Andhra HC (Pre-Telangana)
S. Shiva Raja Reddy And Ors. vs S. Rahgu Raj Reddy And Ors. on 1 August, 2002
Equivalent citations: 2002(5)ALD181, 2002(4)ALT594
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy, G. Rohini
JUDGMENT B. Sudershan Reddy, J.
1. In this group of letters patent appeals a common question arises for our consideration. It is to the following effect.
"Whether Section 100-A C.P.C is retrospective and no letters patent appeal will lie against a judgment of a single Judge passed in an appeal from an original decree or order and whether all such of those letters patent appeals filed prior to 1-7-2002 alone are saved?"
2. We have heard the learned Counsel for the respective parties very elaborately on the above question. Having regard to the importance of the question, we have requested the learned senior Counsel Sri Chella Seetharamayya and Sarvasri K. V.Satyanarayana and VLNGK Murthy to assist the Court as Amiciis Curiae. SriJ.V.Suryanarayana, the learned senior Counsel and Sri Kodanda Ram Murthy, advocates intervened in the debate and having regard to the importance of the question that falls for our consideration, we have permitted them to intervene and heard their submissions.
3. Since we propose to consider the sole question relating to the maintainability of the letters patent appeals we do not propose to refer the facts in any of the appeals before us.
4. In order to appreciate the nature of the controversy posed for our consideration, it will be convenient to refer to the statutory provisions relating to appeal from any judgment and decree of a single Judge to that of a Division Bench of the High Court. This was regulated by the provisions of the letters patent and it will be sufficient for our present purpose to refer to Clause 15 of the Letters Patent 1865 for the High Court of Judicature for the Presidency of Madras which is applicable to this Court.
"15. appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction:-
And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made (on or after the 1st day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, our Heirs or Successors in our or their Privy Council, as hereinafter provided."
5. Under that clause, an appeal against decree and judgment of a learned single Judge lies to a Division Bench of the High Court.
6. The Parliament enacted Act 104 of 1976 making several and far reaching amendments to the provisions of Code of Civil Procedure. 1908. Section 38 of the Amendment' Act inserted new Section 100-A prohibiting further appeals in certain cases. Section 100-A reads as follows:
"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 appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal."
7. Section 97(n) of Chapter V of the Amendment Act, 1976 declared that Section 100-A, as inserted in the Principal Act by Section 38 of this Act, shall not apply to or affect any appeal against the decision of a single Judge of a High Court under any letters patent which had been admitted before the commencement of the said Section 38; and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force. Thus all the admitted appeals are required to be disposed of as if the amending Section 38 had not come into force. But, Sub-section (3) of Section 97 of the Amendment Act, 1976 declared that save as otherwise provided under Sub-section (2), the provisions of the Principal Act, as amended by the amending Act shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement
8. Act 46 of 1999 substituted Section 100-A in place of Section 100-A of 1976 Act, which reads as follows :
"100-A. 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,--
(a) where any appeal from an original or appellate decree or order is heard and decided, by a single Judge of High Court, no further appeal shall lie from the judgment, decision or order of such single Judge."
(b) ........
9. Section 32(g) of Chapter 4 of Act 46 of 1999 saved all those appeals admitted prior to the Act coming into force.
10. The Parliament made further amendment to the Code of Civil Procedure, 1908 under Act 22 of 2002. For Section 100-A of the Principal Act (as substituted by Section 10 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) the following section shall be substituted, 100-A. No further appeal in certain cases.-Notwithstanding anything contained in any letters patent for any High Court or in any instrument having the force of law 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."
That is the section, which falls for our consideration.
11. We may have to notice that Act 46 of 1999 and Act 22 of 2002 have come into force with effect from 1-7-2002. The question that falls for our consideration is as to whether the provision is retrospective in its nature and if so, the extent of its retrospective operation.
12. Sri D. Prakash Reddy, the learned Additional Advocate-General, Sri Mahmood All and .Sri VLNGK Murthy, learned Counsel contended that there is nothing in the Act to show that Section 100-A to apply retrospectively to all pending proceedings. It is submitted that the rights of the parties to a suit would be determined on the basis of rights available to them on the date of filing of the suit. Such vested right cannot be taken away with retrospective effect. It is contended that at any rate, there is nothing explicit in Section 100-A so as to take away such vested right nor there is any such clear implication in order to hold that the newly inserted Section 100-A takes away such valuable right of the parties.
13. Sri K. V, Satyanarayana, learned amicus curiae assisting the Court also made similar submission that such vested rights of the parties cannot be taken away with retrospective effect unless the statute specifically provides for the same. It is submitted that all suits filed prior to 1-7-2002 are kept out from the purview of the amended Section 100-A CPC. It is submitted that the law that exist as on the date of the institution of the suit is relevant and the subsequent amendments cannot take away the valuable and vested rights of the parties.
14. Sri Challa Seetharamaiah, learned senior Counsel submitted that Section 100-A CPC is retrospective and no appeal will lie against a judgment and decree of a single Judge passed in an appeal from a original decree and order from the date of amendment Only such of the letters patent appeals which are filed prior to 1-7-2002 alone are saved. The learned senior Counsel submitted that an access to Court to avail judicial remedies undoubtedly is a valuable and vested right and a right to file appeals and further appeals from a decree and judgment of a Court is not a vested right. Right of appeal is a statutory right and statute either expressly or by necessary implication can always take away such right conferred upon the parties.
15. Sri Kodanda Ram Murihy, learned amicus curiae not only supported the submissions made by Sri Challa Seetaramaiah but further contended that even all the pending letters patent appeals as on 1-7-2002 are not maintainable in view of the retrospective operation of Section 100-A.
16. Having given our anxious consideration to these rival contentions, we have reached the conclusion that letters patent appeals filed after 1-7-2002 are not maintainable and only such of the letters patent appeals filed prior to 1-7-2002 alone are saved.
17. Before adverting to the question as to whether the newly incorporated provision Section 100-A is retrospective in its operation and if so the extent of its retrospectivity, it is necessary to bear in mind the distinction between the right of access to a Court and the right of appeal. It is recognised that the right of access to a Court is a fundamental and important constitutional right and to seek legal protection and remedies is a valuable basic right conferred upon people in a system governed by rule of Law and Constitutional democracy. There can be no settlement of disputes in a civilized manner unless such right of fundamental importance is recognised and enforced. But a right of appeal cannot be equated to that of a right of access to a Court.
18. In Colley v. Council for Licensed Conveyancers, (2001) 4 All ER 998, the House of Lords noticing the substantial difference between the right of access to a Court and the right of appeal, observed:
"The right of access to a Court is of fundamental constitutional importance. It is scarcely necessary to refer to authority for that obvious proposition. Lord Bingham of Cornhill stated in R. v. Secretary of State for the Home Dept, ex p Daly (2001) UKHL 26 at (5),(20pl) 3 All ER 433 at (5), (2001) 2 WLR 1622 that Important rights, including the right of access to a Court, calling for appropriate legal protection, may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. For present purposes, it seems to us that access to a Court means that those who need the assistance of a Court to assert their legal rights and obtain remedies to which they are in law entitled are able to start proceedings in an appropriate Court to that end. Having started the proceedings, they are entitled to have the Court determine them according to law.
The civil justice system in this jurisdiction has for over 100 years had a structure for appeals and there are rights of appeal against most first instance decisions. There are some instances where rights of appeal are limited by statute. Until fairly recently, leave or permission to appeal was not required for many classes of appeal. It has at least in modern times, always been necessary to obtain leave to appeal to the House of Lords. In Courts below the House of Lords, there have been progressive moves to introduce a requirement for leave or permission to appeal."
19. It is further observed that:
''the existence or otherwise of a system of appeal and the details of its operation do not impinge on the right of access to a Court. The right of access is accommodated by the right to bring proceedings at first instance and to have them determined according to law. Rights of appeal are not so much rights of access to a Court, as rights to have the opportunity of persuading a higher Court that the first instance decision is wrong. There are instances where Parliament expressly provides that there shall be no right of\ appeal from particular kinds of decision. But the entrenched system of appeals enabling dissatisfied litigants to appeal at least once to a higher Court recognizes the possibility that on occasions first instance decisions may be unjustly wrong and provides a means of putting them right (emphasis is of ours).
20. This fundamental and basic difference between the right of access to the Court and the right of appeal to challenge the correctness of the decision of a Court of first instance may have to be borne in mind in order to consider the true and real meaning and the object intended to be achieved by the newly incorporated Section 100-A of the Code of Civil Procedure.
21. We shall also bear in mind the nature and content of letters patent appeal provided under Clause 15 of the Letters Patent to a Division Bench of the High Court.
22. In Baddula Lakshmaiah and Ors. v. Sri Anjaneya Swami Temple and Ors., , the Supreme Court observed that as against the orders of the trial Court, first appeal lay before the High Court, both on facts as well as law. It is the internal-working of the High Court, which splits it into different 'Benches' and yet the Court remains one. A letters patent appeal as permitted under the letters patent, is normally an intra-Court appeal whereunder the Letters Patent Bench, sitting as a Court of correction, corrects its own orders in exercise of the same jurisdiction as was vested in the single Bench. Such is not an appeal against an order of a Subordinate Court. In such appellate jurisdiction, the High Court exercises the powers of a Court of error. So understood, the appellate power under the letters patent is quite distinct, in contrast to what is ordinarily understood in procedural language.
23. In our considered opinion, taking away the right of a party to prefer a further appeal as against the decree and judgment of a learned single Judge of the High Court to a Division Bench is not really fraught with any serious consequences. It would not amount to taking away any substantial right of any fundamental importance as such. Right of appeal as against the decree and judgment of subordinate Court to the High Court is well protected and not taken away by the amended provision. The appellate jurisdiction of the High Court as against a decree and judgment of a subordinate Court is retained. Therefore, the parties have not lost their right of appeal to this Court. The right of further correction alone is curtailed by the newly added provision.
24. In this regard, it would be appropriate to consider as to whether any party to a us has a vested right to have his appeal to be heard by more than one Judge of the High Court?
25. In Ittavira Mathai v. Varkey Varkey and Anr., , the Supreme Court observed that no party has a vested right to have his appeal heard by a specified number of Judges.
26. In Mohd, Meera Lebbai v. Thirumalaya Gounder Ramaswamy Goitnder and Ors., , the Supreme Court reiterated the principle that no party has a vested right to have his appeal to be heard by more than one Judge of the High Court. In the said case at the time the suit was instituted by the appellant, the Travancore-Cochin High Court Act 5 of 1125 ME (Corresponding to 1949 A.D) was in force. Under Section 20 of that Act, all appeals to the High Court valued at an amount in excess of Rs.1,000/- had to be heard by a Division Bench consisting of two Judges of the High Court. The suit filed by the appellant before the Subordinate Judge was valued at Rs.3,000/- and therefore had Sections 20 and 21 of the Act being in force on the date on which the appeals were instituted, unquestionably they would have to be heard by a Division Bench of two Judges. But, the said Act of 1125 was repealed by the Kerala High Court Act, 1958 being Act No.5 of 1959 which came into force on March 3, 1959. The appeals were placed for hearing before a single Judge overruling the appellant's plea that they should be heard by only a Division Bench. The objection was over ruled on the ground that the jurisdiction of a single Judge of the High Court to hear and dispose of appeals from an original decree was extended to appeals in which the value of subject-matter did not exceed Rs.10,000/-. According to the appellant, the right to have the appeals heard by a Division Bench conferred by Act 5 of 1125 which was m force not only when the suit but also when the appeals were filed, was not taken away expressly by Kerala Act 5 of 1959 and could not be taken away by implication. Reliance was placed upon the decision of the Supreme Court in Garikapati Veeraya v. N. Subbaiah Choudhury, (1957) SCR 488, in support of the submission. It is in that context the Supreme Court observed that no party has a vested right to have his appeal to be heard by more than one Judge of the High Court. We have already noticed the decision of the Supreme Court in Baddula Laxmaiah 's case (supra) in which it is held that the Letters Patent Bench sits as a Court of correction and corrects its own orders in exercise of the same jurisdiction as was vested in the single Bench.
27. However, strong reliance is placed upon the judgments in the Colonial Sugar Refining Co. v. Irving, (1905 PC 369), Sadar All and Ors. v. Doliluddin, AIR 1928 Cal. 640 (FB), Garikapati Veeraya v. N. Subbaiah Choudhury, , in support of the submission that the institution of the suit carries with it the implication that all rights of appeal then in preserve are preserved to the parties till the rest of the career of the suit.
28. In Colonial Sugar's case (supra) the Privy Council observed:
"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."
29. It is not necessary to refer in detail to the details in Colonial Sugar's case (supra) and Sadar All's case (supra) since both the decisions are extensively referred to and considered by the Supreme Court in Garikapati Veeraya's case (supra). The Constitution Bench in an authoritative pronouncement laid down the following principles.
(1) 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.
(2) The right of appeal is not a mere matter of procedure but is a substantive right.
(3) 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.
(4) 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 Us 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.
(5) 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."
30. From the authoritative pronouncement of the Supreme Court in Garikapati Veeraya 's case (supra) it is no doubt clear that the right of appeal is not a mere matter of procedure but is a substantive right and also a vested right and such a right to enter the superior Court accrues to the litigant and exist as on from the date of the Us commences. The right is to be governed by law prevailing at the date of institution of the suit. But, at the same time, it is made clear that the said right of appeal can be taken away by an enactment either expressly or by necessary intendment. Therefore, the question that falls for consideration is as to whether the newly inserted Section 100-A takes away the rights accrued at the time of institution of the suit, which impliedly carries all rights of appeal then in force. The intendment and the object sought to be achieved by the newly inserted Section 100-A is plainly clear. Further appeals against a decision by a single Judge of a High Court rendered in any appeal from a original or appellate decree or order is prohibited. The key words employed in the provision are that 'no further appeal shall lie from the judgment and decree of such single Judge. The said provision came into effect from 1-7-2002.
31. The section obviously has been introduced to minimize the delay in the: finality of a decision. By a plain reading of the newly inserted Section 100-A it appears to us that it takes away the rights of the parties to prefer further appeals that may have been available at the institution of the suit. The rights of appeals then in force are not preserved. Such a right to prefer an appeal is taken away by necessary implication. All such rights that might have been acquired or accrued to prefer appeal from the decree and judgment of a learned single Judge to a Division Bench under the letters patent have been taken away. The provision is couched in mandatory language and is retrospective in its operation taking away the right accrued at the institution of the suit to file a letters patent appeal as against the judgment of a single Judge to a Division Bench. The expression used no appeal shall lie is clearly intended to bring within the reach of the provision and make the same applicable to even pending proceedings.
32. In SBK Oil Mills v. Subhash Chartdra, 1961 SC 1596, it is observed that a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form have been given retrospective operation, if the intention of the Legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse.
33. It is true and very well settled that while interpreting a provision, the same should not be given greater retrospective operation than necessary and it should not be so construed as to effect even the pending proceedings unless the same is explicit from the provision itself. In K,S. Paripoornan v. State of Kerala, , the Supreme Court while dealing with the application of the provisions of Sub-section (1-A) of Section 23 as introduced by the Amending Act to the provisions of the Land Acquisition Act, 1894 observed:
"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."
34. From a reading of the judgment, it appears that a provision may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pending suits, when the language of the statute does not compel them to do so. It is therefore safe to conclude that the expression "no further appeal shall lie from the judgment and decree of such single Judge" is not applicable to such of those letters patent appeals which have already been subjected to threshold judicial scrutiny by this Court for their admission and which are pending final adjudication. In our considered opinion, the retrospective operation of Section 100-A would not extend to and be applicable even to such of those letters patent appeals which are already admitted and pending adjudication.
35. In our considered opinion, the retrospective operation of Section 100-A is limited to the extent of taking away the right accrued in favour of a litigant to prefer letters patent appeals arising out of the suits instituted or filed before 1-7-2002. What is prohibited by the newly substituted provision Section 100-A CPC is entertainment of letters patent appeal from the judgment and decree of a single Judge arising out of an appeal from an original or appellate decree or order. The right of appeal, if any, in force at the time of institution of the suits filed prior to 1-7-2002 are not preserved. From a plain reading of the provision, it is clear that no further appeal against an order of the single Judge shall lie and be entertained after 1-7-2002.
36. The Supreme Court in Shamsunder v. Ramkumar, , after adverting to all the relevant decisions relating to the rules of construction of a statute when a statute is to be given retrospective operation observed :
"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. We have carefully looked into the new substituted Section 15 brought in the parent Act by the Amendment Act, 1995 but do not find it either expressly or by necessary implication retrospective in operation which may affect the rights of the parties on the date of adjudication of the suit and the same is required to be taken into consideration by the appellate Court. In Shanti Devi v. Hukum Chand, this Court had occasion to interpret the substituted Section 15 with which we are concerned and held that on a plain reading of Section 15, it is clear that it has been introduced prospectively and there is no question of such section affecting in any manner the judgment and decree passed in the suit for pre-emption affirmed by the High Court in the second appeal. We are respectfully in agreement with the view expressed in the said decision and hold that the substituted Section 15 in the absence of anything in it to show that it is retrospective, does not affect the right of the parties which accrued to them on the date of the suit or on the date of passing of the decree by the Court of first instance. We are also of the view that the present appeals are unaffected by change in law insofar it related to determination of the substantive rights of the parties and the same are required to be decided in the light of the law of pre-emption as it existed on the date of passing of the decree.
37. Sri VLNGK Murthy, learned Counsel submitted that no provision can be construed and given retrospective operation by merely reading some implications into the provision unless importing of such implication is necessary and compellingly so clear leaving the Court with no other option except to hold the provision to be retrospective in operation. The learned Counsel relied upon the judgment of the House of Lords in B.v. Director of Public Prosecutor, (2000) 2 AC 428. In the said judgment the Law Lords observed thus :
"Necessary implication' connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence."
38. The Law Lords made the observations while interpreting Section 1 of the Indecency with Children Act, 1960, admittedly, a penal statute. It is very well settled that penal statutes are required to be interpreted strictly. The observations were so made with reference to Section 1 of the said Act, which created an entirely new criminal offence of a serious nature. The principles laid down cannot be imported to construe a non-penal statute. On the other hand, it is well settled that a statute enacting, an offence or imposing a penalty is strictly construed. Drastic penal statutes are always construed strictly. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. (For the proposition see: R v. Cuth Berston, 1980 (2) All.ER 401, Rudd v. Secretary of State for Trading and Industry (1987) 2 All.ER 553). There is no need for any further discussion on this aspect of the matter.
39. In Kondiba Dagadu Kadam v. Savitribai Sopan Gitjar, , the Supreme Court while interpreting Section 100 CPC, 1908 (as amended in 1976) observed that after the amendment, a second appeal can be filed only if a substantial question of law is involved in the case. The amending Act was introduced on the basis of various Law Commissions reports recommending for making appropriate provisions in the Code of Civil Procedure, which are intended to minimise the litigation, to give the litigant fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure a fair deal to the poor and restrict second appeals to such questions as are certified by the Courts to be substantial questions of law. The Supreme Court having noticed that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the amended provision, made a very pertinent observation:
"It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time."
40. In Rajagopal Reddy and Ors. v. Padmini Chandrasekharan, , the Supreme Court while construing Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 in order to decide as to whether the said provision can be applied to suit claim or action to enforce any right in property held benami against person in whose name such property is held or any other person even if such proceeding is initiated prior to the coming into force of Section 4 of the Act, held that no suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). The expression "no such claim, suit or action shall lie' has been construed and it is held as follows:
Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even up to this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an Act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing right of the real owners of properties held by others benami. Such an Act was not given any retrospective effect by the Legislature. Even when we come to Section 4, it is easy to visualise that Sub-section (1) of Section 4 states that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other shall lie by or on behalf of a person claiming to be the real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiffs right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4( 1) that is 19-5-1988, shall not lie. The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). In Collins English dictionary. 1979 Edition as reprinted subsequently, the word 'lie' has been defined in connection with suits and proceedings. At page 848 of the Dictionary while dealing with Topic No.9 under the definition of term lie' it is stated as under:
"For an action, claim appeal etc., to subsist; be maintainable or admissible."
The word 'lie' in connection with the suit, claim or action is not defined by the Act. If we go by the aforesaid dictionary meaning it would mean that such suit, claim or action to get any property declared benami will not be admitted on behalf of such plaintiff or applicant against the defendant concerned in whose name the property is held on and from the date on which this prohibition against entertaining of such suits comes into force. With respect, the view taken that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). It has to be visualised that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have _ retrospective effect and would cover pending" litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and hence after Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive. To highlight this aspect we may take an illustration. If a benami transaction has taken place in 1980 and a suit is filed in June, 1988 by the plaintiff claiming that he is the real owner of the property and defendant is merely a benamidar and the consideration has flown from him, then such a suit would not lie on account of the provisions of Section 4(1). Bar against filing, entertaining and admission of such suits would have become operative by June, 1988 and to that extent Section 4(1) would take in its sweep even past benami transactions which are sought to be litigated upon after coming into force of the prohibitory provision of Section 4(1); but that is the only effect of the retroactivity of Section 4(1) and nothing more than that. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow.
41. In the instant case, the newly inserted Section 100-A CPC provides that 'no further appeal shall He' from the judgment and decree of single Judge passed an appeal from an original or appellate decree or order. As in the case of Section 4( 1) of the Benami Transactions (Prohibition) Act, 1988, in the newly inserted Section 100-A CPC nowhere it is provided that no letters patent appeal pending on the date when Section 100-A came into force shall be proceeded with and shall stand abated. All that it intends is to prohibit filing and institution of farther appeals against the judgment and decree of single Judge of this Court to a Division Bench. At the same time, the provision does not save any of the accrued rights be it substantial or vested to a litigant at the institution of the suit. By necessary implication, the provision takes away all such rights. Notwithstanding any such right conferred upon a party, further appeals preferred after 1-7-2002 are not maintainable and admissible.
42. In the newly inserted Section 100-A CPC also, there is similar expression "no further appeal shall lie". It is generally understood that the word 'shall' has a sense, which indicates futurity and has implying futurity (see: Strand's Judicial Dictionary)
43. We are required to determine the effect of non obstante clause in the newly inserted Section 100-A CPC. The provision begins with a non-obstante clause.
44. Non obstante clause is appended to a Section in the beginning, with a view to give the enacting part of the section an overriding effect over the Acts or the instruments having the force of law mentioned in the non-obstante clause. The provisions envisaged in the non-obstante clause shall not be an impediment in the operation of the enactment. It is a well-known legislative device used to modify the ambit and applicability of the provision of law mentioned in the non-obstante clause. The non obstante clause can reasonably be read as overriding 'anything contained' in any relevant existing law, which is inconsistent with the new enactment. The enacting part of a statute must, where it is clear, be taken to control the non-obstante clause where both cannot be read harmoniously. (See: Ashwini Kumar v. Arvind Ghosh, ). The nature of operation and scope of a non-obstante clause is explained in Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani, as under:
"There is no doubt that by the non obstante clause the legislature devises means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words, such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to the measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made have to be kept in mind."
45. To sum up, the operative part of, the provision beginning with a non-abstante clause overrides all the provisions of the Acts or any instrument having force of law mentioned in the non-obstante clause.
46. We shall bear in mind these principles and shall proceed to consider as to the applicability of Section 6 of the General Clauses Act to a provision, which commences with a non-obstante clause.
47. Section 6 of the General Clauses Act speaks about the effect of repeal. Repeal of any enactment made shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder: or affect any right, privilege obligation or liability acquired, accrued or incurred under any enactment so repealed unless a different intention appears. Therefore, what is crucial is the language employed in the amended provision.
48. In T.S. Balaiah v. T.S. Rangachari, Income-Tax Officer, , the Supreme Court observed that the principle enshrined in Section 6 of the General Clauses Act is that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in force at the time of repeal, in other words, whenever there is a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears in the repealing statute. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Section 6 of the General Clauses Act therefore will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material. The language employed in the newly amended provision is absolutely clear and free from the ambiguities. The very fact that the provision begins with a non obstante clause is in itself a reason for excluding the applicability of Section 6 of the General Clauses Act.
49. Section 16 of Act 22 of 2002 provides that notwithstanding that the provisions of this Act have come in to 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 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. At once, we may notice, Section 100-A CPC is inserted by Section 4 of the amending Act. It is very well settled that mere absence of a saving clause by itself is not conclusive, in (1861) 70 ER 958 Wood V.C has opined that "saving clauses" are seldom used to construe Acts. These clauses are introduced into the Acts, which repeal others to safeguard the rights which but for the saving would be lost. The above opinion is quoted with approval by the Apex Court in SBK Oil Mitts's case (supra). The said decision is also an authority for the proposition that a Section may be "prospective in some parts and retrospective in other parts."
50. In Mohd Rashid Ahmed v. State of U.P. and Ors., , the Supreme Court observed:
"In considering the effect of repeal of an enactment followed by re-enactment in the light of Section 6 of the General Clauses Act, 1897, the line of enquiry would not be whether the new Act expressly keeps alive old rights and liabilities, but whether it "manifests an intention to destroy them. Such incompatibility is to be ascertained from a consideration of the relevant provisions of the new law and the mere absence of a saving clause is, by itself, inconclusive."
51. Therefore we are not inclined to hold that the newly inserted section completely destroys even the old letters patent appeals already preferred by the litigants and which are pending adjudication. What is prohibited is filing of the letters patent appeals after 1-7-2002 i.e., to say after the new Act had come into force.
52. Therefore, even in the absence of a saving clause, we are not inclined to hold that the newly amended provision completely destroys even the pending letters patent appeals preferred against the judgment of single Judges. The provision is retrospective to a limited extent that it takes away the right of letters patent appeal accrued to a litigant as on the date of the institution of the original proceedings. Such right, if any, is not saved. As on and from the date of the coming into force of the amending Act, no letters patent appeal shall lie against a judgment rendered by a single Judge to a Division Bench, The date of the judgment has no relevance. What is prohibited is preferring of letters patent appeals after the amending provision has come into force.
53. In the result, we hold that the appeals already filed, admitted and pending final disposal are in no way affected by the newly amended provision. Its retrospective effect is not so sweeping even to affect those appeals. Those appeals were subjected to threshold scrutiny and having found a prima facie case for correction of the judgments rendered by the single Judges, Division Bench admitted the same and they are awaiting final adjudication. There is nothing either expressly or by necessary implication in order to hold that the newly inserted provision affects even the appeals that were already admitted.
54. All the letters patent appeals presented or filed before 1-7-2002 are maintainable whether they have been admitted or not. Those appeals are excluded from the operation of the newly inserted provision.
55. We are indebted to the learned senior Counsel Sri Challa Sitharamaiah, who has assisted us as amicus curiae in deciding these questions. We also acknowledge the invaluable assistance given to us by Sri K. V. Satyanarayana, Sri VLNGK Murthy who have assisted us as amicas curiae. We record our appreciation of the cogent and learned submissions advanced by all the learned Counsel who appeared in the matter.
56. We accordingly hold that Letters Patent Appeal Nos.37, 47, 48, 138, 139, 141, 145, 148 and 151 of 2002 are maintainable. Letters Patent Appeal No. 153 of 2002 is not maintainable and it shall accordingly stand dismissed.