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Duryodhan Samal Vs. Smt. Uma Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 101 of 1985
Judge
Reported inAIR1986Ori30; 60(1985)CLT360
ActsOrissa Civil Courts Act, 1984 - Sections 16(2)
AppellantDuryodhan Samal
RespondentSmt. Uma Dei and ors.
Advocates:M.R. Panda, ;B. Nayak, ;G.R. Nai, ;B.B. Jena and ;P.K. Panda, Advs.
Cases ReferredDayawati v. Inderjit
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....p.c. misra, j. 1. this appeal arises out of a suit for partition (o. s. no. 136 of 1978-i of the court of the subordinate judge, bhadrak) which was instituted on 6-10-1978 and was disposed of by judgment dt. 28-2-1985 and decree dt. 13-3-1985/15-3-1985. this appeal valued at rs. 5,900/-, the same being the valuation of the suit out of which it arises, was filed on 3-5-1985 in this court. a question as to the maintainability of this appeal has been raised in view of the provisions contained in section 16(2) of the orissa civil courts act, 1984 (orissa act 18 of 1984) (for short, hereinafter referred to as 'the act') the act was assented to by the president of india on 30-7-1984. section 1(3) of the act provides that this act shall come ' into force on such date as the state government may,.....
Judgment:

P.C. Misra, J.

1. This appeal arises out of a suit for partition (O. S. No. 136 of 1978-I of the Court of the Subordinate Judge, Bhadrak) which was instituted on 6-10-1978 and was disposed of by judgment dt. 28-2-1985 and decree dt. 13-3-1985/15-3-1985. This appeal valued at Rs. 5,900/-, the same being the valuation of the suit out of which it arises, was filed on 3-5-1985 in this Court. A question as to the maintainability of this appeal has been raised in view of the provisions contained in Section 16(2) of the Orissa Civil Courts Act, 1984 (Orissa Act 18 of 1984) (for short, hereinafter referred to as 'the Act') The Act was assented to by the President of India on 30-7-1984. Section 1(3) of the Act provides that this Act shall come ' into force on such date as the State Government may, by notification, appoint in this behalf. In exercise of the said power conferred by Section 1(3) of the Act, the State Government by notification dated 21-12-1984 has appointed the 1st day of January, 1985 as the date on which the Act shall come into, force.

2. Section 25 of the Act repeals the Bengal, Agra and Assam Civil Courts Act, 1887 in its application to the State of Orissa with effect from the date of coming into force of the Act. Consequently, the establishment and the regulation of the Civil Courts in this State which were being governed by the Bengal, Agra and Assam Civil Courts Act, 1887 are now governed by the Act.

3. The question that arises for decision is as to whether irrespective of the date of the institution of the suit an appeal from a decree or order of the Subordinate Judge shall lie to the District Judge where the value of the original suit in which or in any proceeding out of which the decree or order was made did not exceed Rs. 20,000/-, as per the provisions' of Section 16(2) of the Act.

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

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

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

(b) an appeal shall not lie to the High Courtfrom a decree or order of an Additional DistrictJudge in any case, in which if the same hadbeen made by the District Judge an appealwould not He to the High Court.

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

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

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

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

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

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

5. It would be seen from a plain reading of the section that appellate jurisdiction of the District Judge, has been enhanced to Rs. 20,000/- which was previously Rs. 5,000/-under the Bengal, Agra and Assam Civil Courts Act, 1887, and where the value of the decree passed by Subordinate Judge did not exceed Rs. 20,000/-, the appeal shall lie to the District Judge. It has been argued at the Bar that since the right of appeal is a vested right and such right accrued to the parties on the date of the institution of the suit in the year 1978 in accordance with the provisions of the Bengal. Agra and Assam Civil Courts Act, 1887, the said right of appeal shall continue to exist and to that extent the old law must govern the exercise and enforcement of that right. It has also been argued that since the Act is not retrospective in operation, the appeal against the decree passed in any suit instituted prior to 1-1 1985 (the date on which the Act came into force) must be continued to be filed in this Court in accordance with the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887.

6. Before we enter into discussion of the question at issue, we may state the accepted principle of interpretation of a statute that every legislation is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. The question whether a statute operates retrospectively or prospectively is one of legislative intent. If the terms of the statute are clear or unambiguous and it is manifest that the legislature intended the Act to operate retrospectively, unquestionably, it must be so construed. If, however, the terms of a statute do not of themselves, make an intention certain or clear, it should be presumed to operate prospectively. An Act is retrospective if it takes away or impairs any vested right acquired under an existing law or creates a new liability or obligation in respect of transactions already past, or creates a new obligation or liability in respect of past transactions.

The said Act does not spell out that it would have effect from a date anterior to its enactment nor, as already stated, it does purport to take away, destroy or impair a vested right. It does not create a new obligation or liability in respect of any past transaction either expressly or by necessary implication. But the presumption that a statute is ordinarily prospective has no application to a statute or those provisions of a statute making procedural alteration or which affects the procedural law only. It is, therefore, necessary to find out the nature of the right which is affected by the new statute in order to determine the retrospective nature of Section 16(2) of the Act.

7. It has been argued at length that the law existing at the commencement of the action must decide the rights of the parties and not the law which came into force during the pendency of the action. Reference has been made to a decision of the Supreme Court in the case of M/ s. Hoosam Kasam Dada (India) Ltd. v. State of Madhya Pradesh AIR 1953 SC 221, in support of the proposition that a right of appeal is not merely a matter of procedure, but it is a matter of substantive right and the said right becomes vested in a party when proceedings are first initiated. Such a vested right cannot be taken away except by express enactment or necessary intendment. Their Lordships of the Supreme Court in the said case were examining the effect of amendment of certain provisions of the Central Provinces and Berar Sales Tax Act. Section 22(1) proviso of the said Act, as it stood prior to the amendment, provided that an aggrieved assessee before his appeal is entertained had to pay such amount of tax as he might admit to be due from him, whereas under the proviso to Section 22(1), as amended, the appeal has to be accompanied by satisfactory proof of payment of the tax in respect of which the appeal had been preferred. The contention of the assessee in that case was, such amendment had not been made retrospective for which the right of appeal of the assessee under the original Section 22(1) remains unaffected and that accordingly as the assessee in that case did not admit anything to be due, he was not liable to deposit any sum along with the appeal and the Commissioner was bound to admit the appeal and had no jurisdiction to reject it onthe ground that it had not been accompanied by any proof of payment of the tax assessed against him as required under the amended proviso. The question that was raised before their Lordships was whether the amendment of the section which imposed substantial restriction on the assessee's right of appeal would govern the assessee in that case as his right of appeal had commenced and was vested in him prior to the amendment when the right of appeal was free from such restriction under the section as it stood at the time of commencement of the proceeding. In this context, their Lordships held that a right of appeal is not merely a matter of procedure, it is a matter of substantive right and 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. Their Lordships further held that such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.

8. A similar question came to be considered by the Constitution Bench of the Supreme Court in the case of G. Veeraya v. N. Subiah Choudhry, AIR 1957 SC 540. In that case, a suit out of which the matter had gone to the Supreme Court was instituted on 22-4-1949 in the Sub-court of Bapalla which was then within the jurisdiction of the Madras High Court. The judgment of the trial Court was passed on 14-11-1950 dismissing the suit. The plaintiff filed an appeal in the High Court of Madras, which subsequently stood transferred to the High Court of Andhra Pradesh. The High Court on hearing reversed the decree of the trial Court and decreed the suit. An application for leave to appeal to the Supreme Court was filed by the party aggrieved by the aforesaid judgment of the High Court which was dismissed on the ground inter alia that the value of the property was only Rs. 11,400/- and was thus less than Rs. 20,000/-. The petitioner before the Supreme Court contended that the date of institution of the suit being 22-4-1949, he had acquired from the date of institution of the suit a vested right to appeal to the Federal Court, and the Federal Court having been replaced by the Supreme Court, hisapplication for leave to appeal to the Supreme Court should have been allowed irrespective of the valuation of the suit. The learned Judges after discussing a large number of decisions including the decision reported in AIR 1953 SC 221 (supra) laid the principles emerging therefrom as follows :

(i) The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences, and although it may be actually exercised when the adverse judgment is pronounced, such right 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 filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.

The further question which came up for consideration of their Lordships in the said case was whether the right of appeal to the Federal Court, which got vested in the petitioner (a party to the suit) on the date of institution of the suit, has been taken away expressly or by necessary intendment by any subsequent enactment, namely. the Constitution of India. The ultimate conclusion (by a majority) was that the vested right of the petitioner to appeal to the Federal Court under the provisions of the old Civil P. C. read with the Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947 was a matter which did 'not fall within Article 133 and the petitioner was entitled under Article 135 to come up in appeal to the Supreme Court as of right.

9. Reference has been made to another decision of the Supreme Court in the case ofDaji Saheb v. S. R. Vithalrao Mane, AIR 1956 SC 29, which is, in our opinion, of some assistance to the question before us. In that case, AIR 1956 SC 29, it was held that merely because the Supreme Court came into existence in place of the Federal Court, a vested right of appeal to the Federal Court has not been taken away; on the other hand, such right of appeal shall be exercisable by the substituted forum, namely, the Supreme Court. In the course of discussion their Lordships have indicated that the vested right of appeal perishes if the Court to which an appeal lies is altogether abolished without any forum substituted in its place for disposal of pending matters or for the lodgement of appeals. It, therefore, follows that where by a new enactment the right of appeal is preserved, but the forum has been changed or substituted, the appeal shall lie to the new forum.

10. The learned counsel for the appellant placed reliance on a decision of the Supreme Court in the case of Lakshmi Narain v. First Addl. Dist. Judge, Allahabad, AIR 1964 SC 489, in which the question for determination was whether under the provisions of the U. P. Civil Laws (Reforms and Amendment) Act (U.P. Act XXIV of 1954) a First Appeal in a suit decided prior to the enactment of the Act involving a valuation of less than ten thousand rupees could be transferred for hearing and, disposal to a District Judge. In that case, a suit for recovery of possession was instituted on 26-1-1949 in the Court of the Civil Judge, Mathura, which was dismissed by the Civil Judge on 27-11-1951. The unsuccessful plaintiff preferred a First Appeal in the High Court at Allahabad on 8-2-1952. The said appeal along with many others were notified on 23-4-1952 to have been transferred to the Court of the Additional District Judge at Allahabad pursuant to an order passed by the learned Chief Justice on his own motion under Section 24(1)(a) of the Code of Civil Procedure, The said order was passed in view of the amendment of Section 21 Clause (a) of Sub-section (1) of the Bengal, Agra and Assam Civil Courts Act by which the District Courts were empowered to entertain first appeals up to a valuation of ten thousand rupees which was up to a limit of five thousand rupees prior to amendment. An objection as to the jurisdiction of the Additional District Judge to hear such appeals was raisedwhich ultimately came to the Supreme Court to be decided in this case AIR 1964 SC 489. Referring to the impugned judgment of the High Court, their Lordships approved the legal position that the amended provision of the Act had no retrospective operation and that the right to appeal to a superior Tribunal is a vested right which is determined at the date of institution of the suit or proceeding. But the view taken by the High Court that the Act (referring to the Act which amended various statutes including Act XII of 1887) did not have the effect of amending the provisions of Section 24 of the Civil P. C. under which the right of a litigant to an appeal is always subject to the right of the High Court to transfer it under Section 24 (of the Civil P. C.), did not find favour from the Supreme Court for the reason that the Amending Act incorporated a saving clause to the effect that any proceeding instituted, or commenced in any Court prior to the commencement of the Act (the Amending Act) shall, notwithstanding any amendment made, continue to be heard and decided by such Court. Their Lordships were not concerned in that case to consider the question whether in the absence of a saving clause like the one indicated above, the High Court would be competent to transfer the appeals by having recourse to Section 24 of the Civil P. C.; but in the face of the saving clause, it was held that there was no scope for a conclusion that the District Courts were competent to hear appeals up to the valuation of ten thousand rupees in suits decided before the Act came into force and appeals from which were pending before the High Court.

11. In this case we are not concerned with the transfer of appeals pending on the date of commencement of the Act and thus the principle enunciated in the above case of the Supreme Court, AIR 1964 SC 489 has no application to this case.

12. The principle that the right of appeal against the decision of an inferior Court to a superior Court is a substantive right which commences from the date of institution of the suit and subsists throughout the rest of the career of the lis, stands established by a large number of other decisions of various Courts of this country including those already referred to and we do not think it necessary to notice all those cases in view of the authoritative andwell discussed judgments to which specific reference has already been made.

The argument that the right of appeal to the superior Court carries with it the right of lodgement of the appeal to a particular Court or forum, in our opinion, is devoid of any merit.

13. In a decision of the Supreme Court in the case of Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907, it has been held by their Lordships that a litigant has no right to contend that a Tribunal before whom he would have taken an appeal when he instituted the suit should not be abolished and he has no vested right to have his appeal heard by a forum which existed on the date of the institution of the suit.

14. The law on the subject has been very lucidly explained in the decision in the case of New India Insurance Co. Ltd. v. Smt. Shanti Misra, AIR 1976 SC 237. The respondents of the said case filed an application under Section 110A of the Motor Vehicles Act on 8-7-1967 before the Accidents Claims Tribunal claiming damages arising out of an accident which occurred on 11-9-1966. The Motor Vehicles Act was amended by Central Act 100 of 1966 with effect from 16-2-1966 deleting the original Section 110 and substituting Sections 110 to 110F in its place. The Claims Tribunals, however, were not constituted by the State Government at one and the same time. They were constituted on different dates for different areas. Until and unless the Claims Tribunals were constituted, the provisions of the new sections introduced in the year 1966 could not be taken advantage of. Section 110F of the Motor Vehicles Act provides among other things that where any Claims Tribunal has been constituted for any area, no civil courts shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. Their Lordships were confronted with a problem for consideration as to whether in cases where accidents had occurred prior to the constitution of the Claims Tribunals and the remedy of action in Civil Court was alive but no suits had been filed, whether claims of any damages arising out of the accidents would be maintainable before the Accidents Claims Tribunal by filing applications under Section 110A of the said Act or civil suits would lie forenforcement of rights which was the forum available when the causes of action for claiming damages arose. In answering the question, their Lordships held as follows : --

'On the plain language of Sections 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. a change of adjectival or procedural law and not of substantive law. It is a well established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his causes of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it restrospective. .................'

Their Lordships ultimately held that the jurisdiction of the Civil Courts has been ousted as soon as the Claims Tribunal was constituted in the area and the filing of the cases before the Tribunal is the only remedy available for the claimants for compensation.

15. In our view, the aforesaid principle of law is equally applicable to the situation before us. In this case the suit was instituted evidently years before the Act came into force on 1-1-1985. On the date of presentation of the appeal, the forum of filing of appeal, the valuation of which is less than Rs. 20,000/-, had been changed by virtue of Section 16(2) of the Act. The vested right of appeal which accrued to the litigant on the date of institution of the suit had not been taken away, but merely the forum was changed from the High Court to the Court of the District Judge. Since a litigant can have no vested right to pursue his remedy in a particular forum, in this case for lodgement of his appeal and change of forum is merely a change of procedural law, it would operate retrospectively unless a different intention is expressed or can be inferred by necessary intendment. The expression 'the original suit in which or any proceeding out of which the decree or order was made' occurring in Sub-section (2) of Section 16 of the Act clearly shows that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the cause of action for the suit arose orwhen the suit was actually filed. It would, therefore, be logical to conclude that irrespective of the date of filing of the suit and irrespective of the date of the judgment passed in such suit, the forum available for preferring an appeal on the date of presentation of the appeal would be the forum where an appeal should be filed and not the forum which existed on the date of institution of the suit. This conclusion does not conflict with the well established principle that the right of appeal which existed on the date of the institution of the suit is a vested right of the litigant and is preserved to the parties to the suit till the rest of the career of the suit including the stage of appeal and second appeal which are mere continuation of the suit all connected by an intrinsic unity and are regarded as one legal proceeding in the language of their Lordships in the case reported in AIR 1957 SC 540 (supra).

16. The aforesaid conclusion finds support from various other earlier decisions vide, AIR 1943 Cal 573: Bireswar Moral v. Indu Bhushan Kundu, AIR 1959 Cal 567: Debi Dutta Moody v. T. Bellan, AIR 1966 SC 1206 : Union of India v. Sukumar Pyne and AIR 1965 Mad 149; M/s. V. C. K. Bus Service (P) Ltd. v. H. B. Sethna. In Bireswar Moral's case, AIR 1943 Cal 573 their Lordships while dealing with a similar matter came to hold that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure, and do not extend to rights of action. If a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie to all actions, pending as well as future. Whether a person has a right to recover property is a question of substantive law. But in what Court he must institute proceedings is a question of procedural law.

17. In the other Calcutta High Court case, AIR 1959 Cal 567, their Lordships held as follows : --

'..........While considering the question ofretrospective operation of the statute, the nature of the right affected must first be considered. Where there is a vested right, ithas been held that an amendment will be considered as prospective so as not to affect the vested right. If the right is merely procedural then normally there is no vested right...........'

In the Madras case, AIR 1965 Mad 149, the learned single Judge has put the law in the following words : --

'I take it as irrefutable law that no litigant has, or can have, vested right in a particular forum. He cannot say as a matter of right that his suit or application should be tried by this or that forum which existed on the date his cause of action arose. Forum belongs to the realm of procedure and does not constitute substantive right of a party or a litigant.'

The Supreme Court in the case of Union of India v. Sukumar Pyne, (AIR 1966 SC 1206) (supra) held that a person accused of commission of an offence has no vested right to be tried by a particular Court or procedure. In this view of the law, it was held in that case that the new amendment made in the year 1957 to the Foreign Exchange Regulation Act. 1947 would apply to the contraventions which took place before the Amending Act came into force.

18. The learned counsel for the appellant has relied upon a decision of a Division Bench of the Bombay High Court in the case of Raghunath Hanumant Mane v. Sadashiv Damodar Datar, AIR 1951 Bom 270, wherein Justice Gajendragadkar (as he then was) speaking for the Court held that the amendments made by the Amending Act, 1949 which amended the Bombay Civil Courts Act, 1869 are prospective and applied to suits filed after the Act came into force. Therefore, an appeal from a decree in a suit pending at the date when the Act came into force would lie to the High Court according to the provision of the old Act as it stood before the amendment and not to the Court of District Judge as provided in the Act as amended. His Lordship proceeded on the basis that the change in the law was not merely a matter of procedure but affected the vested right of the parties to take their appeals before the higher Court. This view of his Lordship tested by the guidelines enunciated in the decision referred earlier by the Supreme Court does not appear to be the correct position of law.

19. Similar would be the analysis withrespect to the decision reported in AIR 1977 Cal 43 (Taramoni Dasi v. Kalidasi Majhi) wherein it has been held that a right of appeal is vested in the parties as soon as a suit is instituted and the forum of appeal would be determined with regard to the law as existing on the date of the commencement of the suit. Their Lordships evidently had not taken into consideration the enunciation of the law by the Supreme Court in the decision reported in AIR 1976 SC 237 (supra).

20. In view of the law, as discussed in the preceding paragraphs, we have no hesitation in coming to a conclusion that the forum of filing of this appeal was the Court of the District Judge as the same was filed after the date of commencement of the Orissa Civil Courts Act, 1984 (Orissa Act 18 of 1984) and accordingly, we direct return of this memorandum of appeal for presentation in the proper Court of Law.

B.K. Behera, J.

21. I have had the benefit of reading the elaborate and lucid order prepared by my learned brother. While I concur, I would like to keep on record a few thoughts in support of the same conclusion.

22. The Statement of Objects and Reasons appended to the Orissa Civil Courts Bill, 1984, which was later enacted as the Act, would give a clear indication that the Legislature intended to enhance the pecuniary jurisdiction of the Courts in consideration of the increase in the value of properties. In the absence of any specific provision that the forum in respect of appeals provided in Section 16(2) of the Act would relate only to suits instituted on or after Jan., 1, 1985 and in view of the intendment of the Legislature incorporated therein providing for an appeal on or from that day to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order 'was' made, 'did not' exceed twenty thousand rupees, it would be clear that the legislature intended to give retrospective effect to the provision made in Section 16(2) of the Act which the Legislature was competent to do.

23. The question whether a statute operates prospectively or retrospectively is one of legislative intent. If the terms of a statute are clear and unambiguous and it ismanifest that the Legislature intended the Act to operate retrospectively, it must unquestionably be so construed. While considering this question, the nature of the right affected is very material and would be the first consideration. Where there is a vested right, an amendment would be considered as prospective so as not to affect the vested right, if the legislative intent to make it retrospective is not clear. The Legislature of a State is the sovereign authority in the sphere of legislation on the State subjects and while exercising that authority, it is competent to enact legislation with retrospective effect. Retrospective legislation is one of the incidents of plenary legislative powers. A statute is not to be construed to operate retrospectively so as to take away a vested right, unless that intention is made manifest by language so plain and unmistakable that there is no possibility of any choice of meanings. Provisions touching 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. Where, however, the language of a statute plainly gives it a retrospective operation, it must be so construed.

24. The right of a suitor to have his pending suit disposed of by a competent Court is a matter of right and not a matter of procedure. There should not be a fundamental misconception about matter affecting the jurisdiction and a processual matter. It is a general rule that a statute which takes away or affects a right of action is presumed not to apply to the pending actions. But this general rule is displaced when the intention of the Legislature, either expressed or to be gathered by necessary implication, is otherwise. The presumption against retrospective construction has no application to enactments which affect the procedure and practice of the Court, even where the alteration which the statute makes has been disadvantageous to a party. A person has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act, the mode of procedure is altered, he has no other right than to proceed according to the altered mode (See AIR 1958 SC 915 Anant Gopal Sheorey v. State of Bombay). A right of action is certainly different from a choice of the forum. There is no vested right for a trial in a particular forum or according to a particular procedure.

25. In the case of Dayawati v. Inderjit, AIR 1966 SC 1423, their Lordships have observed and held :

'Now as a general proposition, it may be admitted that ordinarily a Court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. Even before the days of Goke, whose maxim -- a new law ought to be prospective, not retrospective in its operation -- is oft-quoted, Courts have looked with disfavour upon laws which take away vested rights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such law even after the judgment of the Court of first instance. The distinction between laws affecting procedure and those affecting vested rights does not matter when the Court is invited by law to take away from a successful plaintiff, what he has obtained under a judgment. ..........'

26. A right of appeal is not a matter of procedure, but the procedure for preferring an appeal including limitation and forum is certainly procedural. To disturb an existing right of appeal is not a mere alteration in procedure and an intention to interfere with, or to impair or imperil, an existing right of appeal cannot be presumed unless such intention be clearly manifested by express words or necessary intendment. But no person can have a vested right in a course of procedure.

27. The general principle certainly is that alteration of a procedure is retrospective. After all, procedural laws are meant to sub-serve the ends of justice and not to thwart it. The choice of forum is a matter of procedure and not a substantive right and a new Act would have retrospective effect so far as the choice of forum is concerned. No party has a vested right for a particular procedure or for aparticular forum. All procedural laws are retrospective, unless the Legislature expressly says that they are not. Forum belongs to the realm of procedure and does not constitute substantive right of a party. Cause of action is not to be confused with a forum and a cause of action does not include a right to insist upon a particular Court or Tribunal or a Judge.

28. If a right to appeal is wiped out, it can be said with some force that a substantive right has been affected which, of course, the Legislature is competent to do. The forum of appeal or the period of limitation prescribed can never be called as substantive right. It is only a procedural law which is retrospective in its operation.

29. For the foregoing reasons, the legal and reasonable conclusion would be that under the Act, appeals arising out of suits or proceedings valued at rupees twenty thousand or less in which decrees have been passed or orders have been made irrespective of whether the suits or proceedings have been instituted prior or subsequent to the coming into force of the Act shall He to the District Judges and not to the High Court.

30. Copies of this order shall be transmitted forthwith by the Registrar (Administration) to all the District Judges in this State for their information and guidance.


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