Bombay High Court
Shri Vijay @ Ambadas Dattatraya Pawar vs Ramappa Ambannappa Masare And Others on 22 February, 2012
Author: Mohit S. Shah
Bench: Mohit S. Shah, S.P.Deshmukh, Sadhana Jadhav
mst 1 FA-1081-1996 with FA-1158-1996
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1081 OF 1996
WITH
CROSS OBJECTION ST.NO.1445 OF 1998
WITH
CIVIL APPLICATION NO.8306 OF 1998
IN
CROSS OBJECTION ST NO.1445 OF 1998
WITH
FIRST APPEAL NO.1158 OF 1996
ig WITH
WRIT PETITION NO.3174 OF 1992
WITH
CIVIL APPLICATION NO.5864 OF 2000
IN
WRIT PETITION NO.3174 OF 1992
PARTIES IN :
First Appeal No.1081 of 1996 with Cross Objection (St) No.1445 of
1998 with Civil Application No.8306 of 1998 in Cross Objection (St)
No.1445 of 1998 :
Shri Vijay @ Ambadas Dattatraya Pawar ... Appellant
versus
Ramappa Ambannappa Masare and others ... Respondents
Mr.P.K.Dhakephalkar, Sr.Advocate for the appellant.
Mr.V.B.Naik,Ms.Deepa Ahuja and Mr.R.S.Alange for respondent no.1.
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PARTIES IN :
First Appeal No.1158 of 1992 :
Ramappa Amanappa Masare ... Appellant
versus
Ambadas Dattatraya Pawar ... Respondent
Mr.V.B.Naik, Ms.Deepa Ahuja and Mr.R.S.Alange for appellant
Mr.P.K.Dhakephalkar, Sr.Advocate for the respondent no.2A.
PARTIES IN :
Writ Petition No.3174 of 1992 with Civil Application No.5864 of 2000
Amanappa Ramappa Masare
ig ... Petitioner
versus
Gangubai Babu Pawar, deceased and others ... Respondents
CORAM : MOHIT S. SHAH, C.J.,
S.P.DESHMUKH AND
SMT.SADHANA JADHAV, JJ.
DATE OF RESERVING THE JUDGMENT : 24 January 2012
DATE OF PRONOUNCING THE JUDGMENT : 22 February 2012
JUDGMENT (PER MOHIT S. SHAH, C.J.) :
These appeals with cross objections and writ petition are placed before us pursuant to the order dated 4 March 2011 of a learned Single Judge of this Court (Coram : A.S.Oka, J.) by which the learned Single Judge has also formulated the following questions :
i) Whether the amendment to Section 26 of the Bombay Civil Courts Act, 1869 made by Maharashtra Act No.III of 1999 is prospective or retrospective and whether the amended section 26 will apply to the appeals pending in this Court on the date on which the amending Act came into force?
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ii) If it is held that section 26 as amended is not
applicable to the appeals which were pending in this Court, whether the view taken by the Division Bench of this Court in the case of Mahendra Panmal Duggad Jain and another Vs. Bhararilal Panmal Duggad Jain and another [2008(6)-
Bombay Cases Reporter-699] will apply only
prospectively?
2. First Appeal N0.1158 of 1996 is directed against the judgment and decree dated 7 August 1996 passed by the learned Joint Civil Judge (Senior Division) in Special Civil Suit No.33 of 1992 valued at rupees one lakh for jurisdiction. By the said decree, the learned Judge partly decreed the suit in favour of the plaintiff for an amount of Rs.48,000/-. The first appeal is filed by the defendant.
3. First Appeal No.1081 of 1996 (with cross-objections therein) are directed against the judgment and order dated 14 February 1995 passed by the learned District Judge, Solapur in Civil Misc.
Appeal No.248 of 1989 under Section 41E of the Bombay Public Trusts Act, 1950.
4. Writ Petition No.3174 of 1992 is filed by the judgment debtor for challenging order dated 15 October 1991 passed by the learned Joint Civil Judge (Junior Division), Solapur in Regular Darkhast No.287 of 1991.
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5. In view of subsequent developments after the reference made by the aforesaid order dated 4 March 2011, it would not be necessary to refer to the reasoning of the learned Single Judge in the order of reference or the reasoning of the Division Bench from which the learned Single Judge has differed. We will set out the broad contours of the controversy and then refer to the subsequent developments.
6. The original controversy is about the status of the First Appeals which were filed before this Court prior to 13 January 1999 and which were pending on that date when the Bombay Civil Courts (Amendment) Act, 1998 (Maharashtra Act No.III of 1999), which came into force on 13 January 1999.
7. Section 26 of the Bombay Civil Courts Act, 1869 (for short "the Principal Act") governing the pecuniary jurisdiction of the Civil Appellate Courts provides that in all the suits decided by the Civil Judge of which amount or value of the subject matter exceeds a particular amount, the appeal from that decision will lie to High Court. The following table indicates the particulars of amounts referred to in Section 26 of the Principal Act :
Pecuniary Jurisdiction of the District Court as the Appellate Court Prior to 1977 upto Rs. 10,000/-
From 1977 " Rs. 25,000/-
From 1983 " Rs. 50,000/-
From 13 January 1999 " Rs. 2,00,000/-
From 16 January 2012 " Rs. 10,00,000/-
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8. The controversy arose as to what was to happen to the appeals pending in this Court as on 13 January 1999 (i.e. the date of coming into force of Act of 1999) of which the amount or value of subject matter was Rupees 2 lakhs that is to say, the issue before this Court was whether the amended Section 26 which came into force with effect from 13 January 1999 would apply to the appeals pending before this Court as on 12 January 1999 in which amount or value of the subject matter was up to Rs.2 lakhs.
9. After considering various judgments of the Apex Court, a learned Single Judge of this Court by judgment and order dated 16 December 1999 in First Appeal No.411 of 1983 (Tukaram Pandurang Gaikwad Vs. Hababi Eabumiya Shaikh and Others) held that the amended provisions of Section 26 will apply even to the appeals which were pending in this Court as on 13 January 1999. The learned Single Judge accordingly passed an order that the said appeal cannot be retained on the file of the High Court and the same will have to be dealt with and decided by the District Court, Pune.
10. The aforesaid view of the learned Single Judge on the interpretation of Section 26 of the Principal Act as amended by Amending Act of 1999 came to be acted upon and hundreds of appeals were transferred from this Court to various District Courts and a large number of appeals have already been decided by the District Courts.
However, after a passage of about eight years, a Division Bench of this Court by judgment dated 10 March 2008 in Mahendra Panmal Duggad Jain and another Vs. Bhararilal Banmal Duggad and another (2008[6]-Bom.C.R.-699) held that the law laid down by the ::: Downloaded on - 09/06/2013 18:12:29 ::: mst 6 FA-1081-1996 with FA-1158-1996 learned Single Judge in Tukaram Gaikwad's case (supra) was not correct. The Division Bench held that the amendment to Section 26 of the Principal Act by the Amending Act of 1999 with effect from 13 January 1999 would not affect the appeals which were already filed in the High Court prior to 13 January 1999 and that all those appeals were required to be heard and decided by the High Court and not by the District Courts. Even after taking the aforesaid view, the Division Bench, realizing that the interpretation of law would relate back to the date of coming into force of the Amending Act of 1999 and would therefore have potential of opening flood gates of proceedings as well as confusion, clarified that the Division Bench judgment would not affect the Civil Suits or the Appeals which were already decided upon transfer to the Courts concerned in view of the judgment of learned Single Judge in Tukaram Gaikwad's case (supra). For taking this view, the Division Bench relied upon the judgment of the Apex Court in State of Kerala Vs. Alasserry Mohammed reported in (1978)2- SCC-386.
11. As a result of the aforesaid judgment of the Division Bench, about 45 to 50 appeals which were not decided by the District Courts, came to be returned to this Court. In view of the submissions made before the learned Single Judge (A.S.Oka, J.), the learned Single Judge was of the prima facie view that the decision of the Division Bench required to be reconsidered and the learned Single Judge framed two questions already set out hereinabove for consideration of a Larger Bench. The papers of the appeals, cross objections and the writ petition have accordingly been placed before us.
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12. By the time the matters have been placed before us, there is further amendment to the Principal Act by Bombay Civil Courts Act (Amendment) Act, 2011 (Maharashtra Act No.XLIV of 2011) published in Government of Maharashtra Extraordinary Gazette dated 30 December 2011. By the said amendment, the pecuniary jurisdiction of the District Court is enhanced from Rs. 2 lakhs to Rs.10 lakhs:-
"4. In section 26 of the Principal Act, for the words "two lakh rupees" the words "ten lakh rupees" shall be substituted."
Section 6 of the said Act No.XLIV of 2011 has inserted Section 28B to the Principal Act, which reads thus :
"28B. On the commencement of the Bombay Civil Courts (Amendment) Act, 2011,-
(1) all suits in which the amount or value of the subject matter does not exceed rupees five lakhs and which are pending before the Court of Civil Judge (Senior Division), immediately, before such commencement, shall stand transferred to the concerned Court of Civil Judge (Junior Division) and such court may deal with such suit from the stage which was reached before such transfer or from any earlier stage or de-novo as such court may deem fit;
(2) all appeals in which the amount or value of the subject matter does not exceed rupees ten lakhs and pending before the High Court immediately before such commencement, shall stand transferred to the concerned District Court and such District Court may deal with such appeal from the stage which was reached before such transfer or from any earlier stage or de-novo as such court may deem fit;
Provided that, this section shall not apply to any suits and appeals which are pending before the Court of Civil Judge (Senior Division) or, as the case may be, before the High Court, which are statutorily provided under the relevant enactment before such Court."
(emphasis supplied)
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13. By Government Notification dated 4 January 2012 published in the Government of Maharashtra Extraordinary Gazette of the same date, the date "16 January 2012" is appointed as the date on which the said Amending Act of 2011 shall come into force. In view of the aforesaid amendments in the Principal Act, now it is crystal clear that all appeals in which the amount or the value of the subject matter does not exceed Rs.10 lakhs and were pending before the High Court immediately before 16 January 2012, shall stand transferred to the concerned District Courts and such District Courts shall deal with such appeals. In other words, all the first appeals under the Code of Civil Procedure in which the amount or value of the subject matter is up to Rs.10 lakhs and which were pending before the High Court on 15 January 2012 stood transferred to the concerned District Courts on 16 January 2012.
14. The direct consequence of the above amendments is that even those appeals under the Code of Civil Procedure in which amount or value of subject matter is up to 2 lakhs and which were pending before this Court on 12 January 1999 and which were still pending before this Court till 15 January 2012, stand transferred to the concerned District Courts. In other words, question no.1 referred by the learned Single Judge (A.S.Oka, J.) has become academic and, therefore, does not survive.
15. The next question is whether question no.2 referred to by the learned Single Judge still survives for consideration.
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16. Mr.Dhakephalkar, learned Senior Advocate appearing for the appellant in First Appeal No.1081 of 1996 and for respondent no.2 in the other First Appeal and in the writ petition, submitted that in view of question no.1 becoming academic, question no.2 would also become academic. He further submitted that in view of the fact that the appeals in which the order of reference dated 4 March 2011 came to be made by the learned Single Judge (A.S.Oka, J.) were still pending before this Court, it was not necessary for the learned Single Judge to refer question no.2, because the second question did not arise in the appeals which were pending before the learned Single Judge. It is submitted that the view taken by the learned Single Judge differing from the Division Bench in applying the Division Bench judgment prospectively, was not relevant in so far as the pending appeals were concerned. The learned Single Judge was not required to refer the question of prospective overruling to a Larger Bench.
17. Mr.Naik, learned counsel appearing for other side has also submitted that in view of the recent amendments made by the Amending Act of 2011 which has come into force with effect from 16 January 2012, the first question itself has become academic and that the second question may also be treated as academic.
18. Having heard learned counsel for the parties, we accept the submissions of learned counsel for the parties. Once Section 28B of the Principal Act, as inserted by the Amending Act of 2011, clearly provides that all CPC appeals, amount or value of the subject matter of which is up to Rs.10 lakhs, which were pending before this Court on 15 January 2012, shall stand transferred to the concerned District ::: Downloaded on - 09/06/2013 18:12:29 ::: mst 10 FA-1081-1996 with FA-1158-1996 Courts. All such CPC appeals, the amount or value of the subject matter of which is up to Rs.2 lakh will also necessarily stand transferred to the concerned District Courts. It, therefore, appears that it would not be necessary to decide even the second question.
19. The learned counsel for the parties, however, submitted that though the second question referred to by the learned Single Judge may not survive for consideration at this stage in the pending first appeals, there is a possibility that such a question may again be raised in a Second Appeal arising from any First Appeal which has been decided by the District Court pursuant to the transfer of appeal after the judgment dated 16 December 1999 of the learned Single Judge in Tukaram Gaikwad's case (supra). It is submitted that it may be contended in such a Second Appeal that the concerned CPC First Appeal, the value of the subject matter of which was up to Rs.2 lakhs, was not required to be transferred to the concerned District Court by virtue of the Amending Act of 1999 and that the first appeal was required to be decided by the High Court itself.
20. We have considered the above submission also. In our view, even if such a submission were to be accepted; the result would be that the Court hearing the Second Appeal may set aside the judgment and decree of the District Court and hold that the First Appeal was required to be heard by the High Court and, therefore, the first appeal pending before the High Court on 13 January 1999 still be treated as pending before the High Court. Even if it be so, such an appeal would be treated as pending before the High Court as on 15 January 2012 and would therefore, be covered by Section 28B(2) of ::: Downloaded on - 09/06/2013 18:12:29 ::: mst 11 FA-1081-1996 with FA-1158-1996 Bombay Civil Courts Act, 1869, as inserted by the Amending Act of 2011 and the legal consequence would be that such an appeal would also stand transferred to the District Court for being heard and decided again by the concerned District Court. No useful purpose, therefore, would be served by setting aside the judgments and decrees passed by the concerned District Courts between 13 January 1999 and 15 January 2012 on the ground that such appeals were required to be heard and decided by the High Court.
In any view of the matter, to set at rest all doubts, we would like to answer the second question on merits.
21. The learned Single Judge in the order of reference has expressed doubt about the correctness of the Division Bench judgment in Mahendra Panmal's case, invoking the doctrine of prospective overruling. The learned Single Judge has expressed a view that such doctrine can only be invoked by the Supreme Court in exercise of the power under Article 142 of the Constitution and by the High Courts in exercise of the writ jurisdiction under Article 226 of the Constitution, but not by a Court hearing first appeals.
22. Without expressing any opinion on the aforesaid view of the learned Single Judge, in our opinion, the controversy which agitated the mind of the learned Single Judge making the order of reference can simply be resolved by relying on the principle akin to the de facto doctrine.
23. In the leading judgment in Gokaraju Rangaraju vs. State of Andhra Pradesh, (1981)3 SCC 132, the Supreme Court dealt with ::: Downloaded on - 09/06/2013 18:12:29 ::: mst 12 FA-1081-1996 with FA-1158-1996 the effect of a declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid, on judgments pronounced by the Judge prior to the declaration. In that case, while Criminal Revisions and Appeals were pending before the High Court, the Supreme Court quashed the appointments of several Sessions Judges who had heard those cases on the ground that their appointments were in violation of Article 233 of the Constitution. Thereupon, it was urged that the judgments rendered by those Judges were void and would have to be set aside. Negating the contention, the Supreme Court explained the object of the doctrine in the following words:-
"The doctrine is now well established that "the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure" (Pulin Behari v. King-Emperor, (1912) 15 Cal LJ 574. As one of us had occasion to point out earlier "the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone."
24. The Supreme Court, thus, approved the principle laid down by Calcutta High Court in a criminal case way back in 1912, which was obviously long prior to even framing of the Constitution. Sir Asutosh Mookerjee, J. of the Calcutta High Court after referring to the first reported judicial recognition of the doctrine in the case of Abbe de Fontaine in the year 1431 (1431 Year Book 9H 6 Fol 32), explained the rationale of the doctrine in the following words,:-
::: Downloaded on - 09/06/2013 18:12:29 :::mst 13 FA-1081-1996 with FA-1158-1996 "The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where those interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large."
25. In the above judgment, the Supreme Court also relied upon the following passage from the judgment of the Kerala High Court in P.S. Menon v. State of Kerala, AIR 1970 Kerala 165:
"This doctrine was engrafted as matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid."
26. The principle was reiterated by the Supreme Court in Pushpadevi M. Jatia v. M.L. Wadhawan, Additional Secretary, (1987)3 SCC 367 and in Central Bank of India v. C. Bernard, (1991)1 SCC
319. In Pushpadevi's case, the Supreme Court explained the doctrine as under:-
"Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognised as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusiion and endless mischief."::: Downloaded on - 09/06/2013 18:12:29 :::
mst 14 FA-1081-1996 with FA-1158-1996 Of course, the Supreme Court added the caveat in C. Bernard's case (supra) that the incumbent of office must not be a total intruder or usurper, but must have some colour of title, that is apparent trite to the office and acquiescence in the possession thereof by the public.
According to this doctrine, the acts of officers de facto performed within the sphere of their assumed official authority, in the interest of the public or the third parties and not for their own interest, are generally held valid and binding as if they were performed by the de jure officers. The Supreme Court thus, held that the de facto doctrine can be invoked in cases where there is an appointment to office which is defective; but notwithstanding the defect to the title of the office, the decisions made by such a de facto officer clothed with the powers and functions of the office would be as efficacious as those made by a de jure officer. The same would, however, more be true of a total intruder of usurper of office. While the de facto doctrine saves official acts done by an officer whose appointment is found to be defective the private parties to a litigation are precluded from challenging the appointment in any collateral proceedings.
27. Following the above decisions another Division Bench of this Court (Coram: Dr. D.Y.Chandrachud and A.A.Syed, JJ) in M/s. Hamilton Housewares Private Limited v. Designated Authority, Directorate General of Anti-dumping and Allied Duties, Writ Petition No.6791 of 2011 (decided on 14 October 2011), after examining the doctrine as applied in foreign jurisdictions, has observed as under:-
::: Downloaded on - 09/06/2013 18:12:29 :::mst 15 FA-1081-1996 with FA-1158-1996 "The Supreme Court held that a Judge de facto is one who is not a mere intruder or usurper, but a person who holds the office under colour of lawful authority though his appointment is defective and may later be found to be defective. The underlying principle, according to the judgment of the Supreme Court, is that the defect of his title to the office would not render the judgments pronounced a nullity when the acts were done by him when he was clothed with the powers and functions of the office. Such acts and decisions had the same efficacy as judgments pronounced and acts done by a Judge de jure. In other words, as explained by the Supreme Court, the genesis of the de facto doctrine is the public policy to prevent needless confusion and endless mischief. The de facto doctrine is doctrine born out of necessity."
28. The Division Bench in Mahendra Panmal's case also realised that if the judgment of the learned Single Judge in Tukaram Pandurang Gaikwad's case was overruled with retrospective effect, there was going to be needless confusion and endless mischief and, therefore, out of necessity applied its decision with prospective effect.
There could be no dispute about the fact that the District Courts which decided the appeals transferred pursuant to the judgment dated 16 December 1999 of learned Single Judge in Tukaram Pandurang Gaikwad's case were apparently clothed by the said judgment in Tukaram's case with the powers and functions of the first appellate Court when the appeals were heard and decided by them. At the time of hearing and deciding those first appeals between 17 December 1999 and 9 March 2008, they had lawful authority to hear and decide those appeals. The District Judges who decided those appeals were not intruders or usurpers of office. It was subsequently on account of the Division Bench judgment rendered on 10 March 2008, that it was realised that such appeals were required to be heard by the High Court.
::: Downloaded on - 09/06/2013 18:12:29 :::mst 16 FA-1081-1996 with FA-1158-1996 Hence, the judgments rendered by the District Courts during the aforesaid period of eight years were not required to be pronounced a nullity. The Division Bench judgment, in effect, merely applied the doctrine which has been holding the field for the last six centuries.
29. We have, therefore, no hesitation in holding that the judgment of the Division Bench in Mahendra Panmal's case applying its interpretation of the provisions of the Amending Act of 1999 with prospective effect, and not retrospective effect, was made out of necessity and as a public policy to prevent needless confusion and endless mischief.
30. In view of the above discussion, the questions referred by the learned Single Judge (A.S.Oka, J.) are answered as under :-
i) In view of the amendment to Section 26 and insertion of Section 28B in the Bombay Civil Courts Act, 1869 (the Principal Act) made by Maharashtra Act No.XLIV of 2001, the first question referred by the learned Single Judge to the Larger Bench has become academic, because CPC First Appeals the value of the subject matter of which was up to Rs.2 lakhs and which were pending before the High Court immediately prior to 13 January 1999, which remained pending till 15 January 2012, even if treated as pending before the High Court, would in any case now stand transferred to the concerned District Courts with effect from 16 January 2012 by virtue of Maharashtra Act No.XLIV of 2011.::: Downloaded on - 09/06/2013 18:12:29 :::
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ii) As regards the second question referred by the learned
Single Judge, we are of the view that by reason of the recent amendment to Section 26 and insertion of Section 28B in the Principal Act vide Maharashtra Act No.XLIV of 2011, it might not have been necessary to decide the said question, but to set at rest all doubts, even if such question is required to be decided, the view taken by the Division Bench that its decision in Mahendra Panmal Duggad Jain case (supra) was to be applied only prospectively, is justifiable on the basis of the de facto doctrine.
31. First appeal No.1158 of 1996 with cross-objections, if any, and all the pending applications therein accordingly stand transferred to the District Court at Solapur.
32. First Appeal No.1081 of 1996 (with cross-objections and pending applications therein) arising from the order of the learned District Judge, Solapur in application under Section 41E of the Bombay Public Trusts Act, 1950 and Writ Petition No.3174 of 1992 shall be placed for hearing before the learned Single Judge of this Court as per the roster.
(CHIEF JUSTICE) (S.P.DESHMUKH, J.) (SMT.SADHANA JADHAV, J.) ::: Downloaded on - 09/06/2013 18:12:29 :::