Orissa High Court
Padmini Panda And Another vs Smt. Pramila Samantaray And Others on 29 January, 2016
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
FAO NO. 181 OF 2015
From an order dated 16.01.2015 passed by the Civil Judge (Senior
Division), Rourkela in I.A. No. 17 of 2014 arising out of C.S. No. 25 of
2014.
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Padmini Panda and another ...... Appellants
-Versus-
Smt. Pramila Samantaray & others ...... Respondents
For Appellants : M/s. Gautam Misra,
D.K. Patra & A. Dash
For Respondents : None
Miss S. Mishra,
Addl. Standing Counsel for State
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Date of Judgment: 29.01.2016
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J.In this appeal, Stamp Reporter has pointed out the defects regarding maintainability of the appeal in view of the Odisha Civil Courts (Amendment) Act, 2014 (for short 'the Amending Act, 2014'), which came into force with effect from 5th March 2015. Thus, this appeal was listed for consideration on the question of maintainability in view of the amendment of Section 16 of the Orissa Civil Courts Act, 1984 (for short 'the Act, 1984') by virtue of the Amending Act, 2014 which became effective from 5th March, 2015. 2
2. In order to appreciate the issue involved regarding maintainability of the appeal, it requires a cursory glance of the pre- amended provision of Section 16 of the Orissa Civil Courts Act, 1984 and the amendment, which was brought in Section 16 by virtue of the Amending Act, 2014.
"16. (1) Save as otherwise provided by any enactment for the time being in force,
(a) an appeal from a decree or order of a District Judge or Additional District Judge shall lie to the High Court;
(b) an appeal shall not lie to the High Court from a decree or order of an Additional District Judge in any case, in which if the same had been made by the District Judge and appeal would not lie to the High Court.
(2) Save as aforesaid, an appeal from the decree or order of a [Substituted vide Orissa Gazette Ext. No. 1647/21.12.1993-Notfn.No.16063-
Legis./ 10.12.1993.][Civil Judge (Senior Division)] shall lie-
(a) to a District Judge, where the value of the original suit in which or in any proceeding arising out of which the decree or order was made, did not exceed [Substituted vide Orissa Gazette Ext., No. 1518/24.9.2010][ five lakh rupees]; and
(b) to the High Court, in any other case. (3) Save as aforesaid, an appeal from the decree or order of a Civil Judge, (Junior Division) shall lie to the District Judge.
(4) Where the function of receiving any appeals which lie to the District Judge under Sub-
section (2) or Sub-section (3) has been assigned to an Additional District Judge, the appeals may be preferred in the Court of such Additional District Judge.
(5) The High Court may, by notification, direct that any or all appeals referred to in Sub-section (3) shall be preferred in the Court of any 1[Civil Judge (Senior Division)] mentioned in the notification, and the appeals shall thereupon, be preferred accordingly."
3The following amendment has been brought in to Section 16 by virtue of the Amending Act, 2014.
"2. In the Odisha Civil Courts Act, 1984, in section 16,--
(i) For sub-section (2) including the explanation thereto, following sub-section shall be substituted, namely:-
"(2) Save as aforesaid, an appeal from the decree or order of a Civil Judge (Senior Division) and Civil Judge (Junior Division) shall lie to the District Judge,"
(ii) Sub-section (3) shall be omitted;
(iii) In sub-section (4), the words, figure and bracket" or sub-section (3)" shall be omitted; and
(iv) For sub-section (5), following sub-section shall be substituted, namely:--
"(5) The High Court may, by notification, direct that any or all appeals from the decree or order or a Civil Judge (Junior Division) referred to in sub-section (2) shall be preferred in the Court of any Civil Judge (Senior Division) mentioned in the notification, and the appeals shall thereupon, be preferred accordingly."
Clause (2) of Section 1 of the Amending Act, 2014 provides that:
"It shall come into force on such date as the State Government may, by notification, appoint in this behalf."
Such notification of the Government of Odisha in the Department of law has been made on 20th February, 2015 fixing the date of appointment as 5.3.2015.
Section 16(2)(a) of the Act, 1984 [as amended by the Civil Courts (Amendment) Act, 2010] provided that an appeal from an original decree or order would lie to the District Judge where the value of the original suit did not exceed Rs.5.00 lakh. In all other cases, the 4 appeals are being preferred to the High Court as provided under Section 16(2)(b) of the Act. In the recent amendment, i.e., Odisha Civil Courts (Amendment) Act, 2014, sub-section (2) of Section 16 including the explanation thereto, was substituted and it is provided that an appeal from a decree or order of the learned Civil Judge (Senior Division) and Civil Judge (Junior Division) shall lie to the District Judge.
In view of the above, sub-section (3) of Section 16 was omitted by virtue of the amending Act and sub-sections (4) and (5) were modified accordingly. In other words, the Amending Act, 2014 brought in the amendment by which an appeal from the original decree or order passed by the learned Civil Judge would lie to the District Judge irrespective of the valuation of the suit and no appeal there from would lie to the High Court. Thus, it has to be seen as to whether the amending provision of Section 16 of the Odisha Civil Courts (Amendment) Act, 2014 is retrospective in nature or not. In other words, the question of law arises in this case for consideration by this Court is whether the amendment made is applicable to the pending suits or it has only a prospective effect and will be applicable to the suit which would be filed after the notification of the amending Act made effective, i.e. with effect from 5.3.2015.
3. The substantive law, which creates and defines right, is always prospective in nature unless the legislation by express enactment or necessary intendment makes it retrospective. On the 5 other hand, a procedural law basically provides the procedure to enforce the substantive right created under the law and is retrospective in nature. As held in the case of Anant Gopal Sheorey
-v- The State of Bombay, reported in AIR 1958 SC 915, the Hon'ble Supreme Court at paragraph-4 held as follows:
"4. The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225; The Colonial Sugar Refining Co. Ltd. v. Irving (1). In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective."
4. Thus, the change in the procedural law operates retrospectively unlike the law relating to vested right, i.e., substantive law. In another decision in the case of H.V. Thakur -v- State of Maharasthra, reported in (1994) 4 SCC 602, the Hon'ble Supreme Court held as follows:
"26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of 6 an Amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
Thus, the substantive law is always prospective in nature unless it is made retrospective by express enactment or necessary intendment and an amendment in the procedural law is applied retrospectively.
5. Mr. Goutam Mishra, learned counsel for the appellants submitting on the question of maintainability of the appeal advanced an argument that on the date of institution of the suit, all forums of appeal got crystallized. Thus, the amendment in the Odisha Civil Courts (Amendment) Act, 2014 cannot be made retrospective as there 7 is no express enactment or necessary intendment in the Act to that effect. Since the appeal arises out of a suit, which is filed prior to the date of appointment, i.e., 5.3.2015, the Amending Act is not applicable to this appeal and hence, this appeal is maintainable in the eye of law before this Court. In support of his contention, he relied upon the decision in the case of Garikapatti Veeraya vs N. Subbiah Choudhury, reported in AIR 1957 SC 540 in which the Hon'ble Supreme Court at paragraphs-4 and 23 held as under:
"4. As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded, On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure ? It seems to their Lordships that the question does not admit of doubt. 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. In principle their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.
xxx xxx xxx 8
23. From the decisions cited above the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved, to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
He also placed reliance on the decision in the case of The Special Land Acquisition Officer, Talcher -v- Tankadhar Manabhoai and others, reported in 2003 (Supp.) OLR 337, which cannot be held to be a good law in view of the Division Bench decision of this Court in the case of Ramesh Chandra Das Vs. Kishore Chandra Das and others, reported in AIR 2007 Orissa 146 and also in view of the discussion made in paragraphs 5 and 6 of the decision in the case of Mideast Integrated Steel Ltd. and others Vs. 9 Industrial Promotion and Investment Corporation of Orissa Ltd., reported in 2015 (II) ILR-CUT 621 "5. Learned Senior Counsel also pointed out from the Three Judge Bench judgment of the Apex Court in Dayaram vs. Sudhir Batham & ors., (2012) 1 SCC 333 that in the facts of that case, even as the original petition was under Article 226 of the Constitution, it was clearly observed that right to file a writ appeal under the Adhiniyam (State Act) was a vested right to any person filing a writ petition. That right could be taken away only by an express amendment to the Act or by repeal of that Act, or by necessary intendment, that is, where a clear inference could be drawn from some legislation that the legislature intended to take away the said right. The right of appeal to a Division Bench, made available to a party to a writ petition, either under a statute or Letters Patent, cannot be taken away by a judicial order. The power under Article 142 is not intended to be exercised, when such exercise will directly conflict with the express provisions of a statute. However, in the 624 INDIAN LAW REPORTS, CUTTACK SERIES [2015] same judgment, it is repeatedly observed, on the basis of previous judgment of the Apex Court, that such a right of appeal could not be taken away except by express enactment or necessary implication and the vested right of appeal could be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. The earlier observation of this Court could only be read in the context of facts of that case and the ratio of the judgment appears to be that vested right of appeal could be taken away by a subsequent enactment.
6. In view of the ratio of the above later judgments, the law laid down in Special Land Acquisition Officer, Talcher & Ors., v. Tankadhar Mana Bhoi & Ors., 2003 (Supp) OLR 337 is no longer good law and stands overruled by necessary implication. In that view of the matter, the present appeal is not maintainable and dismissed as such." 10
6. On being confronted with the judgment of a Division Bench of this Court in the case of Duryodhan Samal -v- Smt. Uma Dei and others, reported in 60 (1985) CLT 360, Mr. Mishra replied that there was a specific finding of the Hon'ble Division Bench of this Court that amendment of Section 16(2) of Orissa Civil Courts Act of 1984 was retrospective in operation. In support of his argument, he brought attention of this Court to paragraph-15 of the said judgment, which reads as follows:
"15. In our view, the aforesaid principle of law is equally applicable to the situation before us. In this case, the suit was instituted evidently years before the Act came into force on 1.1.1985. On the date presentation of the appeal, the forum of filing of appeal, the valuation of which is less than Rs. 20,000/-, had been changed by virtue of section 16(2) of the Act. The vested right of appeal which accrued to the litigant on the date of institution of the suit had not been taken away, but merely the forum was changed from the High Court to the Court of the District Judge. Since a litigant can have no vested right to pursue his remedy in a particular forum, in this case for lodgement of his appeal and change of forum is merely a change of procedural law, it would operate retrospectively unless a different intention is expressed or can be inferred by necessary intendment. The expression 'the original suit in which or any proceeding out of which the decree or order was made' occurring in sub-section (2) of section 16 of the Act clearly shows that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the cause of action for the suit arose or when the suit was actually filed. It would, therefore, be logical to conclude that irrespective of the date of filing of the suit and irrespective of the date of the judgment passed in such suit, the forum available for preferring an appeal on the date of presentation of the appeal would be the forum where an appeal should be filed and not the forum which existed on 11 the date of institution of the suit. The conclusion does not conflict with the well-established principle that the right of appeal which existed on the date of the institution of the suit is a vested right of the litigant and is preserved to the parties to the suit till the rest of the career of the suit including the stage of appeal and second appeal which are mere continuation of the suit all connected by an intrinsic unity and are regarded as one legal proceeding in the language of their Lordships in the case reported in G. Veeraya -v- M. Subiah Choudhry and others (supra)."
(emphasis supplied)
7. Distinguishing the present nature of the dispute from the case of Duryodhan Samal (supra), Mr. Mishra submitted that the recent amendment in the Odisha Civil Courts (Amendment) Act, 2014 was brought in force vide S.R.O. No. 61/2015 with effect from 5.3.2015 which would clearly indicate that the said Act is not retrospective in operation and there is absolutely no element of retrospectivity expressly provided or necessarily implied or intended in the amending provision, if the entire Amending Act, 2014 is read as a whole. Thus, there can be no quarrel over the fact that the Amending Act, 2014 is prospective in nature. Accordingly, this appeal is maintainable in the eye of law and the defect as pointed out by the S.R. on the question of maintainability of the appeal is to be ignored.
Since the controversy involved in the interpretation of the Odisha Civil Courts (Amendment) Act, 2014, this Court directed the State Government to make submission on interpretation of the provisions of the Amending Act, 2014 introducing amendment to 12 Section 16 of the Act, 1984 and its applicability to the present appeal. This Court also sought for assistance of the Bar on the issue involved.
8. Miss S. Mishra, learned Addl. Standing Counsel for the State drawing attention of this Court to the provisions of the Amending Act, 2014 as well as the Act, 1984, made her elaborate submission on the question of maintainability and applicability of the Amending Act, 2014 to the present appeal. She relying upon the decision in the case of Duryodhan Samal (supra) strenuously urged that law is no more res integra on this issue, as similar question of law and fact was involved and decided in the said decision. This Court taking note of the leading decision of the Hon'ble Supreme Court in G. Veeraya's case (supra) has opined that the amendment to Section 16(2)(a) of the Act, 1984 is retrospective in nature. Moreover, the said decision has a binding effect. She further contended that unlike Section 100 of the C.P.C., which provides appeal to the High Court from the appellate decree, Section 96 CPC, which provides appeal from the original decree and Section 104 CPC, which provides appeal from the orders, do not provide any forum in the Code to which the appeal would lie. It is only determined as per Section 16 of the Act, 1984. The same is determined as per the provisions of Section 16 of the Odisha Civil Courts Act being amended from time to time.
9. This Court is thankful to Mr.A.R.Dash, learned counsel for his able assistance on the issue. While supporting the contentions raised by Miss Mishra, learned Additional Standing Counsel, he relied 13 upon the decision in the case of Karnail Kaur and others Vs. State of Punjab and others, reported in AIR 2015 SC 2041, in which Ho'ble Supreme Court taking into consideration the ratio decided in Garikapatti Veeraya (supra), Shyam Sunder and Others vs Ram Kumar and another, reported in AIR 2001 SC 2472 and K.S. Paripoornan vs State of Kerala, reported in 1995 SC 1012 held that a statute which affects the substantive right is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment, whereas a statute which merely affects the procedure, unless such construction is textually impossible, is presumed to be retrospective in its application.
10. Undoubtedly, Sections 96, 100 and 104 of the C.P.C. are substantive provisions which confers right to prefer an appeal either from the original decree or appellate decree or from the orders. Sections 96 and 104, CPC, do not provide any forum of appeal. The forum is being determined as per the valuation of the suit as provided under the Act, 1984 being amended from time to time. By virtue of the amendment brought to Section 16 by the Amending Act of 2014, forums for all appeals either under Section 96 or 104 of the C.P.C. are to be presented before the District Judge irrespective of the valuation of the suit, whereas the provisions under Sections 96 and 104 of the C.P.C. are substantive provision for appeal, the Civil Courts Act provides a procedure to invoke such substantive right created under the said provisions. Thus, the provisions laid down in the Civil Courts 14 Act, more particularly Section 16 of the Act, are mainly procedural in nature. It neither curtails any right of appeals nor creates new liabilities for the appellants.
11. Similar question with regard to maintainability of the appeal was raised in the case of Duryodhan Samal (supra) in view of the provisions contained in Section 16 (2) of the Orissa Civil Courts (Amendment) Act, 1984. While considering the implication of the aforesaid amendment, the Hon'ble Division Bench of this Court taking note of the ratio decided in the case of Garikapatti Veeraya (supra) in detail along with several other leading cases, at paragraph-12 held as follows:
"12. The principle that the right of appeal against the decision of an inferior court to a superior court is a substantive right which commences from the date of institution of the suit and subsists throughout the rest of the career of the lis, stands established by a large number of other decisions of various Courts of this country including those already referred to and we do not think it necessary to notice all those cases in view of the authoritative and well discussed judgments to which specific reference has already been made.
The argument that the right of appeal to the superior court carries with it the right of lodgement of the appeal to a particular court or forum, in our opinion, is devoid of any merit."
12. Amongst other, this Court in Duryodhan Samal's case (supra) also taken into consideration the decisions of the Hon'ble Supreme Court the case of Ittavira Mathai -v- Varkey Varkey And Another, reported in AIR 1964 SC 907 and in the case of New India Insurance Co. Ltd. -v- Smt. Shanti Mishra, reported in AIR 1976 SC 15 237, categorically held in paragraph-15 (quoted hereinabove) that irrespective of the date of filing of the suit and the date of judgment of the suit, the forum available on the date of presentation of the appeal would be the forum to which the appeal would lie.
13. Mr. Mishra, learned counsel for the appellant in course of his argument also relied upon the decision in the case of Himachal Pradesh State Electricity Regulatory Commission and another Vs. Himachal Pradesh State Electricity Board, reported in (2014) 5 SCC 219 and verily relied upon at paragraphs-22 and 23 of the said judgment which reads as follows:
22. On a proper understanding of the authority in Garikapati Veeraya (supra), which relied upon the Privy Council decision, three basic principles, namely,
(i) the forum of appeal available to a suitor in a pending action of an appeal to a superior tribunal which belongs to him as of right is a very different thing from regulating procedure;
(ii) that it is an integral part of the right when the action was initiated at the time of the institution of action; and
(iii) that if the Court to which an appeal lies is altogether abolished without any forum constituted in its place for the disposal of pending matters or for lodgment of the appeals, vested right perishes, are established.
23. It is worth noting that in Garikapati Veeraya (supra), the Constitution Bench ruled that as the Federal Court had been abolished, the Supreme Court was entitled to hear the appeal under Article 135 of the Constitution, and no appeal lay under Article 133. The other principle that has been culled out is that the transfer of an appeal to another forum amounts to interference with existing rights which is contrary to well known general principles that statutes are not to be held 16 retrospective unless a clear intention to that effect is manifested."
In the aforesaid decision, the Hon'ble Supreme Court has examined the effect of provisions of Sections 110 and 111 of the Electricity Act, 2003, which came into force at a juncture, when appeals under Section 27 of Electricity Regulatory Commission Act, 1998 were pending before the High Court. Earlier, the order passed by the Commission was subject to challenge in appeal before the High Court under Section 27 of the Electricity Regulatory Commission Act, 1998. During pendency of the appeal, the Electricity Act, 2003 was enacted. Chapter-XI of 2003 Act deals with Appellate Tribunals under the said Act. Section 110 of the said Act relates to establishment of an Appellate Tribunal and Section 111 of the said Act provides that an appeal would lie to the Appellate Tribunal constituted under Section 110 from an order made by the appropriate Commission under the Act.
He also pressed into service the decision in the case of Commissioner of Income Tax, Orissa -v- Dhadi Sahu, reported in (1994) 1 SCC 257, para-18 and 21 of the said decision, which are relevant for discussion in the case at hand are quoted below:-
"18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where 17 they are pending to the court or the tribunal which under the new law gets jurisdiction to try them.
Xx xx xx
21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums."
In the aforesaid decision, the Hon'ble Supreme Court dealt with the effect of amendment brought to Section 274(2) of the Income Tax Act, 1961 during pendency of the reference to impose penalty under Section 271 of the Income Tax Act as well as the power of the Income Tax Officer under Section 274(2) of the Income Tax Act. Before amendment of the said provision, the expression "the minimum penalty exceeds a sum of Rs.1000/-" was substituted by "the amount of income (as determined by the Income Tax Officer on the date of assessment) in respect of which the particulars have been concealed or inaccurate particulars have been furnished exceeds a sum of Rs. 25,000/-". Moreover, on a close reading of the ratio decided in the case of Maharaja Chintamani Saran Nath Sahahdeo Vs. State of Bihar and others, reported in AIR 1999 SC 3609, relied upon by Mr. Mishra, it emanates that the Hon'ble Supreme Court has relied upon the principles decided in the case of H.V. Thakur (supra), which 18 discussed the scope and ambit of an Amending Act and its retrospective operation, and the same are set out hereinabove supra.
14. In view of the rival contentions of the parties and the case laws referred to above, it has to be seen as to whether the amendment brought in by virtue of the Amending Act, 2014 merely changes the forum which is a part of procedural law or it has changed the substantive right of the litigant which is already vested in him on the date of institution of the suit. There can be no dispute that a case law has to be read as a whole in the context of the facts and point of law involved in it to find out the ratio decided therein. It may not be always correct to apply the principles decided in a case law by reading one or two paragraphs or a portion of it. In all the aforesaid case laws relied upon by Mr. Mishra, be it the case of Garikapatti Veeraya (supra) and Dhadi Sahu (supra) or the case of Himachal Pradesh State Electricity Regulatory Commission (supra), the forum is provided in the provision of appeal itself. In other words, the forum of appeal is named in the provision of appeal itself, but in the case at hand, neither Section 96 nor Section 104 C.P.C. provides 'a forum of appeal'. The forum of appeal is only determined as per the valuation of the suit which is governed under the provisions of the Civil Courts Act. Thus, when a substantive provision of appeal does not name or provide a forum to which such appeal would lie, the law relating to determination of forum becomes procedural keeping the substantive right of appeal unaffected. As discussed in the aforesaid decisions, the 19 right of appeal against the decision of an inferior court to a superior court is a substantive right which commences from the date of institution of the suit and subsists throughout the rest of the career of the lis. However, a litigant cannot have any vested right to pursue his remedy in a particular forum (in this case lodgment of appeal) unless the forum itself is provided or named in the provision of appeal of the statute under which the original proceeding is instituted. By virtue of amendment of Section 16 (2) of the Amending Act, 2014, a right of appeal is not taken away which is a substantive right. No new right or liability is created by such amendment. By virtue of the amendment, only the forum has been changed, which cannot be said to be affecting his substantive right in any manner as the provision of appeal under Section 96 or 104 C.P.C. does not provide or name a forum to prefer an appeal. Thus, the same becomes procedural and accordingly, retrospective in nature. The appellant is also in no way prejudiced in pursuing the appeal before the District Judge.
15. Mr. Mishra also relied upon several decisions of the Kerala High Court in the case of Kunnappadi Kalliani Vs. Lekharaj, reported in 1996 (2) KLJ 106 and Sasi @ Sasikumar & others Vs. Soudamini & others, reported in 2003 (3) KLJ 888, which give a contrary view. The said decisions have only persuasive value. On the other hand, the decision in the case of Duryodhan Samal (supra) is squarely applicable to the case at hand as the question of fact and law involved in the said case is similar to the case at hand and the same is 20 binding being a decision rendered by a Division Bench of this Court which has been passed taking into consideration the decision of the Hon'ble Supreme Court in the case of Garikapatti Veeraya (supra) and several other decisions of the Hon'ble Supreme Court. The said decision holds the field till date.
16. In that view of the matter, I hold that this appeal being filed after 5.3.2015, i.e., the date on which the Odisha Civil Courts (Amendment) Act, 2014 came into force, is not maintainable before this Court. Registry is directed to return the brief to the appellants to be presented before the District Judge having jurisdiction to entertain the same on filing of attested photocopy of the same. It is made clear that delay in filing the appeal may be considered liberally taking into consideration the period of pendency of the appeal before this Court.
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K.R. Mohapatra, J.
Orissa High Court, Cuttack Dated the 29th December, 2015/bks/ss