1. This is a Miscellaneous (First) Appeal against an order passed by the Civil Judge (Class I), Chhindwara, in Civil Suit No. 2-B of 1952, decided on 9-7-1956.
2. The suit was filed on 14-2-1952 to recover a sum of Rs. 7,000/- alleged to be due on a promissory note dated 15-2-1949 executed by the defendant. After issues were framed and some witnesses examined on commission, the parties on 6-7-1955 requested the Court to refer the dispute to arbitration. The arbitrators submitted their award which was objected to by the defendant. The objections were overruled and on 9-7-1956 a decree in terms of the award was drawn up. The present appeal was filed by the defendant in this Court under Section 39 (vi) of the Arbitration Act on 24-7-1956 and he also asked for a stay of the decree.
3. In answer to a notice issued in the stay matter the plaintifis appeared and contended that the appeal was not tenable, an objection which the office had also raised and which it wasconvenient to hear in the presence of the rival parties. The objection is that though under the Central Provinces and Berar Courts Act, 1917 (Act No. I of 1917) an appeal from the order or decree of a Civil Judge, Class I, lay to the High Court, by virtue of the Madhya Pradesh Courts (Amendment) Act, 1956 (Act No. II of 1956) the (present appeal ought to have been filed before the District Court.
4. The amending Act came into force on 1-7-1956 and it abolished the distinction between Civil Judges of the first and second classes with the result that after the appointed date there is now but one class of Civil Judges. Their jurisdiction now extends to Rs. 10,000/-. Alongside this change the amending Act made alterations in the right of appeal as well.
Whereas before the amending Act Section 20 provided for an appeal to the District Court in cases upto and including Rs. 5,000/- triable by civil Judges, Class II, and an appeal to the High Court in cases up to and including Rs. 10,0007- triable by Civil Judges, Class I, there is now only an appeal to the District Court in all cases up to and including Rs. 10,000/- triable by Civil Judges. A comparison of the old and new Section 20 of Act I of 1917 discloses this change:
'(a) an appeal from the decree or order of the Court of a Civil Judge (Class II) shall lie to the District Court;
(b) an appeal from the decree or order of the Court of a Civil Judge (Class I) shall He -
(i) Where the value of the suit or original proceeding in such Court does not exceed five thousand rupees, to the District Court; and
(ii) where the value of such suit or original proceeding exceeds five thousand rupees, to the High Court.'
'(a) an appeal from the decree or order of the Court of a Civil Judge shall lie to the District Court;
(b) an appeal from the decree or order of an additional Judge of the District Court shall lie -
(i) where the value of the suit or original proceeding in such Court does not exceed ten thousand rupees, to the District Court; and
(ii) where the value of such suit or original proceeding exceeds ten thousand rupees, to the High Court;'
5. It, therefore, appears that the right of appeal to the High Court in cases between Rs. 5,001/- and Rs. 10,000/- marks (like the present case) is taken away and a right of appeal tothe District Court substituted. The amending Act also enacts a 'transitory' provision which reads:
'Notwithstanding the amendments made by Section 7 of this Act, an appeal from a decree or order passed prior to the commencement of this Act shall lie to the Court to which it would have lain if the amendmentes made by that section had not been made.'
6. The contention of the respondents is that this appeal should have been filed before the District Court under the amended Section 20 because the order was passed on 9-7-1956 and the provisions of Section 9 of the amending Act did not save it. They contend that in all cases in which the order or decree was passed after 1-7-1956, the right of appeal conferred by the old section has been taken away, (a) expressly under the amended section or (b) by necessary implication under Section 9 of the amending Act read with the amendment.
7. We do not agree. A right of appeal is. a substantive right and not a mere matter of procedure and can only be taken away by an express provision or 'by necessary intendment: see Radhakishan v. Shridhar ILR (1950) Nag 532 : (AIR 1950 Nag 177) (FB) (A) and Garikapati v. Subbiah Choudhry, (S) AIR 1957 SC 540 (B).
8. It is axiomatic that statutes are to he regarded as prospective and more so if they take away substantive rights and in pending cases, something more is needed if substantive rights are to be taken away or pending cases affected (except in procedure) than the mere change in the law.
9. In the present amending Act Section 7 has not been made retrospective either expressly or by necessary intendment, nor can the pending cases be said to be necessarily affected. It is thus plain that Section 7 of the amending Act does not proprio vigore have any effect on appeals arising from cases pending on 1-7-1956: (see cases already cited).
10. The enactment of Section 9 is said to raise the necessary implication. It did no more than lay down that was already and more widely the law and the opening words of that section-
'Notwithstanding the amendments made by Section 7 of this Act'
are not erroneous but also misleading. No doubt, a provision is made in respect of cases decided before 1-7-1956 and they are taken out of the operation of Section 7 of the amending Act, but they were never included in it. It is argued that at least there is a necessary intendment because cases decided before 1-7-1956 are mentioned and not cases decided after that date and the latter must be deemed to be included.
11. The learned counsel for the respondents in effect relies upon the maxim 'expressio unius est exclusio alterius'. This maxim does not apply where the legislature wrongly assumes the law to be something which it is not or enacts a superfluous law either erroneously or even out of abundant caution. The following passage from Maxwell on Interpretation of Statutes, Tenth Edition, page 316, expresses our meaning very succinctly :
'Provisions sometimes found in statutes, enacting imperfectly or for particular cases only that which was already and more widely the law, have occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting on the maxim expressio unius, exclusio alterius. But that maxim is inapplicable in such cases. The only inference which a court can draw from such superfluous provisions (which generally find a place in Acts to meet unfounded objections and idle doubts), is that the legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution.If the law be different from what the legislature supposed it to be, the implication arising from the statute, it has been said, cannot operate as a negation of its existence, and any legislation founded on such a mistake has not the effect of making that law which the legislature erroneously assumed to be so.'
12. We are satisfied that the recital contained in the first ten words of Section 9 of the amending Act is wrong and misleading. We can declare it so (see Maxwell ibid p. 318) and do so. Section 7 of the amending Act did not proprio vigore effect pending cases and the provisions to save certain cases from the effect of that section enacted in Section 9 of the amending Act was not necessary and superfluous. No inference on the basis of such an enactment read with the maxim can arise in respect of cases not expressly mentioned ! and there is thus no necessary intendment.
13. It was argued that the right of appeal is not taken away but one court substituted for another to hear the appeal. The right of appeal to the District Court cannot be taken to be a good or adequate and still less equal substitute for the right of appeal to the High Court. In the former case the final finding of fact is by the District Court and in the latter by the High Court. It is not the same right of appeal nor even of the same adequacy.
14. In our opinion appeals in pending cases will be as provided in the old section, irrespective of the fact whether the order or decree was passed before or after 1-7-1956. The appeal is, thus tenable. The objection is overruled. The case will not be heard on the stay application. Let counsel be informed.