Andhra HC (Pre-Telangana)
K. Hara Gopal And Ors. vs K. Venkata Ratna Kumar And Anr. on 29 December, 1992
Equivalent citations: 1993(1)ALT482
ORDER P.L.N. Sarma, J.
1. These references have been made by the IIIrd Additional District Judge, Visakhapatnam under Section 113 read with Order 46, Rule 1 of the Code of Civil Procedure on an objection raised by the respondents before him in the appeals regarding the competency of the said Court to entertain the appeals whose value is less than Rs. 30,000/- arising out of suits instituted prior to the passing of the Andhra Pradesh Civil Courts (Amendment) Act, 1984 (Act 19 of 1984), hereinafter referred to as the Act 19 of 1984'.
2. The relevant facts are as follows:
3. Respondents in the appeals before the learned IIIrd Additional District Judge, Visakhapatnam were the plaintiffs. Defendants in the respective suits filed the appeals before the IIIrd Additional District Judge.
4. As the facts are identical in both the matters, we will take up R.C. (SR) No. 26223 of 1991.
5. Plaintiffs therein filed the suit O.S.No. 197 of 1983 on the file of IInd Additional Sub-Court, Visakhapatnam for declaration of title and for recovery of possession, profits etc. The suit was valued at Rs. 22,950/- and the same was instituted on 23-4-1983. Pending the said suit, Andhra Pradesh Civil Courts (Amendment) Act, 1984 (Act 19 of 1984) hereinafter referred to as the Amending Act 19 of 1984 was passed and it came into force on 21-5-1984. By and under the terms of the said Amending Act, 1984, Section 17 of the Andhra Pradesh Civil Courts Act, 1972 (Act 19 of 1972), hereinafter referred to as the Principal Act 19 of 1972, was amended by incorporating "Rupees thirty thousand" for the words "Rupees fifteen thousand". In other words, by virtue of the said amendment under Act 19 of 1984 the pecuniary jurisdiction of the District Court was raised to less than Rs. 30,000/-. Prior to the amendment, the District Courts had jurisdiction to entertain an appeal against the judgment of the Subordinate Judge's Court upto Rs. 15,000/-. Under the terms of the Amending Act 19 of 1984,itwas increased upto Rs. 30,000/-. If the value of .the suit is Rs. 30,000/-and above, the appeal lies to the High Court. This amendment has come into force, as stated above, on 21-5-1984. The suit whose value was Rs. 22,950/- was instituted on 23-4-1983. As on that date, under Act 19 of 1972, the appeal therefrom lies to High Court only. The said suit was decreed on 21-8-1990, long after the pecuniary jurisdiction of the District Court was raised by the Amending Act 19 of 1984.
6. Defendants in the said suit preferred the appeal to the IIIrd Additional District Court, Visakhapatnam on the ground that as on the date the suit was decreed, viz., 21-8-1990 and the date on which the appeal was filed, the Amending Act 19 of 1984 having come into force, the District Court is competent to entertain the appeal as the value of the subject matter of the suit was only Rs. 22,950/- viz., less than Rs. 30,000/-. Respondents therein took an objection with regard to the jurisdiction of the District Court to entertain the appeal and they raised the contention that the suit having been instituted prior to the coming into force of the Amending Act 19 of 1984 i.e., on 23-4-1983, the appeal lies only to the High Court. On this question, after hearing both the parties, as stated above, the learned Judge referred the matter to this Court. That is how the matter is placed before us.
7. The only question that has to be decided in this reference is, whether the right of appeal provided to the High Court, as on the date of filing of the suit, viz., 23-4-1983 (whose value was Rs. 22,950/-), is taken away by the Amending Act 19 of 1984, which raised the pecuniary jurisdiction of the District Court upto Rs. 30,000/-?
8. In this connection, it will be useful to refer to the settled principles of law. It is well settled that a right of appeal is a substantive right which vests in a litigant at the date of the filing of the suit, and the same cannot be taken away unless the Legislature expressly or by necessary intendment says so. The said right of appeal cannot be impaired or imperilled nor can new conditions be attached to the filing of the appeal; nor can a condition already existing be made more onerous or more stringent so as to affect the right of appeal arising out of a suit instituted prior to the enactment. (Vide Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, . Garikapati Veerayya v. N. Subbaiah Choudhary . Nagendm Nath Bose v. Man Mohan Singh, AIR 1931 Calcutta 100. In Garikapati Veemyya v. N. Subbaiah Choudhary, . the following five propositions were laid down:
"(i) 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 proceedings;
(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 filing of appeal;
(v) this vested right of appeal can be taken away only by subsequent enactment if it so provides expressly or by necessary intendment and not otherwise."
Learned Judges of the Supreme Court clearly stated in Kasibai v. Mahadu, ., that, the right of appeal to a particular forum is also a substantive right and observed as follows:
"It is true that as a general rule, alterations in the law of procedure are retrospective, but a right of appeal to a particular forum is a substantive right and is not lost by alteration in the law, unless provision is made expressly in that behalf, or a necessary implication arises."
In the above mentioned case, the question arose for determination was wheher the Court is precluded to go into facts in a second appeal preferred to the High Court, arising out of a suit instituted when the Hyderabad Code of Civil Procedure was in operation, is lost by Section 100 of the Code of Civil Procedure which was in operation as on the date of the hearing of the Second Appeal. In fact, while disposing of the Second Appeal No. 544 of 1947 on July 17,1953, the High Court of Hyderabad went into the question of facts also. An objection was raised before the learned Judges of the Supreme Court that after the Code of Civil Procedure (Act 5 of 1908) was made applicable with effect from 1-4-1951 to the Part 'B' State of Hyderabad, the right to go into the question of facts is not available under Section 100 of the Code of Civil Procedure (Act 5 of 1908) and, therefore, the High Court was not right in going into the question of facts. While dealing with this contention, learned Judges of the Supreme Court held that as on the date of filing of the suit, the suitor had the right to have his Second Appeal arising therefrom disposed of on questions of fact also and the same cannot be taken away by the subsequent extension of the Code of Civil Procedure (Act 5 of 1908) with effect from 1-4-1951 to the part 'B' State of Hyderabad. In that connection, learned Judges clearly held that the right of appeal to a particular forum is also a substantive right.
9. The above decisions have been referred to and considered, except the decision in Kasibai v. Mahadu (4 supra), by a Division Bench of this Court in S. Kameswammma v. Radhakrishna & Co, . The learned Judges were considering the effect of enhancement of the pecuniary jurisdiction of the District Court by amendment to Section 17(l) of Act 19 of 1972 by a notification. Prior to 1-11-1972, on which date the Amending Act came into force, if the amount or value of the subject matter of the suit or proceeding is not more than Rs. 10,000/-, appeal lies to the District Court. By virtue of the enactment with effect from 1-11-1972, if the amount or value of the subject matter of the suit or proceeding is not more than Rs. 15,000/-, appeal lies to the District Court. In the said case, the amount or value of the subject matter of the suit was Rs. 12,795/- and the same was instituted on 4-11-1971, viz., prior to the coming into force of the Act on 1-11-1972. The question arose whether the appeal lies to the District Court or to the High Court? While considering the said legal position, the learned Judges, after referring to the case law, held that the right of appeal to the High Court of the suitor with reference to a suit instituted prior to 1-11-1972 cannot be impaired by the enhancement of the pecuniary jurisdiction of the District Court with effect from 1-11-1972. It was clearly held that the plaintiff, who instituted the suit on 4-11-1971, the value of which was Rs. 12,795/-, is entitled to file an appeal in the High Court notwithstanding the fact that on 1-11-1972 the pecuniary jurisdiction of the District Court was enhanced. The learned Judges while dealing with this question also considered the decision reported in Kotina Papayya v. Samminga Appala Naidu, 1960 (l)An.W.R. 100. The judgment of a learned single Judge of this Court in Venkata Reddy v. Ayodhyamma, 1973 (2) An.W:R. 337., is to a similar effect. The learned Judges in the decision were considering the notification issued under Section 13 of the Madras Civil Courts Act, 1873 raising the pecuniary jurisdiction of the District Court for entertaining an appeal to not more than Rs. 7,500/-. In fact, Section 13 of Madras Act 3 of 1873 was amended as follows:
"13. Appellate Jurisdiction of District Court:- Appeals from the decrees and orders of Subordinate Judges and District Munsifs shall, when such appeals are allowed by law, lie-
(1) to the District Court, when the amount or value of the subject-matter of the suit is not more than such amount or value, not exceeding rupees ten thousand, as the State Government may, after consultation with the High Court, specify, from time to time, by notification; and (2) to the High Court, in other cases."
Under the said provision, notification was issued on 7-3-1956 to the effect that the District Court will have jurisdiction to entertain the appeal from the decrees and orders of Subordinate Judges, when the amount or value of the subject- matter of the suit is not more than Rs. 7,500/-.
10. Sri Viswanadhasastry, learned counsel for the appellant in the District Court contended, on the basis of the decision reported in Duryodhan Samal v. Smt. Uma Dei, ., that a litigant can have no vested right to prefer appeal to a particular forum. In other words, he contended that change of forum is merely a change of procedural law. It would operate retrospectively unless a different intention is expressed and therefore, the appeal preferred by his client to the District Court is sustainable. The decision cited by the learned counsel for the appellant supports his contention. But the decision of their Lordships of the Supreme Court referred to supra (4) was not cited before the learned Judges. The learned Judges of the Supreme Court clearly held that alterations in the law of procedure are retrospective as a general rule, but a right of appeal to a particular forum is a substantive right and is not lost by alteration in the law unless provision is made expressly in that behalf, or a necessary implication arises in that behalf. Having regard to the above, we are of the considered opinion that the decision referred to supra (8) does not reflect the correct legal position. With great respect to the learned Judges, we express to that extent our respectful dissent. The decision of the Supreme Court in New India Insurance Co. Ltd., v. Smt. Shanti Misra, ., referred to by the learned Judges of Orissa High Court in the decision referred to supra (8), in our opinion, does not support the view taken by the learned Judges. In the decision referred to supra (9), an application was filed under Section 110-A of the Motor Vehicles Act on 8-7-1967 before the Accidents Claims Tribunal claiming damages arising out of an accident occurred on 11-9-1966. Motor Vehicles Act was amended by Central Act 100 of 1966 which came into force with effect from 16-2-1966 deleting the original Section 110 and substituting Sections 110 to 110-F. However, the Claims Tribunals were not constituted by the State Government at the same time. They were constituted on different dates for different areas. Unless and until the Claims Tribunals were constituted, the provisions of the new sections introduced in the year 1966 were not applicable. Section 110-F of the Motor Vehicles Act provides among other things that where any Claims Tribunal has been constituted for any area, no civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. The learned Judges of the Supreme Court, while dealing with the said point, stated that since the jurisdiction of the Civil Court was specifically taken away by virtue of the substituted provisions, right to have a particular forum also goes. In that connection, learned Judges stated that the change of procedural law operates retrospectively and held that the claimant will have a vested right of action, but not vested right of forum. This decision has no application to the present case. It is a case where the jurisdiction of the Civil Court was completely taken away. Such is not the case in the present proceedings. Jurisdiction of the High Court was not taken away completely with reference to the filing of appeals as in the case of Claims Tribunals. The only aspect which has to be considered is that raising the pecuniary jurisdiction of the District Court takes away the vested right of the suitor to file an appeal in a particular forum, viz., High Court. Having regard to the other decisions referred to above, we are of the opinion that the right to prefer an appeal to the High Court is not taken away by the Amending Act 19 of 1984.
11. Sri Viswanadha Sastry, learned counsel for the appellant strongly relied upon the judgment in Kotina Papayya v. Samminga Appala Naidu (6 supra). This case was also considered by the Division Bench of this Court in the decision referred to supra (5) and distinguished. The Judgment in S. Kameswaramma v. Radhakrishna & Co. (5 supra) is directly applicable and on all fours to the case on hand. The decision referred to supra (6) mainly relied upon the objects and reasons mentioned in the Amending Act as well as the postponement clause to come to the conclusion that the Legislature clearly indicated that the Act should be retrospective. If there is an express provision making the enactment retrospective or it is deducible by necessary implication then even a vested right can be taken away by the Legislature. Learned Judges of the Division Bench, on a consideration of the objects and reasons of the Act as well as the postponement clause and the absence of the application of Sections 8 and 18 of the General Clauses Act, came to the conclusion that the said Amending Act was retrospective. In the present case, there is nothing to indicate in the Amending Act 19 of 1984 that it is retrospective. It is admitted that there is no specific provision making it retrospective. The only other aspect that has to be considered is whether by necessary intendment the Legislature made the Amending Act 19 of 1984 retrospective. There is no postponement clause in the Amending Act and the objects and reasons of the Amending Act are not indicated. By virtue of the Amending Act, the words "Rupees fifteen thousand" is substituted by "rupees thirty thousand". Sub-section (2) of Section 34 of the Act which made Sections 8 and 18 of the Andhra Pradesh General Clauses Act, 1891 still remains. Having regard to the above, we are of the opinion that the decision referred to supra (6) is not applicable to the present case on hand.
12. Learned counsel for the appellant also relied upon a decision in State of Bombay v. M/s. S.G. Films Exchange, ., in support of his contention that the Amending Act is retrospective and that they are all procedural laws and the suitor has no vested right. On the other hand, the said decision is against the contention of the learned counsel for the appellant in the District Court. The said case arose out of an application for refund of court-fees. Suits were filed prior to the change in the law of Court-fees brought about by the Court Fees (Bombay Amendment) Act, 1954 with effect from 1-4-1954. In fact, one of the suits was filed on 16-4-1953. The same was decreed on 22-7-1954. The defendants filed an appeal on 4-9-1954 paying court-fees as amended by Court Fees (Bombay Amendment) Act, 1954, viz., ad valorem. The appeal was settled and on 9-10-1954 a prayer was made for dismissal of the appeal for want of prosecution. On 18-11-1954, an application was made under Section 151 of the Code of Civil Procedure by the appellant for refund of excess court-fees paid on the memorandum of appeal. The contention was that the Court-fees was paid as prescribed by the Court-Fees Act as amended by Bombay Amendment Act, 1954. The said amendment was not retrospective and the appellant is liable to pay the court-fees on appeal as applicable by the law as on the date of filing of the suit, viz., 16-4-1953 (prior to the date of amendment). Therefore, excess court-fees paid should be refunded. While dealing with the said case, learned Judges of the Supreme Court held that the appellant had a vested right of appeal when the proceedings were initiated and his right of appeal was governed by the law as it stood on the date of the filing of the suit. Prescribing higher court- fees by a subsequent amendment after the institution of the suit will amount to impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition. The same is a matter of procedure and it impairs a substantive right and therefore, retrospectivity cannot be presumed unless it says so expressly or by necessary intendmeht.
13. This judgment is in fact supports the contention of Sri N.V. Ranganadham, learned counsel for the respondents in the appeal pending before the lower Appellate Court and against the contention of Sri Viswanadha Sastry, learned counsel appearing for the appellant.
14. Having regard to the above, the right of suitor in O.S.No. 197 of 1983 instituted on 23-4-1983 to appeal to the High Court is not at all taken away by the Amending Act 19 of 1984 which came into force on 21-5-1984 and the appeal lies to the High Court against the judgment and decree in O.S.No. 197 of 1983 on the file of IInd Additional Subordinate Judge, Visakhapatnam.
15. Reference is answered accordingly as stated above holding that the appeal preferred to the IIIrd Additional District Court, Visakhapatnam against the judgment and decree in O.S.No. 197 of 1983 on the file of IInd Additional Subordinate Judge, Visakhapatnam is not maintainable and the appeal lies to the High Court.
16. The other Reference (SR No. 26222 of 1991 is also answered accordingly holding that the appeal preferred to the IIIrd Additional District Court, Visakhapatnam against the judgment and decree in O.S.No. 63 of 1980 on the file of the First Additional Subordinate Judge, Visakhapatnam is not maintainable and the appeal lies to the High Court.