Kerala High Court
Kerala Transport Company, Calicut vs C.R. Anandavalli Amma And Ors. on 8 March, 1990
Equivalent citations: AIR1990KER330, AIR 1990 KERALA 330, (1990) 1 KER LT 643, (1990) 2 RENCJ 115, (1990) 2 RENCR 661
ORDER K.P. Radhakrishna Menon, J.
1. The Rent Controller allowed the application of the respondents/landlords under Sections 11(2) and 11(3) of The Kerala Buildings (Lease and Rent Control) Act, 1965, for short The Act and ordered eviction of the petitioner from the building; but only on the ground of bona fide need. This order was rendered on 31-7-1989. Thereupon the petitioner filed R.C.A.11/89 before the Appellate Authority namely, the Subordinate Judge, Thodupuzha on 16-10-1989. This Appeal was well within the prescribed time. On 17-10-1989 the petitioner moved an application for of stay execution of the order of eviction. On the request of the respondents, the said application was posted to 21-10-1989 to enable them to file their objection. The hearing was adjourned to 24-10-1989. In the meantime on 26-9-1989, the Notification conferring on the District Judge the powers of Appellate Authority was published in the Gazette. Pursuant to the Notification, the High Court issued an Official Memorandum No. D1-46682/86 dt. 8-9-1989, relevant portion therefrom reads :--
".....When the Notification comes into force, the Subordinate Judges will send the records of the pending cases to the concerned District Judges after issuing notice to the counsel/parties requesting them to appear before the transferee Court on the dates specified therein; under intimation to the High Court.... The District Judges will take up the cases on the notified dates and pass appropriate order".
In compliance with the direction contained in the Official Memorandum, the Sub Court on 31-10-1989 transferred the appeal, the petitioner had filed, to the District Judge.
2. Before the District Judge, the respondents took up a contention that since the appeal reached the District Court only on 31-10-1989, the same must be deemed to have been filed only on that day and hence barred by limitation. This was the state of affairs when the petitioner filed the application with the prayer that the District Judge 'be pleased to accept the appeal as properly filed invoking his inherent jurisdiction'. In the affidavit in support of this petition, the counsel appearing for the petitioner has averred as follows :--
"The above appeal was filed on 16-10-1989 before the Rent Control Authority (Sub Judge's Court) and it was received on file and numbered as R.C.A.11/89. The opposite side took notice of the appeal on 17-10-89, when the stay petition was moved. It was posted to 21-10-89 for objection, and then to 24-10-89 at the request of the respondents. By that time, the necessary communication regarding the conferment of appellate jurisdiction on the District Court had reached the Sub Court. Thereupon I prayed for return of the appeal so that I can present the same before the District Court and move the stay petition urgently. But the Appellate Authority told me that the Hon'ble High Court had directed the transfer of the entire appeals to the District Court and that the same will be forwarded to the District Court. That is how the appeal could not be presented directly before this Court.
In the circumstances unless the Honourable District Court be pleased to invoke the inherent jurisdiction vested in it as an ad-judicatory authority great hardships and prejudice will be occasioned to innocent clients. The gazette Notification dated 26-9-89 escaped my notice, and as usual the appeal was filed before the Appellate Authority and the said authority received it and numbered it and opposite side also did not raise any objections regarding jurisdiction until the case reached this Hon'ble Court".
The District Judge considered the question whether the appeal was barred by limitation as a preliminary point and delivered the judgment which is under challenge in this revision. The District Judge relying on the Division Bench rulings of this Court in Jokki Fernandez v. Amina Kunhi Umma, 1973 Ker LT 138 : (AIR 1974 Ker 162) (FB) and Ulahannan Chacko v. Pareed Marakkar, 1978 Ker LT 330 : (AIR 1978 Ker 161) ruled that inasmuch as the District Judge was not exercising the powers of a Court, the District Judge did not have the power to excuse the delay in filing the appeal invoking Section 5 of the Limitation Act.
3. The learned counsel for the petitioner raised three points: (1) The Division Bench rulings of this Court namely 1973 Ker LT 138 : (AIR 1974 Ker 162)(FB) and 1978 KLT 330 : (AIR 1978 Ker 161) notwithstanding, the Appellate Authority should have entertained the appeal applying the legal principle discernible from the legal maxim 'Lex Non Cogit Ad Impossibilia'. (2) Inasmuch as the defect in filing the appeal cannot be attributed to the petitioner but only to the Court, the petitioner can press into service the legal principle that no act of courts shall harm a litigant, contained in the legal maxim 'Actus Curias Neminem Gravabit' and contend for the position that the appeal was properly filed. Point No. (3) can be stated thus : Since this is a case where the order of the Rent Control Court was pronounced prior to 26-9-1989 the date on which the notification was published, the appeal can be taken to the Subordinate Judge.
4. I shall first deal with the last point. The learned counsel for the petitioner submits that inasmuch as the order sought to be challenged by filing an appeal was pronounced prior to 26-9-1989, the date on which The Notification came into force, the petitioner can file the same before the Subordinate Judge because The Notification has no retrospective operation. The counsel is well founded in the argument in view of the order in C.R.P. 2550/89 and 158.90. The learned counsel for the respondent however, submitted that on the coming into force of The Notification it must be deemed that the appellate forum created by the prior Notification (superseded by The Notification) stood abolished and in its place the new forum namely the District Judge had been created and therefore an appeal challenging the order of eviction after the coming into force of The Notification could be filed only before the District Judge. The petitioner filed the appeal after the coming into force of The Notification and the Subordinate Judge therefore rightly transferred the same to the District Judge and the date on which the appeal was received by the District Judge must be treated as the date on which the appeal was filed. The learned counsel further contended that assuming The Notification has no retrospective operation, even the petitioner has no manner of vested right to have his appeal heard by a specified appellate forum; in that, he cannot contend that his appeal shall be heard only by the Subordinate Judge and not by the District Judge. The counsel in support of this argument made reference to two rulings, one of the Supreme Court in Ittyavira Mathai v. Verkey Yarkey, AIR 1964 SC 907 and the other of this Court in Poulose v. Catholic Syrian Bank Ltd., (1988) 2 Ker LT 599.
5. It is a well established principle of law that no litigant has the right to contend that a Tribunal before whom he could have taken an appeal when he instituted the proceeding, shall not be abolished. The question therefore would always be whether the later enactment contains any provision abolishing the appellate forum. Here the question however, would be : Does The Notification contain any provision abolishing the appellate forum constituted under the superseded Notification so as to say that all appeals pending before the said appellate forums (Sub Judge) shall be made over to the newly constituted appellate forums namely District Judges. Before we go into this ascept, we must ascertain the meaning of the word 'abolition'. The meaning adopted by the Supreme Court is "to destory, extinguish, abrogate or annihilate". (See Gurdit Singh v. State of Punjab, AIR 1974 SC 2058). Let us see whether The Notification in fact destroys the appellate forum created under the superseded Notification. In my view there is nothing in The Notification which would suggest an abolition of the appellate forum created by the superseded Notification. On a reading of The Notification it can be seen that it has repealed the previous Notification like a later enactment repealing an earlier enactment but without retrospective operation. Not only that the jurisdiction of the newly constituted appellate forum was created only from 26th September, 1989. There is also no provision in The Notification that pending appeals were to stand transferred to the District Judges for disposal. Such provisions, as observed by the Supreme Court in Mohd. Idris v. Sat Narain, AIR 1966 SC 1499, are commonly found in a statute which takes away the jurisdiction of one Court and confers it on another. From these circumstances it is to be inferred that if there is at all any expression of intention, it is to keep Section 4 of The Kerala Interpretation and General Clauses Act applicable to pending litigations. It is clear from the discussion above that The Notification did not intend to abolish the appellate forum created under the superseded Notification.
6. Whether the right of appeal vested in a litigant includes the right to have the appeal filed before a particular forum is the other connected aspect that requires consideration. It is true that the Supreme Court in Ittyavira Mathai's case (AIR 1964 SC 907) has observed that whether an appeal shall be heard by one, two or a larger number of judges is merely a matter of procedure indicating thereby that the party has no vested right in that regard. This observation, removed from the context in which it was made, may perhaps suggest that a right of appeal to a particular forum is not a substantive right. I shall therefore furnish the requisite details based on which the above observation was made. The argument advanced on behalf of the litigant was this (Para 15) :--
"The rights of parties to a suit in the matter of preferring an appeal are governed by the law as it obtained when the suit was instituted and, therefore, according to him, as under that law in a suit of that kind an appeal lay before a Bench of three Judges, it could be heard only by such a Bench and not one consisting of a lesser number of judges".
After considering the pros and cons of this argument and with reference to the provisions of the statute which repealed the statute which gave the said right to the litigant, the Supreme Court observed thus (Para 16) :--
"There are two reasons why this argument cannot be accepted. In the first place, the High Court of Travancore was itself abolished as a result of the merger and a new High Court came into being-- the High Court of Travancore-Cochin. The rights of parties to prefer appeals to that High Court were governed initially by Ordinance II of 1J24 and later by Act V of 1125. These provisions came into being subsequent to the institution of the suit. Therefore, the rights of a person aggrieved by the decision of a suit instituted prior to the coming into force of Act V of II25 were only those which were concerned by that Act. A litigant has no right to contend that a tribunal before whom he should have taken an appeal when he instituted the suit should not be abolished. The Legislature has full power to enact a law of that kind and it is not contended before us that the repeal of the Travancore High Court Act was unconstitutional. It would, therefore, follow that whatever rights may have vested in the party in the matter of filing an appeal were abrogated by competent legislature. New rights were conferred in place of those which were taken away and it is only the new rights which could be availed of. After the new rights were conferred even they were modified in one respect, and that was with regard to the hearing of certain kinds of appeals by a Full Bench. The rights to have the appeal heard by a Full Bench by virtue of the provisions of Act V of 1125 had never vested in any of the parties to the present litigation. Therefore, their abrogation by a later law cannot entitle them to make a complaint. There is yet another reason why the argument of the learned counsel cannot be accepted. That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of judges is merely a matter of procedure. No party has a vested right to have his appeal heard by a specified number of judges. An appeal lay to the High Court and the appeal in question was in fact heard and disposed of by the High Court and, therefore, no right of the party has been infringed merely because it was heard by two judges and not by three judges.....".
It can be seen from the above observation that the right of appeal, the party had to the High Court, had not been impaired. This ruling of the Supreme Court therefore has no application to the facts of the case. So is the case with the ruling of this Court in Poulose's case (1988 (2) Ker LT 599). The argument of the learned counsel for the respondent that the appellate forum created by the superseded/repealed Notification stood abolished therefore is overruled.
7. Now I shall consider the question as to whether the right of appeal to a particular forum is a substantive right. It is by now well established that the said right is a substantive right and if any authority is needed in this regard, it is enough if we refer to two decisions of the Supreme Court, Kasibai v. Mahadu, AIR 1965 SC 703 and Garikapatti v. Subbish Choudhury, AIR 1957 SC 540. Following Garikapatti's case the Supreme Court in Kasibai's case had held as follows (at P. 705) :--
"It is true that as a general rule, alterations in the law of procedure are retrospective, but a right of appeal to a particular forum is a substantive right and is not lost by alteration in the law, unless provision is made expressly in that behalf, or a necessary implication arises.....".
It is relevant in this context to note the principles enumerated by the Supreme Court in this regard in Garikapatti's case. They are:
"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.
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 filling of the appeal.
5. The 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.
8. It is also relevant in this context to refer to another decision of the Supreme Court in Manujendra v. Purnedu, AIR 1967 SC 1419. One of the questions considered by the Supreme Court was this : Whether the Controller under The Calcutta Thika Tenancy Act, 1949, after the deletion therefrom of Section 29 by the Amendment Act 6 of 1953, had the jurisdiction to proceed with the case. The Supreme Court after taking note of the argument on this question has observed thus (Para 4) :--
"The contention of Mr. Agarwal was that since it was only by reason of Section 29 that the suit had been transferred to the Controller the deletion of that section from the Act by Section 8 of the Amendment Act of 1953 had the effect of depriving the Controller of his jurisdiction to try the suit and therefore the judgment and order passed by him though confirmed by the learned Subordinate Judge and the High Court was without jurisdiction and therefore bad. In our view, this contention has no force. Though Section 29 was deleted by the Amendment Act of 1953 the deletion would not affect pending proceedings and would not deprive the Controller of his jurisdiction to try such proceedings pending before him at the date when the Amendment Act came into force. Though the Amendment Act did not contain any saving clause, under Section 8 of the Bengal General Clauses Act, 1899, the transfer of the suit having been lawfully made under Section 29 of the Act its deletion would not have the effect of altering the law applicable to the claim in the litigation. There is nothing in Section 8 of the Amending Act of 1953 suggesting a different intention and therefore the deletion would not affect the previous operation of Section 5 of the Calcutta Thika Tenancy Act or the transfer of the suit to the Controller or anything duly done under Section 29. That being the correct position in law the High Court was right in holding that in spite of the deletion of Section 29 the Controller still had the jurisdiction to proceed with the said suit transferred to him".
(Emphasis supplies) In the same strain is the decision of the Supreme Court in Mohd. Idris v. Sat Narain, AIR 1966 SC 1499. Following this decision, this Court in the order in C.R.P. 2550/ 89 and 158/90 (Reported in (1990) 1 Ker LT 651 at p. 654.) has observed thus:--
".....the appeals pending before the Subordinate Judges at the time of the commencement of the Notification shall be heard and dispose of by the Subordinate Judges unless the Notification by express provision or by necessary intendment interfere with the pending proceedings".
9. It is thus clear that the absence of a provision transferring pending appeals to the newly constituted appellate authority goes to show that The Notification in fact, intends to keep Section 4 of The Kerala Interpretation and General Clauses Act applicable to pending litigations. In other words the appeals which are pending before the appellate forum, notwithstanding the creation of a new appellate forum by The Notification, shall be considered and disposed of by the said appellate forum itself.
10. From the discussion above it is clear j that the petitioner's right of appeal shall be governed by the law which prevailed at the time of the commencement of the rent control petition and if that be so, the petitioner has the right to file the appeal before the Subordinate Judge on whom the previous Notification had conferred (the power of) the appellate authority. The appeal which the petitioner had filed before the Subordinate Judge therefore had properly been filed. The Subordinate Judge, in the light of the discussion above, particularly in the light of the directions contained in the order in C.R.P; Nos. 2550/89 and 158/90, it should be said, has wrongly transferred the appeal to the. District Judge.
11. I shall now deal with points Nos. 1 and 2. Facts relevant and requisite in this connection briefly be stated thus, even at the risk of repetition. The order of eviction sought to be challenged by filing an appeal was rendered on 31-7-1989. After obtaining certified copy of the order on 16-10-1989 the petitioner filed the appeal before the Subordinate Judge, Thodupuzha. The appeal was filed ten days prior to the expiry of the period of limitation. From 16-10-1989till31-10-1989 (the date on which the Sub Judge transferred-
the appeal to the District Judge) the appeal was on the file at the Subordinate Judge. The Subordinate Judge as also the parties were unaware of the promulgation of the Notification. If the Sub Judge was aware of the Notification, the Sub Judge would have returned the appeal to the petitioner for presenting the same before the District Judge, before the expiry of the period of Limitation. The parties came to know about it (it can be presumed from the circumstances) only on receipt of notice from the District Judge. It is clear from these facts that compliance with the formalities prescribed by the Notification has been rendered impossible by circumstances over which the appellant has no control. The petitioner therefore is entitled to rely on the well established maxims of equity 'Actus Curiae Neminem Gravabit' and 'Lex Non Cogh Ad Impossibilia' (Broom's Legal Maxims p. 162, 10th Edition, 1939) and sustain his prayer for a declaration that the appeal before the District Judge has validly been filed. These two legal maxims an act of the Court shall prejudice no man and the law does not compel a man to do that which he cannot possibly perform, to my mind, would apply with full vigour here and if that is the position, the appeal before the District Judge must be deemed to have been presented properly on the date on which the District Judge received the same from the Subordinate Judge. The period during which the appeal was pending before the Subordinate Judge and the time the Subordinate Judge took to have the appeal sent to the District Judge require to be excluded in view of the principle laid down in Section 15 of the Limitation Act, 1963. I am fortified in this view by the decision of the Supreme Court in Raj Kumar v. Tarapada, AIR 1987 SC 2195. A reference in this connection to another decision of the Supreme Court in Jang Singh v. Brij Lal, AIR 1966 SC 1631 is profitable. There the Supreme Court was considering the scope of the legal maxim 'Actus curiae neminem gravabit'. The Supreme Court after considering the various aspects of the issue has held thus (Para 6):--
".....It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of courts should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim : "Actus curiae meninem gravabit".
The District Judge therefore is bound to treat the appeal as one filed in time.
12. The counsel for the respondents then argued that since the Subordinate Judge is a persona designate, it must be deemed that on the coming into force of the Notification, he ceased to be the Appellate Authority. Whether a persona designata or a regular Court, so far as the petitioner is concerned, the Subordinate Judge is the appellate authority, within the meaning of Section 18 before which, going by the principles stated above, he could file the appeal. A reference in this connection to the ruling of the Supreme Court in Manujendra v. Purnedu, AIR 1967 SC 1419 is profitable. This argument therefore is without substance. That also is overruled.
13. In view of the finding on Point No. 3, the following direction is issued :
The District Judge shall retransmit the appeal to the Subordinate Judge for being considered and disposed of in accordance with law.
The Order under challenge accordingly is set aside.
C.R.P. is allowed. No costs.