Satish Chandra, J.
1. This is a plaintiff's special appeal. It arises out of a suit for ejectment under Section 209, U.P. Zamindari Abolition Act.
2. The plaintiffs case is that her husband was suffering from cancer. He Invited his relations Madho and Sukhdeo, [respondents, to come and help him in cultivation of his land. After the plaintiffs husband died, these respondents continued to cultivate and manage the land on behalf of the plaintiff. Later, they turned dishonest and with a view to deprive the plaintiff of her property, they instituted a suit (No. 71 of 1956) for an injunction against the plaintiff, in the Civil Court The suit was carried to the High Court in appeal. The High Court on 1-8-1961 dismissed the suit, on the finding that the respondents were merely managers and were fin possession as licensees on behalf of the plaintiff. They had no right or title to the land in dispute.
3. During the pendency of this suit, the plaintiff instituted the present suit on 10th October, 1957, for the ejectment of the respondents under Section 209 of the Zamindari Abolition Act. The respondents contested the suit. In view of the pleadings of the parties, the trial court framed issues on 30th November, 1957. One of the issues was whether the suit was liable to be stayed under Section 10. Civil P.C. The trial Court decided this issue in favour of the defendants and stayed She hearing of the suit till the disposal of the earlier suit for an injunction.
4. After the dismissal of the suit for injunction on 1-8-1961, the hearing of the present suit commenced. While the suit was pending in the trial Court, the U.P. Land Laws (Amendment) Act No. 21 of 1962 came into force on 13th December, 1962, Section 9 of this Amending Act introduced the following Sub-section (2) to Section 209:--
'(2) To every suit relating to a land referred to in Clause (a) of Sub-section (1) the State Government shall be impleaded as necessary party.' In view of this provision, the defendants on April 3, 1963, with the leave of the Court, amended their written statement. They pleaded that the suit was bad for failure to implead the State of U.P and Gaon Sabha as parties. On the basis of this plea, the trial Court framed an additional issue No. 7: 'Whether the suit was defective on account of nonjoinder of the U.P. State and Gaon Sabha as parties,'
5. The plaintiff, however, did not apply for impleading the State of U.P. or Gaon Sabha as parties.
6. The trial Court held that the defendants' plea on the merits of thecase was barred by res judicata. In view of the decision in the previous injunction suit, the defendants had no case on the merits. On issue No. 7, it was held that the amendment requiring that the State Government shall be impleaded as a party to such a suit was mandatory and retrospective. It applied to pending suits. The plaintiff did not implead the State Government in spite of a specific plea and issue on the point. The suit was hence not maintainable and was dismissed. This view was upheld in appeal as well as in second appeal by the Board of Revenue. Aggrieved, the plaintiff instituted a writ petition in this Court. A learned Single Judge held that the amendment related to procedure. It was retrospective and applied to pending suits. The plaintiff not having impleaded the State Government the suit was liable to be dismissed for failure to implead a necessary party. On this view, the writ petition was dismissed. Aggrieved, the plaintiff has come up in appeal.
7. The question that requires consideration relates to the nature and right of a person to sue and the impact upon such right of the amendment made to Section 209 by requiring that the State Government is a necessary party to such a suit. In Garikapati Veeraya v. S. Choudhry, (AIR 1957 SC 5401, the Supreme Court laid down the following principles:--
1. 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.
2. The right of appeal is not a mere matter of procedure but is a substantive right.
3. 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.
4. 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 lie commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
5. This vested right of appeal can be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
In that case, on the date of the institution of the suit, the law provided a rightof appeal to the Federal Court if the valuation of the suit was above Rs. 10,000/-. By the time an appeal came to be filed in the Supreme Court (which had by then replaced the Federal Court), the valuation for purposes of appeal was raised to Rs. 20,000/-. There was nothing in the law making this change in valuation either expressly or by necessary intendment, retrospective. The Supreme Court held that the raising of the valuation impaired the right of appeal or placed a more stringent condition upon it The true principle is; where a right of appeal is impaired or imperilled or more onerous or stringent condition is put upon the right of appeal, the impairment, peril, or the imposition of stringent condition is not retrospective unless the Legislature says so expressly or by necessary intendment.
8. The Supreme Court decision in Hossain Kasam Dada Ltd. v. State of Madhya Pradesh : 1983(13)ELT1277(SC) is material. In that case, assessment proceedings commenced in 1947. 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 had been paid. The Act was amended on 25th November, 1949, and Section 22 (1), as amended, provided that no appeal should be admitted unless such appeal was accompanied by satisfactory proof of payment of tax in respect of which the appeal had been preferred. In that case, the appeal was filed after the amendment. The Supreme Court held that the appellant had a vested right of appeal when the proceedings were initiated and his right was governed by the law as it stood then. It was further held that the amendment of 1950 could not be as a mere alteration in procedure or an alteration regulating the exercise of the right of appeal; 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.
9. This decision was re-affirmed by the Supreme Court in State of Bombay v. Supreme General Films Exchange Ltd. : 3SCR640 . It was observed that this decision proceeded on the principle that impairment of the right of appeal by imposition of an onerous condition is not a matter of procedure. In this case, the Supreme Court approved the Privy Council decision in Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commr. . In that case, the judgment-debtor made an application under Order 21, Rule 90 of the Code of Civil Procedure, for the setting aside of the sale. On its dismissal, he appealed. Before the institution of the appeal, Section 174 (c) Bengal Tenancy Act was amended. It required deposit of a specific amount as a condition for the entertainment of theappeal. The Privy Council held that by requiring such deposit as a condition precedent to the admission of the appeal, a new restriction had been put on the right of appeal, the admission of which is now hedged in with a condition. There could be no doubt that the right of appeal had been affected by the new provision and in the absence of an express enactment this amendment cannot apply to proceedings pending at the date when the new amendment came into force.
10. In the aforesaid Supreme Court decision, the question was whether an amendment of the Court-fees Act enhancing the court-fee payable on a memorandum of appeal would apply to an appeal filed against a decision of a suit which was instituted prior to the coming into force of the amendment. The Supreme Court held that the court-fee was payable according to the provision in force at the time when the suit was filed. It was held :
'It is thus clear that in a long line of decisions approved by this Court and at least in one given by this Court, it has been held that an 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 dots so is not retrospective unless it says so expressly or by necessary intendment.'
11. These decisions lay down that a right of appeal is substantive. Any law which impairs or imperils this right of puts more onerous and stringent condition is not referable to a matter of procedure and is not retrospective unless the Legislature says so either expressly or by necessary intendment. The raising of the valuation for an appeal or imposition of a condition that an appeal shall not be entertained unless the impugned amount of tax was paid or laying down of a rule that an appeal will not be entertainable unless a specific amount was deposited were all laws which made onerous or stringent conditions upon the right of appeal. Since their effect was to impair and imperil a right of appeal they did not relate to procedure for regulating the exercise of the right of appeal : they whittled down the right of appeal and could not be presumed to be retrospective.
12. In Garikapati's case mentioned above it was held 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. The right of appeal was a substantive right and was not a mere matter of procedure. If suit, appeal and second appeal are steps of one legal proceeding then the right to each of them will be the same in nature and character. The right of appeal was held to be substantive; ex hypothesi, the right to sue would equally be a substantive right and not a matter of procedure.
13. This view a supported by the Full Bench decision in Ram Baksh v. The Board of Revenue, (1967 RD 413 (All) (FB)) In that case it was held that the amendment to Section 209 did not affect pending appeals. Bishambhar Dayal, J. observed that 'it has been contended that this is merely a procedural amendment and therefore must be applied retrospectively and the suit, still not having been finally decided, the amendment has to be applied to the case.' Repelling this submission his Lordship observed :
'In the first place, I am not satisfied that this is merely a procedural amendment. A right to litigate the matter in a Court of law is a vested right: G. C. Ghose v. Abdul Majid : AIR1944Cal163 . The matter of procedure only regulates the exercise of that right. Making another person a party to the suit is forcing that party, to become a litigant and forcing the plaintiff to fight against that party. Such an amendment, to my mind, is not merely a procedural amendment.'
In the same case Beg, J. while agreeing with the opinion of Bishambhar Dayal, J. observed :
'The amendment does not, in my Opinion, constitute a declaration of the preexisting position under the law, making the State Government a necessary party in all suits for ejectment of persons occupying land contrary to law. The amendment was not designed to protect the rights of the plaintiffs or the defendants who may be necessary parties to suits under Section 209 of the Act according to basic principles of the law of pleadings. Their rights and interests were already well protected under the law as it stood before the amendment. The amendment does not also amplify powers of the Court to do justice between the contending parties by adding to the armoury of reliefs obtainable under law ............... Theresult of the amendment is that what was a properly instituted suit would become defective unless the State Government is impleaded.'
His Lordship went on to hold:
'The amendment only adds a condition or fetter upon the rights of the plaintiff to obtain decrees. We are entitled, I think, in the light of the observations already made above to interpret such, a fetter strictly and restrictively ...............'
14. In this case it was held that the right to sue is a vested right and that requiring the impleadment of the State Government was placing a fetter upon that right. The amendment clearly impairs the right to sue. In the present case, the plaintiff had claimed a right to possession without adjudication of her title on the ground that the title had already been finally decided in a previous suit and that the defence was barred by res judicata. With the introduction of the State Government as a necessary party the plaintiff's right to relief without fresh adjudicationof the title on the merits was likely to be defeated. Further, the impleadment of the State Government as a party would mean that the plaintiff will have to incur additional cost of a full-fledged trial on the merits of the suit. These are clearly placing more onerous conditions upon the plaintiff's right to sue as it existed when the present suit was instituted on 10th October, 1957. In this view, under the law laid down by the Supreme Court in the cases referred to earlier, the placing of such a fetter upon the right to sue would not be a matter of procedure. Such a fetter or an onerous condition can operate retrospectively only if the enactment says so expressly or by necessary intendment. The amending Act introducing Sub-section (2) to Section 209 is ominously silent upon this point. It does not make the amendment restrospective either expressly or by necessary intendment.
15. There is no denying that the defence was barred by the rule of res-judicata because the title between the parties had already been finally decided in the previous suit for an injunction. The suit for possession was liable to be decreed.
16. The plaintiff had also claimed a relief for damages. The trial Court refused it on the ground that the claim was not established. The plea does not appear to have been pressed in the appellate Courts.
17. In the result, the appeal succeeds and is allowed. The judgment of the learned Single Judge is set aside. The decree is set aside. The suit is decreed for ejectment of the defendants and for possession. The suit in so far as it claimed damages is dismissed. The plaintiff-appellant would be entitled to half her costs in all the courts.