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Doongarmal and anr. Vs. Roopsingh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal Nos. 55 and 56 of 1956
Judge
Reported inAIR1957Raj336
ActsRajasthan Civil Courts Ordinance, 1950 - Sections 21 and 21(5); Rajasthan Civil Courts (Amendment) Act, 1956; Code of Civil Procedure (CPC) , 1908 - Sections 96
AppellantDoongarmal and anr.
RespondentRoopsingh and ors.
Appellant Advocate Hastimal, Adv. (for Doongarmal) and; Pragraj, Adv. (for Kishennath)
Respondent Advocate Chandmal, Adv. (for Roopsingh) and; B.K. Acharya, Adv. (for Gordhannath)
Cases ReferredDelhi Cloth and General Mills Co. Ltd. v. Income
Excerpt:
.....on behalf of the respondents was not prepared to challenge this position directly. that a right of appeal is a substantive right well enough but all that this really connotes is that the right of appeal should and could not be taken away and that such a right cannot be said to be taken away if the appeal (which is the right of first appeal in the cases before us) is by an amendment of the law subsequent to the institution of the suit made to lie in one court rather than another. (for this purpose we do not decide whether the right of appeal was vested even earlier, and if so, at which point of time and whether the vesting of such a right extends in the sense that an appeal could and should be filed in a given court and no other). it is indeed clear that the aggrieved party would..........substantive rights. our reason for this conclusion is that to hold that the amendment would govern appeals filed after the amendment of 1956 had come into force, even though the decisions in these suits fell to be given before the amendment would reduce the right of appeal to a mere procedural matter which it is not.9. it is indeed firmly established that a right of appeal is not a matter of mere procedure but is one of substantive right. the position is so well established at this date that even learnedcounsel on behalf of the respondents was not prepared to challenge this position directly. his main contention, however, was put in this way: that a right of appeal is a substantive right well enough but all that this really connotes is that the right of appeal should and could not be.....
Judgment:

Modi, J.

1. These two first appeals raise a common question as to their proper venue or forum. In the event that these appeals should have been filed in the Court of the District Judge concerned, instead of in the High Court, a question of limitation is further involved because in that case the appeals were presented, more than thirty days after the judgment of the trial Court was delivered. We propose to decide both these points by this judgment.

2. In order to appreciate the points which are raised before us, a few facts may be stated shortly.

3. As to Appeal No. 55, the plaintiffs respondents filed their suit against the defendant appellant for recovery of a sum of Rs. 9,221 on the 29th May, 1953. The Senior Civil Judge Jalore decreed the suit by his judgment dated the 25th January, 1956. The defendant filed his present appeal in this Court on the 15th May, 1956, which came to be registered as Appeal No. 55 of 1956.

4. As to Appeal No. 56 of 1956, the plaintiff appellant filed his suit some time in 1946 for the reliefs of declaration and possession in respect of certain movable and immovable property (which was valued at Rs. 9,600/-). The Senior Civil Judge, Merta, dismissed the suit by his judgment dated the 31st January, 1956. The plaintiff then filed his appeal in this Court on the 5th May, 1956, and this appeal stands registered as No. 56 of 1956.

5. On these appeals having been presented in this Court, an objection was raised by the office that these appeals should have been instituted in the Court of the District Judge concerned, inasmuch as Section 21 of the Rajasthan Civil Courts Ordinance (No. VII) of 1950 had been amended in the meantime and by virtue of this amendment, first appeals from decrees from the decisions of Civil Judges in suits of a valuation not exceeding Rs. 10,000/- had been made to lie to the District Judge. Notices were subsequently ordered to issue to the respondents pn the preliminary points of forum and limitation, and this is how these appeals have been placed before us for hearing on these points only.

6. Now, the material portion of Section 21 of the Rajasthan Civil Courts Ordinance (No. VII) of 1950 before the amendment of 1956 stood as follows :

Section 21. Appeals from Civil Judges and Munsiffs :

(1) Save as aforesaid, an appeal from a decree or an 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.

7. By the amendment Act (No. VI) of 1956, it has been enacted that the figures of Rs. 10,000/-be substituted for Rs. 5,000/- in Clause (a) of Sub-section 1 of Section 21 as set out above. Besides, a new sub-section was also added which is in the following terms :

'(5) The High Court may transfer to the District Judge any appeals pending before it under this section where the value of the original suit in which, or of any proceeding arising out of which the decree or order was made, did not exceed ten thousand rupees.'

It is contended before us by the respondents that as the present appeals were filed some time in May, 1956, after the aforesaid amendment had come into force, these should have been instituted in the Court of the District Judge and not in this Court, and, therefore, we should order their return for presentation to the proper Court and it should be left to that Court to deal with the question of limitation.

On the other hand, it is equally strenuously contended on behalf of the appellants that the amendment of 1956 with which we are concerned and which came into force on the 11th April, 1956, is immaterial so far as these appeals go, and that the amendment in question cannot receive a retrospective operation, that a right of appeal is determined not merely or even properly by the state of the law, at the time the appeal is actually brought, but the right is a vested one and that even the forum of the appeal is determined earlier at the time the suit is instituted, and it is, therefore, argued that the appeals were and are properly filed in this Court and indeed they cannot be validly instituted in the District Court. The respondents placed strong reliance on the decision of their Lordships of the Privy Council in Colonial Sugar Refining Co. v. Irving, 1905 AC 369 (A), in support of their contention.

8. We have heard learned counsel for the parties at considerable length and we have been referred to a large number of cases in this connection. But on careful consideration we have formed the conclusion that so far as the present appeals are concerned, they can be properly decided on a short ground without covering the entire ambit of the controversy raised at the bar before us, and that we may well steer clear of those considerations with which we would have been compelled to deal if these suits had been decided after the Amendment Act of 1956 had actually come into force. As already stated, the present suits were decided some time in January, 1956, and the amended Section 21 came into force on the 11th April, 1953

We desire to state at once that to our mind under the circumstances, the amended provision can have no application to suits decided before the amendment was brought into force unless the Legislature has provided for such a result by express enactment or necessary intendment, and a contrary view would indeed amount to giving the amendment a retrospective effect which cannot properly be extended thereto as it is a provision which doubtless touches substantive rights. Our reason for this conclusion is that to hold that the amendment would govern appeals filed after the amendment of 1956 had come into force, even though the decisions in these suits fell to be given before the amendment would reduce the right of appeal to a mere procedural matter which it is not.

9. It is indeed firmly established that a right of appeal is not a matter of mere procedure but is one of substantive right. The position is so well established at this date that even learnedcounsel on behalf of the respondents was not prepared to challenge this position directly. His main contention, however, was put in this way: that a right of appeal is a substantive right well enough but all that this really connotes is that the right of appeal should and could not be taken away and that such a right cannot be said to be taken away if the appeal (which is the right of first appeal in the cases before us) is by an amendment of the law subsequent to the institution of the suit made to lie in one Court rather than another.

It was indeed suggested that the right of appeal was in one sense enlarged in the present case's inasmuch as now two appeals would be made to lie -- though the second appeal would have to be within the limits prescribed by Section 100 instead of a single appeal to the High Court. This position is met on the side of the appellants by the argument that a right of first appeal to the High Court is a far more valuable right because the High Court in such appeal is not merely a court of law but also of fact and that it is impossible for a litigant to repose the same confidence in the findings of fact arrived at by a District Judge as and when they are arrived at by the High Court and consequently the right of first appeal to the High Court is virtually taken away, and further that a second appeal to the High Court is only possible or a question of law and it would simply not lie on a question of fact except when such findings of facts are vitiated by an error of law.

Be all this as it may, once we accept the major premise, as indeed we must, that a right of appeal is not a mere procedural matter and that it pertains to the domain of substantive rights, we cannot get away from the position that such a right cannot be allowed to be taken away retrospectively unless an express provision to that effect has been made by the Legislature or the same result is deducible on the principle of necessary intendment. As already stated, the judgments in the cases before us were pronounced in January, 1956. Then a right of appeal at once arose to the aggrieved party to appeal from the decision given to a Court which would be authorised to receive it at that time. (For this purpose we do not decide whether the right of appeal was vested even earlier, and if so, at which point of time and whether the vesting of such a right extends in the sense that an appeal could and should be filed in a given Court and no other).

It is indeed clear that the aggrieved party would be within his rights on that very day to prefer an appeal from the decision by which he was feeling aggrieved and in consonance with the law which was in force then, he would be well within his right to institute his first appeal in the High Court, this right, in our opinion, cannot, in any way, be affected simply because he filed his appeal not immediately after the judgment sought to be appealed against was delivered, but he presented the appeal later within the period of limitation permitted to him under the law. It follows that this right cannot be allowed to be affected by any amendment of the law which may have been brought into force in between the pronouncement of the judgment and the presentation of the appeal.

For, to allow this to be done would be to give a retrospective effect to the amendment, contrary to the well settled principle that laws touching the substantive rights of parties, as contradistinguished from their procedural rights, should be applied prospectively only, a retrospective operation being only permissible where the legislature has made an express provision to that effect orsuch a result is irresistibly deducible on the theory of necessary intendment.

10. The conclusion at which we have arrived above is abundantly supported by the decision of their Lordships of the Privy Council in Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commr., Delhi, AIR 1927 PC 242 (B). In that case certain orders were passed by the High Court on reference under Section 66 (2) of the Indian Income-tax Act before the 1st April, 1926. The unsuccessful party applied to the High Court for leave to appeal to the Privy Council, and the High Court refused to grant leave under Section 109(c) of the Code of Civil Procedure, which was supposed to be the only provision under which such leave could be granted, if at all.

On the 1st April, 1926, however, the Indian Income-tax Amendment Act, 1926, came into force by Section 8 of which it was in effect provided that when a case has been referred to the High Court under Section 66, it shall be heard by a Bench consisting of not less than two Judges, notwithstanding any other provision to the contrary and that an appeal from such a decision shall lie to the Privy Council where the High Court certifies such a case to be a fit one for appeal.

One of the questions debated before the Privy Council was whether an appeal under this amended section at all lay to the Privy Council from an order of the High Court made before the Act of 1926 came into force. Their Lordships answered this question in the negative and made the following, observations which may usefully be quoted at this place,

'While provisions of a statute dealing merely with matters of procedure may properly....have retrospective effect attributed to them, provisions which touch a right in existence at the passing of a statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.'

Their Lordships then proceeded to pronounce that there was no such indication in the new provisions made and held that there was no statutory right of appeal under the amended section from the orders of the High Court passed before the 1st April, 1926, that is, when the Amendment Act of 1926 had come into force.

11. The principle of the above decision is clearly applicable to the cases before us. A right, of appeal had in our opinion doubtless come into play for the party concerned as a result of the judgments delivered in the cases before us before the Civil Courts Ordinance Amendment Act of 1956 had come into force. This right was to appeal to the High Court and was clearly available to the appellants at the commencement of the Amendment Act of 1956.

It was a substantive right and could not be touched by anything brought about by the Amendment Act with respect to decisions given before the Amendment Act came into force unless of course we are able to hold that the Amendment Act has been made retrospective by an express provision or by necessary intendment.

12. The next question to determine is whether there is anything in the amended section to lead us to the conclusion that the Legislature intended to give retrospective operation to the new rule. If, is conceded on behalf of the respondents that there is no such express provision in the Amendment Act which would enable the amended section to apply to all pending suits or for thatmatter to suits decided before the amendment came into force.

13. Learned counsel then argued that Sub-section 5 of the amended section is an indication in the direction that effect should be given retrospectively to the new arrangements ordered and that all pending appeals of a valuation not exceeding Rs. 10,000/- could be disposed of either by the High Court or the latter might transfer them to the District Judge for disposal. We have carefully considered Sub-section 5 which we have set out in extent earlier in our judgment, and we are clearly of opinion that it is altogether insufficient to persuade us to hold that the intention of the Legislature in enacting this provision was that appeals in suits decided before the amended section had come into force were necessarily to be filed in the District Court and not in the High Court after the amended section had come into operation.

Indeed this provision is of too nebulous a character to admit of the necessary inference contended for by the respondents and was merely a provision intended to govern appeals pending in the High Court at the commencement of the Amending Act of 1956.

14. We, therefore, hold that the appeals be-fore us, which are from decisions given before the Civil Courts Amendment Act of 1956 came into force, have been validly filed in this Court. That being so, they were properly filed within the period of limitation prescribed for appeals in this Court and so there can be no doubt or dispute about their being within the period of limitation prescribed for the purpose and we hold accordingly.

15. Before we conclude, we wish to add that in deciding the question of the proper venue of these appeals, we have refrained from dealing with these cases from the larger aspect which would certainly come into play in those suits which have been decided after the Amendment Act of 1956 came into force. Would the Amendment Act govern such appeals or would these appeals also be outside the attractability of the Amendment Act on the ground that appeals in these cases must still be filed in the High Court as being the Court where they should have been filed according to the law which was in force at the time these suits were instituted in the absence of any express provision or manifestation of such intention to the contrary?

A strong argument was raised at the bar of this Court that the right of appeal is a vested right and is in law determined before the right of appeal actually arises at the very commencement of the action, and that that being so an appeal must as a rule be governed by the law which was in force at the time the suit was brought. See Colonial Sugar Refining Co. v. living (A). If this argument should prevail, (as indeed one of us --the writer of this judgment is inclined to think) although we make no pronouncement as to this in the present cases, it is feared that all first appeals in cases instituted before the present amendment came into force would still have to be filed in the High Court, and the fulfilment of the object sought to be achieved by the Amendment Act may remain deferred in actual practice for some years to come.

16. Reverting from this digression, however, we agree in the conclusion that the appeals before us have been properly filed in the High Court and we hold accordingly. The appeals will be set down for hearing on the merits in due course.


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