Gauhati High Court
Pinku Trading Corpn. And Anr. vs Bank Of Baroda And Ors. on 21 January, 2004
Equivalent citations: (2004)2GLR478
Author: S.K. Kar
Bench: S.K. Kar
ORDER P.G. Agarwal, J.
1. In these Letters Patent Appeals which are pending before this court, a preliminary objection has been raised on behalf of the respondents that in view of the amended provisions of law contained in Section 100A of the Code of Civil Procedure, these Letters Patent Appeals are not maintainable,
2. We have heard the learned counsel for both sides and the question raised is disposed of by this common Order.
3. As the facts are not in dispute in this preliminary objection, we will not revert to the same and we propose to dispose of the matter on the point raised before us. The only factual aspect involved is that all these Letters Patent Appeals were filed and pending before this court as on 1.7.2002, the date on which the Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002 were made effective or operative.
4. Section 100A as substituted by the above referred amendment Acts reads as follows :
"100A. No further appeal in certain cases. - Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."
5. The scope and ambit of an amending Act was considered by the Apex Court in the case of Hitendra Vishnu Thakur v. State of Maharashtra reported in (1994) 4 SCC 602 wherein the Apex Court observed as follows :-
"(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally 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.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
6. In K.S. Paripoornan v. State of Kerala, reported in (1994) 5 SCC 593 the Apex Court observed as follows :
"In the instant case we are concerned with the application of the provisions of Sub-section (1A) of Section 23 as introduced by the amending Act to acquisition proceedings which were pending on the date of commencement of the amending Act. In relation to pending proceedings, the approach of the courts in England is that the same are unaffected by the changes in the law so far as they relate to the determination of the substantive rights and in the absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an action fall to be determined by the law as it existed when the action was commenced and this is so whether the law is changed before the hearing of the case at the first instance or while an appeal is pending. (See Halsbury's Laws of England, 4th Edn., Vol. 44, para 922.) Similar is the approach of the courts in India."
7. The above decisions were reiterated by the Constitution Bench of the Apex Court in the case of Syam Sunder v. Ram Kumar, reported in (2001) 8 SCC 24 wherein the Apex Court observed in the following words :
"From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of the suit or adjudication of the suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of the suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned, they remain unaffected by the amendment in the enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless the amending Act provides otherwise."
8. In the light of the above settled proposition of law, let us first examine whether the right to file a Letters Patent Appeal is a substantive right or it is a mere procedure/ in-house right of appeal. The above question was considered by the Apex Court in the case of Garikapati v. Supriya Choudhury, reported in AIR 1957 SC 540. The Apex Court had held that right of appeal in a Letters Patent Appeal is a substantive right/vested right. In the case of Asha Devi reported in AIR 1974 SC 2048 the Apex Court quoting from earlier decision held that the court hearing the Letters Patent Appeal had the same power as that of the Judge of the first appellate court and the court shall hear the appeal pending on facts as well as law. At this stage, we may refer to the observations of the Constitution Bench in Garikapati (supra) wherein the Apex Court observed as follows :
"(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."
9. In a recent case of Shiv Shakti Co-op, Housing Society, Nagpur v. Swaraj Developers and Ors., reported in AIR 2003 SC 2434 the Apex Court had the occasion to consider the respective scope of appeal and revision under the CPC and the Apex Court held as follows :-
"(i) It is fairly a well settled position in law that the right of appeal is a substantive right.
(ii) An appeal is essentially continuation of the original proceedings and the provisions applied at the time of institution of the suit are to be operative even in respect of the appeals. That is because there is a vested right in the litigant to avail the remedy of an appeal. As was observed in K. Eapen Chako v. The Provident Investment Co. (P) Ltd., AIR 1976 SC 2610, only in cases where vested rights are involved, a legislation has to be interpreted to mean as one affecting such right to be prospectively operative. The right of appeal is only by statute. It is necessary part of the procedure in an action, but "the right of entering a superior court and invoking its aid and interposition to redress the error of the Courts below. It seems to this paramount right, part of the progress of the inferior tribunal." (Per Westbury See : AG v. Sillem 33 J. Ex. 209). The appeal, strictly so called, is one in which the question is, whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it" (Per Lord Devuil Ponnamal v. Arumogam 1905 AC 390). The right of appeal, where it exists, as a matter of substance and not of procedure (Colonial Sugar Refining Company v. Irtin 1905 AC 368).
(iii) Right of appeal is statutory. Right of appeal inherits in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so. As was observed in The State of Kerala v. K.M. Charia Abdulla and Co. (AIR 1965 SC 1585), the distinction between right of appeal and revision is based on different implicit in the two expressions. An appeal is continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power. It was noted by the four-Judges Bench in Hari Shankar and Ors. v. Rao Girdhari Lal Chowdhury (AIR 1963 SC 698) that the distinction between an appeal and a revision is a real one. Aright of appeal carries with it a right of re-hearing on law as well as fact, unless the state conferring the right of appeal limits the re-hearing in some way, as has been done in second appeals arising under the Code. The power of hearing revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Reference was made to Section 115 of the Code to hold that the High Court's powers under the said provision are limited to certain particular categories of cases. The right there is confined to jurisdiction and jurisdiction alone."
10. In the light of the above, let us examine whether there is an express provision in the Amendment Acts of 1999 and 2002 that the provisions of Section 100A as substituted shall apply retrospectively, that is, it will affect the pending appeals. We have perused the amending Acts and find that they are altogether silent. The general rule of interpretation of law/statutes is that statutes are not operated retrospectively and may be departed from (a) by express enactment and (b) by necessary implication from the language employed. In the case of Mithilesh Kumari v. Prem Behari Khare, reported in (1989) 2 SCC 95 the Apex Court observed as follows :
"We read in Maxwell that it is a fundamental rule of English law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly at the time of the Act, or arises by necessary and distinct implication. A retrospective operation is, therefore, not to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute retrospectively the court has to be satisfied that the statute is in fact retrospective. The presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts, or impose new duty or attach new disability in respect of past transactions or consideration already passed. However, a statute is not probably called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. We must look at the general scope and purview of the statute and at the remedy sought to be applied, and consider what was the former State of Law and what the legislation contemplated. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive. But laws made justly and for the benefit of individuals and the community as a whole, as in this case, may relate to a time antecedent to their commencement. The presumption against retrospectively may in such cases be rebutted by necessary implications from the language employed in the statute. It cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. The question is whether on a proper construction the legislature may be said to have so expressed its intention."
11. The 1999 Amendment Act and 2002 Amendment Act was made effective/operative with effect from 1.7.2002 only. Clause (g) of Section 32 of the 1999 Amendment Act reads as follows :
"The provisions of Section 100A of the principal Act, as substituted by Section 10 of this Act, shall not apply to or affect any appeal against the decision of a Single Judge or a High Court under Article 226 or Article 227 of the Constitution which had been admitted before the commencement of Section 10; and every such admitted appeal shall be disposed of as if Section 10 had not come into force."
Section 16 of the 2002 Amendment Act regarding savings reads as follows :
"Repeal and savings. - (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed.
(2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897),-
(a) the provisions of Section 102 of the principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force;
(b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;
(c) the provisions of Rule 1 of Order XX of the First Schedule as amended by Section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of Section 13 of this Act."
12. As regards the effect of savings clause, in the case of Agricultural and Processed Food Products v. Oswal Agro, reported in AIR 1996 SC 1947, the Apex Court had this to say :
"A saving provision or clause merely preserves what exists. In Statutory Interpretation by F.A.R. Bennion, Second Edition, at pages 494 and 495 the learned author with regard to the saving clause has said that "A saving is a provision the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation. A saving resembles a proviso, except that it has no particular form. Furthermore it relates to an existing legal rule or right, whereas a proviso is usually concerned with limiting the new provisions made by the section to which it is attached." Again at pages 494 and 495 it is stated "A saving is taken not to be intended to confer any right which did not exist already." To the same effect is a decision of this Court in Shah Bhojrai Kuveqi Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha, (1962) 2 SCR 159/(AIR 1961 SC 1596)."
13. In the saving clause as quoted above, pending appeals against an order of Single Judge under Articles 226 and 227 of the Constitution were saved. It may be mentioned here that in the earlier amendment it was proposed to do away with the provisions of appeal against the order of the Single Judge before the Division Bench in the matter of petition under Article 226 and 227 of the Constitution and that is why the saving clause. However, the said provision was subsequently withdrawn and it does not find place in the amending Act. Hence, the provision of Clause (g) of Section 32 of the 1999 Amendment is of no importance. Further, there is no dispute at the Bar that an appeal preferred against the order of the Single Judge and presented under Articles 226 and 227 of the Constitution is an ultra-court appeal or in-house appeal and it is not a statutory appeal. It can, therefore, be said that such intra-court pending appeals were required to be saved in view of the proposed amendment to do away with such appeal. However, so far the appeal under Letters Patent is concerned, this being a substantive right no saving clause was provided as the provisions were meant to be prospective and not retrospective.
14. During the course of argument, the learned counsel appearing for the appellants has submitted that in the case of Subal Paul v. Malina Paul, reported in 2003 AIR SCW 1412 disposed of by the Apex Court on 13.2.2003 held that a Letters Patent Appeal against an order passed under Section 299 of the Indian Succession Act is maintainable. It is, therefore, submitted that when the above judgment was delivered the Apex Court knew about the provisions of Section 100A of the Amendment Act and hence, by implication it may be held that pending Letters Patent Appeals are not disturbed by the amending Act. We are unable to agree with the above submission as there can not be any implied decision. Admittedly, the question whether the Letters Patent Appeal pending as on 1.7,2002 is maintainable or not, in view of Section 100A of the Code, was not the subject matter for consideration before the Apex Court. The point was never raised and it was also not decided by the Apex Court. In the case of State of U.P. v. Synthetics and Chemicals reported in (1991) 4 SCC 139, the Apex Court held that a decision which is not expressed and is not founded on reasons, nor is proceeding on consideration of issue, can not be deemed to be a law declared to have binding effect as is contemplated by Article 141. In the case of Al Granides v. State of U.P., reported in (2001) 3 SCC 537 the Apex Court held that "the question regarding applicability of Rule 7 of the Rules, having not been referred to, much less considered by the Supreme Court in the earlier appeals, it can not be said that the point is concluded by the same and no longer res-integra." We have perused the decision in Subal Paul (supra) and find that the question of applicability of Section 100A of the Code was never raised before the Apex Court and it was neither considered nor disposed of in any manner and hence, hold that the decision in Subal Paul (supra) is not relevant.
15. The question of maintainability of the Letters Patent Appeal after the cut off date, that is, 1.7.2002, is not questioned in any way before us, as in view of the provisions of Section 100A, no such Letters Patent Appeal is maintainable after 1.7.2002. The fate of the pending Letters Patent Appeal as on the cut off date was considered by the Full Bench of the Madhya Pradesh High Court in the case of Laxminarayan v. Shivlal Gujar, reported in AIR 2003 Madhya Pradesh 49 and for the reasons mentioned in the above decision, the Full Bench held that substitution of Section 100A of the Code will not affect the Letters Patent Appeals which have been preferred prior to 1.7.2002 and are pending for adjudication.
16. We concur with the finding of the Full Bench of the Madhya Pradesh High Court and in view of the aforesaid discussion, hold that the provision of Section 100A of the Code shall apply prospectively, that is, from 1.7.2002 only and all Letters Patent Appeals which have been filed prior to 1.7.2002 and pending as on that date, whether admitted or not, shall be maintainable.
17. The objection raised stands rejected. Let the appeals be listed before the appropriate Bench for hearing.