Jharkhand High Court
Ganesh Singh And Anr. vs Bishram Singh And Ors. on 29 July, 2003
Equivalent citations: [2003(3)JCR527(JHR)]
Bench: P.K. Balasubramanyan, R.K. Merathia
ORDER
1. A suit, Title Suit No. 5 of 1986 was filed by the appellants herein as the plaintiffs in the Court of the Subordinate Judge, Palamau, Daltonganj. The said suit was dismissed by the trial Court on 29.4.1989. An appeal was filed before this Court by the plaintiffs on 24.7.1989. That appeal was dismissed by a learned Single Judge of this Court on 21.1.2002. This appeal was filed invoking Clause 10 of the Letter Patent. The Code of Civil Procedure, as amended by Act 22 of 2002 and Act 46 of 1999 was brought into force with effect from 1.7.2002. Section 100A of the Code of Civil Procedure introduced by Act 104 of 1976 with effect from 1.2.1977 was amended. The present appeal was filed only on 30.9.2002, after the coming into force of the amended Section 100A of the Code. The question is whether this appeal is maintainable or could be entertained by this Court.
2. Even at the outset, we must express our disappointment at the assistance we received in deciding this difficult question. But, our research has shown that while the Ahdhra Pradesh, Madhya Pradesh and Kerala High Courts have taken the view that no Letters Patent Appeal filed after 1.7.2002 would he maintainable, the Orissa High Court has taken the view that the appeal would be maintainable notwithstanding, the fact that it has been filed after 1.7.2002, provided it arises out of a suit filed prior to 1.7.2002. One of us (the Chief Justice) was a party to the decision of the Orissa High Court. The Orissa High Court did refer to the decision of the Andhra Pradesh High Court, but had no occasion to advert to the judgments of the Madhya Pradesh High Court and the Kerala High Court which followed the view of the Andhra Pradesh High Court, and took a view contrary to the one taken by the Orissa High Court. In view of the general importance of the question posed, we think it proper to discuss the question in some detail.
3. Certain fundamental aspects can be noticed even at this stage. A right of appeal is not an inherent right, but it is a conferred right. One it is conferred it becomes a vested right. Ordinarily, the filing of a suit carries with it the right of appeal that was available to the litigant as on the date of the institution of the suit. It any authority were needed for this proposition, the same could be found in the decision of the Supreme Court in the State of Bombay v. Supreme General Films Exchange Limited, AIR 1960 SC 980. Support can also be found from the observations of the Supreme Court in Shiv Shakti Co-operative Housing Society Nagpur v. Swaraj Developers, JT 2003 (4) SC 255, wherein it is observed :
"An appeal is essentially continuation of the original proceedings and the provisions applied at the time of institution of the suit are to be operative even in respect of the appeals. That is because there is a vested right in the litigant to avail the remedy of an appeal."
A vested right of appeal can be taken away by a retrospective amendment of the concerned statute conferring the right of appeal. But unless it is so taken away, it will be preserved especially by operation of Section 6 of the General Clauses Act. In such a case, as noticed by the Supreme Court in the State of Punjab v. Mohar Singh, AIR 1955 SC 84, the line of inquiry is not whether there is anything, in the amending statute to preserve the right, but whether there is anything in it to destroy the existing right. In other words, the line of inquiry is not whether the right is preserved, but it is whether the right is destroyed. In case of appeals, application of Section 6 of the General Clauses Act cannot be kept out. This is also clear from the two decisions of the Supreme Court referred to above.
4. Now, we shall refer to the decisions that have been rendered on this question. The first in point of time is the decision of the Andhra Pradesh High Court dated 1.8.2001 in S. Shiva Raja Reddy and Ors. v. S. Raghu Raj Reddy and Ors., 2002 (4) CCC 75. After an exhaustive reference to the relevant amendments and various decisions relevant to the question. The Division Bench of the High Court summed up the decision therein thus :
"36. In our considered opinion, the retrospective operation of Section 100A is limited to the extent of taking away the right accrued in favour of a litigant to prefer Letters Patent Appeals arising out of the suits instituted or filed before 1.7.2002, what is prohibited by the newly substituted provision Section 100A, CPC is entertainment of Letters Patent Appeal from the judgment and decree of a Single Judge arising out of an appeal from an original or appellate decree or order. The right of appeal, if any, in force at the time of institution of the suits filed prior to 1.7.2002 are not preserved. From a plain reading of the provision, it is clear that no further appeal against an order of the Single Judge shall lie and be entertained after 1.7.2002."
5. Their Lordships then proceeded to say that in the context of Section 6 of the General Clauses Act, what was crucial was the language employed in the amended provision. According to their Lordships the language employed in the newly amended provision was absolutely clear and free from ambiguity. It was stated that the very fact that the provision began with a non-obstante clauses, was in itself a reason for excluding the applicability of Section 6 of the General Clauses Act. Ultimately their Lordships held that they were not inclined to hold that the newly inserted section completely destroyed even the old Letters Patent Appeals already preferred by the litigants and which were pending adjudication. What was prohibited was the filing of Letters Patent Appeals after 1.7.2002, the date the amended section came into force of Act 22 of 2002, no Letters Patent Appeal would lie to a Division Bench against a judgment rendered by a Single Judge. The dale of judgment had 110 relevance. What was prohibited was the preferring of a Letters Patent Appeal after the amending provision came into force. It was concluded that all appeals already filed, admitted and pending final disposal were in no way affected by the amended provision. The retrospective effect of the amended provision was not so sweeping as to affect even those appeals. Thus all Letters Patent Appeals presented or filed before 1.7.2002 were maintainable whether they had been admitted or not. Those appeals were excluded from operation of Section 100-A as inserted by Act 22 of 2002.
6. A Full Bench of the Madhya Pradesh High Court in Lakshmi Narayan v. Shivlal Gujar. AIR 2003 MP 49. rendered its decision on 3.10.2002. The Full Bench stated that the words 'is heard and decided in Section 100-A as inserted by Act 22 of 2002 were of 'immense significance and read along with the words 'no further appeal shall lie' it had to be held that appeals which arose from suits instituted prior to 1.7.2002 are not protected, in other words. According to the Full Bench, in view of the language used in Section 100A of the Code of Procedure as inserted by Act 22 of 2002, it had to be held that notwithstanding Section 6 of the General Clauses Act. A vested right of a suitor to file an appeal had not been saved after 1.7.2002. According to the Full Bench, the intention of the Legislature was to curtail Second Appeals in a third Court. But there was no intention to nullify hearing of pending appeals preferred before 1.7.2002, but no appeal which was covered within the ambit and sweep of the language used in Section 100-A of the Act would lie after 1.7.2002. The section according to the Full Bench had limited retrospectivity by which the vested right of a suitor filing a suit prior to 01.7.2002 was not saved, but the fate of all pending appeals before the cut-off date remained unaffected.
7. On 7.3.2002, the Orissa High Court rendered its decision in Special Land Acquisition Officer v. Tankadhan Manabhoi, 2003 (7) ILD 47 (Orissa). In that decision the decision of the Andhra Pradesh High Court was referred to. But the decision of the Madhya Pradesh High Court, "though rendered earlier in point of time was reported only in the March part of All India Reporter 2003." was not available. The Division Bench, after referring to the decisions in Garikapati Veeraya v. N. Sub-biah Choudhary and Ors., AIR 1957 SC 540 and State of Bombay v. Supreme General Films Exchange Limited, AIR 1960 SC 980, held that the right of appeal was a vested right and the filing of a suit carried with it the right to file an appeal, as was available on the date of the filing of the suit. In that context, the Division Bench quoting the following passage from Halsbury's Laws of England, 4th Edition Vol. 44, Paragraph 922 :
"922. Presumption against retrospection.--The general rule is that all statutes, other than those which are merely declaratory, or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the mention of the legislature.
Similarly, the Courts will construe a provision as conferring power to act retrospectively only when clear words are used.
xxx xxx xxx it is also in reliance on the presumption that the Courts have frequently held pending proceedings to be unaffected by changes in the law so far as they relate to the determination of substantive rights. In the absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of a parties to an action fall to be determined by the law as it existed when the action was commenced, and this is so whether the law is changed before the hearing of the case at first instance or while an appeal is pending,"
held that the right of appeal being a substantive right once conferred, in the normal course could not be affected by Section 100-A of the Act inserted by Act 22 of 2002. The Division Bench noticed that there was no transitory provision making the amendment retrospective in Act 22 of 2002, unlike in Act 104 of 1976 which introduced Section 100A of the Code, restricting the right of a further appeal from a Second Appellate Decree and took the view that there was nothing in the amending Act, which destroyed the right that a suitor had of appealing against the decision of a Single Judge, either under Clause 10 of the Letters Patent or under the relevant provision of the concerned High Court Act. The decision of the Andhra Pradesh High Court on that aspect was not followed by holding that in the absence of any provision in the repealing section of Act 22 of 2002 which inserted Section 100A of the Code, in the present form, the proper view to take was that the bar created by Section 100A as introduced on 1.7.2002 would affect only cases where suits were instituted subsequent to 1.7.2002, the date of the coming into force of that section.
8. The High Court of Kerala rendered its decision in Raj Lakshmi Associates v. Sri Meenakshi Papers, 2003 (6) ILD 523, on 19.3.2003. After referring to the various decisions including the decisions of the Andhra Pradesh High Court and the Madhya Pradesh High Court and the decision of the Supreme Court in Kolhapur Cane Sugar Works Limited v. Union of India, AIR 2000 SC 811, their Lordships held that they were in agreement with the reasoning of the Full Bench of the Madhya Pradesh High Court and the Division Bench of the Andhra Pradesh High Court that no appeal which comes within the ambit and the scope of language used in Section 100A of the Code would lie after 1.7.2002, but appeals filed prior 1.7.2002. would not be affected. It does not appear that there is any independent consideration of this aspect, namely, whether the right of a suitor to file a Letters Patent Appeal or an Appeal under Section 5(ii) of the Kerala High Court Act as in that case, was in any manner affected by the introduction of Section 100A of the Code of Civil Procedure with effect from 1.7.2002. It is in the context of the above decisions that the question of maintainability of the appeal has to be considered by us.
9. Section 100A was inserted in the Code of Civil Procedure by Section 38 of the Code of Civil Procedure Amendment Act, Act 104 of 1976. The said section as inserted then read as follows :
"No further appeal in certain cases.--Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any appeal from an appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal."
10. There was in transitory provision in Act 104 of 1976 Section 97 of the Act provided for repeal and savings. Section 97(1) invalidated all State Amendments inconsistent with the Code as amended by Act 104 of 1976. Sub-section (2) of Section 97 saved certain rights and destroyed certain others. This was necessary because Section 97(3) of the Act clearly provided that save as otherwise provided in Sub-section (2), the principal Act as amended by Act 104 of 1976 shall apply to all pending proceedings. Thus, subject to the rights saved by Section 97(2) of Act 104 of 1976 the amendment was made retrospective so as to apply to all pending proceedings. The retrospective operation of Section 100-A was restricted by Section 97(2)(n) of Act 104 of 1976 and appeals admitted before 1.2.1977 were saved. But for that saving, all appeals, including pending appeals, would have been thrown out as not maintainable.
11. Section 97(2)(n) declared that Section 100A of the Code as inserted in the Principal Act by Section 38 of that Act shall not apply to or affect any appeal against the decision of a Single Judge of a High Court under any Letters Patent which had been admitted before the commencement of Section 38 of the Act on 1.2.1977 and all admitted appeals had to be disposed of, as if Section 38 had not come into force. This led to the argument that those further appeals from second appellate decrees, which had not been admitted prior to 1.2.1977 were affected by Section 100A of the Code as introduced and no such appeal could be entertained after the insertion of Section 100A into the Code. Arguments based on Section 6 of the General Clauses Act were obviously raised. The view was taken that the transitory provision. Section 97(3) read with Section 97(2)(n) of the amending Act, clearly evinced the intention to destroy the right of appeal against a second appellate decree on and from 1.2.1977, the date on which that section was introduced and they only saved those appeals which had already been admitted under Order 41, Rule 11 of the Code of Civil Procedure. In other words, by following the line of inquiry as to whether the right available was destroyed or not, the view taken was that the right was destroyed in view of the retrospective operation given by Section 97(3) subject to the saving contained in Section 97(2)(n) of the Amending Act, Act 104 of 1976.
12. It may be noticed here that in a more wider form Section 100-A was sought to be amended by the Amending Act, Act 46 of 1999, which had also a transitory provision in Section 32 of that Act. That transitory provision was along the lines of Section 97 of Act 104 of 1976, but with the important omission of a provision corresponding to Section 97(3) of Act 104 of 1976 making the amended section retrospective in operation. But Sub-section (2). of Section 32 of the Act by Clause (g) provided for saving only the appeals admitted prior to the coming into force of the amendments brought about by that Act. But in the absence of a provision like Section 97(3) of Act 104 of 1976, what was its effect is not clear. That inquiry need not be pursued, since the amending Act, Act 46 of 1999 was not brought into force at all. A further amendment of Section 100-A restricting the embargo on the right of appeal was introduced by Act 22 of 2002. The section as introduced or as substituted by Act 22 of 2002 reads thus :--
"100-A. No further appeal in certain cases.--Notwithstanding anything contained in any Letters patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge."
13. Simultaneously, the transitory provision contained in Section 38(2) (g) introduced by Act 46 of 1999, was deleted by Act 22 of 2002 with the result that there was no provision corresponding either to Section 97(3) or Section 97(2)(n) of Act 104 of 1976, when the amended Section 100A was brought into force on 1.7.2002. It was simply a case of Section 100A of the Code of Civil Procedure existing in the statute book from 1.2.1977 being substituted by another section in the present form as quoted above. The distinction obviously was that not only further appeals from Second Appellate Decrees, but further appeals from First Appellate Decrees were tabooed under the amended provision. Thus, what we are left with is a simple amendment or substitution of Section 100-A by Act 22 of 2002. The question is whether the amendment of the section and the creation of an additional bar to the right or appeal, could be treated as destroying the vested right of appeal available to a suitor on his filing the suit or in any manner impairing it. It other words, can we hold, merely based on the language of Section 100A of the Code of Civil Procedure as inserted by Act 22 of 2002, that the right is destroyed even in respect of appeals arising from suits filed prior to 1.7.2002?
14. All the High Courts are agreed and there cannot be any dispute about it in the light of clear pronouncements by the Supreme Court, that the right of appeal once conferred is a vested right. It is clear from the decisions of the Supreme Court already referred to, that the filing of a suit carries with it a right to appeal as was available to the suitor as on the date of the filing of the suit. One these propositions are accepted, it is obvious that the amendment of Section 100A of the Code, restricting the right of appeal from a first appellate decree, cannot affect the right vested in a litigant, unless the section is made specifically retrospective or it is to be understood as retrospective by necessary implication. In the context of Section 6 of the General Clauses Act and various decisions on the scope of the provision it is clear that a retrospectively extinguishing a right of appear cannot be readily inferred. The implication must be inescapable. With respect, it is seen that the Andhra Pradesh High Court in its decision had not specifically dealt with the question of appeals, arising out of the suits filed prior to 1.7.2002. Same is the position regarding the decision of the Kerala High Court, but in the Full Bench decision, of the Madhya Pradesh High Court after holding that the right of appeal is a vested right and the right of appeal under Clause 10 of the Letters Patent also is a vested right and that such a right will normally be available to the suitor who had filed the suit prior to 1.7.2002. it has been held that the right to file an appeal after 1.7.2002 must be taken to be destroyed by the language employed by Section 100A of the Code of Civil Procedure. Because of the use of the expression 'no further appeal shall lie' and the use of the further expression 'is heard and decided', it has been held that the right that had otherwise accrued to a suitor by the institution of his suit, has been destroyed.
With respect, we find it difficult to agree with the said conclusion.
15. Section 100A simply provides that notwithstanding anything contained in the Letters Patent for any High Court where an appeal from the original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of that Single Judge. The language employed, in our view, does not give rise to any presumption that the right that accrued to a suitor was intended to be destroyed. We cannot forget the absence of a provision like Section 97(3) of Act 104 of 1976, in amending Act 22 of 2002. Making the amendments brought in by that Act, retrospective or as affecting even pending matters. It may not be permissible in such circumstance to infer merely from the use of the expressions 'heard and decided' and 'no further appeal shall lie' that even an accrued right of appeal stands destroyed. Though in appropriate cases, the language of an amended provision may compel a construction as to its retrospectivity, we do not see anything in the language of Section 100A of the Code as amended, to compel such a construction. We must remember in this context that the line of inquiry is not whether the right is preserved by the amending Act, but whether the right is destroyed by the amending Act. Section 100A of the Code intends to destroy the right, but on the language of that section in the face of a right of appeal being not merely a procedural right and in the face of Section 6 of the General Clauses Act, it can only be understood as affecting appeals from suits filed after 1.7.2002. The relevant passage from Halsbury's Laws of England has been quoted in the decision of the Orissa High Court and has been noticed by us earlier. Consistent with the settled principles of law, what the section provides is that there shall be no further appeal from the judgment of a Single Judge either in a Second Appeal or in a First Appeal. The language employed in Section 100A does not lead to an interference that the section must be understood to be retrospective so as to even affect pending matters. We cannot also forget that "Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have retrospective effect." See Re Pul-borough Parish School Board Election. Bourke v. Nutt, (1894) 1 QB 25 at 73 and K. Eapin Chako v. Provident Investment Company (P) Ltd., AIR 1976 SC 2610. With respect, we are not in a position to agree with the proposition enunciated by the Madhya Pradesh High Court.
16. A substitution may, in a given circumstance, lead to an argument that the substitution must take effect from the date of introduction of the original provision which it had substituted. But when such substitution introduces a further restriction on a vested right like the right of appeal, the substitution cannot be understood to be retrospective, unless the amending Act or the Act making the substitution, compels a conclusion that the substitution is retrospective. As observed by the Supreme Court in Bhagat Ram Sharma v. Union of India, AIR 1988 SC 740, even in the case of a substitution, an amendment of a substantive law is not retrospective, unless expressly so laid down or by necessary implication.
17. In Ramesh Singh v. Cinta Devi, AIR 1996 SC 1560, the Supreme Court, after referring to the earlier decisions in Hoosein Kasam Dada (India) Limited v. State of M.P., AIR 1953 SC 221. the Supreme General Films Exchange, AIR 1960 SC 980 and Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, Nag-pur, AIR 1967 SC 344, held that unless the new Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystalize on the institution of the application in the Tribunal of the first instance and that a vested right of appeal would not be dislodged by the enactment of the Motor Vehicles Act, 1988 or the relevant Section 173 therein.
18. In Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, AIR 1999 SC 3609, it was held that the principle of interpreting a legislation by substitution was the same as the rule of construction to be applied while dealing with a legislation and the substituted legislation could not be held to be retrospective in the absence of anything in the enactment to show that it is to have a retrospective operation.
19. The Kerala High Court has relied on Kolhapur Canesugar Works Limited v. Union of India (2000) 2 SCC 536, in support ofits view. But, an examination of that decision shows that, that was a case to which Section 6 of the General Clauses Act had no application. The question for decision was the effect of omission of a rule. It was said, "If there is a provision therein that pending proceedings shall continue and be disposed of under the old rules as if the rule had not been deleted or omitted, then such proceeding will continue. If the case is covered by Section 6 of the General Clauses Act, or there is a part material provision in the statue under which the rule has been framed, in that case also, the pending proceedings will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule, the pending_proceedings would lapse on the rule under which the notice was issued or proceedings were initiated being deleted/omitted". It is, therefore, clear that Section 6 of the General Clause Act would make all the difference, in the case on hand. In Shiv Shakti Cooperative Housing Society Case, JT 2003 (4) SC 255, also this aspect was noticed by the Supreme Court. After referring to the decision in Kolhapur Cane Sugar Works, it is stated that there is modification of this position by application of Section 6 of the General Clause Act. Obviously, in the case of a right of appeal. Section 6 of the General Clause Act has application. Hence Kolhapur Cane Sugar Works case cannot be relied on to hold that the right of appeal is lost.
20. It is to doubt true that the intention of Parliament in enacting Section 100A as it now stands, was to abolish further appeals from First Appellate Decrees in addition to further appeals from Second Appellate Decrees already provided for. But we must also remember that the Parliament did not include a provision like Section 97(3) of Act 104 of 1976, while enacting Act 22 of 2002 and introducing a further restriction on the right of appeal. It is therefore, possible to argue that by not enacting a provision like Section 97(3) of Act 104 of 1976 and by deleting Section 32(2)(g) of Act of 1999, the Parliament has clearly evinced the intention not to affect the right that had accrued to a suitor prior to the coming into force of Act 22 of 2002 on 1.7.2002. The context of the amendment brought about by Act 22 of 2002 can also be borne in mind though it may not be a decisive factor. The Parliament had intended to drastically curtail the right of further appeal in the High Court or intra Court appeals by Section 100-A that was introduced by Act 46 of 1999. There was a general agitation by the members of the Bar on the restriction so sought to be placed. In fact, that led to the amendment brought about by Act 46 of 1999 not being notified at all. It was after a further deliberation, that ultimately Section 100-A in the form in which it Was introduced, was incorporated by the amending Act, Act, 22 of 2002, at the same time deleting Section 32(2)(g) of Act 46 of 1999 and deliberately not making the amendment brought about by Act 22 of 2002 retrospective by enacting a provision corresponding to Section 97(3) of Act 104 of 1976. even while enacting Section 16, the repealing and saving provision. If the context of the amendment is taken to be relevant in understanding the scope of the amendment brought about, we think that the circumstances referred to above exclude an inference that Section 100A of the Code was intended to be retrospective, or retrospective to any extent so as to preclude the filing of appeals after 1.7.2002 even in respect of suits filed prior to 1.7.2002. Merely because the intention of Parliament was to abolish further appeals, it could not be inferred or could not be necessarily implied that the section is intended to have retrospective operation to any extent. The fundamental principle that a law that affects vested rights is normally prospective, has to be borne in mind, every time the question for consideration is whether an amendment could be treated to be retrospective by necessary implication. In any event we are of the view that there is no such necessary implication flowing either from the language of Section 100A of the Code as introduced or in the context of Act 22 of 2002.
21. Thus, we hold that Section 100A of the Code Civil Procedure as inserted by Act 22 of 2002 does not affect the right of appeal under Clause 10 of the Letters Patent in suits filed prior to 1.7.2002. In that view, this appeal has to be held to be maintainable. It will be posted for admission in due course. Appeal held to be maintainable.