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Bhurilal Vs. Smt. Shobhabai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 391 of 1978
Judge
Reported inAIR1981Raj14; 1980()WLN357
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96(4); Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantBhurilal
RespondentSmt. Shobhabai
Appellant Advocate A.L. Mehta, Adv.
Respondent Advocate N.N. Mathur, Adv.
DispositionRevision allowed
Cases ReferredMohan Das v. Kamla Devi (supra
Excerpt:
civil procedure code - section 96(4)--section inserted by amendment act of 1976--pending appeal are saved and not appeals filed after commencement of amendment--case remanded.;clause (1) of sub-section (2) of section 97 of the amendment act saves only pending appeals and does not in any way save appeals filed after the commencement of the amendment act and the appeals presented after the commencement of the amendment act, shall be governed by the amended section 96.;revision allowed - industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words..........issue in favour of the defendant and consequently .dismissed the plaintiff's suit. on appeal, the learned civil judge reversed the finding on issue no. 2 and decreed the plaintiff's suit. dissatisfied with the judgment and decree of the learned civil judge, the defendant has preferred this revision petition. 3. i have heard shri a. l. mehta, learned counsel for the defendant-petitioner and shri n. n. mathur, learned counsel for the non-petitioner. 4. shri a. l. mehta, learned counsel for the petitioner, urged that the learned first appellate court exercised jurisdiction not vested in law in it in view of the fact that under section 96, sub-section (4), civil p. c., the appeal can be heard only on question of law and not on question of fact. according to him, the learned civil judge had.....
Judgment:
ORDER

M.C. Jain, J.

1. This revision petition is directed against the judgment and decree of the Civil Judge, Udaipur, dated 21-7-1978, whereby the plaintiff's appeal was allowed, judgment and decree of the Additional Munsif and Judicial Magistrate, First Class, Udaipur, dated 25-4-77 was set aside and the plaintiff's suit for recovery of money was decreed.

2. Briefly, the facts are that Smt. Shobhabai instituted a suit for the recovery of Rs. 1,000 principal amount and Rs. 75 interest, total Rs. l,075 with the allegations that the defendant borrowed a sum of Rs. 1,500 from the plaintiff's husband Gangaram on 2-1-1973, on interest and executed the document Ex. 1. The defendant, thereafter, paid a sum ofRs. 500 and interest for two months. She stated that she is the sole heir of her husband. The suit was resisted by the defendant and it was pleaded by him that the money was paid back to Gangaram. An issue relating to plea of repayment was struck as issue No. 2. After recording the evidence, the learned Munsif decided this issue in favour of the defendant and consequently .dismissed the plaintiff's suit. On appeal, the learned Civil Judge reversed the finding on issue No. 2 and decreed the plaintiff's suit. Dissatisfied with the judgment and decree of the learned Civil Judge, the defendant has preferred this revision petition.

3. I have heard Shri A. L. Mehta, learned counsel for the defendant-petitioner and Shri N. N. Mathur, learned counsel for the non-petitioner.

4. Shri A. L. Mehta, learned counsel for the petitioner, urged that the learned first appellate court exercised jurisdiction not vested in law in it in view of the fact that under Section 96, Sub-section (4), Civil p. C., the appeal can be heard only on question of law and not on question of fact. According to him, the learned Civil Judge had no jurisdiction to reverse the finding on issue No. 2, as it did not involve any question of law. The appeal was preferred after coming into force of the Civil P. C. (Amendment) Act, 1976 (Act No. 104 of 1976) (hereinafter referred to as 'the Amendment Act'), whereby Sub-section (4) of Section 96 was introduced, which debars first appeals, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.

5. Shri N. N. Mathur, learned counsel for the non-petitioner, on the other hand, urged that in view of the provision contained in Section 97, Sub-section (2), Clause (1) of the Amendment Act, Sub-section (4) of Section 96 would not apply to an appeal which arises from a decree passed in any suit instituted before the commencement of the Amendment Act. Sub-section (4) of Section 96 will have application to decree passed in suits instituted after the Amendment Act. He has, however, not disputed that the suit in the present case is of the nature cognizable by Courts of Small Causes, admittedly the value of the subject-matter does not exceed three thousand rupees. In the alternative heurged that in case this Court finds that Clause (1) of Sub-section (2) of Section 97 of the Amendment Act applies only to pending appeals and appeals preferred after the commencement of the Amendment Act, would be governed by Sub-section (4) of Section 96, C.P.C., then in that case, the case may be sent back to the first appellate court to decide the appeal in the light of the provisions contained in Sub-section (4) of Section 96.

6. The first question that arises for consideration, is as to whether Sub-section (4) of Section 96, applies to appeals presented after the commencement of the Amendment Act, or such appeals would be governed by old Law. The relevant provisions contained in Section 97 of the Amendment Act, are as under:--

'97. Repeal and savings.

(1) x x x x x (2) Notwithstanding that the provisions of this Act have come into force or the 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) to (k) x x xx x x

(1) the provisions of Section 96 of the principal Act, as amended by Section 33 of this Act, shall not apply to or affect ony appeal against the decree passed in any suit instituted before the commencement of the said Section 33; and every such appeal shall be dealt with as if the said Section 33 had not come into force; XX XX XX XX'

7. The Amendment Act came into force on 1st Feb., 1977. Clause (1) is in the nature of the saving provision. What has been saved is that the provisions of Section 96 of the Civil P. C., as amended by Section 33 of the Amendment Act, shall not apply to or affect any appeal against the decree passed in any suit instituted before the commencement of Section 33 of the Amendment Act; and such appeals are required to be disposed of as if Section 33 had not come into force. From the language of Clause (1) it would appear that only pending appeals have been saved and they are required to be disposed of as if Section 33 of the Amendment Act had not come into force. The appeals preferred after the commencement of Section 33 of the Amendment Act, will necessarily be governed by the Law, which has come into force on 1st Feb., 1977. A similar question with regard to interpretation of Clause (a) of Sub-section (2) of Section 97 arose in a case Mohan Das v. Kamla Devi, 1978 Raj LW 163: (AIR 1978 Raj 127).

It was argued in that case that right of appeal is a substantive right and such a right shall be governed by law which existed at the time when the Us commenced and would not be affected by subsequent legislation. The Division Bench of this Court examined the validity of this contention in the light of the amendment made in the Civil P. C. by the Amendment Act. It was observed that the basic question for consideration is, whether by the Amending Act, 1976, the necessary intendment can be inferred by which a right of appeal has been taken away. It was further observed that in the scheme of the Amending Act, 1976, it is writ large that the litigation should be shortened and curtailed. It may be stated that there is no saving as such of 'right to appeal'. The expression 'shall not apply to or affect any appeal', cannot be taken 'shall not apply to or affect any right to appeal'. In view of what has been held by the Division Bench in Mohan Das v. Kamla Devi (supra) on' parity of reasoning I hold that Clause (1) of Sub-section (2) of Section 97 of the Amendment Act saves only pending appeals and does not in any way save appeals filed after the commencement of the Amendment Act and the appeals presented after the commencement of the Amendment Act, shall be governed by the amended Section 96.

8. Having found that the appeal filed after commencement of the Amendment Act, shall be governed by Sub-section (4) of Section 96, C.P.C., the question arises as to whether the first appellate court approached the question of repayment in the light of the provisions of Sub-section (4) of Section 96, C.P.C. The trial Court found that the plea of payment stands substantiated on the evidence on record. This finding appears ex facie to be a finding of fact and does not raise any question of law. The first appellate court did not examine the finding of payment on the basis that it gives rise to a question of law liable to interference in appeal. It has proceeded on the basis as if it is open to it to reverse the finding of fact, which it has no jurisdiction to reverse. The first appeal is maintainable from a decree in any suit of the nature cognizable by court of Small Causes, when the value of the subject-matter does not exceed three thousand rupees, when it involves a question of law. else the appeal itself is not maintainable. Thus, in all appeals of the nature mentioned in Sub-section (4) of Section 96, the first appellate courtis required to see as to whether any question of law is involved? If no question of law is involved, then there is a legislative interdiction or injunction against maintainability of appeal. Shri Mathur urged that as the finding has not been examined in the light of provision contained in Sub-section (4) of Section 96, that is, whether the finding gives rise to any question of law or not, the case may be sent back to the first appellate court for hearing the appeal keeping in view the provision of Sub-section (4) of Section 96. Shri Mehta, on the other hand, urged that this Court may go into that question and see whether the finding of fact can be said to be in any way vitiated, either it being perverse, or based on no evidence, or misreading of evidence, or any other ground, on which a finding of fact can be interfered with. In my opinion, it would not be proper for this Court to consider the finding of fact from this aspect as to whether it is liable to be interfered with, on the basis that it gives rise to a question of law. It would be proper that the case may go back to the first appellate court.

9. In the result, this revision petition is allowed, the judgment and decree of the Civil Judge, Udaipur, dated 21-7-1978 is set aside and the appeal is sent back to the learned Civil Judge with the direction that the appeal be disposed of in the light of the provisions contained in Sub-section (4) of Section 96, C.P.C. In the circumstances of the case the parties shall bear their own costs of this appeal.


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