Skip to content


Laxminarayan Vs. Shivlal Gujar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 461/2000
Judge
Reported inAIR2003MP49; [2004(1)JCR203(MP)]; 2002(4)MPHT463
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100A; Code of Civil Procedure (CPC) (Amendment) Act, 2002 - Sections 16 and 16(2); General Clauses Act, 1897 - Sections 6
AppellantLaxminarayan
RespondentShivlal Gujar and ors.
Appellant AdvocateRavish Agrawal, Sr. Adv., Amicus Curiae;N.S. Kale, Sr. Adv. and ;Harvindar Singh, Adv.
Respondent AdvocateDivesh Jain, Adv. for the Respondent No. 1 and ;S.K. Yadav, Adv. for the Respondent No. 7
Cases ReferredL.Rs. and Ors. v. Padmini Chandrashekharan (dead
Excerpt:
civil - pending appeals - maintainability - section 100a of code of civil procedure , 1908(cpc) - this was reference petition on question of maintainability of pending letter patent appeals after substitution of section 100a in cpc in year 2002 - question of reference was whether by substitution of section 100a in cpc legislature has completely taken away rights of litigant to maintain letters patent appeal in invocation of clause 10 of letters patent against the judgment and decree or order passed by single judge from original appellate decree or order ? - held, purpose of substitution of section 100a in cpc was to curtail second appeals in third court - legislature constructed right to appeal to singular one - but in substituted section 100a there was no reference of pending appeals -.....dipak misra, j.1. the term 'law' is applied and taken recourse to herald the incandescent attributes of civilisation with stupendous felicity and the advancement of society is conditioned by the appropriate legal evolution. sometimes the law is conceived as 'jus naturale', at times as 'jus civile' and some other times it is equated with 'jus honorarium'. but the term 'jus' is always important. 'jus' should never succumb to 'joss'. that is why it has been said that the law is not the study of words alone but a penetration into the study of nature within and nature without which are projected through words that have the moving power of life. for that simon pure reason william shakespeare spoke : 'the law hath not been dead, though it hath slept'. we have embarked upon the subject with the.....
Judgment:

Dipak Misra, J.

1. The term 'Law' is applied and taken recourse to herald the incandescent attributes of civilisation with stupendous felicity and the advancement of society is conditioned by the appropriate legal evolution. Sometimes the law is conceived as 'jus naturale', at times as 'jus civile' and some other times it is equated with 'jus honorarium'. But the term 'jus' is always important. 'Jus' should never succumb to 'Joss'. That is why it has been said that the law is not the study of words alone but a penetration into the study of nature within and nature without which are projected through words that have the moving power of life. For that Simon pure reason William Shakespeare spoke : 'The Law hath not been dead, though it hath slept'. We have embarked upon the subject with the aforesaid prefatory note as our essay and venture is to find out whether by substitution of Section 100A of the code of Civil Procedure, 1908 (in short 'the Code') the Legislature by taking recourse to dexterous method has completely obfuscated the rights of a litigant to maintain a Letters Patent Appeal in invocation of Clause 10 of the Letters Patent against the judgment and decree or order passed by a learned Single Judge from an original appellate decree or order or still there is some arena which is saved, being unaffected. In this setting, we are obliged to cogitate to find out the legitimate and purposive acceptation of the provision in question.

2. Before we enter into the spectrum of rumination we think it seemly to exposit briefly the factual context in regard to travelling of the matter to a Larger Bench. In L.P.A. No. 461/2000 defensibility of the judgment and decree dated 19-6-2000 passed by a learned Single Judge in the First Appeal No. 50/96 affirming the judgment and decree dated 8-1-1996 passed by the learned First Additional District Judge, Hoshangabad was called in question. When the said appeal was listed for hearing, Mr. Divesh Jain, learned Counsel appearing for the respondent No. 1 placing reliance on the amended provision, i,e,, Section 100A of the Code that has been brought on the statute book by the Code of Civil Procedure (Amendment) Act, 2002 (in short 'the Amending Act') and the decision rendered by a Division Bench in L.P.A. No. 31/91 (Sachish Chandra Jain and Anr. v. Shri Bhagwan and Ors.) since reported in 2002(11) MPJR 138 = 2002 (3) MPLJ 504, raised a preliminary objection that the appeal was not maintainable and deserved to be dismissed on that score. The Division Bench hearing the matter thought it apposite that the decision rendered in the case of Sachish Chandra Jain (supra) required consideration by a Larger Bench. It is appropriate to state here that in the case of Sachish Chandra Jain (supra) the Division Bench had dismissed the L.P.A. pending for more than a decade before this Court as not maintainable. In this factual backdrop the matter has been referred to the Larger Bench and is before us.

3. The cardinal issue that arises for studied deliberation is whetherby introduction of Section 100A of the Code which has come into effect on 1-7-2002 atrophies the pending appeals preferred under Clause 10 of the Letters Patent and also effaces the right of filing such appeals after the said cut-off date or the amendment does not guillotine the pending appeals prior to coming of the aforesaid provision but does decimate and nullify the right of such preferring of appeal after the said provision brought on the statute book.

4. Mr. N.S. Kale, learned Senior Counsel being assisted by Mr. G. Mukhopadhyay for the appellant assiduously contended that the decision rendered in the case of Sachish Chandra Jain (supra) does not correctly lay down the law inasmuch as it has held that an appeal preferred under Clause 10 of the Letters Patent Appeal being in intra-Court appeal, is not an appeal as is ordinarily understood and, therefore, is not a vested right though an appeal preferred in aid of the Letters Patent is maintainable and has all the characteristics and symptomatic attributes of an appeal. It is further urged by him that if the basic premise is not accorded affirmation, the tenet that an appeal is a vested right and can only be abolished or curtailed by express provision employed by the competent Legislature or by necessary intendment, which is not perceptible if the language employed under Section 100A of the Code is purposively X-rayed would get attracted. Pyramiding his submission it is proponed by Mr. Kale that the conclusion arrived at in the case of Sachish Chandra Jain (supra) that contrary intention is manifest inasmuch as there is no saving in respect of the Letters Patent Appeal as per Section 16 of the Amending Act is erroneous inasmuch as the said analysis suffers from an inherent and intensive fallacy. To substantiate the aforesaid submissions the learned Senior Counsel has placed heavy reliance on the decision rendered in the case of Garikapati v. Subbiah Choudhry, AIR 1957 SC 540.

5. Mr. Divesh Jain, learned Counsel who has appeared for the respondent No. 1 and raised the preliminary objection propounded that the decision rendered in the case of Sachish Chandra Jain (supra) is unquestionably correct as the Bench has arrived at the said conclusion placing reliance on the decision rendered in the case of Baddula Lakshmaiah and Ors. v. Sri Anjaneya Swami Temple and Ors., 1996 MPLJ 1074, and accentuating the concept on the ratio laid down by the Apex Court in the case of Kolhapur Canesugar Works Ltd. and Anr. v. Union of India and Ors., (2002) 2 SCC 536.

6. At this juncture, it is apropos to mention that as the matter was of considerable significance and the rights of a litigant are likely to be enfeebled and clogged, we sought the assistance of Mr. Ravish Agrawal, learned Senior Counsel, who readily agreed to act as the friend of the Court. It is canvassed by Mr. Agrawal that the Letters Patent Appeal is not different from other appeals and that the said question has been put to rest by the Apex Court in the case of Garikapati (supra), wherein the decisions rendered in the cases ofSardar Ali v. Dolliuddin, AIR 1928 Calcutta 640 and Vasudeva Samiar In re., AIR 1929 Madras 381 (Special Bench), were approved. The learned Senior Counsel has submitted that the scope of Letters Patent Appeal is in a broad sphere and to divest it from the basic feature of appeal would tantamount to amputating the conceptual eventuality of appeal. It is his further submission that the Letters Patent Appeal cannot be kept in a cocoon from other appeals and a conclusion can be arrived at that it is not an appeal as understood by the term 'appeal'. Mr. Agrawal has contended that the amendment brought on the statute book does not take away the vested right of appeal as the provision is not expressly so worded and there is no clear intention that can be so gathered from any other provision. It is argued by him that the decision in the case of Kolhapur Canesugar Works Ltd. (supra) was rendered on a different context altogether where the Apex Court was not dealing with any kind of vested right and, therefore, the said decision has no applicability to the case at hand and should be distinguished. The learned Senior Counsel has submitted that Section 16 of the Amending Act which deals with repeal and savings uses the words without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 and, therefore, all that could be done under the aforesaid provision should be treated to be done and by no stretch of imagination it can be said that by necessary implication the applicability of the aforesaid statute has been ostracized. Mr. Agrawal has commended us to various facets of the decision rendered in the case of Garikapati (supra) and the decisions rendered in the cases of Shri Shiv Kripal Singh v. Shri V. V. Giri, (1970) 2 SCC 567 and Babulal and Ors. v. Ramesh Babu Gupta and Ors., 1990 MPLJ 482. The learned Counsel has also placed reliance on the decision rendered in the case of Shesh Kumar Pradhan v. Kesheo Narayan Aghariya and Ors., 1980 MPLJ 335.

7. Before we proceed to cogitate with regard to the quintessence of the concept of Letters Patent Appeal, we think it requisite to refer to the decision rendered in the case of P.V. Hemlatha v. Kaltamkamandi Puthiya Maliackal Sacheeda and Anr., (2002) 5 SCC 548, wherein their Lordships dealt with the derivation of Letters Patent Appeal. We may profitably reproduce the same :

'Letters Patent is a word of definite legal meaning. It is derived from the latin words literae patents. The Letters Patent are so called because,--

'they are open letters; they are not sealed up, but exposed to view, with the great seal pendant at the bottom; and arc usually directed or addressed by the king to all his subjects at large. And therein they differ from certain other letters of the king, sealed also with the great seal, but directed to particular persons, and for particular purposes; which therefore, not being proper for public inspection,are closed up and sealed on the outside, and are thereupon called writs close, literae clausae, and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls.'

(See Blackstone's Commentaries on the Laws of England, Vol. II pp 284.85).

37. Different Letters Patents have been handed down by the Sovereign in British India to Chartered High Courts which included only judicature for Bengal, Madras, Bombay, North-West Provinces (Allahabad) and others like Patna (1916), Lahore (1919), Rangoon (1922). The history of these Courts is that the sovereign established them as Superior Courts in British India under the Indian High Courts Act of 1861 and powers and jurisdiction of Courts including Judges of these Courts were laid down in the Letters Patent. [See The Law and Custom of the Constitution by Sir William R. Anson, Vol. II (The Crown; Part II), pp. 317-18 under the heading 'Irish, Indian and Overseas Courts].'

8. Presently we shall advert to the spectrum whether an appeal preferred under Clause 10 of the Letters Patent is in substantive sense of the term or is in a different orbit not to attract the conscientious embrace of vested right or is it opposite to christen it as Intra-Court appeal making it vapid and put it to rest in the mausoleum. In this context, the law laid down in the case of Garikapati (supra) is instructive to note. In Paragraph 15 of the said decision the Apex Court took note of the decision of the Special Bench of the Calcutta High Court rendered in the case of Sardar Ali (supra) wherein a contention was canvassed when the suit was filed, the appellant therein had vested in him by the then existing law i.e., Clause 15 of the Letters Patent as it then stood, a substantive right of appeal from the decision of the Single Judge and that an intention to interfere with it, to clog it with a new condition, or to impair or imperil it, could not be presumed, unless it was so done by express words or necessary intendment. In the said decision the Apex Court also referred to the decision rendered in the case of Vasudeva Samiar (supra). The said decision was also concerned with the effect of the amended Clause 15 of the Letters Patent on a pre-existing right of appeal. The Apex Court in the said decision referred to the decision rendered in the case of Colonial Sugar Refinery Co. Ltd. v. Trying, (1905) AC 369 and also referred to the law laid down in the case of Radhakishan Laxminarain v. Sridhar, AIR 1950 Nagpur 177. It is apposite to mention here if the Paragraphs 15 to 22 of Garikapati (supra) arc analytically studied they do clearly convey that the right of appeal is a substantive right a Letters Patent Appeal is a vested right. This is so deducible as the Constitution Bench after placing reliance on the decisions rendered in the cases of Sardar Alt (supra), Vasudeva Samiar (supra) and Colonial Sugar Refining Co. Ltd. (supra) in Paragraph 23 culled out the principles which makeit graphically clear that the law laid down in the cases of Sardar Ali (supra) and Vasudeva Samiar (supra) were approved. Thus, there is no scintilla of doubt that Letters Patent Appeal provided under Clause 10 of the Letters Patent encapsules the right of appeal which is a substantive right. Its signification cannot be marginalised by treating it as an Intra- Court appeal.

9. In this background it is necessary to rivert our mind to the decision rendered in the case of Baddula Lakshmaiah and others (supra), wherein the Apex Court held as under :--

'2. Mr. Ram Kumar, learned Counsel for the appellants, inter alia contends that the Letters Patent Bench of the High Court could not have upset a finding of fact recorded by a learned Single Judge on fresh reconciliation of the two documents, arriving at different results than those arrived at earlier by the two Courts aforementioned. Though the argument sounds attractive, it does not bear scrutiny. Against the orders of the Trial Court, first appeal lay before the High Court, both on facts as well as law. It is the internal working of the High Court which splits it into different 'Benches' and yet the Court remains one. A letters patent appeal, as permitted under the Letters Patent, is normally an Intra-Court appeal, whereunder the Letters Patent Bench, sitting as a Court of correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a Subordinate Court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. So understood, the appellate power under the Letters Patent is quite distinct, in contrast to what is ordinarily understood in procedural language. That apart the construction of the aforementioned two documents involved, in the very nature of their import, a mixed question of law and fact, well within the powers of the Letters Patent Bench to decide. The Bench was not powerless in that regard.'

If the aforesaid decision is understood in proper setting and the context, neither does it predicate nor enunciate that a Letters Patent Appeal is not a vested right in a suitor. On the contrary, their Lordships expressed the view that question of law and fact is well within the powers of the Letters Patent Bench to decide.

10. The controversy can be looked from another spectrum. In the case of Lal Ragho Shah v. The State of M.P. (through Secretary, Forest Department, M.P., Bhopal), 1967 MPLJ 237, it was ruled that where the decision is rendered by the Single Judge in a First Appeal no certificate is necessary for filing a Letters Patent Appeal. In the case of Smt. Asha Devi v. Dukhi Sao and Anr., AIR 1974 SC 2048, the Apex Court referred to a five Judge Benchdecision rendered in the case of Alapati Kasi Vishwanatham v. A. Sivarama Krishnayya (Civil Appeal No. 232 of 1961), dated 11-1-1963, wherein Wanchoo, J., speaking for the Court observed as under :--

'The first contention urged before us on behalf of the appellant is that the Letters Patent Bench was not authorised in law to reverse the concurrent findings of fact of the Subordinate Judge and the learned Single Judge of the High Court. It is submitted that a Letters Patent Appeal stands on the same footing as a second appeal and it was therefore not open to the Letters Patent Bench to reverse the concurrent findings of fact of the two Courts below. We are of opinion that this contention is not correct. A Letters Patent Appeal from the judgment of a learned Single Judge in a first appeal to the High Court is not exactly equivalent to a second appeal under Section 100 of the Code of Civil Procedure and, therefore, it cannot be held that a Letters Patent Appeal of this kind can only lie on a question of law and not otherwise. The matter would have been different if the Letters Patent Appeal was from the decision of a learned Single Judge in a second appeal to the High Court. In these circumstances it will be open to the High Court to review even findings of fact in a Letters Patent Appeal from a first appeal heard by a learned Single Judge, though generally speaking the Letters Patent Bench would be slow to disturb concurrent findings of fact of the two Courts below. But there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact. The contention of the appellant therefore that the Letters Patent Bench was not in law entitled to reverse the concurrent findings of fact must be negatived.'

Relying on the said decision the Apex Court expressed the view that an appeal under Letters Patent is entertainable both on facts as well as in law.

11. In the case of Jagatguru Shri Shankaracharya Jyotish Peethadhis-war Shri Swami Swaroopanand Saraswati v. Ramji Tripathi and Ors., AIR 1979 MP 50, a Division Bench expressed the view that a Bench hearing the Letters Patent Appeal has the same power as the Single Judge has as a First Appellate Court in respect of both cases of fact and of law.

12. Yet in another decision rendered in the case of Srichand v. Tejinder Singh and Ors., AIR 1979 MP 76, another Division Bench unquivo-cally held the limitation on the power of the Court imposed under Sections 100 and 101 of the Code cannot be made applicable to an Appellate Court hearing a Letters Patent Appeal. A Division Bench of the High Court of Orissaexpressed the similar view in the case of Smt. Annapuma Devi and Ors. v. Akbar Pate! and Ors., AIR 1974 Orissa 162.

13. In view of the aforesaid premises it is clear as day that when an appeal is filed from a judgment and decree passed in First Appeal by a learned Single Judge there is no restriction and a finding of fact recorded by a learned Single Judge is also subject to assail before the Division Bench. Conditioning the appeal to the narrowness or coarctation that of a second appeal or review is unwarranted. In a Letters Patent Appeal the Court has the power to allow the appeal in entirety. Partially modify the judgment or the^order which is the subject-matter of assail remand the matter or pass such order as may be permissible in law. Thus, the whole cyclorama is open and to give a comatose to the same is impermissible. Thus, a Letters Patent Appeal is, irrefragably, a vested right.

14. Once we accept that Letters Patent Appeal is a substantive right of appeal and is vested in a suitor from the inception of the suit the question that arises for adjudication is what would be the consequence, the impact and the import, the effect are repercussion of the amendments that have been brought on the statute book. Before we proceed to dwell upon that arena we think it seemly to refer to a few decisions how the Apex Court has dealt with the concept of a vested right. In the case of Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Ors., AIR 1953 SC 221, it has been held as under :--

'A right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an Inferior Tribunal to a Superior Tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by, the Inferior Court. Such a vested right cannot be taken away except by express enactment or necessary intendment.'

15. In the case of Garikapati (supra) the Constitution Bench, as has been indicated earlier, culled out the principles in para 23. They read as under :--

'23. From the decisions cited above the following principles 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 thatall 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 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.

(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.'

16. In the case of Lakshmi Narain v. First Additional District Judge, Allahabad, AIR 1964 SC 489, the Apex Court expressed thus :--

'6. 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 :--

'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 arises 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.'

17. From the aforesaid exposition of law it is manifest that right of appeal is a substantive right and a vested right of appeal can be taken away only by a subsequent enactment if it is so provided expressly or by necessary intendment and not otherwise.

18. The hub of the matter is whether the right to prefer a Letters Patent Appeal which is a vested right, has been nullified or finally annihilated by the present amendment. Submission of Mr. Kale, the learned Senior Counsel for the appellant and Mr. Ravish Agrawal, the learned Senior Counsel appearing as amicus curiae is that Section 100A of the Code is decisively and unalloyedly prospective. It is their submission that Section 16 of the Amending Act which relates to repeal and savings need not be adverted to as the relevant provision is unequivocal, categorical, unambiguous and does not admit of any other interpretation. It is propounded by them that right of appeal which vests in a suitor is totally protected. The amending provision by use of the words 'no further appeal shall lie' means that no further appeal shall be entertained in respect of a suit filed after the cut-off date, any other interpretation, submitted the learned Counsel, would be an anathema to the provision and there is no obligation in law to anatomize the provision in that panorama. It is also putforth by them that there is no contrary intendment to show that the said right has been intended to be obliterated.

19. To appreciate the aforesaid proponements it is apposite to reproduce Section 100A of the Code which has been brought by way of amendment on the statute book. The said provision reads as under :--

'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.'

Section 16 of the Amending Act deals with 'repeal and savings'. It reads as under :--

'16. Repeal and savings.-- (1) Any amendment made, or anyprovision inserted in the Principal Act by a State Legislature or High Court before the commencement of this Act, shall, except insofar as such amendment or provisions are consistent with the Principal Act as amended by this Act, stand repealed.(2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 :--

(a) the provisions of Section 102 of the Principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force;

(b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;

(c) the provisions of Rule 1 of Order XX of the First Schedule as amended by Section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of Section 13 of this Act.'

We have quoted both the provisions in juxta-position to comprehend the scenario and further to sensitize ourselves to the controversy in issue. It is a well settled proposition of law that enactments dealing with substantive right are primarily prospective unless it is expressly or by necessary implication given retrospectivity. The aforesaid principle has full play when vested rights are affected or influenced. In the absence of any unequivocal expose, the piece of Legislation must exposit adequate intendment of Legislature to make the provision retrospective. It is significant to allude to the facet that routinely or conventionally retrospective operation of law is not to be easily deduced. Hypothesization in that regard is ordinarily unwarranted. It does depend upon the attendant provisions in absence of express and manifest stipulations. An opalescent view has to be kept at bay. That apart, while deducing the concept of retrospectivity it is also to be seen to what degree or extent the provision should be allowed to operate retrospectively. The postulatation must be gathered reading the scheme of the Act in stricto sensu.

20. Mr. Divesh Jain, learned Counsel for the respondent No. 1 reiterating his submission putforth that the Division Bench has rightly placed reliance on the decisions rendered in the case of Kolhapur Canesugar WorksPvt. Ltd. (supra). It is seemly to state that the Division Bench in the case of Sachish Chandra Jain (supra) heavily relied on Paragraph 37 of Kolhapur Canesugar Works Pvt. Ltd. (supra), which reads as under :--

'37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it has never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a 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, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the 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 a 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 not continue but fresh proceedings for the same purpose may be initiated under the new provision.'

21. The Division Bench relying on the same in Paragraph 17 of its order held as under :--

'The Court held that Section 6 of General Clauses Act has no application. There is no saving provision in favour of pending proceedings. Therefore, action for realisation of the amount refunded can only be taken under the new provision in accordance with the terms thereof.'

23. The Division Bench has read the decision in the case of Kolhapur Sugarcane (supra) in a different way. In our considered opinion the said decision is not an authority for the proposition that unless there is a provision of saving in the provision relating to repeal and savings, the vested right or substantive rights would be deemed to have been taken away. The Division Bench further held that Section 6 of the General Clauses Act, 1897 has no application. In this context we are disposed to refer to certain decisions relating to precedent.

24. In the case of Ambica Quarry Works etc. v. State of Gujrat and Ors., AIR 1987 SC 1073, their Lordships held as under :--

'The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a caseis only an authority for what it actually decides, and not what logically follows from it.'

25. In the case of General Manager, Northern Railway and Anr. v. Sarvesh Chopra, (2002) 4 SCC 45, it has been held thus :--

'A decision of this Court is an authority for the proposition which it decides and not for what it has not decided or had no occasion to express an opinion on......'

26. In the case of The State Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr., 2002 AIR SCW 500, it has been stated thus :--

'19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes.'

Again, in Paragraph 22, it has been stated as under :--

'22. The following words of Lord Denning in the matter of applying precedents have become locus classicks :--

'Each case depends on its own facts and a close similarity betweenone case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases,one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour ofanother. To decide, therefore, on which side of the line a case falls,the broad resemblance to another case is not at all decisive.'

*** *** *** *** *** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find ourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it'

27. An analytical study of the decision rendered in the case of Kol-hapur Canesugar (supra) is required to be made keeping in view the principles laid down in the aforesaid decisions. We have carefully perused the law laid down in the case of Kolhapur Sugarcane (supra). In the aforesaid case theirLordships were dealing with arena pertaining to the term 'Rule'. It is not covered under Section 6 of the General Clauses Act. Their Lordships were dealing with a situation whether an action should be taken under the repealed rule or under the new rule. In that context their Lordships held that further proceeding for the same purpose may be initiated under the new provision. The subject-matter in that case was 'Rule' and their Lordships were not dealing with the concept of vested right or substantive right. As has been indicated hereinabove, the right of appeal is a substantive right and it can only be abrogated either by express language or by necessary implication. Submission of Mr. Jain is that under Section 16 of the Amending Act second appeals of certain nature have been saved but such saving clauses have not been incorporated in the said provision and, therefore, it has to be inferred that a right of appeal stands retrospectively obliterated as nothing in that regard has been said. In our considered opinion, in the absence of use of express words or necessary intendment that can be gathered. It is difficult to accept that in the absence of a saving clause in Section 16 the right of appeal would be totally abrogated or abridged. Thus in our considered opinion the decision rendered in the case of Kolhapur Canesugar (supra) is not applicable to a case while dealing with substantive right of appeal and is distinguishable.

28. It is submitted at the Bar that if Section 16 of the Amending Act is scanned it is noticeable that in Sub-section (2) the Legislature has used the words 'without prejudice to the generality of the provision of Section 6 of the General Clauses Act, 1897'. Mr. Agrawal, the learned friend of the Court has commended us to the decision rendered in the case of Shri Shiv Kripal Singh (supra), wherein the Constitution Bench in Paragraph 37 while dealing with this aspect expressed the view as under :--

'37........ It is well-settled that when this expression is used anythingcontained in the provisions following this expression is not intended to cut down the generality of the meaning of the preceding provision. This was so held by the Privy Council in Kind Emperor v. Sibnath Banerji.'

29. The learned Senior Counsel has also placed reliance upon the decision rendered in the case of Shesh kumar Pradhan (supra). In the aforesaid case the Division Bench was dealing with the concept 'without prejudice to the generality of the provisions of Section 6 of the General Clauses Act'; in the context of Section 97 of the Amending Act, 1976. In Paragraph 6 the Bench held as under :--

'6. It is true that Clause (q) (ii) of Sub-section (2) of Section 97 of the Amending Act is in terms restricted to a pending suit under the old Rule 103, but, in our opinion, from this alone it cannot be held that Sub-section (2) does not preserve the right to institute a suit under the old Rule 103 if the suit had not been instituted beforethe commencement of the Amending Act. The specific savings made in Clauses (a) to (zb) are 'without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897', as is specifically stated in the opening words of Sub-section (2) of Section 97. It is well settled that the enumeration of specific matters 'without prejudice to the generality' of a particular provision does not restrict the general application of that provision to the matters enumerated because the words 'without prejudice' have the effect of preserving the full effect of the general provision and also because the rule of ejusdem generis has no inverse application See : Chartsey Urban District Council v. Mimam 's Properties Ltd., S.K. Singh v. V.V. Giri. Therefore, if the right to institute a suit under the old Rule 103 had arisen before the commencement of the Amending Act it would be preserved under Section of the General Clauses Act read with Sub-section (2) of Section 97 even though it is not covered by Clause (q) of that sub-section. When the application made by the non-applicant Nos. 1 to 5 under the old Rule 100 was rejected under the old Rule 101, a right accrued to them to challenge the order rejecting their application under the old Rule 103. This right and the remedy for giving effect to this right by filing a suit under the old Rule 103 continued to be operative by force of Clauses (c) and (e) of Section 6 of the General Clauses Act read with Sub-section (2) of Section 97 of the Amending Act. The argument of the learned Counsel that Sub-section (3) of Section 97 has the effect of taking away the right cannot also be accepted for the simple reason that this sub-section opens with the words 'save as otherwise provided in Sub-section (2)'. These words are not limited to the savings contained in Clauses (a) to (zb) of Sub-section (2), but also embrace the rights and remedies saved by the words 'without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897' as they occur in that sub-section. Putting it differently the preservation of rights and remedies under Section 6 of the General Clauses Act is also an otherwise provision made by Sub-section (2) which is saved by the opening words of Sub-section (3).'

30. Relying on the said decisions it is contended by Mr. Agrawal that these words do find mention in Section 16 and it is not controlled by the Clauses (a), (b) and (c) of Sub-section (2) of Section 16 of the Amending Act. In this regard we may profitably refer to the decision rendered in the case of Babulal and Ors. (supra), wherein the Full Bench speaking through the learned Chief Justice expressed the view as under :--

'We have, therefore, no hesitation in holding that not only by necessary intendment, but in expressed words, the right of appealwhich had been conceived of a party litigant to go up in appeal against an order passed under Section 47 of the Code of Civil Procedure before the Amending Act by virtue of the legal fiction introduced in the definition of the term 'decree' as including any order passed in execution proceedings, had been taken away by a valid piece of enactment and that it no longer survived after coming into force of the Amending Act.'

31. In view of the aforesaid analysis the Full Bench came to hold that the decisions rendered in the case of Chuluram v. Bhagatram, AIR 1980 MP 16 and Sitaram and Anr. v. Chaturo and Ors., 1981 JLJ 171, do not lay down the correct law and accordingly they were overruled. In the case of Babulal (supra) the Full Bench took note of the fact that by virtue of the legal fiction introduced in the definition of the term 'decree' the right of appeal is taken away. In this context we think it appropriate to refer to the decision rendered in the case of Ganapat Giri v. IInd Additional District Judge, Balia and Ors., AIR 1986 SC 589. In the said case the Apex Court considered the scope of the Civil Procedure Code (Amendment) Act (104 of 1976) and taking note of Section 97 held as under :--

'11. Now reverting to Section 97 (1) of the Amending Act, the High Court was in error in holding that because no amendment had been made to Rule 72 by the Amending Act, Section 97 (1) had no effect on the Rule as it was in force in the State of Uttar Pradesh before the commencement of the Amending Act. As observed earlier, the effect of Section 97 (1) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in Sub-section (2) of Section 97, Sub-section (3) of Section 97 provides that save as otherwise provided in Sub-section (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Sub-section (3) of Section 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to Sub-section (2) of Section 97.'

32. At this juncture, we may profitably refer to the decision rendered by Full Bench of this Court in the case of Mahesh Choubey v. M. Dubey, AIR 1994 MP 151, wherein the Full Bench held that once an application under Order 39 Rules 1 and 2 of the Civil Procedure Code was dismissed and the said order was reversed by a learned Single Judge no further appeal did lie inasmuch as the learned Single Judge had passed an order exercising powers under Section 104 read with Order 43 Rule 1 of the Code and accordingly, a Letters Patent Appeal was not entertained. In this regard we may refer with profit to the decision rendered in the case of Rajendra Kumar v. Kalyan (dead) by L.Rs., AIR 2000 SC 3335, wherein the Apex Court in Paragraphs 20 and 21 held as under :--

'....... 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 Narcomim, (1976) 2 SCC 917 : AIR 1975 SC 1843) 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, AIR 1957 SC 540 and Colonial Refining Co. Ltd. v. Irving, (1905) AC 369)'.

21. Still later this Court in Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209 : 1990 Cr.LJ 562) expressed in the similar vein as regards the element of retrospectively. 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 [See in this context the decisions of the House of Lords in the case of Blyth v. Blyth, (1966) 1 All ER 524; A.G. v. Vemazza, (1960) 3 All ER 97]. In Halsbury's Laws of England 4th Edition: Vol 44 : Para 925, page 574, upon reference to Wright v. Hale, (1860) 6 H 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.'

33. The centripodal issue is whether Section 100A which has been brought on the statute book does annul the right to prefer a Letters Patent Appeal in entirety taking away the scope of adjudication of the pending appeals or it only erodes the vested rights to the limited extent. Before we proceed to scan the anatomy of Section 100A it is worth while to note that where the language of a statute is clear, plain and unambiguous and admits only construction the same should be adopted. In this context it is apposite to refer to the decisions rendered in the cases of Arul Nadar v. Authorised Officer Land Reforms, (1998) 7 SCC 157; Jagdish Chandra Patnaik v. State of Orissa, (1998) 4 SCC 456; Harshad S. Mehta and Ors. v. State of Maharashtra, (2001) 8 SCC 257. In this context we may profitably refer to the decision rendered in the case of District Mining Officer v. Tata Iron and Steel Co., (2001) 7 SCC 358, wherein the Apex Court ruled thus :--

'The most fair and rational method for interpreting a statute is by exploring the intention of the legislature through the most natural and probable signs which are either the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law. In the Court of law what the legislature intended to be done or not to be done can only be legitimately ascertained from that what it has chosen to enact, either in express words or by reasonable and necessary implication. But the whole of what is enacted 'by necessary implication' can hardly be determined without keeping in mind the purpose or object of the statute. Abare mechanical interpretation of the words and application of legislative intent devoid of concept or purpose will reduce most of the remedial and beneficent legislation to futility. The Courts, however, are not entitled to usurp legislative function under the disguise of interpretation and they must avoid the danger of determination of the meaning of a provision based on their own preconceived notions of ideological structure of scheme into which the provision to be interpreted is somehow fitted.'

34. In this regard we would also profitably refer to the decision rendered in the case of Union of India v. Elphinstone Spg. and Wvg. Co, Ltd., AIR 2001 SC 724, wherein the Apex Court expressed the view as under :--

'When the question arises as to the meaning of a certain provision in a statute it is not only legitimate but proper to read that provision in its context. The context means the statute as a whole, the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy.'

And again their Lordships expressed thus :--

'Though it is no doubt true that the Court would be justified to some extent in examining the materials for finding out the true legislative intend engrafted in a statute, but the same should be done only when the statute itself is ambiguous or a particular meaning given to a particular provision of the statute would make the statute unworkable or the very purpose of enacting the statute would get frustrated. But by no stretch of imagination would it be open it is not open for a Court to expand even the language used in the Preamble to extract the meaning of the or to find out the latent intention of the legislature in enacting the statute.'

35. In the aforesaid decisions their Lordships gave emphasis on the concept of application of mischief rule and expressed the view that a provision must be read in its proper context and the legislative intent engrafted in a statute must be gathered. In the case of P. Nirathilengam v. Annaya Nadar and Ors., (2001) 9 SCC 673, the Apex Court held that an interpretation of the statutory provision which defeats the intention and the purpose for which the statute was enacted should be avoided. In the case of Gurudev Datta VKSS Maryadit and Ors. v. State of Maharashtra and Ors., AIR 2001 SC 1980, the Apex Court again laid emphasis on the cardinal principle of interpretation that the words of a statute must be understood in the natural, ordinary or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or there is something in the context or in the object of the statute to suggest to the contrary. Their Lordships alsoemphasized on the golden rule that words employed in the statute must prima facie be given their ordinary meaning.

36. In this regard we may usefully refer to the decision rendered in the case of Shyam Sunder and Ors. v. Ram Kumar and Anr., (2001) 8 SCC 24, wherein the Constitution Bench held as under :--

'28. From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of the suit or adjudication of the 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 the 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. We are, therefore, of the view that 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 affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that 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 the amending Act provides otherwise......'

37. In the case of Harbhajan Singh v. Press Council of India, (2002) 3 SCC 722, the Apex Court while interpreting Sub-section (7) of Section 6 of the Press Council Act in Paragraph 10 referred to the interpretation given to Article 182 of the Limitation Act, 1908 by Sir Dinshaw Mulla who had given immense emphasis on the need of testing the question of interpretation upon the plain words of the article and opined that there is no warrant for reading into the words quoting any qualification and the strict grammatical meaning of the words is the only safe guide. In the said case their Lordships further proceeded to state as under :--

'The High Court had constructed the word 'is' to mean 'has been', which construction was discarded by this Court. The tense of the sentence played a predominant role in the interpretation placed on the relevant provision by this Court in F.S. Gandhi case.In Maradana Mosque (Board of Trustees) v. Badi-ud-Din Mahmud under the relevant statute the Minister was empowered to declare that the school should cease to be an unaided school and that the Director should be the Manager of it, if the Minister was satisfied that an unaided school 'is being administered' in contravention of any provisions of the Act. Their Lordships opined : (AIl ER p. 551 B-F)

'Before the Minister had jurisdiction to take the order he must be satisfied that 'any school..... is being so administered in contravention of any provisions of this Act'. The present tense is clear. It would have been easy to say 'has been administered' or 'in the administration of the school any breach of any of the provisions of this Act has been committed', if such was the intention of the legislature; but for reasons which common sense may easily supply, it was enacted that the Minister should concern himself with the present conduct of the school, not the past, when making the order. This does not mean, of course, that a school may habitually misconduct itself and yet repeatedly save itself from any order of the Minister by correcting its faults as soon as they are called to its attention. Such behaviour might well bring it within the words 'is being administered'; but in the present case no such situation arose..... There was, therefore, no ground on which the Minister could be 'satisfied' at the time of making the order. As appears from the passages of his broadcast statement which are cited above, he failed to consider the right question. He considered only whether a breach had been committed, and not whether the school was at the time of his order being carried on in contravention of any of the provisions of the Act. Thus he had no jurisdiction to make the order at the date on which he made it.'

In Paragraph 11 of the said decision their Lordships referred to the warning given by M.H. Beg, J., to begin with a theory as to what the real purpose or need is or could be, for the danger is that what we may be injecting a subjective notion or purpose of our own into what is, after all a legal question of construction or interpretation. This was so stated in the case of D.R. Venkatachalam v. Dy. Transport Commissioner, (1977) 2 SCC 273.

38. We have referred to these decisions for the purpose of understanding whether Section 100A of the Code is totally clear and unambiguous making it prospective in nature or does it crucify or destroy the rights of appeal as a whole. Mr. Ravish Agrawal, the learned Senior Counsel laid immense emphasis on Section 6 of the General Clauses Act and contended that Section 100A is not couched in a manner which would even remotely indicate that the vested right of an appeal in a suitor has been obliterated.

39. Before we proceed to dwell into that aspect we think it appropriate to dissect whether Section 100A of the Code affects the pending appeals preferred under Clause 10 of the Letters Patent. Submission of Mr. Kale and Mr. Agrawal, the learned Senior Counsel is that the language employed in the said provision being quite clear, unequivocal and unambiguous, it can only have prospective application. To elucidate; submission of the learned Senior Counsel is that the prospective applicability would only encompass that the appeals which would arise out of the suits which are instituted after the cut-off date, i.e., 1-7-2002 would be barred. It is contended by them that there is nothing in the said section to convey a different meaning or to expand the canvas. It is putforth by them that Section 16 of the Amending Act deals with 'repeal and savings' and in Sub-section (2) use of the term 'without prejudice to the generality of the provisions Section 6 of the General Clauses Act, 1897' and the exception carved out in Clauses (a) to (c) have to be understood properly to appreciate that other aspects which do not find mention in the aforesaid clauses are to be governed by Section 6 of the aforesaid statute.

40. In this context we may profitably reproduce a passage from Bidie v. General Accident, Fire and Life Assurance Corporation, (1948) 2 All ER 995, 998, wherein Lord Greene in his inimitable style spoke thus :--

'The first thing to one has to do, I venture to think, in construing words in a section of an Act of Parliament is not to take those words in vacua, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question : In this state, in this context, relating to this subject-matter, what is the true meaning of what word ?'

41. Keeping in view the aforesaid principles of interpretations, now we shall proceed to discuss what exactly is postulated under Section 100A of the Code. The Sub-section (2) of Section 1 of the Code the Amending Act stipulates that the amending provisions shall come into force on such dates as the Central Government may by notification in the Official Gazette appoint and different dates may be appointed in respect of different provisions of the Act. This provision is to be read contextually regard being had to the language employed therein. Section 100A of the Code employs the words that 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 from such Single Judge. The words which are of immense signification in this provision are 'is heard and decided'. These words are used absolutely in praesenti. That apart the words 'no further appeal shall lie' are also to be conjointly read with 'is heard and decided'.

42. As has been held in the cases referred to above, the words have to be understood in their context having purposive reference to the totality of surrounding features and the true and express meaning decipherable from the import of the text. The use of the term 'is heard and decided' cannot be expanded to cover the vista that the appeals which arise from the suit instituted before 1-7-2002 are protected. Simultaneously its horizon cannot be cramped and limited to imply and connote that the appeals which have been filed prior to the cut-off date also would be reigned by the said provision. In that case the term 'no further appeal shall lie' used in the provision would lose its intrinsic etymological kernel. To say that the aforesaid provision does not impair or erode the right of appeal vested in a suitor in respect of a suit instituted prior to 1-7-2002, would be reading the provision without giving the true and actual meaning to the term 'is heard and decided'. That would tantamount to, to put it euphemistically, making the provision achromatic. In this context we may profitably refer to the three Judge Bench decision rendered in the case of R. Rajagopal Reddy (dead) by L.Rs. and Ors. v. Padmini Chandrashekharan (dead) by L.Rs., AIR 1996 SC 238. In the aforesaid decision their Lordships were considering the operational sphere of Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988) and posed the question whether pending proceeding at various stages in the hierarchy can get encompassed by the sweep of Section 4(1) of the said Act and such suit would be liable to be dismissed as laid down by that Section. After referring to the report of the Law Commission, taking note of the preamble of the Act, considering Section 3 which is the heart of the said Act and further referring to the decision rendered in the case of Re Athlumney, (1898) 2 Q.B. 547 and Garikapati (supra) and the observations made in the book on Principles of Statutory Interpretation, 5th Edition, by Justice G.P. Singh, at page 351 their Lordships in Paragraphs 19 and 20 held as under :--

'19. No exception can be taken to the aforesaid observations of learned author which in our view can certainly be pressed in service for judging whether the impugned section is declaratory in nature or not. Accordingly it must be held that Section 4 or for the matter the Act as a whole is not a piece of declaratory or curative legislation. It creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transaction and for whom new liabilities are created by the Act.

20. Qua reason No. 4, we may refer to our discussion earlier that 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 inSection 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. As to reason No. 5, it is observed that even though the suit may include appeal and further appeals in the hierarchy, at different stages of the litigation. Sections 4(1) and 4(2) cannot be made applicable to these subsequent stages as already seen by us earlier. Otherwise, they would cut across the very scheme of the Act.'

43. It is appropriate to mention here their Lordships gave a limited retro-activity to the provisions in question.

44. Thus, in our considered view, though there is use of term 'without prejudice to the generality of the provisions of Section 6 of the General Clauses Act' the same does not entirely save the vested rights of appeal in a suitor as that would defeat the very purpose of Legislation, scheme of the amending statute, and also would cause violence to the reading of Section 100A of the Code which is not allowable and we are not inclined to think that the said provision is totally prospective. It is so to a limited extent.

45. Another facet is required to be kept in mind. The purpose of Legislature was to curtail the second appeals in the third Court. The Legislature in its wisdom constructed the right of appeal to a singular one. To do so the Legislature used the words differently in the said section. If its desired to annul the pending appeals it could have used the words 'has been'. It could have expressly stated so. There is nothing in the statute book to exposit a clear or necessary intendment that the provision has to be made totally retrospective taking away the rights of hearing of appeals preferred before the cut-off date. The Legislature never intended to make the said provision applicable to the pending appeals. The use of words in the Section does not clearly so convey. When a provision has been expressly so worded there is no justification to stretch it either backward or forward. Such stretching, in our considered opinion, is unnecessary unwarranted. The reasoning that when the pending appeals have not been saved under Section 16 of the Amending Act is totally inconsequential because of non-saving of the same does not by necessary corollary nullify the right of hearing of the pending appeals preferred before the date stipulated in the statute book. Thus, we are of the considered opinion, that no appeal which is covered within the ambit and sweep of the language used under Section 100A of the Code would lie after 1-7-2002. It is prospective to that extent and, if we allow ourselves to say so, it has limited retro-activity by which the vested rights on a suitor qua a suit filed prior to 1-7-2002 is not saved but the fate of pending appeals before the cut-off date remains unaffected.

46. Consequently we conclude and hold that the law laid down in the case of Sachish Chandra Jain (supra), that substitution of Section 100A of theCode affects the Letters Patent Appeals which have been preferred prior to 1-7-2002 and are pending for adjudication and hence, not maintainable, does not correctly state the law and we reiterate that pending appeals preferred prior to the cut-off date would be heard on merits having remained unaffected by substitution of Section 100A of the Code.

47. Let the appeal be listed before the appropriate Division Bench for adjudication on merits.


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