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Firm Murlidhar and ors. Vs. Firm Kishorilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Reference No. 19 of 1959 in First Appeal No. 44 of 1954
Judge
Reported inAIR1959Raj246
ActsRajasthan Civil Courts Ordinance, 1950 - Sections 21; Code of Civil Procedure (CPC) , 1908 - Sections 96
AppellantFirm Murlidhar and ors.
RespondentFirm Kishorilal and ors.
Appellant Advocate Hastimal, Adv.
Respondent Advocate C.L. Agarwal, Adv.
Cases ReferredLtd v. Irving
Excerpt:
- - referred to above rest upon the text of the well-known judgment of the supreme court in the case of garikapati veeraya v. from the decisions cited above the following principles clearly emerge: 7 of 1950) has deprived the appellants of the right of appeal which they enjoyed under the earlier ordinance. in either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested......is 'whether under the facts and circumstances of this case, an appeal against the order of the civil judge, alwar dated the 22nd of march 1954 lay to the high court or to the district judge, alwar.' the reference has been necessitated because the learned judge was doubtful of the view taken by modi j. in some earlier decisions of this court to which reference will be made in due course.2. the facts relevant to the context have been aptly summed up by bhandari j. the plaintiff instituted the suit to which the appeal relates for recovery of over rs. 6,000/- from the defendants in the court of the civil judge, alwar on july 26, 1948. the learned civil judge dismissed the suit on the 22nd of march 1954. it is important to remember that at the time of the institution of the suit, the.....
Judgment:

Sarjoo Prosad, C.J.

1. The preliminary point which Bhandari J. has referred for our consideration is

'Whether under the facts and circumstances of this case, an appeal against the order of the Civil Judge, Alwar dated the 22nd of March 1954 lay to the High Court or to the District Judge, Alwar.'

The reference has been necessitated because the learned Judge was doubtful of the view taken by Modi J. in some earlier decisions of this Court to which reference will be made in due course.

2. The facts relevant to the context have been aptly summed up by Bhandari J. The plaintiff instituted the suit to which the appeal relates for recovery of over Rs. 6,000/- from the defendants in the court of the Civil Judge, Alwar on July 26, 1948. The learned Civil Judge dismissed the suit on the 22nd of March 1954. It is important to remember that at the time of the institution of the suit, the Alwar State Civil Procedure Code, 1947 (No. 16 of 1947) was in force in the erstwhile Alwar State. The law relating to Civil Courts was provided in the United States of Matsya Civil Courts Ordinance, 1948 (No. 5 'of 1948) promulgated on the 28th March 1948 which applied to Alwar also and under Section 10 of this Ordinance, the institution of the suit in the court of the Civil Judge, Alwar was proper.

The above Ordinance also provided for the forum of appeals. Section 16 referred to cases where an appeal would lie to the High Court at Matsya from the decree or order of a District Judge or an Additional District Judge; while Section 17 provided for appeals from the decree or order of a Munsiff or that of a Civil Judge. Sub-section (2) of Section 17 which is material to the discussion runs has follows:--

'(2) Save as otherwise provided by any enactment for the time being in force an appeal from a decree or order of a Civil Judge, passed on the original side, shall lie to the District Judge, and in any other case, to the High Court.'

Under the above provision, the appeal from the decree of the Civil Judge jn the instant case lay to the District Judge. This Ordinance was repealed by the Rajasthan Civil Courts Ordinance, 1950 (No. 7 of 1950). By virtue of section 5 of this Ordinance, all courts constituted under the repealed law were deemed to have been respectively constituted under the Ordinance. Section 21 of the Rajasthan Civil Courts Ordinance, (which has formed the main subject of discussion) as it stood at the time of the filing of the appeal, provided that an appeal against the decree or order of the Civil Judge should be presented to the High Court, if the value of the Original suit in which the decree or order was made exceeded Rs. 5,000/. It is on the strength of this provision that the appeal was filed to this Court. It is not relevant to refer to the subsequent amendments tto the section.

3. At the hearing of the appeal, a preliminary objection was taken that the appeal should have been filed in the court of the District Judge, Alwar and not in the High Court. This argument is based on Section 17 (2) of the United State of Matsya Civil Courts Ordinance under which as shown above, an appeal from a decree or order of the Civil Judge passed on the original side lay to the District Judge. It is contended that it is this section which would operate to govern the forum of appeal, and not section 21 of the Rajasthan Civil Courts Ordinance, which repealed the earlier Ordinance, specially when the court to which the appeal lay continued to subsist even after the repeal. The forum of appeal is to be determined not by the change in the law at the time when the decree was passed but by the law as it was at the date of institution of the suit because a right of appeal is not merely a procedural right but a substantive right of the parties, which could not be affected by any repeal unless the law provided for it expressly or by necessary intendment. The argument found favour with Modi J. in two earlier decisions of this Court. In the case of Nandlal v. Mt. Chotan, First Appeal No. 64 of 1952 D/- 24-11-1958 (Raj) he held that an appeal against the judgment and decree of the Civil Judge Jaipur City under similar circumstances should have been filed before the District Judge, Jaipur, which was the forum of appeal from the decision of the Civil Judge in cases instituted before the Rajasthan Civil Courts Ordinance, 1950 came into force. In other words, according to the learned Judge, the change of forum of appeal by the Rajasthan Civil Courts Ordinance did not affect the forum under the Jaipur Civil Courts Act of 1944 in relation to suits instituted prior to the change. This was in consonance with the view which the learned Judge had already taken in the case of Jaskaran v. Bhanwarlal Civil Misc. First Appeal No. 38-B of 1954 D/- 1-10-1958 (Raj). As Bhandari J. observes, if the above view prevails, the memorandum of appeal in the present case will have to be returned to the appellants to be presented to the court of the District Judge, Alwar. He, however, thought for the reasons set out in his order of reference that the matter deserved consideration by a larger Bench and has accordingly made this reference. The 'earned Judge also recognised that the point under reference was likely to affect several other appeals pending in this Court of a similar nature in which either the Matsya law or the law of the former Jaipur State was under consideration.

4. At the outset it may be stated that the decisions of Modi J. referred to above rest upon the text of the well-known judgment of the Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Choudhry (S) AIR 1957 SC 540. There the Supreme Court formulated the law thus:

'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 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 sucb a right to enter the superior Court accrues to the litigant and exists as on and from the date thelis 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, it it so provides expressly or by necessary intendment and not otherwise.'

The above principles are beyond the pale of controversy but the question is how far those principles are applicable to this case and whether the Rajasthan Civil Courts Ordinance of 1950 (No. 7 of 1950) has deprived the appellants of the right of appeal which they enjoyed under the earlier Ordinance. In appreciating the above principles, some distinction has to be borne in mind between the 'right of appeal' as such and the 'forum of appeal'. Bhandari J. has pointed out that the right of appeal to the appellants was given under section 96 of the Alwar State Civil Procedure Code which is on the same lines as the Indian Code of Civil Procedure. The section simply provided that an appeal shall lie from any decree passed by any court, exercising original jurisdiction to hear the appeals of such courts. Under section 100 of the Code, there was the right of appeal to the High Court in the circumstances and conditions mentioned therein. Section 96 did not in terms provide that the appeal would lie to any particular court. It merely conceded the right of appeal and did not specify the forum to which the appeal lay. This forum was regulated by another appropriate legislation on the point. Under Section 17 (2) of the Matsya Ordinance (No. 5 of 1948) it was provided that an appeal from a decree or order of the Civil Judge passed on the original side should lie to the District Judge. The very opening words of Sections 16 (1) and 17 (1) of the said Ordinance 'Save as otherwise provided by any enactment for the time being in force' suggest that the provision for appeal was subject to any enactment prevailing at the time of the decree or order which was the subject matter of the appeal, and that the forum of appeal could be from time to time regulated by any such enactment. Therefore, can it be argued on these provisions that the right of appeal which is undoubtedly a substantive right has been taken away by the Rajasthan Civil Courts Ordinance when instead of the District Court, it substituted the High Court as the forum of appeal? It cannot be an in-variable rule that a party should have a right of appeal to the identical forum in every case, to which at the date of institution of the suit be had a right of appeal, if in the meantime that forum has been abolished and some other forum has been substituted, so long as the right of appeal itself has not been taken away or otherwise prejudicially affected. Legislative changes, which provide the change of forum affect largely the procedure to be followed by the litigant without taking away his substantive right of appeal and the litigant cannot be heard to say that he must have his appeal heard by that particular court which was empowered to hear the same when the suit was instituted and not by any other court substituted by the legislative change. Unless it is specifically provided by the law by which the right of appeal has been recognised that the party should have further the right of appeal to a particular court, it cannot be argued that the party's right of appeal which is kept intact otherwise, except for the alteration in the forum of appeal is in any way lost. In view of theterritorial adjustment of various courts in Rajasthan from time to time, it would be impossible for a party to make any such claim, so long as his right of appeal is saved, as it is in this case. The Rajasthan Ordinance has not taken away the right of appeal. It has merely provided that in the given case instead of the appeal being filed before the District Judge, as it was under the earlier Ordinance, it should now be presented before the High Court That is not deprivation of the right of appeal. The principles formulated by the Supreme Court in the. above decision do not lay down any contrary proposition.

5. Our attention has been drawn fo the passage in the judgment of Lord Macnaghten in the. Colonial Sugar Refining Company, Ltd v. Irving 1905 AC 369 where the noble Lord observed that

'to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.'

It is to he remembered that by the Rajasthan Civil Courts Ordinance of 1950, the suitor has not been deprived of any right of appeal to a superior tribunal. On the contrary, a right of appeal to the superior tribunal has been conceded to him, because the High Court has been substituted as the forum of appeal for the inferior court of the District Judge; and no one can deny that the suitor will get a more comprehensive review of both facts and law involved in the case from the superior tribunal in question. It has been suggested that the appellants would be deprived of a right of second appeal to which they might be entitled if the case had been heard by the District Judge. The appellants themselves have made no grievance of it because they have presented the appeal to this Court. Therefore, the question does not really arise for consideration. But even if it did, we do not think that there is any substance in it. This appeal will be heard by a single Judge of this Court and under Section 18 of the Rajasthan High Court Ordinance (No. 15 of 1949) an appeal lies to a Division Bench of this Court from a judgment of a single Judge made in the exercise of his appellate jurisdiction. Even from this point of view the suitor stands in a position of advantage. We do not consider it necessary in the view which we have taken of the matter to refer to several other decisions on the point.

6. We accordingly hold that the appeal hasbeen properly presented to this Court and it shouldnow be disposed of by the appropriate Bench. Weneed hardly add that the law as laid down in thiscase now will govern the presentation of all suchappeals of a similar nature.


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