PETITIONER:
LAKSHMI NARAIN
Vs.
RESPONDENT:
FIRST ADDITIONAL DISTRICT JUDGE,ALLAHABAD
DATE OF JUDGMENT:
20/12/1962
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1964 AIR 489 1964 SCR (1) 362
CITATOR INFO :
R 1970 SC 878 (9)
ACT:
Transfer of Appeal-Power of High Court-Enhancement of
Jurisdiction of District Court-Transfer of first appeal
pending in High Court to District Court-Validity-Power of
District Court to hear the appeal-Code of Civil Procedure,
1908 (Act V of 1908) s. 24 (1) (a)-U. P. Civil Laws,
(Reforms and Amendment) Act, 1954 (U.P. 24 of 1954), s. 3
(1).
HEADNOTE:
The U. P. Civil Laws (Reforms and Amendment) Act, 1954,
amended s. 21 (1) (c) of the Bengal, Agra and Assam Civil
Courts Act, 1887, so as to enable the District Courts to
hear first appeals valued up to Rupees ten thousand and by
s. 3 (1) provided that any proceeding instituted or
commenced in “any court prior to the commencement of this
Act, shall, not withstanding any amendment herein made
continue to be heard and decided by such Court.” The
appellant brought a suit in the Civil judges court for
possession of certain properties.That suit was dismissed on
November 27, 1951. He preferred a first appeal to the High
Court on February 8,1952. That appeal; was transferred
under s. 24 (1) (a) of the Code of Civil Procedure by the
Chief Justice in Chambers and without notice to the parties,
to the District judge of Allahabad for hearing. The
appellant appeared before that Court and raised a preli-
minary objection as to the jurisdiction of that court to
hear the appeal. The objection was overruled. The
appellant moved the High Court under Art. 226. Single judge
who heard the petition dismissed it in limine relying on a
decision of the Division Bench. Appeal against the decision
was summarily dismissed by the Division Bench.
Held, that under s. 3 (1) of the Act, the High Court alone
was Competent to hear the appeal pending before it; and by
transferring the same to the District Court it had failed to
give effect to the concluding words of the section.
Section 24 of the Code of Civil Procedure postulates that
the Court to which an appeal is transferred must be
competent
363
to dispose of it. In the face of s. 3 (1) of the Act, the
District Court was not competent to hear the appeal.
Although the object of the Act was to give relief to the
High Court, it was clear that the Legislature did not grant
that relief in respect of pending first appeals.
Held, further, that no costs can ordinarily be granted
against a court and the High Court was in error in doing so.
Sarjudei v. Rampati Kunwari, 1962 All. L. J. 544 and Cyril
Spencer v. M. H. Spencer, 1955 All. L. J. 307, considered.
JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 784 of 1962.
Appeal from the judgment and order dated July 13, 1962, of
the Allahabad High Court in Special Appeal No. 82 of 1962.
M. C. Setalvad, Attorney-General for India and B. C.
Misra, for the appellant.
K. S. Hajela and C. I-. Lal, for respondent No. 1.
J. P. Goyal, for the intervener.
1962. December, 20. The Judgment of the Court was
delivered by
SINHA,C. J.-When we had finished the hearing of the case on
December 13, 1962, we intimated to the parties that the
appeal was allowed and that our reasons would follow.
The only question for determination in this appeal is
whether under the provisions of the U. P. Civil Laws
(Reforms and Amendment) Act (U. P. XXIV of 1954) -which
hereinafter will be referred to as the Act-a first appeal in
a suit decided prior to the enactment of the Act, involving
a valuation of less than ten thousand rupees could be
364
transferred for hearing and disposal to a District ,Judge or
Additional District judge. The First Additional District
judge, Allahabad, is the first respondent in this appeal and
appeared through counsel at the hearing. The other
respondents, who were the respondents in the main appeal,
have not entered appearance and apparently are not
interested in the result of this appeal.
In order to bring out the points in controvery between the
parties it is necessary to state the following facts. The
appellant, as plaintiff, instituted suit No. 7 of 1949 in
the Court of the Civil judge, Mathura, for possession of
certain properties, on January 26, 1949, against respondents
two and three. That suit stood dismissed on November 27,
1951. The unsuccessful plaintiff preferred a first appeal
to the High,Court of Judicature at Allahabad, and it was
numbered First Appeal No. 37 of 1952. The First Appeal
aforesaid remained pending in the High Court from February
8, 1952, when it was instituted, until April 23, 1952, when
it was notified to the parties that the appeal had been
transferred to the Court of the District judge, Allahabad,
for hearing. This order was passed by the learned Chief
Justice in Chambers, under s. 24 (1) (a) of the Code of
Civil Procedure, on his own motion without notice to the
parties concerned. The order of the Chief justice is in
these terms :
“It is hereby ordered that first appeals men-
tioned in the list annexed hereto transferred
under orders of this Court to the Court of the
District judge Allahabad, are now transferred
from that Court to the Court of the 1st
Additional District Judge at Allahabad.”
In the list annexed is the appeal now in, question,
alongwith a number of other appeals. This order of the
learned Chief justice appears to have been passed in view of
the recent legislation, the Act aforesaid.,
365
which amended a large number of statutes, one of them being
the Bengal, Agra and Assam Civil Court Act (XII of 1887).
Section 21, cl. (a) of sub-s. (1) was amended so as to
substitute ten thousand rupees’ for “five thousand rupees’,
thus enabling District Courts to entertain first appeals up
to a valuation of ten thousand rupees. The appellant
appeared before that Court and raised a preliminary
objection as to the jurisdiction of that Court to hear the
appeal. The Court overruled the preliminary objection as to
its jurisdiction, by its order dated May 31, 1962, observing
that it could not contravene the orders of the High Court
and that the remedy of the appellant, if any, lay in the
High Court itself. Thereupon the appellant moved the High
Court under Arts. 226 and 227 of the Constitution for a writ
of certiorari for calling for the records of the appeal, and
for a writ of prohibition restraining the first respondent
from hearing the appeal. The writ petition was placed
before a single judge of that Court (Dwivedi, J.), who by
his order dated,July 11, 1962, dismissed the petition in
view of a Division Bench ruling of the same Court in a
judgment dated November 14, 1961, in the case of Sarjudei v.
Rampati Kunwari (1). The learned Single judge rightly
pointed out that he could not go behind the decision of the
Division Bench, even though it was pressed upon him that the
decision required reconsideration. The appellant then
preferred an appeal from the order of the learned Single
judge, dismissing the appeal in limine. The appeal being
Special Civil Appeal No. 82 of 1962, was dismissed summarily
on July 20, 1962, on the ground that the question raised in
the appeal was concluded by the decision of the Division
Bench aforesaid. The Division Bench refused to refer the
question to a larger bench and preferred to follow that
decision. The appellant moved the High Court for special
leave to appeal to this court which was granted, and that is
how the appeal has come to this Court. The Division Bench
pointed out that though
(1) 1962 All. L.J. 544,
366
the question had “been exhaustively dealt with by this Court
in the case of Sarjudei v. Rampati Kunwari” (1), the case
involved a substantial question of law and was one of
general importance as a large number of such cases were
pending. In view of those considerations, the Court granted
the certificate under Art. 133 (1) (c) of the Constitution.
Curiously enough the Court granted costs to the appellant
against the First Additional District judge, Allahabad, who
was the opposite party No. 1 in the High Court in those
proceedings.
Before we deal with the main point in controversy, it is
necessary to point out that this Act had come up for
consideration before a Division Bench (Agarwala and Mulla,
JJ.) in First Appeal No. 60 of of 1955, and its judgment
dated February 18, 1955, is reported in the case of Cyril
Spencer v. M. H. Spencer. (2). The learned judges held that
the right of appeal was not merely a matter of procedure but
a matter of substantive right and the right of appeal from
the decision of an inferior tribunal to a superior tribunal
becomes a vested right -at the date of the institution of
the suit. They also relied upon the provisions of s. 3 of
the Act, which will hereinafter be dealt with, and came to
the conclusion that the right of coming up in appeal to the
High Court having become vested before the Act came into
force could not be affected by the provisions of the Act,
and that, therefore, all appeals which lay to the High Court
under the pre-existing law would still continue to lie in
the High Court if the suit had been instituted prior to the
coming into effect of the Act. In the result they allowed
the appeal to be filed in the High Court. That case is a
clear authority for the proposition that the Act, by s. 3
(1), had saved pending appeals in the High Court from the
operation of the Act. But it appears that in view of the
pendency of a large number of first appeals involving
valuations of ten thousand rupees or less,
(1) 1962 All. L. J. 544.
(2) 1955 All. L.J. 307.
367
the High Court was inclined to reconsider the matter, and,
therefore, gave notice to the parties in a number of pending
first appeals and heard the matter afresh. The judgment of
the Court, by a Division Bench consisting of Desai, C. J.,
and Ramabhadran, J., is reported in Surjudei v. Rampati
Kunwari (1). This time the Bench came to a conclusion
‘different from that of previous Division Bench of the same
High Court. It is the correctness of this decision which is
challenged before us.
Turning to the merits of the decision, it appears that the
High Court recognised the legal position that the Act had no
restrospective operation, and that the right to appeal to a
superior tribunal is a vested right which is determined at
the date of the institution of the suit or proceeding. The
High Court, in that view of the matter, accepted the
position that in spite of the Act the pending appeal in that
Court could be disposed of by it. But it took the view that
the Act did not have the effect of amending the provisions
of s. 24 of the Code of Civil Procedure, under which ”the
right of a litigant to an appeal is always subject to the
right of the High Court to transfer it under s. 24.” The
High Court further took the view that this overriding power
of the High Court to transfer a case to a competent Court
was in supersession of the party’s right to have the case
tried by a particular Court. The High Court rightly raised
the question whether District judges or Additional District
judges were competent to dispose of cases like the one
before them. The question thus rightly posed has been
wrongly answered by reliance upon the doctrine that the
right of the High Court to transfer a case from itself to
another Court or from one Court to another overrides the
right of a party to have its case determined by a particular
Court. In effect, the High Court took the view that after
the enforcement of the Act, appeals involving valuations up
to
(1) 1962 All. L. J. 544.
368
ten thousand rupees could be dealt with by District judges
or Additional District judges, and, therefore, they were
competent to deal with them, though such appeals could not
have been entertained by those Courts on the date on which
they were preferred, having in view the date of the decision
of the suit. The Court further held that it was irrelevant
to consider whether or not the Act had been given
retrospective effect. The High Court emphasized the fact
that appeals like the one before them had been transferred
to the District Courts not under the provisions of the Act
but under s. 24 of the Code of Civil Procedure. In this
connection, the High Court proceeded to make the following
observations :
“It is enough that the U. P. Amending Act
contains no provision taking away our power to
transfer the appeals under Sec. 24, C. P. C.,
or no provision laying down that the District
judges are not competent to hear appeals
arising out of suits instituted prior to its
enforcement. There is nothing in the
provisions of Sec. 3 of the Act to render the
District judges incompetent to bear them.
Sub-Sec. (1) reserves rights acquired prior to
the enforcement, but as we have explained
earlier, if the right of the parties to the
appeals is affected, it is not on account of
our enforcing any provision of it but on
account of our exercising our power under Sec.
24, C. P. C”.
With all respect, the High Court has comple-
tely misdirected itself in interpreting the
provisions of s. 3 (1) of the Act, which must
govern this case. That section runs as under
:
“Any amendment made by this Act shall not
affect the validity, invalidity, effect or
conse. quence of anything already done or
suffered, or any right, title, obligation or
liability
369
already acquired, accrued or incurred or any
release or discharge of or from any debt,
decree, liability, or any jurisdiction already
exercised, and any proceeding instituted or
commenced in any Court prior to the commen-
cement of this Act shall, notwithstanding any
amendment herein made continue to be heard and
decided by such Court.”
The High Court has not given effect to the words many
proceeding instituted or commenced in any Court prior to the
commencement of this Act shall, notwithstanding any
amendment herein made continue to be heard and decided by
such Court.” Now, giving full effect to the words just
quoted of s. 3(1) of the Act, the High Court and the High
Court alone would be competent to hear and decide the
appeals pending before it. In other words, the District
Courts were not competent to hear such appeals, and
therefore, the High Court could not have transferred those
appeals to be heard by the District judge or Additional
District judge, inasmuch as s. 24 postulates that the Court
to which the suit or appeal or other proceeding is
transferred should be competent to try or dispose of the
same. On the date the appeal in question was preferred in
the High Court, the District Courts were not competent to
hear such a case. The competency of those Courts to hear
such cases arises by virtue of the amendment to s. 21 of the
Civil Courts Act, aforesaid. We are here not concerned with
the question whether in the absence of a saving clause, like
the one introduced by s. 3(1), the High Court would have
been right in taking recourse to s. 24 of the Code of Civil
Procedure. But in the face of s. 3(1) of the Act, it is
impossible to hold that the District Courts were competent
to hear appeals of the valuation of ten thousand rupees or
less in suits decided before the Act came into force, and
appeals from which were pending before the High Court.
370
The High Court was led to the conclusion to which it came in
view of the declared objects and reasons for the Amending
Act. As a matter of fact, the High Court has relied upon
the following extract from the Statement of Objects and
Reasons:
“In order to reduce the volume of work in the
High Court and to ensure quicker disposal of
appeals, the Bengal, Agra and Assam Civil
Courts Act, 1887, is proposed to be amended so
that appeals in cases from Rs. 5,000/- to Rs.
10,000/- in valuation may be heard by District
judges”.
It is true, as pointed out by the High Court, that the
object behind the amendment in question was to give relief
to the High Court. But the High Court was in error in
thinking that the legislature amended the law as “the relief
was required instantaneously.” The Amending Act may have
given relief to the High Court in respect of appeals to be
instituted after the commencement of the Act, but it did not
grant the much required relief to that Court in respect of
pending, first appeals. On a plain reading of the
provisions of s. 3(1), it is clear that the legislature did
not grant that very much needed instantaneous relief. If it
intended to do so, it has failed to give effect to its
intentions by the words used in s. 3(1).
The High Court was fully cognizant of the legal position
that District judges could hear only such appeals, on
transfer by the High Court, as they were competent to hear
and dispose of. But its conclusion that such competency
was there on the date the Act came into effect, suffers from
the infirmity that it does not give effect to the concluding
words of s. 3(1).
For the reasons aforesaid, it must be held that the High
Court had not taken the correct view of the legal position.
The appeal is accordingly allowed
371
and the order of the High Court transferring the appeal to
the. District judge or the Additional District judge is set
aside. It is directed that the appeal be heard by the High
Court itself, in the absence of any law to the contrary.
There will be no order as to costs throughout, as the main
respondent in this Court and below was a Court itself, and
ordinarily no costs are granted against a Court.
Appeal allowed.