Patna High Court - Orders
Asharfi Sah vs Bisarjan Sah And Ors on 10 January, 2020
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.312 of 1980
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1. ASHARFI SAH son of Bahadur Sah,
2. Shree Ram Sah son of Jamuna Sah, deceased
3. Janardan Sah son of Godhan Sah, deceased
4. Chandrama Sah son of Jawahar Sah, deceased, All residents of village-
Phulwaria, PS-Mirganj, Distt-Gopalganj........... Defendant 1st Party
... ... Appellant/s
Versus
1. BISARJAN SAH
2. Jagarnath Sah,
3, Birni Sah, sons of Jaipal Sah, Deceased, as detailed in the petition
... ... Respondent/s
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with
FIRST APPEAL No. 215 of 1985
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KAMLA DEVI and ORS. (as detailed in the petition)
... ... Appellant/s
Versus
RAMANAND PD. and ORS. (as detailed in the petition)
... ... Respondent/s
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Appearance :
(In FIRST APPEAL No. 312 of 1980)
For the Appellant/s : Mr.Harihar Pd., Adv.
For the Respondent/s : Mr.Sudhakar Choudhary, Adv.
(In FIRST APPEAL No. 215 of 1985)
For the Appellant/s : Mr.Yogendra Prasad Sinha, Adv.
For the Respondent/s : Mr.Awadhesh Kr. Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
29 10-01-2020Hon'ble the Chief Justice, being master of the roster, has directed that all the First Appeals upto of 1991 be listed in order to diminish the pendency and accordingly, in the preceding fourth week of November 2019, a consolidated cause list has been published covering more than 2000 in number.
Majority of the First Appeals, as is evident have been side Patna High Court FA No.312 of 1980(29) 2/31 tracked since before on account of suffering from so many kinds of malady such as death of the parties, non appearance of the parties, death of the learned counsels, non receipt of lower court record, missing of relevant exhibits from the lower court record and so on. Exercise has been given to the office but still to be properly executed.
2. During course of scrutiny thereof, invariably it has been pointed out by the learned respective counsels that due to inconsistent interpretation of amendment in the adjudicatory forum so prescribed under Bengal, Agra and Assam Civil Courts Act, 1887 (Bihar Amendment) has also created furore and that happens to be reason behind that the parties have to rush to the court repeatedly out of which some are reported one as . In Kartik Nath Jha v. Smt. Sheela Thakur as reported in 1988 BBCJ 767 is first on the score which has been taken into consideration in the case of Bhim Singh v. Mohan Lal Agarwala as reported in 1991(2) PLJR(HC) 325 whereunder, the aforesaid theme has impliedly been over-ruled, again been subject to consideration before the Full Bench in the case of Gobardhan Lal Soneja v. Binod Kumar Sinhaan reported in 1991(2) PLJR (HC)783 wherein the view expressed in Bhim Singh's case (supra), has been approved. Then thereof, the Patna High Court FA No.312 of 1980(29) 3/31 matter has again come up before the High Court in the case of Ram Sagar Kewat & Ors. v. Shivalak Kewat & Ors reported in 2005 (3) PLJR 360 (HC) but considering the gravity of the issue, as per submission the finding so recorded under the above referred judgments would not have been, had there been proper appreciation of the ambit and scope of amendment in its right perspective. Virtually, it happens to be conjoint plea that the finding so recorded and in pursuance thereof, transfer of appeal records of the relevant period while retaining the remaining, did not justify. Hence, needs relook/reconsideration.
3. However, the appeal having so identified out of coverage thereof, have been allowed to remain and as per principle so laid down, large number of appeals have already been sent to the lower appellate court. As has been perceived, the learned respective counsels during course of submission pleaded and raised question over the finding so recorded by the Full Bench in Gobardhan Lal Soneja case (supra) as well as subsequent single bench in Ram Sagar Kewat (supra) hence, ample opportunity have been provided inviting all the respective counsels so interested to enlighten the issue, who have been heard.
4. Two forums have been prescribed in accordance Patna High Court FA No.312 of 1980(29) 4/31 with the hierarchy of the judicial system to be approached in order to redressal of grievance based upon valuation in consonance with the relief. Furthermore, it is also evident that for the redressal of the grievance, the lowest cadre, so prescribed, is to be knocked and, for proper identification of the same, Section 6 of the CPC could be taken note of. For better appreciation, the same is quoted below.
Section 6. Pecuniary Jurisdiction:- Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
5. How the pecuniary jurisdiction is to be ascertained, that happens to be guided by the Suit Valuation Act, 1887. The object as well as preamble of the Act fully explains in following way:-
" An act to prescribe the mode of valuing certain suits for the purpose of determination of the jurisdiction of court with respect thereto."
Whereas, it is expedient to prescribe the mode of valuing certain suit for the purpose of determining by the court with respect thereto, it is hereby enacted as follows:-
And so, the valuation so levelled by the plaintiff is the Patna High Court FA No.312 of 1980(29) 5/31 basis for ascertainment of pecuniary jurisdiction in consonance with the subsequent event.
6. In likewise manner, Bengal, Agra and Assam Civil Courts Act, 1887 still allowed to survive and rightly been, even having proper identification of hierarchy of the courts under CPC, prescribing the pecuniary jurisdiction to be guiding factor for the purpose of adjudicatory performance but, proper identification of the adjudicatory court under the guise of pecuniary jurisdiction is found duly governed under Bengal, Agra and Assam Civil Courts Act, 1887. In due course of time, the population increased, consciousness of people activated, social disparity expanded, acrimonious relationship, increased inflation, increased selfishness, personal interest over shadowed the benevolent character of a human being, so litigation also increased as an ultimate result right from lowest ladder to the final court and, needless to say regarding pendency at all level.
Some courts are to exercise procedural law out-rightly while the High Court as well as Supreme Court, apart from statutory appeal, so duly, acknowledged, have to perform other statutory functions whereupon, maintaining the forum, some other sort of innovative activities have been taken up whereunder, the pecuniary jurisdiction right from lower court to the appellate Patna High Court FA No.312 of 1980(29) 6/31 court has been raised. The initiative has been taken up since the year 1987 and successive thereof, by way of amending the Bangal, Agra, Assam Civil Courts Act.
7. By way of amendment, It is needless to say that for the present the pecuniary jurisdiction of lower appellate court enhanced upto Rs. 10 Lakhs. In the aforesaid background, so many intermediary events were confronted by the High Court
(a) pendency of appeal having been admitted (b) pendency of appeal having not been admitted (c) Suits having coming within enhanced pecuniary jurisdiction, been decided by the lower court, but appeal was yet to be filed during midst thereof, amendment being introduced, (d) enhancement of pecuniary jurisdiction of the High Court (1st Appellate Court) and during course thereof, a question arose, what will be the proper answer thereto. In Bhim Singh's Case (supra) as approved by Full Bench in Gobardhan Lal Soneja's Case (supra) that the matter is to be remitted back to the learned lower appellate court from the High Court under the guise of expansion of jurisdictional area in terms of enhanced pecuniary jurisdiction and crucial date should be the date of enforcement of the Ordinance. For better appreciation, the relevant paragraph in the case of 1991 (2) PLJR 783 is quoted below:
Patna High Court FA No.312 of 1980(29) 7/31
"8. In my opinion, the law is that after the pecuniary jurisdiction of the. Munsif/Additional Munsif was raised, it acquired pecuniary jurisdiction to hear suits of higher value that is Rs. 30,000 and Rs. 20,000 respectively even if they had no jurisdiction to entertain such suit when it were filed. The crucial test for deciding whether the court had the pecuniary jurisdiction to hear a suit is to see whether on the date hearing of the suit is taken up, it has the pecuniary jurisdiction to entertain such suit or not. It has been noticed that on the date when the suit was transferred to the court of the Munsif and hearing was taken up, it had jurisdiction to entertain suit valued up to Rs. 30,000. In the present case, it must, therefore, be held that the Munsif had jurisdiction to hear the suit and record evidence.
8. Nothing has been said with regard to other directions so given by the Division Bench under Bhim Singh's case (supra) and for better appreciation, the relevant paragraphs of Full Bench are quoted below:-
16. When the present suit, subject matter of the appeal, was filed by the plaintiff, the forum of appeal was the High Court. This forum was changed by amendment before the decree was passed. The law laid down in New India Insurance Company (supra) was not noticed either in Bibhuti (supra) or in Kartik Nath Jha (supra). The law laid down is also not supported by the laid down on the facts in Ram Singba, H.K. Dada, Gaikapti and Damodar Prasad, all referred to above. The law laid down in Bibhuti (supra) or to Kartik Nath Jha (supra) is not good law.
17. It is held that this appeal lies before the District Judge. The office shall return the memorandum of appeal along with the court fee Patna High Court FA No.312 of 1980(29) 8/31 to the appellant for presentation before the District Judge, Dhanbad, who shall accept it if filed within fourteen days from the date of receipt of the memorandum of appeal by the appellant.
18. We make it clear that appeals filed in this Court before the amendment Ordinance, 1987, shall have to be heard by this Court. We are informed that large number of appeals were filed in this Court following Kartik Nath Jha (supra), In order to avoid hardship to the litigants, it is held that such appeals whose value is upto Rs. 50,000/- and which have been admitted by this Court for hearing shall be heard by this Court. All appeals whose value is upto Rs. 50,000/- but have been filed in this Court and which have not been admitted shall be returned to the appellants for filing before the District Judge concerned. The District Judge shall condone the delay in filing the appeal if it was filed within time in this Court and if filed within fourteen days from the date of receipt of memorandum of appeal from the office of this Court. In other cases if application under Section 5 of the Limitation Act, 1963 is filed, the District Judge shall dispose of the same in accordance with law. Let copies of the judgment be sent forthwith to the District Judges.
9. Some sort of confusion arose over publication of the Amended Act in the official gazette relating to subsequent amendment and so, the relevant date for its application has been subject to consideration by the single Bench in Ram Sagar Kewat & Ors. v. Shivalak Kewat & Ors reported in 2005 (3) PLJR 360 (HC) wherein, as is evident from para-5 thereof, the crucial question for consideration which came up before Single Patna High Court FA No.312 of 1980(29) 9/31 Bench as is coming out from para-4 for determination in the light of defect regarding maintainability of the appeal in this Court on account of enhancement of pecuniary jurisdiction of District Judge to hear such appeals is whether the Amendment Act would be effective from 01.10.1996, the date of provision mentioned in the Gazette Notification or from 16.02.2005, the date when the registry of this Court obtained a concurrence/approval of Hon'ble the Chief Justice and after dealing the same concluded in para-8 and 9 as follows:-
"8. In these cases it was submitted on behalf of the appellants that hardship has arisen on account of non-communication of copies of the Gazette notification containing the Amendment Act and hence a similar approach be adopted in respect of appeals filed till 19.2.2005 when the Gazette notification was made available to the Stamp Reporter of this Court or at least till 16.2.2005 when the Amendment Act was noticed by the Hon'ble Acting Chief Justice. No doubt, the issue of hardship in such circumstances has to be considered and addressed because procedural laws are meant to subserve ends of justice and not to thwart it. The notes of the Registrar General points out that a large number of appeals have been filed and entertained by this Court after the Gazette notification dated 1.10.1996 because its communication was delayed by several years. Objections on the basis of amended pecuniary jurisdiction of District Judges to hear such appeals could be raised by the Stamp Reporter of this Court only on or after 19.2.2005. Prior to that several appeals must have been disposed of on account of defects not removed or on merits and many valuable rights decided by way of orders on abatement, Patna High Court FA No.312 of 1980(29) 10/31 injunction etc. Such a situation has arisen because of no fault of the litigants. Fault if any is of the State and this Court hence a just solution must be found to protect the innocent litigants from hardship. For that purpose and to protect the interest of justice it is made clear that the appeals filed prior to 1.10.1996 shall have to be heard by this Court. Appeals from suits having valuation of less than Rs. 2 lakhs and filed on or after 1.10.1996 but before 19.2.2005 should be treated to have been filed before the proper court and transferred to this Court for decision under Section 24 of the Code of Civil Procedure. All orders passed in such appeals should be treated to be by a court of competent jurisdiction. Such appeal which are still pending in this Court may now be transferred to the court of respective District Judges competent to hear such appeals. After the records are received by the Court concerned on such transfer such courts will proceed in those appeals from the point at which it is transferred. The office should list such matters for orders at the earliest indicating that such appeals are for formal orders of transfer to respective courts so that concerned parties who have already appeared may have notice of such transfer. Out of present 15 appeals 11 belong to this category. Only FA. 72, 73, 76 and 77 of 2005 have been filed in March 2005. Hence, the rest 11 appeals are ordered to be transferred to courts of concerned District Judges.
9. So far as appeals filed on or after 19.2.2005 having suit valuation less than Rs. 2 Lakhs are concerned the memorandum of those appeals be returned to the appellants or their counsel at the earliest, preferably within two weeks for being presented or filed before the District Judge concerned. The District Judge in such cases shall condone the delay in filing the appeal if it was filed within time in this Court and if filed within 14 days from the date of receipt of memorandum of appeal from the office of this Court. In other cases if application under Section 5 of the Limitation Act 1963 is filed, the Patna High Court FA No.312 of 1980(29) 11/31 District Judge shall dispose of the same in accordance with law. It is made clear that F.A. 72, 73, 76 and 77 of 2005 belong to this category. The office notes and objections of the Stamp Reporter in these appeals are disposed of accordingly."
10. It is further evident thereof, the Gazette Notification was made available to the Stamp Report on 19.02.2005 or 16.02.2005 when the Amendment Act was noticed by the Hon'ble the Chief Justice relating to the amendment so notified in Gazette Notification dated 01.10.1996 and so, the cut off date has been fixed as 19.02.2005 and then concluded by way of having following directions:-
(a) Appeals filed prior to 01.10.1996 shall have to be heard by this Court,
(b) Appeals from suits having valuation of less than Two Lakhs and filed on or after 01.10.1996 but before 19.02.2005, should be transferred to the respective District Judge and so far appeals filed on or after 19.02.2005 having suit valuation less than Two Lakhs are concerned, the memorandum of those appeals be returned to the appellate.
11. It has further been directed thereunder in following way:-
"10. Let copies of this order be sent forthwith to the District Judges and the Law Patna High Court FA No.312 of 1980(29) 12/31 Secretary, Government of Bihar. The latter is directed to ensure that an effective policy decision is taken and necessary directives issued by the State Government so that in future the Government Press does not create such a situation. All Gazette publications required to be communicated to the Law Department and this Court must be dispatched promptly by special messenger so as to reach within one week of publication. Default must be viewed seriously so as to attract prompt and effective disciplinary action. Law making is a solemn and serious business. It must fee treated as such by all concerned including the Government Press".
12. It is to be further noted that there has been amendment in the year 2013 in Bihar, Agra and Assam Civil Court, by way of enhancing appellate jurisdiction of the District Judge from Two Lakhs to Ten Lakhs. However, there has been saving clause "notwithstanding anything contained in this Act, the suits filed prior to the enforcement of this Act shall remain unaffected".
13. In Bhim Singh's case (supra) as well as Gobardhan Lal Soneja's case (supra) the backbone of the finding is based upon the principle laid down by the Apex Court in New India Insurance Company Limited v. Smt. Shanti Mishra as reported in AIR 1976 SC 237 wherein the Apex Court had considered the consequence on account of change of adjudicatory forum, that means to say, Civil Court to Claim Patna High Court FA No.312 of 1980(29) 13/31 Tribunal. Under para-3 of the aforesaid judgment, the Hon'ble Apex Court perceived the exigency on account of introduction of new Forum replacing the earlier one and further, answered the two questions at the threshold and for better appreciation the same is quoted hereineblow:-
"3 .......But difficulties arose in giving full effect to the bar of jurisdiction of the Civil Court because of the language of Section 110A providing for the filing of an application for compensation. There could not be any debate or dispute that if an accident occurred after the Constitution of the Claims Tribunal, the only remedy of the claimant was to file an application under Section 110A. The jurisdiction of the Civil Court in such a case was ousted in express language. Suits which had been instituted prior to the Constitution of the Claims Tribunal remained unaffected and had to proceed to disposal in Civil Courts. In a third type of cases also there could not be much scope for debate where an accident had occurred prior to the Constitution of the Tribunal and the remedy of the suit was barred on the date of such Constitution. A barred remedy under no circumstances was meant to be revived under Section 110A. But the difficulty arose in cases where accidents had occurred prior to the Constitution of the Claims Tribunal, the remedy of action in Civil Court was alive but no suit had been filed. In such cases the vested right of action was not meant to be extinguished. The remedy of either an application under Section 110A or a civil suit must be available; surely, not both. Majority of the High Courts have expressed the view that in such a situation the only remedy available was that of filing an application before the Tribunal and the jurisdiction of Civil Court was barred. Vide Unique Motor and General Insurance Co. Ltd., Bombay v. Kartar Singh AIR 1965 Pun 102; V. C. K Bus Service (P) Ltd, Patna High Court FA No.312 of 1980(29) 14/31 Coimbatore v. H. B. Sethna : AIR1965Mad149 ; Palani Ammal v. Safe Service, Ltd. Salem ILR (1965) 2 Mad 145; Natverlal Bhikhalal v.
Thakarda Khodaji ILR (1967) Guj 495; Yadav Motor Transport Co. v. Jagdish Prasad and Thomas v. Hotz Hotels Ltd.: AIR1969 Delhi 3 . A contrary view was taken by the Madhya Pradesh High Court in Khetumal Ghanshamdas v. Abddul Qadir Jamaluddin : AIR1961MP295 ; Sushma Mehta v. Central Provinces Transport Services Ltd. : AIR1964MP133 . In the first case of Madhya Pradesh observations were obiter dicta because on facts it was a case of a pending suit Similar obiter dicta were made by a Bench of the Patna High Court following the Madhya Pradesh decisions in the case of The Bihar Co-operative Motor Vehicles Insurance Society Ltd. v. Rameshwar Raut : AIR 1970 Pat 172 (paras 7 and
8). The question falls for determination in this Court for the first time and we have to decide which of the two views is correct.
14. Further elaborating the same dealt with the remaining issue under para-5 and 6 and concluded under para-
10 which are as follows:-
"5. On the plain language of Sections 110A and 11 of there should be no difficulty in taking the view that the change in law was merely a change of forum i. e. a change of adjectival or procedural law and not of substantive law. It is a well-established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away; Otherwise the general rule is to make it Patna High Court FA No.312 of 1980(29) 15/31 retrospective. The expressions "arising out of an accident" occurring in Sub-section (1) and "over the area in which the accident occurred", mentioned in Sub-section (2) clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred. To that extent there was no difficulty in giving the answer in a simple way. But the provision of limitation of 60 days contained in Sub-section (3) created an obstacle in the straight application of the well-established principle of law. If the accident had occurred within 60 days prior to the Constitution of the Tribunal then the bar of limitation provided in Sub-section (3) was not an impediment. An application to the Tribunal could be said to be the only remedy. If such an application, due to one reason or the other, could not be made within 60 days then the Tribunal had the power to condone the delay under the proviso. But if the accident occurred more than 60 days before the Constitution of the Tribunal then the bar of limitation provided in Sub-section (3) of Section 110A on its face was attracted. This difficulty of limitation led most of the High Courts to fall back upon the proviso and say that such a case will be a fit one where the Tribunal would be able to condone the delay under the proviso to Sub- section (3), and led others to say that the Tribunal will have no jurisdiction to entertain such an application and the remedy of going to the Civil Court in such a situation was not barred under Section 110F of the Act. While taking the latter view the High Court failed to notice that primarily the law engrafted in Sections 110A and 110F was a law relating to the change of forum.
6. In our opinion in view of the clear and unambiguous language of Sections 110A and 110F it is not reasonable and proper to allow the law of change of forum give way to the bar of limitation provided in Sub-section (3) of Section 110A. It must be vice versa. The change of the procedural law of forum must be given effect to. The underlying principle of the change of law Patna High Court FA No.312 of 1980(29) 16/31 brought about by the amendment in the year 1956 was to enable the claimants to have a cheap remedy of approaching the Claims Tribunal on payment of a nominal court fee whereas a large amount, of ad valorem court fee was required to be paid in Civil Court.
It is legitimate to think that the legislature did not think it necessary to affect the pending suits but wanted the cheap remedy to be available as soon as the Tribunal was constituted by the State Governments, in all cases irrespective of the date of the accident, provided the remedy of going to the Court was not barred on the date of the Constitution of the Tribunal. Then, how is the difficulty of limitation in such cases to be solved is the question.
7. ***
8. ***
9. ***
10. Apropos the bar of limitation provided in Section 110A(3), one can say, on the basis of the authorities aforesaid, that Strictly speaking, the bar does not operate in relation to an application for compensation arising out of an accident which occurred prior to the Constitution of the Claims Tribunal. But since in such a case there is a change of forum, unlike the fact of the said cases, the reasonable view to take would be that such an application can be filed within a reasonable time of the Constitution of the Tribunal, which ordinarily and generally, would be the time of limitation mentioned in Sub- section (3). If the application could not be made within that time from the date of the Constitution of the Tribunal, in a given case, the further time taken in the making of the application may be held to ' be the reasonable time on the facts of that case for the making of the application or the delay made after the expiry of the period of limitation provided in Sub-section (3) from the date of the Constitution of the Tribunal can be condoned under the proviso to that Sub-section. In any view of the matter, in our opinion, the jurisdiction of the Civil Court is ousted as soon as Patna High Court FA No.312 of 1980(29) 17/31 the Claims Tribunal is constituted and the filing of the application before the Tribunal is the only remedy available to the claimant On the facts of this case, we hold that the remedy available to the respondents was to go before the Claims Tribunal and since the law was not very clear on the point, the time of about four months taken in approaching the Tribunal after its Constitution can be held to be either a reasonable time or the delay of less than 2 months could well be condoned under the proviso to Sub-section (3) of Section 110A."
15. Unlike the Apex Court which perceived the three eventualities, the Division Bench as well as Full Bench did not consider those eventualities vis-a-vis its impact. It is further evident that all the previous judgments have failed to acknowledge the Constitution Bench decision in Laxmi Narain v. First Addl. District Judge, Allahabad & Ors. as reported in AIR 1964 SC 489 which was also concerning Bihar , Agra, Assam Civil Court Act and that too, with regard to proper identification of the Appellate Court in consonance with the pecuniary jurisdiction (after enhancement). It was also before Constitution Bench for consideration whether the right of appeal was matter of procedure or its substantive right whereupon, it has been held as follows:-
"7........It is true, as pointed out by the High Court, that the object behind the amendment in question was to give relief to the High Court. But the High Court was in error in Patna High Court FA No.312 of 1980(29) 18/31 thinking that the legislature amended the law as "the relief was required instantaneously." The Amending Act may have given relief to the High Court in respect of appeals to be instituted after the commencement of the Act, but it did not grant the much required relief to that Court in respect of pending first appeals. On a plain reading of the provisions of s. 3(1), it is clear that the legislature did not grant that very much needed instantaneous relief. If it intended to do so, it has failed to give effect to its intentions by the words used in s. 3(1).
8. The High Court was fully cognizant of the legal position that District Judges could hear only such appeals, on transfer by the High Court, as they were competent to hear and dispose of. But its conclusion that such competency was there on the date the Act came into effect, suffers from the infirmity that it does not give effect to the concluding words of s. 3(1)."
16. In Commissioner of Income Tax, Orissa vs. Dhadi Sahu 1994 SUPP (1) SCC 257, that also relates to change of forum wherein it has been explained in following way:-
"18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change over of proceedings, from the court or the Tribunal where they are pending to the court or the Tribunal which under the new law gets jurisdiction to try them.
17. In Himachal Pradesh State Electricity Patna High Court FA No.312 of 1980(29) 19/31 Regulatory Commission and Ors. vs. Himachal Pradesh State Electricity Board as reported in AIR 2014 SC 101, it has been held as follows:-
"22. Thereafter, the larger Bench referred to number of authorities and proceeded to cull out the principles as follows:
23. From the decisions cited above the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and 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 filing of the appeal.
(v) This 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.
23. On a proper understanding of the authority in Garikapati Veeraya (supra), which relied upon the Privy Council decision, three basic principles, namely, (i) the forum of appeal available to a suitor in a pending action of an appeal to a superior tribunal which belongs to him as of right is a very different thing from regulating procedure; (ii) that it is an integral part Patna High Court FA No.312 of 1980(29) 20/31 of the right when the action was initiated at the time of the institution of action; and (iii) that if the Court to which an appeal lies is altogether abolished without any forum constituted in its place for the disposal of pending matters or for lodgment of the appeals, vested right perishes, are established. It is worth noting that in Garikapati Veeraya (supra), the Constitution Bench ruled that as the Federal Court had been abolished, the Supreme Court was entitled to hear the appeal under Article 135 of the Constitution, and no appeal lay under Article 133. The other principle that has been culled out is that the transfer of an appeal to another forum amounts to interference with existing rights which is contrary to well known general principles that statutes are not to be held retrospective unless a clear intention to that effect is manifested.
24. In Dhadi Sahu (supra), it has been held thus:
"18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them.
xxx xxx xxx
21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums.
Patna High Court FA No.312 of 1980(29) 21/31
25. At this stage, we may state with profit that it is a well settled proposition of law that enactments dealing with substantive rights are primarily prospective unless it is expressly or by necessary intention or implication given retrospectivity. The aforesaid principle has full play when vested rights are affected. In the 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. Mr. Gupta has endeavoured hard to highlight on Section 111 of the 2003 Act to sustain the stand that there is an intention for change of forum. It is the admitted position that Legislature by expressed stipulation in the new legislation has not provided for transfer of the pending cases as was done by the Parliament in respect of service matters and suits by financial institutions/banks by enactment of Administrative Tribunal Act, 1985 and Recovery of Debts due to Banks and Financial Institution Act, 1993. 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 stands 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.
27. It is urged by Mr. Gupta that Section 6 of the General Clauses Act would not save the vested right of forum in view of the language employed in Section 185(2) of the 2003 Act. In this context, we may usefully refer to Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Co. and Anr. : (2001) 8 SCC 397 wherein the learned Patna High Court FA No.312 of 1980(29) 22/31 Judges referred to the opinion expressed in Kolhapur Canesugar Works Ltd. v. Union of India : (2000) 2 SCC 536 and distinguishing the same observed as follows:
"18. In Kolhapur Canesugar Works Ltd. v. Union of India, this Court held: (SCC p. 551, para 37) "37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never been passed, and the statute must be considered as a law that never existed.
19. Relying on this the submission for the tenant is, if the repealing statute deletes the provisions, it would mean they never existed hence pending proceedings under the Rent Act cannot continue. This submission has no merit. This is not a case under the Rent Act, also not a case where Section 6 of the General Clauses Act is applicable. This is a case where repeal of rules under the Central Excise Rules was under
consideration. This would have no bearing on the question we are considering, whether a tenant has any vested right or not under a Rent Act.
28. We have referred to the aforesaid paragraphs as Mr. Gupta has contended that when there is repeal of an enactment and substitution of new law, ordinarily the vested right of a forum has to perish. On reading of Section 185 of the 2003 Act in entirety, it is difficult to accept the submission that even if Section 6 of the General Clauses Act would apply, then also the same does not save the forum of appeal. We do not perceive any contrary intention that Section 6 of the General Clauses Act would not be applicable. It is also to be kept in mind that the distinction between what is and what is not a right by the provisions of the Section 6 of the General Clauses Act is often one of great fitness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere hope, or expectation of, or liberty to apply for, acquiring right (See M.S. Shivananda v. Patna High Court FA No.312 of 1980(29) 23/31 Karnataka State Road Transport Corporation and Ors. : (1980) 1 SCC 149).
29. In this context, a passage from Vijay v. State of Maharashtra and Ors. : (2006) 6 SCC 289 is worth noting:
....It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness.
30. We have referred to the aforesaid passage to hold that tested on the touchstone of doctrine of fairness, we are also of the opinion that the legislature never intended to take away the vested right of appeal in the forum under the 1998 Act.
31. On the basis of the aforesaid analysis it can safely be concluded that the conclusion of the High Court that it had jurisdiction to hear the appeal is absolutely flawless.
18. In Securities and Exchange Board of India v.
Classic Credit Limited as reported in (2018) 13 SCC 1, it has been held as follows:-
"47. In a manner of understanding, it may well be possible to conclude, that the adjudicatory 'forum' was not altered at all by 'the 2002 Amendment Act'. In this behalf, reference may be made to Section 26(2) of 'the SEBI Act', as it existed prior to the 2002 amendment. The above provisions mandated, that no Court inferior to that of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class) shall try an offence punishable under this Act. The contemplated 'forum' of adjudication could be the Court of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class), or any Patna High Court FA No.312 of 1980(29) 24/31 other higher court. And not necessarily the Court of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class). The higher court which could have tried matters even before 'the 2002 Amendment Act', could well be the Court of Session. And as such, in case of a determination, the trial of offences under 'the SEBI Act' could have been conducted by a Court of Session even prior to 'the 2002 Amendment Act', there would be nothing wrong about it. The provision, as it existed prior to 'the 2002 Amendment Act', clearly contemplated that even a Court of Session could try offences postulated by the provisions of 'the SEBI Act'. As such, when 'the 2002 Amendment Act' provided that adjudication of offences under 'the SEBI Act' would be by a court not inferior to that of a Court of Session, the position postulated prior to the aforesaid amendment cannot be stated to have been breached. It may well be said to be curtailed from the original position. But, it could not be said to be in conflict with the original position.
48. In a similar manner of understanding, even after 'the 2014 Amendment Act', which provided that offences arising under 'the SEBI Act' would be tried by a Special Court (-Section 26B), the position cannot be taken to be at variance from the one, as it existed prior to the 2002 amendment, as also, the position as it existed after 'the 2002 Amendment Act'. The reason for the above inference is, that a Special Court (notified by the Central Government) was to be a court which, immediately before such notification, was the Court of Session or an Additional Sessions Judge (-Section 26A(3)).
Truly therefore, a Special Court was a court superior to a Metropolitan Magistrate (or, a Judicial Magistrate of the first class), as contemplated prior to 'the 2002 Amendment Act'. It was also the same as the court contemplated under 'the 2002 Amendment Act', namely, the Court of Session. Therefore, the projection of the jurisdictional claim, as has been raised by the Accused herein, is a mere furore, without any Patna High Court FA No.312 of 1980(29) 25/31 serious justification.
49. We will now deal with the legality of the propositions canvassed, at the hands of learned Counsel for the rival parties. In our considered view, the legal position expounded by this Court in a large number of judgments including New India Insurance Co. Ltd. v. Shanti Misra : (1975) 2 SCC 840; Securities and Exchange Board of India v. Ajay Agarwal : (2010) 3 SCC 765; and Ramesh Kumar Soni v. State of Madhya Pradesh : (2013) 4 SCC 696, is clear and unambiguous, namely, that procedural amendments are presumed to be retrospective in nature, unless the amending statute expressly or impliedly provides otherwise. And also, that generally change of 'forum' of trial is procedural, and normally following the above proposition, it is presumed to be retrospective in nature, unless the amending statute provides otherwise. This determination emerges from the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra : (1994) 4 SCC 602; Ranbir Yadav v. State of Bihar : (1995) 4 SCC 392, and Kamlesh Kumar v. State of Jharkhand : (2013) 15 SCC 460, as well as, a number of further judgments noted above.
50. We have also no doubt, that alteration of 'forum' has been considered to be procedural, and that, we have no hesitation in accepting the contention advanced on behalf of the SEBI, that change of 'forum' being procedural, the amendment of the 'forum' would operate retrospectively, irrespective of whether the offence allegedly committed by the accused, was committed prior to the amendment.
51. Whilst accepting the contentions advanced on behalf of learned Counsel for SEBI pertaining to 'forum' (with reference to which inferences have been drawn in the foregoing paragraph), it is not possible for us to outrightly reject the contentions advanced by Mr. C.A. Sundaram, learned Senior Advocate, while projecting the claim of the accused. We are not oblivious of the conclusions recorded by this Patna High Court FA No.312 of 1980(29) 26/31 Court in Commissioner of Income Tax, Orissa v. Dhadi Sahu : 1994 Supp (1) SCC 257, wherein it was held that a law which brings about a change in the 'forum' does not affect pending actions, unless an intention to the contrary is clearly shown. One of the modes in which such intentions can be shown is, by making a provision for change for a proceeding from the court or the tribunal where it was pending, to the court or tribunal under which the new law gets jurisdiction. In the said judgment, this Court also observed, that it was true that no litigant had any vested right in the matter of procedural law, but where the question is of the change of 'forum', it ceases to be a question of procedure only, with reference to pending matter. The 'forum' of appeal or proceedings, it was held, was a vested right as opposed to pure procedure to be followed before a particular 'forum'. It was therefore concluded, that a right becomes vested when the proceedings are initiated, in spite of change of jurisdiction/forum by way of amendment thereafter.
52. So also, in Manujendra Dutt v. Purnedu Prosad Roy Chowdhury : AIR 1967 SC 1419, wherein a question arose, as to whether, by the deletion of Section 29 of the Thikka Tenancy Act, 1949, the jurisdiction of the Controller over a pending suit was taken away. It was held by this Court, that the deletion of Section 29 did not deprive the Controller of his jurisdiction to try the pending suit, on the date when the Amending Act came into force. It was pointed out, that though the amending Act did not contain a saving clause, the saving contained in Section 8 of the Bengal General Clauses Act, 1899, which corresponded with Section 6 of the Central Act, fully applied to the issue. And as such, the transfer of a suit having been lawfully filed Under Section 29 of the Act could not be affected by its deletion or by its amendment.
53. Similarly, in Mohd. Idris v. Sat Narain : AIR 1966 SC 1499, the question which arose was, whether a Munsif who was trying a Patna High Court FA No.312 of 1980(29) 27/31 suit under the U.P. Agriculturist Relief Act ceased to have jurisdiction, after the passing of the U.P. Zamindari Abolition and Amendment Act, 1953, which conferred jurisdiction on an Assistant Collector. This Court held that the jurisdiction of the Assistant Collector was itself created by the Abolition Act, and as there was no provision in that Act, that the pending case were to stand transferred to the Assistant Collector for disposal, the Munsif continued to have jurisdiction to try the suit. It was also observed in the above judgment, that the provisions for change over of proceedings from one court to another, are only found in a statute, which takes away the jurisdiction of one court, and confers it on another, in pending actions. Since the amending Act did not show the pending proceedings before the court would abate, it was felt, that the court before which proceedings were filed, continued to have the jurisdiction to adjudicate the same. The above position has been considered affirmatively by this Court also in Nani Gopal Mittal v. State of Bihar : AIR 1970 SC 1636; Ambalal Sarabhai Enterprises v. Amrit Lal and Co. : (2001) 8 SCC 397; R. Kapilnath v. Krishna : (2003) 1 SCC 444; Ramesh Kumar Soni v. State of Madhya Pradesh : (2013) 14 SCC 696; and Videocon International Limited v. Securities and Exchange Board of India : (2015) 4 SCC 33.
54. From a perusal of the conclusions drawn in the above judgments, we are inclined to accept the contention, that change of 'forum' could be substantive or procedural. It may well be procedural when the remedy was yet to be availed of, but where the remedy had already been availed of (under an existing statutory provision), the right may be treated as having crystalised into a vested substantive right.
55. In the latter situation referred to (and debated) in the preceding paragraph, where the remedy had been availed of prior to the amendment, even according to learned Counsel for the private parties, unless the amending Patna High Court FA No.312 of 1980(29) 28/31 provision by express words, or by necessary implication, mandates the transfer of proceedings to the 'forum' introduced by the amendment, the 'forum' postulated by the unamended provision, would continue to have the jurisdiction to adjudicate upon pending matters (matters filed before amendment). In view of the above, we are of the considered view, that no vested right can be claimed with reference to 'forum', where the concerned court, had not taken cognizance and commenced trial proceedings, in consonance with the unamended provision.
56. Insofar as the matters where proceedings had already commenced before the amendment, change of 'forum' for trial came into effect, it is apparent from the judgments referred to in the preceding paragraph, that the general principle is that a law which brings about a change in the 'forum', does not affect pending actions, unless intention to the contrary is clearly shown. What needs to be determined with reference to 'the 2002 Amendment Act', as well as, with reference to 'the 2014 Amendment Act' is, whether an intention to the contrary was expressed therein, so as to alter the 'forum', where proceedings were pending. And to bring such proceedings to the 'forum' contemplated by the amendment.
19. In Mohd Saud v. Dr. (MAJ.) Shaikh Mahfooz reported in (2010) 13 SCC 517, it has been held as follows:-
"8. It has been held in a catena of decisions of this Court that an appeal is a creature of a statute and not an inherent right vide Garikapati Veeraya v. N. Subbiah Choudhry (AIR 1957 SC
540). This right of appeal can be taken way or curtailed by a subsequent enactment vide Kamal Kumar Dutta v. Ruby General Hospital Ltd (2006)7 SCC 613.
9. The validity of Section 100-A CPC has been upheld by the decision of this Court in Patna High Court FA No.312 of 1980(29) 29/31 Salem Advocate Bar Assn. V. Union of India [(2003)1 SCC 49]. The Full Benches of the Andhra Pradesh High Court vide Gandla Pannala Bhulaxmi V. A.P. SRTC [AIR 2003 AP 458], the Madhya Pradesh High Court in Laxminarayan v.
Shivlal Gujar[AIR 2003 MP 49] and the Kerala High Court in Kesava Pillai Sreedharan Pillain v. State of Kerala [AIR 2004 Ker 111] have held that after the amendment of Section 100-A in 2002 no litigant can have a substantive right for a further appeal against the judgment or order of a learned Single Judge of the High Court passed in an appeal. We respectfully agree with the aforesaid decisions.
10. In Kamla Devi v. Kushal Kanwar [(2006)13 SCC) 295] this Court held that only an LPA filed prior to coming into force of the Amendment Act would be maintainable. In the present case the LPAs were filed after 2002 and hence in our opinion they are not maintainable.
20. Change of forum, has been explained by Justice G.P. Singh in Principles of Statutory Interpretation under Chapter-6, Synopsis No. 2, page no. 582 (13th Edition) which is as follows:-
" A new law bringing about a change in forum does not affect pending actions, unless a provision is made in it for change over of proceedings or there is some other clear indication that pending actions are affected. Thus if the new law which is enacted during the pendency of a suit in a Civil Court is worded in the form that 'no Civil Court shall have jurisdiction to settle, decide or deal with' certain questions which are committed the jurisdiction of Revenue Courts and the pending suit relates to these questions, the jurisdiction of the Civil Court wold be ousted.
The principle, that pending proceedings are Patna High Court FA No.312 of 1980(29) 30/31 not affected, does not go beyond this that in every case language of the statute has to be examined to determine whether the Legislature clearly intended to bring within reach of the statute even pending proceedings. It is, therefore, not essential that the Legislature, if it intends to apply a statute to pending proceedings, must enact an express provision to that effect. A retrospective conferral of new rights or a retrospective restoration of rights which had earlier been taken away, will in general, affect pending proceedings. It is the duty of Courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. Thus, if a taxing Act is retrospectively changed after reference, the High Court and Supreme Court must take notice of it. For example, if a refund provision in a taxing Act is amended by incorporating the principle of 'unjust enrichment' by providing that no refund shall be made unless the applicant proves that the incidence of tax has not been passed on by him to any other person, the amendment will be taken notice of even when the matter is pending in appeal before the Supreme Court and refund will be disallowed if the applicant fails to establish that the tax burden has not been passed on by him to any other persons. Similarly, if a law providing for compensation for an acquisition is retrospectively altered the Collector in making an award and the courts in deciding a reference or appeal relating to compensation must give effect to the change in law.
21. In the aforesaid facts and circumstances of the case, the principle so laid down by the Full Bench in Gobardhan Lal Soneja's Case (supra) confirming the finding relating to Bhim Singh's Case (supra) along with the principle laid down consisting Ramsagar Kewat (Supra) need Patna High Court FA No.312 of 1980(29) 31/31 reconsideration by a larger Bench, whereupon, office is directed to place the matter before Hon'ble the Chief Justice at once, so that the matter be decided at an earliest.
(Aditya Kumar Trivedi, J) perwez U