Bombay High Court
Tukaram Pandurang Gaikwad vs Smt. Hababi Eabumiya Shaikh And Ors. on 16 December, 1999
Equivalent citations: (2000)102BOMLR654
Author: J.A. Patil
Bench: J.A. Patil
JUDGMENT J.A. Patil, J.
1. Respondent Nos. 1 and 2 (Original Plaintiff Nos. 1 and 2) had filed Special Civil Suit No. 296 of 1972 against the Appellant (Original Defendant No. 1) and Respondent Nos. 3 and 4 (Original Defendant Nos. 3 and 4) for declaration and partition. The suit was filed in the year 1972 in the Court of the Joint Civil Judge, Senior Division, Pune, who, by his Judgment dated 10.3.1983 decreed the claim. Feeling aggrieved thereby, Defendant No. 1 has filed this Appeal. The suit was valued at Rs. 43.460/- for the purpose of Court fee and jurisdiction.
2. When the appeal came up before me for hearing, Shri Anturkar, learned Advocate for the Appellant, submitted that in view of the provisions of the Bombay Civil Courts (Amendment) Act, 1998 (Act No. III of 1999) which came into force on 13.1.1999, this appeal cannot lie on the file of the High Court and it will have to be sent back to the District Court, Pune, for disposal according to law. The submission of Shri Anturkar was strongly opposed by Shri Irani, the learned Advocate for Respondent Nos. 1 and 2, who submitted that the said Amendment is prospective in nature and that it cannot have retrospective application. Since the point raised by Shri Anturkar is of a considerable importance and is related to the forum of appeal, I have heard both the learned Advocates at length. Section 26 of the Bombay Civil Courts Act, 1869, as it stood prior to 13.1.1999 read as under:
In all suits decided by a Civil Judge of which the amount or value of the subject-matter exceeds fifty thousand rupees, the appeal from his decision shall be direct to the High Court.
By the Maharashtra Act No. III of 1999, the words "fifty thousand rupees" have been substituted by the words "two lakh rupees". It, therefore, follows that only the appeals arising out of suits in which the valuation of the subject-matter is more than two lakh rupees will henceforth lie to the High Court, and those appeals in which valuation of the subject-matters is less than rupees two lakhs will have to be filed in the District Court. But the dispute is in respect of the appeals arising out of the suits which are already decided by the Civil Judges in which valuation of the subject-matter is less than rupees two lakhs and which are pending in this Court. It is a question for consideration whether the High Court should retain those appeals pending on its file and dispose them of according to law or whether it is necessary, in view of the above mentioned Amendment, to remit those appeals to the concerned District Courts. The question is, therefore, whether the Amendment to Section 26 of the Bombay Civil Courts (Amendment) Act, 1869, effected by Act No. III of 1999 operates prospectively or retrospectively.
3. The Amendment in question does not take away the right of appeal nor does it affect the same. It only affects the right to have a particular forum of appeal. There is no dispute of the fact that the right to appeal is a vested right of substative law. However, there appears to be a difference of opinion as to whether right to forum is a substantial right or a matter of procedural right. In Colonial Sugar Refining Co. v. Irving 1905 Appeal Cases 369 the Privy Council had held that right to the forum is a vested right of substantive law and not a matter of procedural law to be affected retrospectively by subsequent amending law. However, in Shiu Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Doss Chagla C.J. observed :
Now, I think, it may be stated that, as a general principle, no party has the vested right to a particular proceeding or to a particular forum and it is also well settled that all procedural laws are retrospective unless the legislature expressly states to the contrary.
Therefore, procedural laws In force must be applied at the date when a suit or proceeding comes for trial or disposal. This controversy again came up before the Full Bench of this High Court in Vitas Vasantrao Mahajan v. Central Bank of India 1982 Man. L.J. 139. The Full Bench, however, observed :
It is, however, not necessary for the purpose of this case to consider whether the right to a particular forum is or is not a matter of substantive law.... It is, however, equally well settled that even such vested rights as to appeal and as to the forum can be taken away by the Legislature by express provisions or by necessary implication.
4. In Hitendra Vishnu Thakur v. State of Maharashtra the Apex Court considered the ambit and scope of an Amending Act and its retrospective operation with reference to Clauses (b) and (bb) of Sub-section (4) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act (28 of 1987), as amended by Act 43 of 1993. The following principles were laid down in the said case :
(i) a statute which affects substative 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 a new rights and liabilities, shall be construed to be prospective in operative, unless otherwise provided, either expressly or by necessary implication, and liabilities.
5. This is not the first time that such type of amendment has been made in the Bombay Civil Courts Act. In the past, there have been several such amendments. Prior to 1949, the position of Section 26 was that in all suits decided by a Civil Judge of which the amount or value of the subject-matter exceeded rupees five thousand, the appeal from his decision lay direct to the High Court. However, by Bombay Act No. 54 of 1949, the amount of rupees five thousand mentioned in Section 26 was raised to rupees ten thousand. The question whether the said amendment operated prospectively or retrospectively came up before a Division Bench of this Court in Raghunath v. Sadashiv AIR 1951 Bombay 270 : 52 Bom. L.R. 871. That was an appeal arising out of a decree passed in a suit to recover a sum of Rs. 5002-2-3. The suit was filed on 21.8.1948 and it was decreed by the Civil Judge, Senior Division, on 31.3.1950. During the pendency of the suit, the Amending Act No. 54 of 1949 came into force w, e. f. 1.3.1953. It was contended in the appeal before the High Court that the decree under appeal was governed by the provisions of the Amending Act and that appeal against the said decree would lie to the District Court and not to the High Court. The Division Bench, however, referred to Section 6A of the Amending Act, which contained a saving clause to the effect that such suit of proceedings shall be continued and disposed of as if the Amending Act had not been passed. Consequently, the Division Bench held that the appeal from a decree in a suit pending at the date when the Amending Act came into force would lie to the High Court under Section 26 of the Bombay Civil Courts Act as it stood before the amendment.
6. Section 26 was again amended in the year 1977 by Maharashtra Civil Courts (Enhancement of Pecuniary Jurisdiction and Amendment) Act (46 of 1977), whereby the amount or valuation mentioned in Section 26 was raised from Rs. 10.000/- to Rs. 25.000/-. A similar controversy arose before the Full Bench in Vitas Vasantrao Mahajan v. Central Bank of India (supra) and the question was whether the Amending Act had prospective application or retrospective application. The Full Bench relied upon the provisions of Section 19 of the Amended Act, which read as follows :
The amendments made by this Act in any of the Act aforesaid shall not have any effect in respect of and apply to any suits, appeals or other proceedings of a civil nature filed and pending before any Court on the date of commencement of this Act, and such proceedings shall be continued and disposed of by that Court, as if this Act had not been passed; and any appeal, revision application or other proceedings of a civil nature in respect of any decree or order passed by any Court before the date of commencement of this Act shall be filed before and heard and disposed of by the Court competent to entertain such proceedings before such commencement, as if this Act had not been passed.
The Full Bench took the view that the appeals arising out of the order and decree passed after the commencement of an Amending Act would be governed by the amended provisions and not by the uhamended provisions. Consequently, the Full Bench approved the earlier order of the Division Bench of returning the appeal memos to the appellant and presenting the same to the appropriate Court. The decision of the Full Bench, as it is evident from the judgment, is based mainly on the construction of Section 19 of the Mah. Amending Act No. 46 of 1977. It is, therefore, obvious from the said decision that appeals arising out of the orders and decrees passed before the commencement of the Amendment Act were to be governed by the unamended provisions of Section 26 of the Bombay Civil Courts Act, 1869.
7. In 1983, Section 26 was again amended by the Bombay Civil Courts (Amendment) Act, 1982, which came into force on 24.2.1983. By the Amendment, the words "twenty-five thousand rupees" occurring in Section 26 were substituted by the words "fifty thousand rupees". It may be pointed out that thereafter the Legislature passed a separate Act called Bombay Civil Courts (Amendment) Act, 1984 (Maharashtra Act No. XXVII of 1984) which came into force on 28.9.1984. The said Act contained Section 3 which considered the effects of Amendments made by Mah. Act No. 10 of 1983 on pending proceedings and saving. Section 3 reads as under :
3. (1) The amendments made by the Bombay Civil Courts (Amendment) Act, 1982 which came into force on the 1st January, 1984 (hereinafter in this section referred to as "the said date") shall not have the effect in respect of, and apply to, any suits, appeals or other proceedings of a civil nature filed and pending before any Court on the said date and such suits, appeals or other proceedings shall be continued and disposed of by that Court as if that Act had not been passed; and any appeal, revision application or other proceedings of a civil nature in respect of any decree or order passed by any Court before the said date shall be filed before and heard and disposed of by the Court competent to entertain such proceedings before the said date as if that Act had not been passed.
8. The foregoing discussion will thus make it clear that on all the three occasions whenever there was an amendment in Section 26 raising the amount or valuation of subject-matter, the Legislature had taken special precaution to provide for a saving clause. However, so far as Bombay Civil Courts (Amendment) Act, 1998 (Maharashtra Act No. III of 1999) is concerned, there appears to be no such saving provision. At least till this date, it is not brought to my notice by any learned Counsel. Therefore, in the absence of any such saving provision, the pending appeals arising out of the orders passed in suits by the Civil Judges prior to the coming into force of the Amending Act, cannot be saved from the application of the amended provisions of Section 26 and the same will have to be given retrospective effect.
9. Shri Irani contended before me that right to forum is a substative right. Relying upon the decision in Piroja M. Mehta v. Dr. Nambai Jamshedji Cama 1998 Mh. L.J. 979 he submitted that a substantive law is generally prospective unless there are clear words to the contrary or unless it is to be held retrospective by necessary implication. I have already pointed out that on earlier three occasions, whenever Section 26 was amended, the Legislature consciously provided for a saving clause. However, no such saving clause is provided when Section 26 came to be amended by Maharashtra Act. No. III of 1999. Therefore, the submission of Shri Irani cannot be accepted.
10. Reference may also be made to the decision in First Appeal No. 562 of 1982 decided by the learned single Judge (R.M. Lodha, J.) of this Court on 25.8.1999. That appeal arose out of the judgment and decree passed by the Joint Civil Judge, Senior Division, Pune, on 25.11.1981 in Special Civil Suit No. 635 of 1976. The Appellant had valued the First Appeal at Rs. 15.000/- for the purpose of Court fee and jurisdiction. The appeal was filed on 1.7.1982. Justice Lodha followed the Full Bench decision in the case of Vifas Vasantrao Mahcyan v. Central Bank of India (supra) and held that the valuation of the Appeal being Rs. 15.000/- for the purpose of Court fee and jurisdiction, the appeal had to be heard by the concerned District Court and not the High Court. In doing so, Justice Lodha solely relied upon the above-mentioned Full Bench decision. A perusal of the judgment by Justice Lodha does not show that the provisions of Section 3 of the Bombay Civil Courts (Amendment) Act, 1984 (Maharashtra Act No. XXVII of 1984) were brought to the notice of the learned Judge. The judgment was, therefore, per incuriam. Nevertheless, it is consistent with the provisions of the saving Section 3 of Maharashtra Act No. XXVII of 1984.
11. Shri Anturkar drew my attention to the provision of Order 43, Rule 1 of the Code of Civil Procedure, which provides for Appeals from Orders. The relevant part of Rule 1 reads thus :
The appeal shall lie from the following orders under the provisions of Section 104....
Shri Anturkar then drew my attention to the provisions of Section 26 of the Bombay Civil Courts Act, 1998 which now read as under :
In all suits decided by a Civil Judge of which the amount or valuation of the subject-matter exceeds two lakh rupees, the appeal from his decision shall be direct to the High Court.
According to Shri Anturkar, the absence of the word "lie" in Section 26 is material. This word, Shri Anturkar submitted, connotes the presentation or filing of an appeal. The said word being absent in Section 26, the provisions of Section 26 apply to the appeals which have been already filed and which are pending in the High Court. Section 26 does not speak of the act of filing of an appeal but it only states the forum where the appeal would lie.
12. Shri Anturkar further submitted that the object of Legislature in not providing a saving section as was done previously is obviously to lessen the burden of the High Court. There is much substance in the submission of Shri Anturkar. The Full Bench of this Court in Vilas Vasantrao Mahajan v. Central Bank of India (supra) observed thus :
It is well that the occasion to enhance the jurisdiction arose because of the abnormal rise of the valuations of the properties during the period of thirty years from 1949 when the Act was amended by "Act No. LIV of 1949 to meet the identical problems. This in turn is aimed at reducing the congestion of cases and growing arrears in the Higher Courts which could be attributable to such inflation and artificial rise in the prices. This aspect shall have to be borne in mind in this context.
13. In view of the foregoing discussion, I am inclined to accept the submission of Shri Antrukar that the provisions of Section 26 as amended by Maharashtra Act No. III of 1999 would also apply to the pending appeals arising out of the suits decided by Civil Judge prior to 13.1.1999 wherein valuation of the subject-matter is less than rupees two lakhs. Consequently, the present 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 Judge, Pune. Shri Irani pointed out that the appeal was filed way back in 1983 and that after a period of over sixteen years it has reached the stage of hearing. He further submitted that if the appeal is now remitted to the concerned District Court it would be registered as a fresh appeal of the year 2000 and in that event it being a new matter it will have to wait its turn in the queue of older appeals. The anxiety expressed by Shri Irani is true and correct, but the same can be taken care of by giving a direction to the District Judge, Pune, to expedite the hearing of the appeal.
14. In the result, the Office is directed to remit the appeal, namely, First Appeal No. 411 of 1983 along with the record and proceedings of the trial Court to the District Court, Pune, shall register the appeal immediately and the learned District Judge or the Court to which this appeal would be assigned shall ensure that the appeal is heard and disposed of according to law, as far as possible, within three months of the appearance of the parties.
First Appeal No. 411 of 1983Authenticated copy of the Judgment dated 16.12.1999.