Gujarat High Court
Khurshid Cyrus Medhora vs Cyrus Ratanshaw Medhora on 21 September, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/FA/5/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to see the NO
judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to NO
the interpretation of the Constitution of India or any order made
thereunder ?
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KHURSHID CYRUS MEDHORA
Versus
CYRUS RATANSHAW MEDHORA & 1 other(s)
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Appearance:
MR DHAVAL D VYAS(3225) for the Appellant(s) No. 1
MS TEJAL A VASHI(2704) for the Defendant(s) No. 1
MR.MEHUL S. SHAH, LD. SENIOR ADVOCATE as AMICUS CURIAE
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/09/2020
CAV JUDGMENT
1. As already recorded in the order dated 28.08.2020, the appeal has been placed before this Court by virtue of the office note dated 07.08.2020 in accordance with the provisions of Rule 186 of the Gujarat High Court Rules, 1993 which provides that in case of difference of opinion between the Judges composing the Page 1 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT Division Bench, the point of reference shall be decided in accordance with the procedure referred to in Section 98 of the Civil Procedure Code. A Division Bench of this Court on 29.05.2020 decided the reference relating to a notification dated 14.10.2014, by which, the pecuniary appellate jurisdiction of the High Court and the District Court was revised upwards. On a reference so made, one of the Hon'ble Judges of the Division Bench, (Coram:
Hon'ble Mr.Justice G.R.Udhwani) considering the oral judgment in the same appeal dated 17.06.2015 (Coram: Hon'ble Mr.Justice Paresh Upadhyay), observed as under:
"11. For the foregoing reasons; barring the mention of inaccurate effective date of the notification in question (effective date is 01.11.2014 but the decision mentions as 31.10.2014) this court finds the view expressed in Khurshid Cyrus(supra) as the correct view. It is held that the notification under consideration should operate prospectively and appeals instituted prior to the effective date i.e. 01.11.2014 in the unamended competent pecuniary appellate jurisdiction are maintainable in that jurisdiction and the transfer of such appeals would be contrary to the legal positions set out in this judgement. The reference is answered accordingly."
Accordingly, my brother (Coram: Hon'ble Mr.Justice G.R.Udhwani) found the view taken in the oral judgment of 17.06.2015 as the correct view.
2. Hon'ble Mr. Justice V.P.Patel (as he then was), as a member of the Division Bench expressed a dissenting opinion. In the dissenting opinion so expressed, my brother Hon'ble Mr.Justice V.P.Patel (as he then was) held as under:
"12. Considering the ratio laid down by the Hon'ble Apex Court in above Securities Exchange Board of India Vs. Classic Credits Limited (Supra), aim and object the Page 2 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT amended notification uunder consideration, Provision of Section 30(3) of the Act, 2005 by which pending appeals stand transfer is made, I am of the view that the notification under consideration required to be treated as retrospectively. Therefore, the Appeals pending before the High Court by virtue of such notification shall be treated as stand transferred to the concerned District Court for disposal in accordance with law."
3. On 28.08.2020 when the matter was placed before this Court for rendering the opinion in accordance with the provisions of Section 98 of the Code of Civil Procedure, the learned advocates appearing for the respective parties, shortly pointed out the issue under consideration and as recorded in the order dated 28.08.2020, since it was a pure question of law, requested that they would tender a written note of arguments. The written note of arguments so received is placed on record. The Court had also requested Shri Mehul S. Shah, learned Senior Advocate to render his assistance which Shri Shah has done by a separate short note. A joint note of submissions has been filed by the learned counsel for the respective parties in addition to the short note of learned Senior Advocate Shri Mehul S. Shah.
4. This Court may not get into the details of the factual aspects as the oral judgment dated 17.06.2015 as well as the Division Bench on 29.05.2020 have set out the factual aspects. Not only have the factual aspects been set out, but also the legal provisions thereof. The journey from the order of 17.06.2015 till the judgment of the Division Bench of 20.09.2020 has also been set out by the Division Bench and so also in the note of submissions. The oral judgment of 17.06.2015 while considering the effect of Page 3 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT the notification dated 14.10.2014 issued by the High Court, recorded as under:
"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, cannot 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 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."
5. The oral judgment dated 17.06.2015 examining the notification dated 14.10.2014 by which the pecuniary jurisdiction of the High Court and the District Court were revised upwards with effect from 01.11.2014, was agreed to by one of the brother judges of the Division Bench (Coram: Hon'ble Mr. Justice G.R. Udhwani). Relevant paragraphs of the same would need to be reproduced as Page 4 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT under:
"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 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 Page 5 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT them by some order, to the District Court, would do violence to more than one statutory provisions."
6. This point of law in the oral judgment of 17.06.2015 was a view that found concurrence with brother Justice G.R.Udhwani as recorded in para 11 of the Division Bench CAV judgment dated 29.05.2020.
7. While considering the issue whether the notification dated 14.10.2014 effective from 01.11.2014 should operate prospectively and the pending appeals before this High Court shouldn't stand transferred as it would violate one or more statutory provisions as voiced in the oral order dated 17.06.2015 and by one of the Hon'ble Members of the Division Bench, judgment dated 29.05.2020 was based on the arguments canvassed by the parties and the decisions rendered by the Hon'ble Supreme Court.
8. While considering the issue in accordance with the provisions of Section 98 of the Code of Civil Procedure, a joint note of submissions as referred above rendered jointly by the learned counsel read as under:
SUBMISSIONS:
I. The view taken by the Hon'ble Single Judge (Coram : Hon'ble Mr. Justice Paresh Upadhyay) in the judgment dated 17.6.2015 as concurred by the Hon'ble Judge of the Division Bench (Hon'ble Mr. Justice G.R. Udhwani) in the judgment dated 29.5.2020, represents correct interpretation of the provisions of the Gujarat Civil Courts Act, 2005 and the Notification dated 14.10.2014 issued by the High Court of Gujarat.
II. The Gujarat Civil Courts Act 2005 has been promulgated to Page 6 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT consolidate and amend the law relating to the Civil Courts in the State of Gujarat. The Act has come into force on 23.3.2005, being the appointed date notified by the State Government in the Official Gazette.
III. Section 15 of the Act provides that Appeals from the Decrees and Orders passed by the Court of Senior Civil Judge in the original suit and proceedings of civil nature would lie to a District Judge of the District when the amount or value of the subject matter of the original suits would be less than Rs.5,00,000/- (which was enhanced from 1,00,000/-). In other cases i.e. where the amount or value of the subject matter of the original suit was above Rs.5 Lakhs, the Appeal would lie before the High Court. IV. The pecuniary jurisdiction so pronounced in Section 15 at the time of promulgating the Act, was subject to enhancement by the High Court by effect of the later leg in the provision, 'or such other sum as the High Court may, from time to time, specify'. The powers so conferred upon the High Court U/s 15(2)(a) to specify such other sums from time to time, has a futuristic tenor and does not have the potentiality to operate from a previous date. V. Legislature had enacted special provision i.e. Repeal and Savings: Section 30(3) for the application of the legislation to the circumstance which exist at the time when the Act had come into force and to align the pending proceedings in conformity with the proclamation of jurisdictions under the Act. By effect of the temporary / transitional provision therefore all suits, appeals and proceedings which were pending before any Court on the appointed date i.e. 23.03.2005, were provided to be transferred to such Courts which had been vested with the jurisdiction by the Act. The feature of this provision was that its operation was expected to Page 7 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT be temporary, and such operation becomes spent once the proceedings pending on the appointed date i.e. 23.3.2005 are aligned according to the jurisdiction pronounced under the Act. The introduction of Clause 14A vide the amending Act, 2014 reinforces the intent that Section 30(3) stood spent and had become obsolete in operation.
VI. The contra view expressed in the judgments rendered by the Hon'ble Court would not be applicable and be relevant to the facts on hand, as the said decision was premised taking in view the operation of transitional provision i.e. Section 30(3) of the Gujarat Civil Courts Act, 2005, for the pending proceeding on the appointed date i.e. 23.03.2005. The subsequent judgments were rendered at the stage prior to enhancement of the pecuniary jurisdiction and the issue as in the present did not arise for consideration of the Court, at that stage/s. VII. The Gujarat Civil Courts Act, 2005 has been further amended by Gujarat Civil Courts (Amendment) Act, 2014, by which, Section 15, as originally enacted, has been substituted with, or such other sum as the High Court may, by notification, from time to time specify. Unlike amended Section 14A, no arrangement for transferring the pending proceedings was made with respect to Section 15 of the Act. The change in pecuniary jurisdiction of the Courts which could have been brought by way of an amendment to the Act only, would be enhanced by issuance of a notification by the High Court, from time to time. The powers of the High Court to issue the notification and to alter the pecuniary jurisdiction of the Courts has to be read in context of the futuristic tenor of delegation under the statute and in juxtaposition of the Amended Section 14A of the Act.
Page 8 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENTVIII. The notification dated 14.10.2014 enhancing the pecuniary jurisdiction has to be interpreted in backdrop of the delegation upon the High Court to prospectively revise the pecuniary jurisdiction of the Courts by issuance of a notification by the High Court as envisioned under U/s 15(2)(a). Further, the said notification has been issued by the High Court to enhance the pecuniary jurisdiction of the Court established under the Gujarat Civil Courts Act, 2005 with effect from 1.11.2014. The tone of the intent expressed by the notification also entails that, the enhancement of pecuniary jurisdiction of the Courts was to apply prospectively i.e. with effect from 1.11.2014 and not from an anterior date. Consequently, the Appeals from the decree and orders passed on or after 1.11.2014 by the Senior Civil Judge in original suits of civil nature would lie before the District Judge of the District when the amount of value of the subject matter of the original suit or proceedings was less than Rs.10 lakhs (enhanced from Rs.5 lakhs).
IX. Further, the said notification which brings about a change in forum would not affect pending action unless intention to the contrary was clearly shown in the notification. One of the modes by which such intention is shown is by making the provision for change-over of the proceedings from the Court where they are pending to the Court which under the new law gets jurisdiction to try them. Though such intention was omnipresent in the enactment, as originally promulgated, by play of the transitional provision in shape of Section 30(3) of the Act, 2005, however such provision having exhausted its temporary one time purpose of applying the legislation to the circumstance which existed prior to the promulgation of the Act, 2005 and in absence an enabling Page 9 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT provision attached to the exercise of powers U/s 15 of the Act (in contrast to Section 14A), subsequent enhancement vide notification issued by the High Court in exercise of the delegated powers U/s 15(2)(a) cannot be read as retrospective in nature. X. A right of Appeal as well as Forum is a vested right. The Forum of Appeal though is available to a party upon passing an adverse order, which as such vests in the party at the time of institution of action. Such vested right which inheres at the institution of the action, is contained by the prospective enhancement of the pecuniary jurisdiction of the Courts inter alia, that a challenge to an order, which has been passed after the enhancement (notification), shall be made in accordance with the enhanced pecuniary jurisdiction of the Courts. The Appeal pending before this Hon'ble Court on the date of the issuance of notification by the High Court of Gujarat constitutes a vested right to a litigant. Such vested and substantive right cannot be taken away or be affected retrospectively, more so, since the intent to effect the pending litigations / apply retrospectively cannot be culled out from the reading of the notification dated 14.10.2014 r/w Section 15(2)(a) of the Act, 2005.
XI. Similar issue under the AP Civil Courts (Amendment) Act, 1989, arose before the Constitutional Bench of the Andra Pradesh High Court[1], which has been answered as under:
(62] From the aforesaid case law and the statements made by various Law Lords, the following principles (illustrative not exhaustive) would emerge:
1. Every legislation is a prima fade prospective unless it is expressly or by necessary implication made to have retrospective effect on the principle of "Nova comtitutio futuris formam imponere debet now Paranteritus" means - A new law ought to regulate Page 10 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT which is to follow, not the past.
2. All laws which effect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect the vested right and obligation unless the legislative intent is clear and unambiguous.
3. While considering the question of retrospective operation of the statute, the right affected must be first considered, whether there is a vested right. The amendment must be considered as a prospective so as to not to cause vested right and if the right is merely procedural, normally it is not treated as a vested right.
4. The intention of the Legislature is always be to gather the words always used by it in plain, grammatical meaning.
5. Retrospective operation of a statute is not to be given so as to impair the existing right or obligation, otherwise than as regards a matter of procedure, unless that effect cannot be effected without doing violence to the knowledge of the enactment. A statute, which impairs vested right or legality of the past transactions or the obligation of a contract should not be held to be retrospective.
6. Even in respect of the amendments, substantive rights cannot be taken away by subsequent amendment, unless specifically enacted by the legislation.
7. The law which only affects the procedural rights is presumed to be retrospective, unless such a construction is textually inadmissible.
8. A statute, which not only changes the procedure, but also creates new rights and obligations, shall be construed to be prospective unless otherwise provided either expressly or by necessary implication.
9. Whether the amendment is brought during the pendency of the suits or actions, whether such amendment has retrospective effect or prospective effect has to be considered with reference to object of the amendment, unless it is expressly provided in the Page 11 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT statute. But, however, if the rights and procedures are dealt with together, if the procedural alterations are inextricably linked with the changes simultaneously, it is not permissible to give retrospective effect of operation. Unless, Legislature has enacted such an intention, there is always general presumption that the statute is deemed to be prospective unless otherwise expressly provided.
10. The question whether statute or any provisions in it has retrospective operation has to be determined with reference to the intention of the legislation and it is to be gathered from the language with reference to the object and nature of the rights affected the circumstances under which the statute came to be.
The statute which is not declaratory of pre-existing law nor the matter relating to procedure, but affects vested rights cannot be given a greater prospective, retrospective effect than it renders necessary. The test when decided a particular provision of law has to be given retrospective effect or not is not merely considered whether a law of procedure or substantive law, but also any alleged questions existing rights including the rights of action which are substantive rights. If a law destroys an existing right or places language a restriction on it, no retrospective effect would be given unless statute is expressly enacted to that effect.
11. No person can have a vested right in the course of procedure and the plaintiff or defendant has a right of prosecution or defence in the manner prescribed for the time being and if the procedure is altered during the pendency of action, the altered procedure ought to be adopted. Legislature can always provide that pending proceedings shall be effected by an amendment Act, though in the absence of such any express provision amending Act cannot be held to be govern the pending proceedings.
12. A new law bringing about a change in forum does not affect pending actions unless there is clear expression to the said effect.
13. Right of appeal is substantive right and it cannot Page 12 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT be impaired as taken away by a statute retrospectively unless by specific provision in enactment or by necessary intendment, This right vests with the suitor at the time of institution of original proceedings. Any change in the law relating to appeals after institution of original proceedings which adversely touches this right is presumed not to be retrospective.
14. A change of forum except in pending proceedings is a matter of procedure and therefore, if a new Act requires certain type of original proceedings to be instituted before a special Tribunal constituted under the Act to the exclusion of Civil Court, all proceedings of that type whether based on old or new causes of action will have to be instituted before the Tribunal.
15. The statutes providing for new remedies for enforcement of a existing right are treated as procedural and applied to future as well as the past causes of action.
16. The classification of statute as either substantive or procedural does not necessarily determine whether it may have a retrospective operation. But, a statute of limitation is generally regarded as procedural. However, if its application to a past cause of action has effect of reviving or extinguishing a right of suit such an operation cannot be said to be procedural. Consequently such procedural law is prospective in operation.
17. In the words of Dixon CJ "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption".
18. In the words of S.R. Das, the cordinal rule of Page 13 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT construction, however, in the absence of anything in the enactment to show that it has a retrospective operation, it cannot be so construed as to have altering the law applicable to a claim in litigation at the time when the Act was passed. Therefore, if Legislature intends to apply a statute to the pending proceedings, it must indicate an express provision to that effect.
19. In matters of substitution by an amendment, it has to be construed that there is no real distinction between the repeal and an amendment. Whether a provision of an Act is omitted by an Act and the said Act simultaneously re-indicates new provision which substantively covers with certain modifications. In that event, such re-enactment is recorded as having force continuously and modification are treated as changes with effect from the date of the enforcement of the re-enacted provision.
20. It makes no difference in application to these principles that the amendment is by substitution or otherwise. However, the statutes dealing with the procedures in contrast with the substantive rights are presumed to be retrospective, unless such a conclusion is textually inadmissible. If the new Act affects the matters of procedure, then only prima facie it applies to all actions pending as well as future.
21. While the law relating to forum and limitation is procedural in nature while the law relating to right of action and right of appeal even though remedial is substantive in nature, that a procedural statute should not generally be speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. A statute which not only changes the procedure but also creates new rights and obligations shall be construed to be prospective, unless otherwise provided either expressly or by necessary implication,
22. A 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 Page 14 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT disability in respect of transactions already past must be presumed to be intended not to have a retrospective effect and as a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, and there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary.
23. Where the rights and procedure are dealt with together, the intention of Legislature may well be that old rights are to be determined by the old procedure and the new rights under substituted section by the new procedure. If the procedural alteration is closely and inextricably linked with the changes simultaneously introduced, it is not possible to give retrospective effect to the procedure unless the Legislature has indicated such an intention either by express words or by necessary implication." [63] Keeping in view the aforesaid principles, it has to be considered whether the amendment Act is retrospective in operation. The Andhra Pradesh Civil Court Act is a consolidated Act, which came into effect with effect from 1.11.1972. The Act repealed certain Acts referred to supra. The pecuniary and territorial jurisdiction as well as appellate jurisdiction together with fora is contained in various provisions of the Act. A right to appeal is a substantive right and it inheres to the party from the date when action is instituted and enures till the end of the litigation viz., appeal, second appeal etc. The pecuniary limits together with fora were being awarded from time to time by appropriate amendments. Initially, the appeal against the decree of Additional Judge, City Civil Court laid before the Chief Judge if the value of appeal was not more than Rs. l5,000/-and to the High Court if the value is more than Rs. 15,000/-. Subsequently, the value was being substituted as Rs. 30,000/-, Rs. 1,00,000/-and presently Rs. 3,00,000/-.
Page 15 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT65. Even if we go by the language of the amendment, the Act contained expression as "an appeal shall lie"
would only refer to action in futuro and not in presenti. As early as 1909 the English Court in Smithies v. National Association of Operative Plasterers, while agreeing with Lord Chief Justice, Vaughan Williams LJ, said "We are all agreed on this point. It is a proposition founded in common sense that, where vested rights have already accrued, and legislation is passed which uses words expressive of futurity, such as "shall" or "shall not", which prima facie would appear to be meant to be applicable to future cases, it is not to be construed retrospectively so as to affect those vested rights, unless terms are used which clearly compel the Court to give it that construction, This is only to impute common sense to the Legislature; any reasonable person would say that clear terms ought to be used, if it is intended to divest a vested right. It is stated in Maxwell on the Interpretation of Statutes, 3rd Ed. P.333, that, where a statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable. I suggested to Mr. Shearman that he might base an argument on this passage, but he did not receive the suggestion with enthusiasm. I am clearly of opinion that the Trade Disputes Act, 1906, Section 4 is not declaratory so as to prevent the general rule against construing a statute retrospectively from applying. It is impossible, I think, to suppose that the Legislature meant that, where an action was already commenced, the passing of the Act should stop it. I think that on this preliminary point the Lord Chief Justice was quite right."
67.Consequent on every amendment, there was change of forum coupled with the value of the subject- matter. It is only in case of merely procedural laws unconnected with the rights, the said law is construed to be retrospective. But, if the law is inextricably an admixture of right and remedy, such law has to be construed as having prospective operation as the vested rights cannot be interfered with except Page 16 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT specifically expressed or by necessary implication. The right to remedy and the forum when presumed by law in an integrating manner, the later follows the former as the same is a vested right. A right of remedy without forum or vice versa, would be an ineffective right and therefore, they always travel together. In the case on hand, the right to file appeal with pecuniary limitation is intrinsically coupled with the forum. In such an event, it is not possible to divide vested right and fora and apply substantive law to the right and adjectival law to the forum. Further, we find that the destination between substantive law and procedural law is rather difficult to make out and hence any effort on the part of the Court to make an effort to divide there two areas is unwarranted. The only course left for the Court is to see whether the adjectival statute extinguished merely the remedy or the substantive right as well as the remedy. For such determination, each case has to be considered on its own facts and circumstances.
68] There is yet another reason to hold that the amendment is not retrospective. The amendment is only a substitution of the value of the appeal. No specific repeal provisions were enacted. Therefore, when substitution takes place it merely gets embebbed in Section 9 and other provisions of the Act apply from the date of substitution. The Andhra Pradesh Civil Court Act while repealing other Acts applied Sections 8 and 18 of Andhra Pradesh General Clauses Act, by which any right, privilege, obligation or liability acquired or incurred under any enactment so repealed is unaffected {69] It is to be noted in this regard that in Maria Christiane's case (supra) the maintainability of the appeal was the subject-matter before the Supreme Court. Though, it was presented, not admitted, but continued to be in the fold of Appellant Court. The forum was constituted with effect from 15.6.1966. As on the date of the disposal of the matter, Portuguese Code was no more in existence and the Court of Judicial Commissioner was equated with that of the High Court and therefore, as on the date when the suit Page 17 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT was dismissed on 6.6.1968, it stood transferred to Senior Judge's Court by virtue of the provisions contained in the Goa Act 6 of 1965 and in such circumstances, the Supreme Court held that the forum as created under the Goa Act has to be availed off. The Supreme Court did not consider the aspect as to whether the right to forum created has restospetive effect or prospective effect. Therefore, taking into consideration the principle laid down by the Supreme Court in this case with reference to the facts in the present case, on the date when the suit was decreed, the amended provisions relating to the pecuniary jurisdiction of Appellate Court as also the forum came into existence and therefore, the decision on the other hand, supports the case of the appellants rather than defendant and therefore, it has to be held that inasmuch as the amended Civil Court Act did not specify that the provisions would effect the pending cases, it has to be only inferred that the intention of the legislation was not to affect the cases or the appeals which were presented as also pending on the date of the amendment came into force.
[73] Therefore, we reached the following
conclusions :
1. That the Civil Court (Amendment) Act 30 of 1989 is applicable prospectively from 1.12.1989.
2. Even in case of suits which were filed earlier to the amendment and they are pending disposal as on the date of the amendment came into force, the appeal if any has to be necessarily filed before the Forum created under the amended Act depending on the pecuniary limits. To this limited extent, the decision in Kotina Papaiah's case (supra) and Kameshwaramma 's case (supra) and Haragopal's case (supra) stand modified.
3. Any appeal having been presented before date of amended Act coming into force and the appeals pending as on the said date are required to be disposed of by the Courts, wherever they were pending and the amendment will not have any effect on pending appeals either presented or pending.
Page 18 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT4. The suits or petitions in which decrees were passed prior to 1.12.1989, they will be dealt with in accordance with the pre-amended procedure.
5. In the cases before us, even after the amendment came into force on 1.12.1989, number of appeals having value less than Rs. one/3 lakhs were admitted by this Court and some of them were disposed of by virtue of the judgment of the Division Bench in Kameshwaramma's case (supra) subsequent cases though in fact they do not fall within the category of either pending appeals or appeals presented, before the amendment. The pecuniary limits and forum go together and the amendment being prospective in operation, the appeals ought to have been filed before the amended forum. But, taking into consideration that large number of appeals were already admitted by this Court, and they are pending for a considerable length of time and keeping in view the maxim that "Actus curiae neminem gravabit" (An act of the Court shall prejudice no man), we declare that such of the cases which were filed subsequent to amendment are deemed to have been transferred to this Court under Section 24 of Code of Civil Procedure for their disposal in accordance with law."
SHORT NOTES (By Mehul S. Shah, Sr. Advocate) a. The earlier enactment namely Bombay Civil Courts Act, 1869 has been a subject matter of various amendments over a period of time till the enactment of the new Act namely The Gujarat Civil Courts Act, 2005. The amending Acts in respect of earlier Act of 1869 were Bombay Act No. 54 of 1949 (raising the pecuniary jurisdiction from original Rs. 5000/- to Rs. 10,000/-), Gujarat Act No. 20 of 1979 (rais- ing the pecuniary juridiction to Rs. 20,000/-), Gujarat Act No. 19 of 1993 (raising the pecuniary jurisdiction to Rs. 50,000/-) and Gujarat Act No. 16 of 2002 (raising the pecu-
Page 19 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENTniary juridction to Rs. 1,00,000/-). All the said amending Acts did provide for specific provisions either for continua- tion of pending proceedings before the Courts or for transfer of the pending proceedings to another Court in view of the raising of the jurisdiction. Similarly, when the new Act of 2005 came into force, in Section 30 (3) thereof there is a spe- cific provision of transfer of the pending cases. However, in view of the power conferred upon the Hon'ble High Court under Sections 14 and 15 of the present Act of 2005, the High Court has the power to specify/enhance the respective pecuniary jurisdictions (which by way of the amending Act of 2014, can be done by issuance of notification by the High Court). Further in the amending Act of 2014, by inserting Section 14A, specific provision is made for transfer of pend- ing cases from the Court of Senior Civil Judge to the Court of a Civil Judge, in view of the enhancement of pecuniary ju- risdiction of the Court of a Civil Judge as per Section 14 thereof.
b. The aforesaid facts clearly demonstrate the intention of the legislature that whenever the legislature wanted the transfer of pending cases, from one Court to another in view of the amending provisions, the same has been specifically provided for under the statue itself. In absence of such spe- cific stautory provisions, transfer of pending suits/Appeals cannot be inferred. If by the process of interpretation of Sec- tion 30 of the Act of 2005 read with the provisions of Bom- bay General Clauses Act, 1904, the inference of transfer of pending cases was obvious, there was no need for the legisla-
Page 20 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENTture to make specific provisions for enabling such tranfers in the amending statutes themselves.
c. Besides, as far as the pending appeals, as on the date of the commencement of the amending Act of 2014, are con- cerned, we do not find any provision similar to the provision under Section 14A having been inserted, which would specifically provide for transfer of the pending appeals. Therefore, the intention of the legislature, by the provisions of the amending Act themselves becomes very clear, namely that though the legislature wanted the transfer of the pending proceedings from the Court of Senior Civil Judge to the Court of Civil Judge, the legislature never wanted such trans- fer on pending Appeals from the High Court to the District Court on the ground of enhancement of pecuniary jurisdic- tion of the District Courts.
Thus, when there are no specific provisions for transfer of pending appeals in the amending Act of 2014 and when the notification dated 14/10/2014 just enhances the pecuniary ju- risdiction in respect of appeal, there is no warrant for infer- ring that the same would imply transfer of pending appeals. d. Considering all the amending Acts as referred to here- inabove, the retrospectivity of the amended provisions, has been specifically conferred only by specific statutory provi- sions and not otherwise.
e. The wordings of Section 96 (First Appeals) and Sec- tion 104 r/w Section 106 (Appeals from Order) of CPC, also indicate that the jurisdicational words which are used are "an appeal shall lie" and not "an appeal lies". This is also indica-
Page 21 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENTtive of the fact that any provisions relating to filing of ap- peals are normally to operate prospectively only. f. Even otherwise as is discussed in the various judg- ments referred to by the Ld. Single Judge (Hon'ble Mr. Jus- tice Paresh Upadhyay) and the Hon'ble Division Bench, it is well settled that the right to file appeal is a substantive right and the same gets vested when the original proceedings themselves are instituted, however, the forum of appeal is also substantive right (where the remedy of appeal is already exercised) and the same gets vested when the decree/order to be appealed against is passed. Looking to the said legal posi- tion, it is quite clear that when by virtue of the notification of the High Court dated 14/10/2014, the pecuniary jurisdiction in respect of appeals is enhanced, without any further spe- cific provisions, the automatic transfer of pending appeals from the High Court to the District Court can never be con- strued or inferred.
g. So far as the decision in the case of SEBI v. Classic Credit Ltd. [2018 (13) SCC 1] as is considered by one of the Hon'ble Judges of the Division Bench (Hon'ble Mr. Justice V.P. Patel, as he then was), it is required to be noted that in the decision, the effect of creation of a special Court and the effects of two amending Acts of 2002 and 2014 to SEBI Act, 1992 were under consideration by the Hon'ble Supreme Court and therein in para No. 51, 54 and 59, the position of law as indicated in para No. 3 hereinabove has been speci- fied and it was held that as far as Amending Act of 2002 therein was concerned, once the cognizance of the offence was taken, there could not be any transfer of the case to an-
Page 22 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENTother Court, however, as far as Amending Act of 2014 was concerned, in view of the specific express provisions con- tained in Sections 26A to 26E, it was held that once the Spe- cial Court is established, the pending proceedings would have to be transferred to the Special Court. This was previ- ously held in view of creation of a Special Court with ex- press provisions in that regard. The same would not affect the position of law as referred to in para No. 3 hereinabove. h. Apart from aforesaid, as a recognised rule of interpre- tation of statutes, assuming that there can be two views pos- sible (which in fact, in light of the aforesaid position, is not), the view which would be in furtherance of expeditious pro- ceedings of the appeal is generally required to be preferred. In case, the view in favour of transfer of the pending appeals is accepted, the same would result into further delaying the proceedings of appeal which may have been pending before the Hon'ble High Court for long. However, if the view against the transfer of pending appeals is accepted, the same would be facilitating the end of the lis between the parties at least upto the stage of the High Court and the same would certainly be in the interest of justice.
i. In light of the aforesaid and in light of the written joint notes of submissions submitted by the parties, it is respect- fully submitted that the view propounded by one of the Ld. Judges (Hon'ble Mr. Justice G.R. Udhwani) records the cor- rect position of law in the facts of the case.
9. From the summary of submissions so referred to hereinabove, the learned counsels would submit that the view taken Page 23 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT by the Hon'ble Single Judge (Coram: Hon'ble Mr.Justice Paresh Upadhyay) in the judgment dated 17.06.2015 as concurred by the Hon'ble Judge of the Division Bench (Coram: Hon'ble Mr.Justice G.R.Udhwani) in the judgment dated 29.05.2020, represents the correct interpretation of the provisions of the Gujarat Civil Courts Act, 2005 and the notification dated 14.10.2014 issued by the High Court of Gujarat. From the submissions so made and on the basis of the decisions of the Hon'ble Supreme Court and the Full Bench of the Andhra Pradesh High Court, what is submitted is that the notification has been issued by the High Court to enhance the pecuniary jurisdiction of the Court established under the Gujarat Civil Courts Act 2005 with effect from 01.11.2014. The term of the intent expressed by the notification itself also therefore entails the enhancement of pecuniary jurisdiction of the Courts to apply prospectively with effect from 01.11.2014 and not on an arterial take. The submissions therefore was that the appeals from the decree and orders passed on or after 01.11.2014 by the Senior Civil Judge in the original suits and proceedings of civil nature would lie before the District Judge of the District when the amount or the value of the subject matter of the original suit or proceeding, was less than Rs.10 lakhs (enhanced from Rs.5 lakhs). The notification which brings about the change in forum would not affect pending action which is evident from the intention of the notification read with Section 30(3) of the Civil Courts Act and looking to the fact that the right of the appeal as well as Forum is a vested right, the appeal which is pending before the High Court on the date of the issuance of the notification by the High Court would have to be decided before the High Court and not transferred. In other words the limb of submissions was to support the view expressed by the Page 24 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT oral judgment of 17.06.2015, as set out in paras 6.2 to 6.4 which I have quoted hereinabove and so concurred by my brother Honourable Mr.Justice Udhwani in the Division Bench judgement dated 29.5.2020.
10. For arriving at such a conclusion, the Hon'ble Judge delivering the oral judgment of 17.06.2015 and the Hon'ble Judge of the Division Bench (Coram: Hon'ble Mr.Justice G.R.Udhwani) relied firstly on the decision of the Supreme Court in the case of Himachal Pradesh State Electricity Regulatory Commission v. Himachal Pradesh State Electricity Board reported in 2014 (5) SCC 219. In the said case, before the Supreme Court, one of the questions that was under consideration was the effect of an appeal that was preferred by the Himachal Pradesh State Electricity Board against the directions issued by the Commission. Being aggrieved by the order of the Commission, the Board had preferred an appeal under Section 27 of the Electricity Regulatory Commission's Act, 1998. During the pendency of appeal against the Commission's order before the High Court, the 1998 Act was repealed and the Electricity Act, 2003 came into force, by which, a separate Appellate Tribunal was constituted. The counsel for the Commission therefore before the High Court raised a preliminary objection about the maintainability of the appeals before the High Court and the ground that now by virtue of the Amendment Act of 2003, more particularly, by virtue of Sections 110 and 111 of the Act of 2003 since the Appellate Tribunal has been constituted, the High Court had lost its jurisdiction to hear the appeals. The High Court through its learned Single Judge considering these provisions of Section 27 and the repealed Act under Section 185 and Section 6 Page 25 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT of the General Clauses Act held that even after the coming into force of the amendment Act, the right of the High Court to hear the appeals was not lost.
11. The Supreme Court was considering this issue and in that context, after considering the decision of the Supreme Court in the case of Garikapati Veeraiah v. N. Subaiya Chaudhary reported in [1957] 1 SCR 488 observed as under:
2o. In this context, we may refer with profit to the Constitution Bench judgment in Garikapati Veeraya v. N. Subbiah Choudhry and others [7]. In the said decision, the Constitution Bench referred to the leading authority of the privy council in Colonial Sugar Refining Company Ltd. v. Irving[8]. The Constitution Bench observed that the doctrine laid down in the decision of the privy council in Colonial Sugar Refining Company Ltd. (supra) has been followed and applied by the Courts in India. The passage that was quoted from the Privy Council's judgment is as follows:-
"As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, Their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a Page 26 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
21. 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."
22. On a proper understanding of the authority in Garikapati Veeraya (supra), which relied upon the Privy Council decision, three basic principles, namely, 22.1 The forum of appeal available to a suitor in a pending Page 27 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT action of an appeal to a superior tribunal which belongs to him as of right is a very different thing from regulating procedure;
22.2 That it is an integral part of the right when the action was initiated at the time of the institution of action; and 22.3 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.
23. 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 Page 28 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT 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."
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."
12. On a perusal of the oral judgment dated 17.06.2015 and the judgement dated 29.05.2020, it is borne out that this judgment of the Hon'ble Supreme Court in the case of Garikapati Veerayya (supra) has been also extensively considered and it was held that the forum of appeal available to a suitor in a pending action of an appeal, which belonged to him as of right is a very different thing from regulating procedure. That it is an integral part of the right when the action was initiated at the time of the institution of the suit, would indicate that the right of appeal is not a mere matter of procedure, it is a substantive right. Based on these observations of the Hon'ble Supreme Court which considered the decision in the case of Commissioner of Income Tax v. Dhadi Sahu (1994 Supp. 1 SCC 257] the Supreme Court observed that right of appeal as well as a forum is a vested right unless the said right is taken away by the legislature by an express provision in the statute by Page 29 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT necessary intention. Considering para 24 in the case of Dhadi Sahu (supra) where it was considered that the forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum, it was observed that the right becomes a vested right when the proceedings are initiated in the Tribunal of the first instance and unless the legislature by the express words or by necessary implication clearly so indicated, the vested right will continue in spite of the change of jurisdiction of the different Tribunals or forums. The Apex Court in the case of Dhadi Sahu (supra) observed as under:
"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.
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."
13. What is evident therefore is that this oral order of 17.06.2015 and the judgment of the Division Bench through (Coram: Hon'ble Mr.Justice G.R.Udhwani) of 29.05.2020 in context of the notification in the present facts which made such notification effective from 01.11.2014 and considering section 96 of the Code Page 30 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT of Civil Procedure observed that the right of appeal was a vested right and therefore could not be taken away retrospectively. That is what is held in paras 9 and 10 of the decision of the Division Bench of (Coram: Hon'ble Mr.Justice G.R.Udhwani) which read as under:
"9. Applying the relevant legal provisions as above and the ratio discerning from judicial pronouncements (supra), to the facts of the present case, in absence of the dispute that the appeal in question has been instituted in the competent pecuniary jurisdiction preceding the effective date of the notification in question, it cannot be disputed that the remedies including right to appeal got crystalized in favour of the appellant at the inception of the suit and the appellant is entitled to pursue the remedy of appeal in the unamended appellate pecuniary jurisdiction of the High Court. Further applying the ratio as discussed above, it cannot be disputed that the notification amending the pecuniary jurisdiction as above is a piece of legislation which does not provide for transfer of appeals to the amended pecuniary jurisdictions and from the material on record it is not possible to infer implied transfer of such appeals.
10. What follows from the above discussion is that the appeal is a vested right from the inception of the original action along with all the forums available in hierarchy in the procedure regulating such action and therefore in absence of expressed retrspectivity or retrspectivity by implications in the law altering the forum, such vested right cannot be taken away. In the facts of the present case, there is nothing to indicate retrspectivity of the notification in question; either expressed or implied and therefore this Court is of the opinion that the appeal is required to be prosecuted under the amended pecuniary jurisdiction."
14. This Court has also gone through the dissenting view expressed by my brother Hon'ble Mr.Justice V.P.Patel (as he then was) in opining as he did in para 12 which is reproduced hereinabove. He extensively relied on the decision in the case of Page 31 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT Securities and Exchange Board of India v. Classic Credit Limited reported in (2018) 13 SCC 1. Before the Supreme Court in case of Classic Credit (supra) what was considered was an amendment made to Section 26 of the Securities and Exchange Board of India Act, 1992. By an amendment introduced in Section 26, the forum of trial was changed. By virtue of the amendment brought into effect with effect from 29.10.2002, the complaints which were otherwise triable by the Metropolitan Magistrate or a Judicial Magistrate of the First Class, by virtue of the amendment could be tried by the Court of Sessions. In other words what was considered by the Supreme Court was the change of forum by virtue of the amendment effect from 29.10.2002, by which, the erstwhile forum of the judicial magistrate ceased to be the adjudicatory authority and the newly created forum was that of the Sessions to deal with all the pending matters.
15. The judgments in the case of Himachal Pradesh State Electricity Regulatory Commission (supra), and Videocon International Ltd. (supra) were also considered by the Supreme Court in the case so referred to by Hon'ble Mr.Justice V.P.Patel (as he then was) in his dissenting judgment. So also was the case of Dhadi Sahu (supra). In coming to the conclusion as voiced in para 12 that the notification would be retrospective, brother Hon'ble Mr.Justice V.P.Patel (as he then was) extensively relied on the observations of the Supreme Court which have been reproduced by him in para 11. He has relied on para 59 of the aforesaid decision to hold that the change of forum would operate retrospectively.
16. In the respectful opinion of this Court, I would disagree with Page 32 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT the view of my brother Hon'ble Mr.Justice V.P.Patel (as he then was) because the judgment in the case of Classic Credit (supra) also considered the issue of the protection that should be granted to a substantive law vis-à-vis procedural law. This will be evident if we reproduce paragraphs 49 to 54 thereof.
"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 72.
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 Court in Commissioner of Income Tax, Orissa v.Page 33 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT
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 Chowsdhury, 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 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 Page 34 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT 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. SEBI.
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 crystalized into a vested substantive right."
[Emphasis Supplied]
17. What is evident on reading para 49 to 54 of the decision, is that the Supreme Court on consideration of various decisions held that the procedural amendments are presumed to be retrospective in nature unless the amending statute expressly or impliedly provides otherwise. While reading para 51 above, what is evident is that the view of the other side was also considered with respect to the retrospectivity of the forum. The Supreme Court while accepting the contention of retrospectivity, observed that "it is not possible for us to outrightly reject the contentions advanced by Page 35 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT Mr.C.A.Sundaram learned Senior Advocate while projecting the claim of the accused. We are not oblivious of the conclusions recorded by this Court in CIT v. Dhadi Sahu wherein it was held that a law which brings about a change in forum, does not affect pending actions unless an intention to the contrary is clearly shown. One of the modes by which such intention can be shown is by making a provision for change over of proceedings from the Court or the Tribunal where it was pending to the Court or the Tribunal which under the new law gets jurisdiction"(quote unquote). The Supreme Court further observed that in the judgment of Dhadi Sahu (supra) it had observed that it was true that no litigant had 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, WITH REFERENCE TO PENDING MATTER. The 'forum' of appeal or proceedings, was a vested right as opposed to pure procedure to be followed before a particular 'forum'. It was concluded that a right becomes a vested right when the proceedings are initiated in spite of change of jurisdiction / forum by way of amendment thereafter. Considering the decisions of the Supreme Court in para 54 which I have reproduced hereinabove, the contention that the change of forum could be substantive or procedural, it may be procedural when the remedy is yet to be availed of but where the remedy had already been availed of, the right may be treated to have crystallized into vested substantive right.
18. When this decision is read, para 59 produced by my brother Hon'ble Mr.Justice V.P.Patel (as he then was) has to be read in Page 36 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT context of paras 49 to 54 thereof which supports the view of the judgments in the case of Dhadi Sahu (supra) and Himachal Pradesh State Electricity Regulatory Commission (supra).
19. This position of law, at the cost of repetition, in the opinion of this Court, has been correctly set out at the first instance in paras 6.2 to 6.4 of the oral judgment dated 17.06.2015 in the context of the notification of 14.10.2014 which specifically and expressly made its intention clear to be effective from 01.11.2014. Therefore reliance on para 59 of the decision in the case of SEBI (supra) by Hon'ble Mr.Justice V.P.Patel (as he then was) was out of context.
20. I have reproduced the note of Mr.Mehul Shah learned Senior Advocate hereinabove. Para - g of the note needs reiteration.
"g. So far as the decision in the case of SEBI v. Classic Credit Ltd. [2018 (13) SCC 1] as is considered by one of the Hon'ble Judges of the Division Bench (Hon'ble Mr. Justice V.P. Patel, as he then was), it is required to be noted that in the decision, the effect of creation of a special Court and the effects of two amending Acts of 2002 and 2014 to SEBI Act, 1992 were under consideration by the Hon'ble Supreme Court and therein in para No. 51, 54 and 59, the position of law as indicated in para No. 3 hereinabove has been specified and it was held that as far as Amending Act of 2002 therein was concerned, once the cognizance of the offence was taken, there could not be any transfer of the case to another Court, however, as far as Amending Act of 2014 was concerned, in view of the specific express provisions contained in Sections 26A to 26E, it was held that once the Special Court is established, the pending proceedings would have to be transferred to the Special Court. This was precisouly held in view of creation of a Special Court with express provisions in that regard. The same would not affect the position of law as referred to in para No. 3 hereinabove."
21. I would agree with clause g of Mr.Mehul Shah learned Page 37 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020 C/FA/5/2013 CAV JUDGMENT Senior Advocate's note wherein, it has been opined and submitted that there was a specific express provision of the creation of the Special Court of transfer of pending proceedings whereas in the present case there was an express provision that the notification will be effected from 01.11.2014.
22. In my opinion therefore the question of law as answered through (Coram: Hon'ble Mr.Justice G.R.Udhwani) in para 11 concurring with the oral judgment dated 17.06.2015 is the correct view and the dissenting view of Hon'ble Mr.Justice V.P.Patel (as he then was) by seeking to rely on the decision of Classic Credit (supra) is not the correct view.
23. Accordingly, I respectfully agree with the view expressed by (Coram: Hon'ble Mr.Justice G.R.Udhwani) in the judgment of the Division Bench dated 29.05.2020 as referred to in his decision in para 11 thereof.
24. The opinion is answered accordingly.
(BIREN VAISHNAV, J) ANKIT SHAH Page 38 of 38 Downloaded on : Mon Sep 21 22:42:53 IST 2020