Gujarat High Court
Khurshid Cyrus Medhora vs Cyrus Ratanshaw Medhora & Anr on 17 June, 2015
Equivalent citations: AIR 2015 (NOC) 1298 (GUJ.)
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/FA/5/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 5 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KHURSHID CYRUS MEDHORA ....Appellant
Versus
CYRUS RATANSHAW MEDHORA & ANR. ....Respondents
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Appearance :
MR DHAVAL D VYAS, ADVOCATE for the Appellant
MR JAL SOLI UNWALA, ADVOCATE for the Respondents
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Page 1 of 29
C/FA/5/2013 JUDGMENT
Date : 17/06/2015
ORAL JUDGMENT
1. What is the effect of the Notification No.C.0202/92 dated 14.10.2014 issued by the High Court of Gujarat, enhancing the pecuniary jurisdiction of the Courts established under the Gujarat Civil Courts Act, 2005, with effect from 01.11.2014, is the issue before this Court.
(The answer is in paragraph 10 of this judgment) 2.1 Challenge in this First Appeal is made by the original plaintiff to the judgment and decree passed by the the Principal Senior Civil Judge, Navsari dated 31.08.2012, dismissing the Special Civil Suit No.3 of 1996. The claim for the jurisdiction, is stated to be Rs.5,00,600/- and the Court Fees is paid accordingly. The original defendant had filed caveat also before this Court. The appeal is filed on 26.11.2012, which was admitted by this Court vide order dated 01.03.2013. The appeal is pending for final hearing. During the pendency of this Appeal, an application being Civil Application No.11141 of 2014, was moved by the original appellant for early hearing of the Appeal, which was rejected by this Court vide order dated 30.09.2014. Thereafter, with the issuance of the Notification in question dated 14.10.2014, Registry submitted a note on 15.11.2014 for appropriate order, that the appeal be transferred to the respective District Court. No order on the said note is passed so far. The original appellant again moved Civil Application No.4189 of 2015 for fixing date of hearing of this Appeal. On the said application also, Registry has put Page 2 of 29 C/FA/5/2013 JUDGMENT similar note on 13.04.2015, annexing therewith the copy of the Notification in question dated 14.10.2014. It is under these circumstances, that this issue has cropped up before this Court.
2.2 Since the answer to the above issue may also affect other matters as well, learned advocates who are not representing the parties to this First Appeal were also requested to assist the Court, so that the issue can be looked at from all possible dimensions. It is noted that, at the request of this Court, learned senior advocate Mr. Shalin Mehta, learned advocates Mr. M.B.Gandhi, Mr. Mehul S. Shah, Mr. Mehul Sharad Shah, Mr. J.A.Adeshra, Mr. D.P.Kinariwala, Mr. Harshadray Dave, Mr. Vivek Mapara and Mr. Shashwat U. Shukla, have assisted the Court. During the course of hearing, learned advocates have referred to various statutory provisions and also relied on certain decisions of Honourable the Supreme Court of India as well as of this Court, which are referred to, while dealing with the relevant argument, to the extent necessary.
3.1 The first line of argument is that, all the Appeals pending before this Court on the effective date of the Notification i.e. 01.11.2014 should be transferred to the concerned District Court, if as per the enhanced pecuniary jurisdiction, the concerned District Court is competent to consider the said Appeals. Registry has also put note on this line, for appropriate order.
3.2 The second line of argument is that, those Appeals, which are filed on and after 01.11.2014, for which, as per the enhanced pecuniary jurisdiction, the concerned District Court Page 3 of 29 C/FA/5/2013 JUDGMENT is competent, should not have been registered by this Court and if that is so done, those Appeals are required to be transferred to the concerned District Court. It is submitted that, on and from 01.11.2014, it is the District Court which would be the competent Court to hear Appeal from the decree passed by the Court of Senior Civil Judge in original suits and proceedings of civil nature, when the amount or value of the subject matter of the original suit or proceedings is less than ten lakhs of rupees. It is submitted that there can not be more than one competent Court for any statutory Appeal and for this reason, even those Appeals, which are registered by this Court on and after 01.11.2014 need to be transferred to the Court below.
3.3 The third line of argument is that, it is the date of the institution of the suit / proceedings, in which the judgment appealed against is passed, which is relevant. It is submitted that, therefore, the Court which was competent to hear the Appeal against such judgment on the date of the institution of the said proceeding, should be treated to be the competent Court.
3.4 The fourth line of argument is that, it is the date of the judgment / decree appealed against, which is relevant and therefore, whether the Appeal was pending on the effective date of the Notification i.e. 01.11.2014, or even the Appeal was filed on or before the said date is irrelevant to decide, as to it is which Court which is competent to hear the Appeal against such judgment / decree.
4. Before the above arguments are considered, the relevant provisions need to be kept in view, which are as under.
Page 4 of 29C/FA/5/2013 JUDGMENT 4.1 The Notification in question dated 14.10.2014 issued by the High Court reads as under.
"NOTIFICATION NO.C.0202/92 DATED 14.10.2014 In exercise of powers conferred by Article 225 of the Constitution of India and Sections 14, 14A and 15(2)(a) of 'The Gujarat Civil Courts Act, 2005', the High Court of Gujarat, hereby enhance the pecuniary jurisdiction of the Courts established under 'The Gujarat Civil Courts Act, 2005' with effect from November 01, 2014, as under:
1. Jurisdiction of a Court of Civil Judge:- The jurisdiction of a Court of Civil Judge shall extend to all original suits and proceedings of a civil nature, not otherwise excluded from the jurisdiction of a Court of Civil Judge by any other law, the value of the subject matter of which does not exceed five lakhs rupees. [See Section 14 of the Gujarat Civil Courts Act, 2005].
2. Appeals:- Appeal from the decree and orders passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie to the Court of the District Judge of the district when the amount or value of the subject matter of the Page 5 of 29 C/FA/5/2013 JUDGMENT original suit or proceedings is less than ten lakhs of rupees. [See Section 15(2)(a) of the Gujarat Civil Courts Act, 2005]
3. Power to invest Senior Civil Judges with jurisdiction under certain Acts- Every order made by a Senior Civil Judge by virtue of the powers conferred upon him under sub-
section (1) shall be subject to an appeal to the High Court where the amount or value of the subject matter exceeds rupees ten lakhs or to the Court of District Judge where the amount or value of the subject matter does not exceed rupees ten lakhs. [See Section 24(2) of the Gujarat Civil Courts Act, 2005].
"
4.2 Section 30 of the Gujarat Civil Courts Act, 2005 reads as under.
"30. (1) On and from the appointed date the Bombay Civil Courts Act, 1869, in its application to the State of Gujarat, shall stand repealed.
(2) Such repeal shall not affect the previous operation of the enactment so repealed and any thing done or any action taken including the districts formed, limits defined, courts established or constituted, appointments, rules or orders made, functions assigned, powers granted, seals or forms Page 6 of 29 C/FA/5/2013 JUDGMENT prescribed, jurisdiction defined or vested and notifications or notices issued by or under the provisions of the said Act and deemed to have been done or taken under the provisions thereof shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act and shall continue in force unless and until superseded by anything done or any action taken under this Act.
(3) Notwithstanding anything contained in sub-section(1) or any other provisions of this Act or in the enactment repealed by sub-
section(1) or in any other law or provision having the force of law, all suits, appeals and proceedings connected therewith, pending before any court, which under this Act have to be instituted or commenced in another court, shall, on the appointed day, stand transferred to such other court and shall be continued and disposed of by such other court in accordance with law as if such suit and proceedings had been instituted or commenced in such other court under this Act.
(4) If there be any doubt as to which court any suit, appeal or proceedings shall stand transferred or as to which court any appeal shall be preferred in accordance with the Page 7 of 29 C/FA/5/2013 JUDGMENT provisions of this Act the court designed by the High Court shall be the court to which such suit, appeal or proceedings shall be transferred or such appeal shall be preferred, and the decision of the High Court shall be final.
Notwithstanding such repeal, the provisions of section 7 of the Bombay General Clauses Act, 1904 shall apply in relation to the repeal of the Bombay Civil Courts Act, 1869 as if the Act had been an enactment within the meaning of the said Section 7."
4.3 Section 2(a) and 1(3) of the Gujarat Civil Courts Act, 2005 read as under.
"2(a) "appointed date" means the date appointed under sub-section (3) of section 1"
"1(3) It shall come into force on such
date as the State Government may, by
notification in the Official Gazette,
appoint."
It is noted that, the date of such Notification is 23.03.2005.
4.4 Section 14 and 15 of the Gujarat Civil Courts Act, 2005, as they originally stood (prior to the Gujarat Civil Courts (Amendment) Act, 2014), read as under.Page 8 of 29
C/FA/5/2013 JUDGMENT "14. The jurisdiction of a Court of Civil Judge shall extend to all original suits and proceedings of a civil nature, not otherwise excluded from the jurisdiction of a Court of Civil Judge by any other law, the value of the subject matter of which does not exceed two lakh rupees or such other sum as the High Court may, from time to time specify.
15. (1) Appeals from the decrees and orders passed by a Court of District Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie to the High Court.
(2) Appeals from the decrees and orders passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie -
(a) to the Court of the District Judge of the district when the amount or value of the subject matter of the original suit or proceedings is less than five lakhs of rupees or such other sum as the High Court may, from time to time, specify;
(b) to the High Court in other cases.
(3) Appeals from the decrees and orders
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C/FA/5/2013 JUDGMENT
passed by a Court of Civil Judge in suits or proceedings of a civil nature, shall, when such appeals are allowed by law, lie to the Court of District Judge of the district :
Provided that the High Court may, in
consultation with the State Government, by
notification, direct that such appeals
against decrees and orders may lie to the Court of Senior Civil Judge when the amount or value of the subject matter of the suit or proceeding is less than one lakh of rupees and thereupon appeals shall be preferred accordingly.
(4) The provisions of this section will apply to all decrees and orders made after the appointed date irrespective of the fact whether the suits or proceedings in which they are made were instituted before or after the appointed date."
4.5 By the Notification dated 28.07.2014, the Gujarat Civil Courts (Amendment) Act, 2014 is published, which reads as under.
"1. This Act may be called the Gujarat Civil Courts (Amendment) Act, 2014.
2. In the Gujarat Civil Courts Act, 2005 (hereinafter referred to as "the principal Page 10 of 29 C/FA/5/2013 JUDGMENT Act"), in section 14, for the words "or such other sum as the High Court may, from time to time specify", the words "or such other sum as the High Court may, by notification, from time to time specify" shall be substituted.
3. In the principal Act, after section 14, the following section shall be inserted, namely :-
"14A. All suits and proceedings of a civil nature wherein the subject matter exceeds in amount or value of two lakhs rupees but does not exceed the value or amount as may be specified by the High Court, by notification, from time to time under section 14, pending in a Court of Senior Civil Judge shall, after such specification by notification, stand transferred to and be disposed of by a Civil Judge within the local limits of his ordinary jurisdiction."
4. In the principal Act, in section 15, in sub-section (2), in clause (a), for the words "or such other sum as the High Court may, from time to time specify", the words "or such other sum as the High Court may, by notification, from time to time specify"
shall be substituted."
4.6 Section 7 and 7A of the Bombay General Clauses Act, 1904, as applicable to the State of Gujarat, read as under.
Page 11 of 29C/FA/5/2013 JUDGMENT "7. Where this Act, or any Bombay Act [or Gujarat Act] made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, than, unless a different intention appears, the repeal shall not -
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed;
or (e) affect any investigation, legal
proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, Page 12 of 29 C/FA/5/2013 JUDGMENT continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
7A. Where any Bombay Act [or Gujarat Act] made after the commencement of this Act repeals any enactment by which the text of any previous enactment was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."
4.7 Section 96 (1) of the Code of Civil Procedure, 1908 reads as under.
" Appeal from original decree :-
(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court."
5. Having heard learned advocates and keeping in view the above quoted provisions, the finding of this Court with regard to each line of argument noted above, is as under.
Page 13 of 29C/FA/5/2013 JUDGMENT 6.1 The first line of argument is that, all the Appeals pending before this Court on the effective date of the Notification i.e. 01.11.2014 should be transferred to the concerned District Court, if as per the enhanced pecuniary jurisdiction, the concerned District Court is competent to hear those Appeals. The Registry has also put note on this line, for appropriate order. This argument needs to be rejected, since it is not permissible to do so, for the following reasons.
6.2 The Notification in question is dated 14.10.2014. By specific provision, it is made effective from 01.11.2014. Even in absence of any such stipulation, the same could not have been read to have retrospective effect, in absence of any provision in that regard. The effect of transferring the pending appeals from this Court to the District Court (when the amount or value or the subject matter or the original suit or proceeding is less than ten lakhs of rupees) would be that, though the pecuniary jurisdiction of the Court below is enhanced with effect from 01.11.2014, it is put in effect retrospectively. It would also lead to taking aid of Section 30 of the Gujarat Civil Courts Act, 2005, without there being any amendment in the 'appointed date' as defined under Section 2(a) read with Section 1(3) of the said Act. Thus, accepting this line of argument would cause violence to the effective date prescribed in the Notification itself, so also to the Section 1(3) of the Gujarat Civil Courts Act, 2005.
6.3 This would also be violative of Section 7 and 7A of the Bombay General Clauses Act, 1904 as applicable to the State of Gujarat. As per the said provisions, when any Act is repealed or the text of any previous enactment is amended by the Page 14 of 29 C/FA/5/2013 JUDGMENT express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the pending proceedings.
6.4 There is an additional factor not to do so. The Gujarat Civil Courts Act, 2005 is amended by 2014 Amendment Act. In the said amending Act, after Section 14 which pertains to suits, Section 14A is inserted. The effect thereof is that, in view of enhancement in pecuniary jurisdiction, the suits which were pending in the Court of Senior Civil Judges stood transferred to the Court of Civil Judges. Section 15 pertains to Appeals. There is no insertion of Section 15A as like Section 14A. Thus, the intention of the legislature is quite clear qua pending suits, so also qua pending Appeals. The acceptance of this line of argument would in substance be enacting provision like Section 14A in the form of Section 15A which is consciously not done by the legislature.
6.5 For the above reasons, this Court finds that, to treat the pending appeals having stood transferred or to transfer them by some order, to the District Court, would do violence to more than one statutory provisions.
6.6 At this stage, it is relevant to refer to the observations of Hon'ble the Supreme Court of India in the case of Himachal Pradesh State Electricity Regulatory Commission and Another versus Himachal Pradesh State Electricity Board reported in (2014) 5 SCC 219. Para: 25 and 26 thereof, which will apply with full force in the present case, read as under.
"25. At this stage, we may state with profit Page 15 of 29 C/FA/5/2013 JUDGMENT that it is a well settled proposition of law that enactments dealing with substantive rights are primarily prospective unless they are expressly or by necessary intention or implication given retrospectivity. The aforesaid principle has full play when vested rights are affected. In absence of any unequivocal expose, the piece of legislation must exposit adequate intendment of legislature to make the provision retrospective. As has been stated in various authorities referred to hereinabove, a right of appeal as well as forum is a vested right unless the said right is taken away by the legislature by an express provision in the statute by necessary intention.
26. ... No doubt right to appeal can be divested but this requires either a direct legislative mandate or sufficient proof or reason to show and hold that the said right to appeal stand withdrawn and the pending proceedings stand transferred to different or new appellate forum. Creation of a different or a new appellate forum by itself is not sufficient to accept the argument / contention of an implied transfer. Something more substantial or affirmative is required which is not perceptible from the scheme of the 2003 Act."Page 16 of 29
C/FA/5/2013 JUDGMENT 6.7 Guidance can also be taken from the decision of the Full
Bench of this Court in the case of Commissioner of Income Tax versus Shambhubhai Mahadev Ahir reported in (2014) 268 CTR (Guj.) (FB) 21 (Tax Appeal No.2213 of 2010, dated 25.03.2014). In the said case, the issue was as to whether the instructions of 2011 of the Central Board of Direct Taxes providing for revised monetary limits for filing the appeals to the Tribunals, High Courts and Supreme Court, should be applied to all pending cases irrespective of the date of filing of such appeals. Considering the language used in the said instructions, and paragraph 11 thereof which provided inter- alia that such instructions will apply to appeals filed on or before 9th February 2011, the Bench held that, the pending appeals can not be disposed of on the strength of revised monitory limits.
6.8.1 It is noted that, when the Gujarat Civil Courts Act, 2005 was brought into force, all pending Appeals were transferred to the concerned District Court, as per the pecuniary limits then prescribed. Heavy reliance is placed on the decision of this Court in the case of Nanduben Jivanavala versus The State of Gujarat reported in 2005 (2) GLH (U.J.) 16 (First Appeal No.1125 of 2002, dated 06.07.2005). Not only the said decision would not support this line of argument, it negates this argument. At the relevant time, this Court found that, in view of Section 30 of the 2005 Act, read with the appointed date defined under the said Act, it was automatic that the pending Appeals would stand transferred to the Courts below. The foundation of the said decision, as reflected from para: 3 onwards thereof, read as under.Page 17 of 29
C/FA/5/2013 JUDGMENT "3. In light of the provisions contained in Section 15, appeals from decrees and orders passed by Court of Senior Civil Judge in original suits and proceedings of civil nature shall lie to the Court of District Judge, when the value of the subject-matter of the original suit or proceedings is less than Rs.5 lakh.
4. Sub-section (3) of Section 30 of the said Act provides that, irrespective of what is provided in sub-section (3) of Section 30 on anywhere else in the said Act or in any other law or provision having the force of law, all suits, appeals and proceedings connected therewith pending before any Court, which under the Act have to be instituted or commenced in another Court, shall, on the appointed day, stand transferred to such other court and shall be continued and disposed of by such other Court in accordance with law as if such suit and proceedings have been instituted or commenced in such other Court under the Act.
5. The effect of the above provisions is that an appeal, which is pending before this Court, subject-matter of which is valued at less than Rs.5 lakh, shall stand transferred to District Court, if the appeal arises out of Senior Civil Judge.Page 18 of 29
C/FA/5/2013 JUDGMENT 5.1 It would be appropriate to note that, in the opinion of this Court, sub-section (4) of Section 15, which provides that the provision of Section 15 will apply to all decrees or orders made after the appointed date, irrespective of the fact that whether the suits or proceedings in which they are made were instituted before or after the appointed date, will have no bearing in light of provisions contained in Section 30(3) of the Act, which starts with a non obstante clause and provides that notwithstanding anything contained in the Act or any other law or provision having the force of law, all suits, appeals and proceedings shall stand transferred to the Court before which it should be instituted or commenced.
6. Coming to the present matter, undisputedly, the decree is under challenge is passed by learned Civil Judge (S.D.) (now nomenclatured as Senior Civil Judge) and the suit and the appeal are valued at an amount which is lesser than Rs.5 lakh. Under the circumstances, by virtue of provisions contained Section 30(3) of the Gujarat Civil Courts Act, 2005, the appeal as well as the Civil Application stands transferred to the Court of District Judge, for disposal in accordance with law. The Registry is directed Page 19 of 29 C/FA/5/2013 JUDGMENT to transfer the appeal as well as Civil Application for interim relief, at the earliest along with R & P of the Trial Court, if lying before this Court. For the purpose of this Court, the appeal as well as the Civil Application stands disposed of.
Appeal disposed of as transferred."
6.8.2 Thus, by the above decision, Section 30 of the 2005 Act is given effect to. As noted above, the same can not be done while giving effect to the Notification in question dated 14.10.2014.
6.9.1 Reliance is also placed on the decision of this Court in the case of Rameshchandra Gaurishankar Gupta versus Maheshkumar Gaurishankar Gupta reported in 2005 JX (Guj.) 437 (First Appeal No.983 of 2005, dated 25.07.2005). The said decision would also not support this line of argument. The said decision also is based on giving effect to the provision of Section 30 of the 2005 Act. Relevant paragraphs of the said decision read as under.
"1. Present appeal arises out of a judgment and order passed by learned Civil Judge (S.D.) Palanpur on 13th August,2004 in Civil Misc. Application No.28 of 1987. xxx
2. The question that arises for preliminary determination of this Court is, whether this Page 20 of 29 C/FA/5/2013 JUDGMENT appeal would be maintainable before this Court. xxx 2.1 By virtue of coming into force of the Gujarat Civil Courts Act,2005 with effect from 9th May,2005, appeals from the decree and orders passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature, shall lie to the Court of District Judge of the district when the amount or value of the subject matter of the original suit or proceedings is less than five lakhs of rupees or such other sum as the High Court may, from time to time, specify [Section 15(2)(a)].
3. In the instant case, the judgment is rendered in an application for probate in respect of property indicated in Schedule-A to the application and as per the case of the applicant - appellant, value of property after deducting 1/3rd thereof being gifted portion, would be Rs.1 lakh approximately. Differently put, the total value of the property can be Rs.1,50,000/-.
4. As such, by virtue of the new Act coming into force, the matter shall have to be transferred to District Banaskantha at Palanpur for disposal in accordance with law.Page 21 of 29
C/FA/5/2013 JUDGMENT
9. Viewed from any angle, this appeal would lie before District Court.
10. In light of provisions contained in Section-30(3) of the Gujarat Civil Courts Act,2005, all suits, appeals and proceedings connected therewith pending before any Court would stand transferred to such other Court having jurisdiction as per Section-15 of the said Act. This appeal, therefore, will have to be transferred to the Court of District Judge Banaskantha at Palanpur for disposal in accordance with law.
11. Registry is directed to transfer the appeal at the earliest along with R & P of the Trial Court, if lying before this Court for disposal in accordance with law. For the purpose of this Court, the appeal stands disposed of."
6.9.2 Thus, by the said decision also, Section 30 of the 2005 Act is given effect to, and as noted above, the same can not be done while giving effect to the Notification in question dated 14.10.2014.
6.10 For all the above reasons, the first line of argument (para: 3.1) that, all Appeals pending before this Court on the effective date of the Notification i.e. 01.11.2014 should be transferred to the concerned District Court, if as per the enhanced pecuniary jurisdiction, the concerned District Court is competent, needs to be and is rejected.
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7. The rest of the three lines of arguments noted in para 3.2, 3.3 and 3.4 above are interwoven and therefore are considered together.
7.1 The second line of argument (para 3.2) is that, those Appeals, which are filed on and after 01.11.2014, for which, as per the enhanced pecuniary jurisdiction, the concerned District Court is competent, should not have been registered by this Court and if that is so done, those Appeals are required to be transferred to the concerned District Court. This argument needs to be rejected for the following reasons.
7.2 The third line of argument (para 3.3) is that, it is the date of the institution of the suit / proceedings, in which the judgment / order appealed against is passed, which is relevant. This argument also needs to be rejected for the following reasons.
7.3 The fourth line of argument (para 3.4) is that, it is the date of the judgment / decree / order appealed against, which is relevant and therefore, whether the Appeal was pending on the effective date of the Notification i.e. 01.11.2014, or whether the Appeal was even filed before the said date is not relevant to decide, as to it is which Court, which is competent to hear the Appeal against such judgment. This argument is found to be well-founded and needs to be accepted. It is so for the following reasons.
7.4 Section 96 (1) of the Code of Civil Procedure, 1908 is quoted in para : 4.7 above. The right to file appeal against Page 23 of 29 C/FA/5/2013 JUDGMENT judgment / decree flows therefrom. The said right accrues to a party on the date such decree is passed by the Court. The said party may or may not exercise that right, and if he does, when to do it, is also within his discretion subject to limitation, as may be applicable in each case. From one decree, more than one appeals may also arise at the instance of different parties. The above noted discretion of filing of appeal and the time during which the said appeal is filed, may also differ from person to person. The effective date of Notification in question is 01.11.2014. An appeal challenging the decree passed by the Court of Senior Civil Judge on 10.10.2014, in the suit valued at less than ten lakhs of rupees, could be filed within the prescribed limitation, before the higher forum. The appellant could do it next day, he could also do it on 09.11.2014, without there being any objection about limitation. An argument can not be accepted that if that was done on 11.10.2014 or on any date upto 31.10.2014, the appeal could be filed in the High Court, but if it is filed on and after 01.11.2014, though within limitation, the same would not be maintainable before High Court since it would be competent before the District Court. This may also lead to an absurd situation that one of the aggrieved parties may file appeal before 01.11.2014 which would be maintainable before High Court, and another party files it after 01.11.2014, which would be maintainable before the District Court, and thus, the appeal against the same decree would be maintainable before two different Courts. No provision of law can have such an effect.
7.5 There is one more dimension to this. The answer to a question, as to which is the competent Court to hear an appeal against a decree, must be specific and it can not be dependent Page 24 of 29 C/FA/5/2013 JUDGMENT on the wish of the aggrieved party. A party can not be permitted to contend that had he filed the appeal before a particular date, the High Court was competent, but since he chose to do it after that date, it is the District Court which is competent. This may further complicate the situation when two different parties choose different dates for filing appeal qua the same decree, as noted above.
7.6 On overall consideration this Court finds that, it is the date of the judgment / decree appealed against, which is relevant factor to decide which is the competent Court to consider the appeal. For that purpose, it is immaterial whether on the effective date, the said appeal is pending before this Court, or whether it is even filed before this Court before the effective date. The net effect thereof is that, if the Appeal, which was not even filed on the date of issuance of the said Notification i.e. 14.10.2014 or prior to the effective date of the said Notification i.e. 01.11.2014 i.e. upto 31.10.2014, is required to be considered by this Court, if the said appeal was concerning the suit valued at an amount of rupees five lakhs or more.
7.7 The argument that it is the date of the institution of the suit / proceedings, in which the judgment / decree appealed against is passed, which is relevant, needs to be rejected for the following reasons.
7.8 The point for consideration before this Court is not, as to whether a party to the proceedings has a right of appeal or not. The point is, before which Court, the appeal would be maintainable. This question has cropped up because of Page 25 of 29 C/FA/5/2013 JUDGMENT revision in the pecuniary jurisdiction of the Courts below. If a party to the proceedings has right to challenge the judgment in the said proceedings and during the pendency of the said proceedings, an amendment is brought into force, that now no appeal shall lie against the judgment / decree passed in the said proceedings, the argument could be considered from that angle. A party may be justified to contend that, the date on which he had instituted the proceedings, he had a right of appeal, which can not be taken away by an amendment. However, he can not be permitted to contend that, the appeal from the decree would be maintainable before a particular Court, since earlier it was maintainable there. From the above, three dates fall for consideration. The first is, the date of institution of the proceedings, the second is the date on which the decree sought to be appealed against is passed, and the third is, the date on which the appeal is actually filed. The contest before this Court is, which of these three dates, should be accepted to be the relevant date, and as noted above, this Court has found that, it is the second of these three dates, i.e. the date of the judgment / decree appealed against, which is relevant. A right of appeal gets crystalised on the day decree is passed. If the date of institution of the suit / proceedings is accepted to be the relevant date, it may lead to more anomalous situation than what is discussed above. Before different Civil Courts, suits are decided at different point of time. The difference may be in years, some times even more. Two different Trial Courts, at different point of time, may pass a decree in the suits, may be with the similar / different valuation. If this line of argument is accepted, then in the suit of the year 1978, valued for rupees eleven thousand, if the decree is passed now, the appeal would still be insisted before Page 26 of 29 C/FA/5/2013 JUDGMENT the High Court, in view of the pecuniary jurisdiction then prevailing. At the same breath, if the decree is passed now in the suit of the year of 2015, the valuation of which is rupees five lakhs, the appeal would be filed before the District Court. It is this situation where we would reach, if this argument is accepted. It would also negate the statutory provision like Section 30(3) of the Gujarat Civil Courts Act, 2005. This line of argument therefore needs to be rejected.
8. For the above reasons, this Court finds that, it is the date of the judgment and decree appealed against, which is relevant to decide the competence of the forum to consider such appeal.
9.1 It is noted that heavy reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Videocon International Limited versus Securities and Exchange Board of India reported in (2015) 4 SCC 33. Para 37 of the said judgment reads as under.
"37. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. We shall now venture to determine the controversy which has been debated hereinabove. So as not to be required to repeatedly express one foundational fact, it would be pertinent to mention, that our determination, insofar as the present controversy is concerned, is with reference to situations wherein, the Page 27 of 29 C/FA/5/2013 JUDGMENT amending provision by express words or by necessary implication, does not mandate the amendment to be either prospective or retrospective. In the present case, the instant situation emerges from Section 32 of the Securities and Exchange Board of India (Amendment) Act, 2002, which is silent on the above subject."
9.2 The Notification in question is quite categorical about its effective date. The Notification dated 14.10.2014 itself provides that it is effective from 01.11.2014. The above quoted paragraph itself makes the said decision inapplicable in the present case.
10. For the reasons recorded above, it is held that :-
10.1 The Appeals, which were pending before this Court at the time of issuance of the Notification by the High Court of Gujarat dated 14.10.2014, enhancing the pecuniary jurisdiction of the Courts below with effect from 01.11.2014, can not be transferred to the concerned District Court on the ground that, now it is the concerned District Court which would be competent to consider such Appeals, in view of the enhanced pecuniary jurisdiction. Those Appeals therefore need to be considered by this Court.
10.2 If the date of the judgment / decree appealed against is prior to the effective date of the said Notification i.e. upto 31.10.2014, such appeals need to be considered by the High Court only, if it was otherwise required to be filed before Page 28 of 29 C/FA/5/2013 JUDGMENT this Court, but for the said Notification dated 14.10.2014. In other words, it is the date of the judgment / decree appealed against, which is relevant factor to decide which is the competent Court to consider the appeal. For that purpose, it is immaterial whether on the effective date, the said appeal is pending before this Court. Still further, for that purpose, it is immaterial whether it is even filed before this Court on or before 31.10.2014. The net effect thereof is that, if the Appeal, which was not even filed on the date of issuance of the said Notification i.e. 14.10.2014 or prior to the effective date of the said Notification i.e. 01.11.2014 i.e. upto 31.10.2014, is required to be considered by this Court, if the said appeal was otherwise required to be filed before this Court but for the Notification dated 14.10.2014.
11. Since, by this judgment, a question of law is answered, certified copy of this judgment be made available by the Registry, on payment of requisite charges, even to those persons, who are not party to this First Appeal.
(PARESH UPADHYAY, J.) M O Bhati/38 Page 29 of 29