid down in the latter part of clause (1) of article 133 has to be satisfied......act.16. in garikapati veeraya v. subbiah chowdhary, air 1957 sc 540 it was held that the right of appeal is not a mere matter of procedure, but is a substantive right. the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. the right of appeal is a vested right, and such a right to enter the superior court accrues to the litigant and exists as on and from the date of lis commences, and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the 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. this.....
Judgment:

Oak, C.J.

1. These are two execution First appeals. Initially, they came up on 11-2-1969 for admission before a Division Bench of this Court It was noticed that in each case valuation of the appeal and valuation of the suit in which the appeal arose was below Rs. 20,000. By Act No. 35 of 1968, which came into force on 2-12-1968, appellate jurisdiction of District Judges has been raised to Rs. 20,000. The question, therefore, arose whether these appeals lie to the High Court or to the District Court. It was urged for the appellants that, in spite of the passing of Act No. 35 of 1968, these appeals lie to the High Court. In support of this contention, two reasons were advanced on behalf of the appellants. Firstly, it was argued that Act No. 35 of 1968 is unconstitutional. Secondly, even if it is assumed that the Act is constitutional, the present appeals are not governed by Act No. 35 of 1968. These questions are of great importance. The two appeals were, therefore, referred to a Full Bench.

2. Facts, which are relevant on the question of jurisdiction, are these. Execution first appeal No. 32 of 1969 arises out of original suit No. 12 of 1957. Valuation of the suit was Rs. 14,000. The suit was decreed on 7-11-1968, The decree-holder applied for execution. Certain property was sold in execution, and was purchased by Devi Prasad, decree-holder. Keshri Nandan, judgment-debtor filed an objection. The objection was allowed by the Additional Civil Judge, Mirzapur on 16-11-1968. Execution first appeal No. 32 of 1969 has been filed by the legal representatives of Devi Prasad. The appeal was filed on 23-1-1969. Valuation of the appeal is Rs. 14,000.

3. Execution first appeal No. 51 of 1969 has arisen put of original suit No. 55 of 1967. Valuation of the suit was Rupees 13,657.14. During execution proceedings an oblection was filed by the judgment-debtor. The objection was allowed by the Civil Judge, Aligarh on 3-1-1969. The execution first appeal is directed against that order. This appeal was filed in this Court on 6-2-1969. Valuation of the appeal is Rs. 13,657.14. It will be noticed that in each case valuation of the suit was below Rs. 20,000; and valuation of the appeal is also below Rs. 20,000.

4. The question of jurisdiction has to be discussed with reference to Act No. 35 of 1968, which was enacted by the President of India (hereafter referred to as the President's Act). It will be convenient to trace the history of legislation, which culminated in the passing of the President's Act. The Bengal. Agra and Assam Civil Courts Act, 1887 (hereafter referred to as the Civil Courts Act) deals with jurisdiction of Civil Courts. The Civil Courts Act has been amended from time to time. Section 21 of the Civil Courts Act deals with appellate jurisdiction of the High Court and District Judges. According to Section 21 (1) (a). Civil Courts Act, as it originally stood, the maximum limit of jurisdiction of District Judges was Rupees 5,000. By the U.P. Civil Laws (Reforms and Amendment) Act, 1954 (U.P. Act No. 24 of 1954), the limit of jurisdiction of District Courts was raised from Rupees 5,000 to Rs. 10,000.

5. Part XVIII of the Constitution of India contains emergency provisions. Under Article 356 of the Constitution, the President may issue a Proclamation in case of failure of constitutional machinery in States. Sub-clause (b) of Clause (1) of Article 356 provides for a declaration that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament Article 357 provides for exercise of legislative powers under Proclamation issued under Article 356. Article 357 states:

'(1) Where by a Proclamation issued under Clause (1) of Article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament it shall be competent-

(a) for Parliament to confer on the President the power of the Legislature of the State to make laws............'

By virtue of power conferred on it by Article 357(1)(a) read with Article 356(1)(b), Parliament enacted the U.P. State Legislature (Delegation of Powers) Act, 1968 (Act No. 7 of 1968), Section 3 of Central Act No, 7 of 1968 ran thus:--

'(1) The power of the Legislature of the State of Uttar Pradesh to make laws, which has been declared by the Proclamation to be exercisable by or under the authority of Parliament is hereby conferred on the President............'

By virtue of the power conferred on him by Section 3 of Central Act No. 7 of 1968, the President enacted Act No. 35 of 1968.

6. The President's Act (No. 35 of 1968) made amendments in a number of statutes. Section 21 of the Civil Courts Act was amended by Section 3 of the President'sAct Section 3 of the President's Act runs thus:--

'In Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, as amended in its application to Uttar Pradesh (hereinafter referred to as the Bengal, Agra and Assam Civil Courts Act), for Sub-section (1), the following sub-sections shall be substituted, namely:--

'(1) Save as aforesaid, an appeal from a decree or order of a Civil 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, whether instituted or commenced before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1968, did not exceed twenty thousand rupees, and

(b) to the High Court in any other case. (1-A) An appeal from a decree or order of a Civil Judge where the value of the original suit in which, or in any proceeding arising out of which, the decree or order was made exceeded ten thousand rupees but did not exceed twenty thousand rupees instituted in the High Court before the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1968, may be transferred by the High Court for disposal to any District Judge or Additional Judge subordinate to it'

Mr. A. Banerji appearing for the appellants in execution first appeal No. 32 of 1969 challenged the validity of the President's Act on a variety of grounds. It was urged that the Bill never received assent of the President as prescribed by Article 111 of the Constitution. Article 111 of the Constitution states:--

'When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to theBill or that he withholds assent therefrom ...........'

Article 111 comes into operation, when a Bill has been passed by Houses of Parliament. On examining the circumstances under which Act No. 35 of 1968 was passed, it will be noticed that in this case no Bill was passed by Houses of Parliament. The Act was passed by the President alone by virtue of power conferred upon him by Article 357 of the Constitution. Since this is an enactment by the President himself, there was no occasion for presenting a Bill to the President. Article 111 of the Constitution has no application in the present case.

7. The main contention of Mr. A. Banerji as regards constitutionality of the President's Act is that the Act is in conflict with Article 133 of the Constitution. It was pointed out that in suits of valuation of Rs. 20,000 a litigant has the right to approach the Supreme Court under Article 133(1)(a) of the Constitution. It wassuggested for the appellants that this constitutional right or vested right has been taken away or abridged by the President's Act. It was pointed out that in a suit of valuation of Rs. 20,000 the first appeal lay formerly to the High Court. Under Section 3 of the President's Act first appeals would now lie to the District Court. The case can of course be taken to the High Court in second appeal. But the High Court would be bound by findings of fact recorded by the District Judge in appeal.

8. Mr. Jagdish Swarup, who appeared an amicus curiae before the Division Bench, put forward his argument thus:

'...........indention of the makers ofthe Constitution is that the High Court should be the first Court of appeal in a case which is valued at rupees twenty thousand. But the substituted provision makes the High Court a second Court of appeal.........There is.........an incongruity.If the District Judge decides a first appeal valued at twenty thousand rupees in accordance with the substituted Section 21, Civil Courts Act, second appeal will lie to the High Court on questions of law only and not on questions of fact. Where the High Court reverses the judgment of the District Judge, an appeal shall lie to the Supreme Court as of right under Article 133(1)(a). In that case the Supreme Court will not have the benefit of any findings on questions of fact by the High Court.'

9. I am unable to accept this reasoning. There is no indication in Article 133 of the Constitution that the founding fathers contemplated that in cases of valuation of Rs. 20,000 the High Court would be competent to record its independent findings on questions of fact. Whether a decision of a High Court would be on questions of fact or on questions of law would depend upon the manner in which the matter comes before the High Court. A statutory provision prescribing that in certain matters the High Court can deal with questions of law only would not be in conflict with Article 133 of the Constitution.

10. In Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907 a suit was instituted before the repeal of Travancore High Court Act, (No. 4 of 1099). An appeal was filed after the repeal of that Act by Act No. 5 of 1125. At the time of filing the appeal Section 25 of the former Act providing that a Full Bench would hear appeals from decrees of District Courts in which the amount of the subject-matter exceeded Rs. 5,000 stood repealed. The appellants contended that their appeal could be heard only by a Bench of three Judges as provided by Section 11 (1) of Act No. 4 of 1099. It was held that the contention was untenable. In the first place, the High Court of Travancore was itself abolished, and a new High Court came into being. Secondly, an appeal lay to a High Court, and whether it is to beheard 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.

11. In Mohd. P. Meera v. Thirumalaya, AIR 1966 SC 430 facts were these. A suit was instituted in February, 1950 in a District Court. The suit was decreed in July, 1958. A number of appeals were filed against that decision. At the time the suit was instituted the Travancore Cochin High. Court Act (No. 5 of 1125) was in force. Under Section 20 of that Act read with Section 21 all appeals to the High Court valued at an amount exceeding Rs. 1,000 had to be heard by a Division Bench consisting of two Judges of the High Court. The suit was valued at Rs. 3,000. So, according to the law as it stood on the date of institution of the suit, the appeals ought to have been heard by a Division Bench of two Judges. That Act was repealed by Kerala High Court Act, 1958. The appeals to the High Court were placed for hearing before a single Judge, It was held that the appeals were properly disposed of by a single Judge. Once it is held that no party has a vested right to have his appeal heard by more than one Judge of the Court, no right to prefer an appeal under Article 133 can be said to vest in him, merely because under the Travancore Cochin Act the appeal could be heard by a Division Bench.

12. Somewhat similar considerations arise with reference to a suit of valuation of Rs. 20,000 instituted in Uttar Pradesh before 2-12-1968. Article 133 does not confer an absolute right of filing an appeal to the Supreme Court. Firstly, even if the valuation of the suit is Rupees 20,000, the condition laid down in the latter part of Clause (1) of Article 133 has to be satisfied. Secondly, if the decision is by one Judge of a High Court, Clause (3) of Article 133 precludes the High Court from granting any certificate.

13. The appellants' contention based on Article 133 has to be rejected for two reasons. Firstly, the difficulty mentioned by the appellants' counsel will arise only in a small class of cases where valuation of the suit is exactly Rs. 20,000. If the valuation of the suit is below Rs. 20,000, the case will not be covered by Article 133(1)(a) of the Constitution. If the valuation exceeds Rs. 20,000, Section 3 of Act No. 35 of 1968 will have no effect. Secondly, even in a suit of valuation of Rs. 20,000 there is no clear conflict with Article 133 of the Constitution. A party applying for a certificate can obtain a certificate only within the limits prescribed by Article 133 of the Constitution.

14. It was faintly suggested that the President's Act is discriminatory. It was urged that in certain States the limit ofappellate jurisdiction of District Courts is Rs. 5,000 or Rs. 10,000, whereas the limit in Uttar Pradesh is now Rs. 20,000. Now, Act No. 35 of 1968 is applicable to Uttar Pradesh only. The President has exercised powers, which would ordinarily be exercised by the Legislature of Uttar Pradesh. It is open to a State Legislature to adopt special machinery for special needs of the State. There is no force in the contention based on Article 14 of the Constitution. The President's Act is constitutional.

15. The next question for consideration is whether the President's Act is applicable to the present appeals. It has been pointed out for the appellants that in both the cases the suits were instituted before the President's Act came into force. It was contended that parties had a vested right of filing appeals to the High Court under Section 21 of the Civil Courts Act; and this right has remained intact in spite of the passing of the President's Act.

16. In Garikapati Veeraya v. Subbiah Chowdhary, AIR 1957 SC 540 it was held that the right of appeal is not a mere matter of procedure, but is a substantive right. The institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. The right of appeal is a vested right, and such a right to enter the superior Court accrues to the litigant and exists as on and from the date of lis commences, and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the 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. 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.

17. In Sree Bank Ltd. v. S. D. Roy & Co., AIR 1966 SC 1953 their Lordships of the Supreme Court quoted with approval on pase 1955 the following passage from an English decision:

'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.'

18. The learned Chief Standing Counsel did not seriously dispute the position that the appellants had a vested right of appeal, when the two suits were filed.The question remains whether that vested right has been taken away by the President's Act.

19. In Lakshmi Narain v. First Addl. Dist. Judge, Allahabad, AIR 1964 SC 489 the Supreme Court had to decide whether certain appeals pending before Allahabed High Court could be transferred to the District Court. It was held that in the face of Section 3 (1) of the U.P. Civil Laws (Reforms and Amendment) Act (U.P. Act No. 24 of 1954), it is impossible to hold that the District Courts were competent to hear appeals of the valuation of Rs. 10,000 or less in suits decided before the Act came into force, and appeals from which were pending before the High Court.

20. Lakshmi Narain's case, AIR 1964 SC 489 was decided by the Supreme Court with reference to U.P. Act No. 24 of 1954. That Act contained a saving clause. The saving clause ran thus:--

'...............any proceeding instituted orcommenced 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.'

There is no corresponding saving clause in the President's Act. Lakshmi Narain's case, AIR 1964 SC 489 is, therefore, of little assistance for interpretation of Section 3 of the President's Act.

21. In Pratap Narain Agarwal v. Ragho Prasad, 1969 All LJ 244 = (AIR 1970 All 15) it was held by a Full Bench of this Court that where an execution proceeding is commenced after the enforcement of the U.P. Civil Laws (Reforms and Amendment) Act, 1954, for executing a decree passed after the commencement of the said Act in a suit instituted in 1934 and valued at less than Rs. 10,000 but more than Rs. 5,000, an appeal from an order passed in such an execution proceeding lies in the Court of the District Judge and not in the High Court.

22. Reasons for the enactment (Act No. 35 of 1968) were published in the Gazette of India Extraordinary dated 2-12-1968. Clause 2 of the reasons ran thus:

'It is further proposed to amend the Bengal, Agra and Assam Civil Courts Act, 1887, for increasing the pecuniary appellate jurisdiction of the District Judges from Rs. 10,000 to Rs. 20,000 with a view to reducing arrears in the High Court. The fall in the value of the rupee since 1887 (when the limit of Rs. 5,000 was fixed) also justifies further increase in the appellate jurisdiction of District Judges.'

23. We have seen that by Section 3 of the President's Act limit of jurisdiction of District Judges has been raised to Rupees 20,000. Clause (a) of Sub-section (1) of Section 21 of Civil Courts Act (as now amended) reads thus:--

'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, whether instituted or commenced before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1968, did not exceed twenty thousand rupees............'

It is common ground that the words 'whether instituted or commenced before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1968', refer to the original suit. The words 'before or after' indicate that the Legislature was anxious that the amendment should be effective even in a case where the suit was instituted before the President's Act came into force.

24. Again, Sub-section (1-A) of Section 21, Civil Courts Act (inserted by the President's Act) empowers the High Court to transfer to a District Judge an appeal filed in the High Court before the commencement of the President's Act where the valuation of the suit exceeded Rs. 10,000. It would be anomalous if appeals filed in the High Court several years before the commencement of the President's Act can be transferred to District Judges, but District Judges are held incompetent to deal with similar appeals filed after the commencement of the President's Act.

25. It is true that litigants have got vested right of appeal the moment a suit is instituted. But it is open to the appropriate Legislature to take away such vested right. On examining the language of Clause (a) of Sub-section (1) of Section 21, Civil Courts Act and Sub-section (1-A) of Section 21, Civil Courts Act (as inserted by the President's Act), it becomes clear that the Legislature was anxious to give retrospective effect to amended Section 21 of the Civil Courts Act. In other words, the amendment will be effective even as regards a suit instituted before 2-12-1968.

26. Mr. A. Banerji pointed out that the period of limitation for filing an appeal to the District Court is shorter than the period of limitation for filing an appeal to the High Court. Under Article 116 of the Limitation Act, 1963, the period of limitation for filing an appeal to the District Court is only 30 days as against the period of limitation of 90 days for filing an appeal to a High Court In some cases a difficulty might have arisen where a party was expecting to file an appeal to the High Court, but was unable to file any appeal within time as a result of the passing of the President's Act. But no such difficulty arises in the instant case. In execution first appeal No. 32 of 1968 the impugned order was passed on 16-11-1968. The President's Act came into force on 2-12-1968. There was nothing to prevent the appellants from lodging an appeal before the District Court at any time between 2-12-1968 and 16-12-1968. In executionfirst appeal No. 51 of 1969 the impugned order was passed on 3-1-1969--after the commencement of the President's Act. It will be seen that in neither case was the appellant likely to be prejudiced by the mere fact that the period of limitation for filing an appeal has been reduced as a result of the passing of the President's Act.

27. The President's Act (No. 35 of 1968) is constitutional and valid. It will have retrospective effect as regards appeals arising out of suits instituted before 2-12-1968. These appeals, therefore, lie to the District Court, and not to the High Court. In my opinion, in each of the two cases the memorandum of appeal should be returned to the appellant for presentation to proper Court.

Satish Chandra, J.

28. I entirely agree with my Lord the Chief Justice.

A.K. Kirty, J.

29. I agree and have nothing to add.


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