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Jas Karan Vs. Bhanwarlal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberMisc. First Appeal No. 38B of 1954
Judge
Reported inAIR1959Raj45
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96; Rajasthan Civil Courts Ordinance, 1950 - Sections 21; Rajasthan Civil Courts Ordinance (Amendment) Act, 1951 - Sections 2
AppellantJas Karan
RespondentBhanwarlal and anr.
Advocates: R.K. Rastogi, Adv.
Cases ReferredGarikapati Veeraya v. Subbish Chowdhry
Excerpt:
- - vii of 1950) (hereinafter called the ordinance of 1950). section 21 of that ordinance clearly provides that an appeal from a decree or order by the civil judge shall lie to the district judge. 9. in doongarmal's case, a strong argument was raised at the bar that the right of appeal being a vested right was determined, before the right of appeal actually arose, at the very commencement of the suit, and that being so an appeal must as a rule be governed by the law which was in force at the time when the suit was brought. who delivered the majority judgment in this case has summarised the law on the subject in the following words and with respect i cannot do better than to reproduce it here :from the decisions cited above the following principles clearly emerge......cited above the following principles clearly emerge. (1) that the legal pursuit of a remedy, suit appeal or second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (2) the right of appeal is not a mere matter of procedure but is a substantive right. (3) the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (4) the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be.....
Judgment:

I.N. Modi, J.

1. This is an appeal by the plain-tiff Jaskaran against the judgment of the Civil Judge, Sikar dated 27-5-1952 in a suit for recovery o money by which he returned the plaint for presentation to the proper Court under Order 7, Rule 10 of the Civil Procedure Code.

2. It is unnecessary to state the facts of this case at length in view of the conclusion at which I have arrived that this appeal must go back to the learned District Judge concerned in whose court it was originally filed for disposal on merits. A few facts may, however, be stated which have culminated in the presentation of this appeal here.

3. The suit was filed by the plaintiff on 25-5-1950 in the Court of the Civil Judge, Sambhar and eventually it was disposed of by the Civil Judge, Sikar to whom it had been transferred in the meantime. The Civil Judge decided all the other issues except that of jurisdiction in favour of the plaintiff, but as he came to the finding that the defendants did not actually live within the territorial jurisdiction of his Court, he concluded that he had no jurisdiction to take cognizance of the suit and in that view ordered the return of the plaint for presentation to the proper Court.

The plaintiff filed an appeal against the aforesaid Order dated 27-5-1952 in the Court of the District Judge, Sikar on the 2nd July, 1952. It appears that this appeal was registered in the Court of the learned District Judge, Sikar, and, thence on the abolition of that Court, it was transferred to the Court of the District Judge, Jhunjhanu where it remained pending till 19-10-1954.

By an order passed on the last mentioned date, the learned District Judge, Jhunjhanu returned the memorandum of appeal to the Advocate for the plaintiff-appellant Jaskaran for presentation in this Court. Thereupon, the appeal was actually filed in this Court on 29-10-1954. It is convenient to mention at this stage that the Court was closed from 20-10-1954 to 28-10-1954 on account of Dewali Holidays. The office raised the question that the appeal was barred by limitation. The appeal was, however, admitted by a Division Bench subject to objection by the respondents. It is to be regretted that no one has appeared on their behalf in this Court.

4. The learned counsel for the appellant sought to argue the question of limitation and placed a few facts in that connection for the consideration of the Court. While this matter was being canvassed, the question struck me whether the appeal was in law properly presented in the Court of the District Judge on 2-7-1952 because if it was properly filed, the appeal must go back to him for disposal on merits.

5. It is necessary in this connection to refer to the statutory provisions on the question of the proper venue of appeal in so far as they are relevant for the present case. As already stated, the suit out of which the appeal arises was instituted on 25-5-1950. The trial Court ordered the return of the plaint for presentation to the proper court on 27-5-1952.

Consequently, the appeal was filed in the court of the District Judge on 2-7-1952. Now, the position as respects the venue of appeal in 1950 when this suit was instituted is governed by the Rajasthan Civil Courts Ordinance (Ordinance No. VII of 1950) (hereinafter called the Ordinance of 1950). Section 21 of that Ordinance clearly provides that an appeal from a decree or order by the Civil Judge shall lie to the District judge. If this provision is applicable to the present case, the appeal from the decree or order of the Civil Judge in this case undoubtedly lay to the District Judge.

As it happened however, while the suit was pending in the trial Court, the Ordinance of 1950 was amended by the Rajasthan Civil Courts Ordinance (Amendment) Act No. XIV of 1951 (hereinafter called the Act of 1951). The relevant portion of Section 21 after this amendment is inserted into it reads as follows :

'Save as aforesaid, an appeal from a decree or Order of a Civil 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 five thousand rupees, and (b) to the High Court in any other case].''

6. This amendment came into force on 26-5-1951. It seems to me that the learned District Judge, Jhunjhunu when he returned the memorandum of appeal in this case for presentation to the proper Court, was apparently of the opinion that the forum for appeal in the present case fell to be governed by Section 21 as amended and that as the valuation of the suit was over Rs. 5000/-, the appeal lay not to his Court but to this Court.

7. The question which emerges in this state o circumstances is whether the learned District Judge was right in the view which seems to have prevailed with him. Although there is nothing on the record (as is available to this Court) to show the precise reasons which led the learned District Judge to pass the order which he did, to my mind there is no doubt, however, that it is only the amendment last mentioned which must have led the learned District Judge to think that he had no jurisdiction to hear the appeal. The question to decide then is whether this amendment of 1951, which was brought into force while the suit was pending is really decisive of the question as to whether this appeal must not have been filed be-fore the District Judge on the date it was filed, viz., 2-7-1952.

8. The question which has arisen in this appeal did arise in two decisions of this Court, viz., Doongarmal v. Roopsingh 1957 Raj LW 468 : (AIR 1957 Raj 336), Samdukhan v. Madanlal, 1957 Raj LW 464 : (AIR 1958 Raj 62), to both of which I was a party.

9. In Doongarmal's case, a strong argument was raised at the bar that the right of appeal being a vested right was determined, before the right of appeal actually arose, at the very commencement of the suit, and that being so an appeal must as a rule be governed by the law which was in force at the time when the suit was brought. I was, as stated in the concluding part of the judgment herein disposed to think that that view was correct in law.

The Bench however refrained from making any definite pronouncement as to that aspect of the case. The same question then came up before a Full Bench in Samdukhan's case, but in the meantime an amendment Ordinance, viz., Ordinance No. VII of 1957 had been enacted by the Governor and, therefore, that case was decided on the basis of the last mentioned Ordinance and the question which directly arises in the present case was left unanswered although I was inclined to hold the view as expressed by me in Doongarmal's case as will be clear from the observations which I took the opportunity of repeating in the latter case.

The view which has all along commended itself to me, viz., that the right of appeal is not a matter of procedure but a vested right and that it is to be really governed by the law which was in force at the time the suit in question was commenced., is no longer open to any doubt or dispute at this stage, and, in this connection, I wish to invite attention to the high authority furnished for this view by a decision of their Lordships of the Supreme Court in Garikapati Veeraya v. Subbish Chowdhry, (S) AIR 1957 SC 540. His Lordship Section R. Das C. J. who delivered the majority judgment in this case has summarised the law on the subject in the following words and with respect I cannot do better than to reproduce it here :

'From the decisions cited above the following principles clearly emerge.

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

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

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

(4) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the 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.

(5) 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.'

10. Now, let me apply these principles to the facts and circumstances of the present case. As already stated, the suit in the present case was filed on 25-5-1950, and the right of appeal being a vested right, the plaintiffs right to appeal accrued to him when the suit was commenced and must fall to be governed by the law which prevailed at the date of the institution of the suit and not by the law which came into force at the date I of the decision or at the date of the filing of the appeal in 1952.

That being so, the next question to see is what was the state of the law at the time in the matter of appeal when the present suit was instituted. It is admitted and indeed indisputable that that law is provided by Section 21 of the Ordinance of 1950 as it stood then. According to this section, the appeal from the decision of the Civil Judge lay to the District Judge and not to this Court. It is also clear from the; decision of the Supreme Court that the circumstance that this law came in for change while the suit was pending and that according to the amended law, an appeal from the decision of the Civil Judge in a suit of the valuation of over Rs. 5,000/- lay to the High Court does not and cannot affect the right of appeal, which accrued to the litigant and became vested in him as soon as the suit was commenced.

It may also be pointed out that Section 21 of the Rajasthan Civil Courts Ordinance, 1950 has since then undergone several changes from time to time, but it is unnecessary to deal with those changes for the purposes of the present appeal for the simple reason that if Section 21 as amended by the Act of 1951 is not germane to determine the question of the proper forum of appeal in this case much less so are the amendments which came into existence in between 1952 and 1957.

11. The next question which arises is whether there is anything in the Amendment Act of 1951, which gives it retrospective effect expressly or by necessary implication. I have no hesitation in saying that there is nothing in the Amendment Act of 1951, which can give it such retrospective effect.

12. The conclusion is, therefore, inevitable, that this appeal was properly filed in the Court of the District Judge on 2-7-1952 and that his order of returning it for presentation to this Court is unsustainable in law, and must be set aside.

13. It only remains for me to point out that the question of limitation which might have been of some importance in the event of this appeal having to be filed in this Court is of no consequence whatsoever if the appeal was competently laid in the beginning in the court of the District Judge; the simple reason being that it was filed there within the ordinary period of limitation applicable to this case.

14. The result is that this appeal must be transferred to the court of the District Judge, Jhunjhunu for disposal on merits. This result is unfortunate as this old appeal instead of being decided here must travel back to the court of the District Judge, where it was originally filed in 1952. but it cannot be helped. It is very muchto be hoped that the learned District Judge willdispose it of as expeditiously as possible and without any delay. I pass no orders as to costs.


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