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1959 DIGILAW 330 (MP)

Nawab Hamidulla Khan, His Highness of Bhopal v. Basantram Tolaram

1959-12-14

K.L.PANDEY, P.V.DIXIT

body1959
ORDER K.L. Pandey, J The short question for consideration is whether this first appeal lies in this Court or it should have been filed in the Court of the District Judge, Bhopal. This appeal valued at Rs. 6,564 is against a decree of the Additional Subordinate Judge, Bhopal, and would have lain in this Court under the provisions of the Bhopal and Vindhya Pradesh (Courts) Act, 1950 (XLI of 1950) which was however repealed by the Madhya Pradesh Civil Courts Act, 1958 (hereinafter called the Act). The Act changed the nomenclature of Civil Courts and forum of appeal in certain cases. The relevant provisions are contained in sections 13, 25 and 26, which are given below: 13(1) Save as otherwise provided by any law for the time being in force, appeals from decrees or orders of Courts exercising original jurisdiction shall lie as follows:- (a) from a decree or order of the Court of the Civil Judge (Class I) or of the Civil Judge (Class II)-to the Court of the District Judge; (b) from a decree or orders of the Court of the District Judge or Additional District Judge-to the High Court. (2) Notwithstanding the fact that a suit or proceeding was instituted or commenced prior to the commencement of this Act, an appeal against any decree or order passed in such suit or proceeding shall lie as provided in sub-section (1). (3) Nothing in this section shall apply to any appeal instituted before the commencement of this Act. (2) Notwithstanding the fact that a suit or proceeding was instituted or commenced prior to the commencement of this Act, an appeal against any decree or order passed in such suit or proceeding shall lie as provided in sub-section (1). (3) Nothing in this section shall apply to any appeal instituted before the commencement of this Act. As from the date of the commencement of this Act - (1) all existing Courts of District Judges and Additional District Judges shall respectively be deemed to be the Courts of District Judges and Additional District Judges established under this Act; (2) all existing Courts of Munsiffs in the Vindhya Pradesh, Bhopal and Sironj regions and of Civil Judges of the Second Class in the Madhya Bharat region shall be deemed to be the Courts of Civil Judges (Class II) established under this Act, (3) all existing Courts of Civil Judges of the First Class in the Madhya Bharat and Sironj regions and of Subordinate Judges in the Bhopal region shall be deemed to be the Courts of Civil Judges (Class I) established under this Act, (4) the existing Courts of Civil Judges in the Mahakoshal region shall be deemed to be the Courts of Civil Judges (Class II) established under this Act except such of these Courts as may be specified by the State Government by a notification to be the Courts of Civil Judges (Class I). Explanation - In this section "existing Court" means a Court established under any of the enactments repealed by section 24 and functioning immediately before the commencement of this Act. In every enactment passed before the commencement of this Act,- (i) any reference to a "Subordinate Judge" shall be deemed to be a reference to the Court of the Civil Judge (Class I); and any reference to a "Munsiff" shall be deemed to be a reference to the Court of the Civil Judge (Class II) established or deemed to be established under this Act; and (ii) any reference to a Civil Judge where no Class is specified shall in relation to the Mahakoshal region be deemed to be a reference to the Court of Civil Judge (Class II) established or deemed to be established under this Act. It is well-established that a right of appeal is a vested right and arises when a suit is filed. It is well-established that a right of appeal is a vested right and arises when a suit is filed. Such a right cannot be taken away, impaired or fettered except by express enactment or necessary intendment; Messrs Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh AIR 1953 SC 221 . There is in principle no distinction between abolishing an appeal altogether and transferring it to a new tribunal: Colonial Sugar Refining Co. Ltd. v. Irving (1905) Appeal Cases 969. In the instant case, there is we think an express enactment providing for a new forum for certain appeals. Sub-section (2) of section 13 of the Act clearly and unequivocally refers to suits or proceedings commenced prior to the Act and enacts that an appeal against any decree or order passed therein shall lie only to the Courts specified in sub-section (1) of that section, the only exception being, as provided by sub-section (3) of the section, appeals already instituted before the commencement of the Act. It is, however, urged that sub section (1) of section 13 of the Act, which refers to decrees or orders passed by the Courts established under the Act, can have no application to cases decided by other Courts existing before the commencement of the Act. We do not agree and we may point out that, for purposes of the Act, those pre-existing Courts must be deemed to be certain specified Courts under the Act as provided by section 26 thereof. The contention has also no bearing on the case before us which was actually decided after the commencement of the Act by a Court of Civil Judge, Class I, established under the Act. On the basis of the provision of section 24 of the Act to the effect that, notwithstanding the repeal of the Bhopal and Vindhya Pradesh (Courts) Act, 1950, the previous operation thereof shall remain unaffected, it is argued that the provisions of the Act do not at all apply to suits instituted before the commencement of the Act. We are unable to accept this contention which would in effect lead to the following consequences: (a) Even after the commencement of the Act and in spite of section 25 thereof, the pre-existing Courts would continue to function as such for suits instituted before such commencement. We are unable to accept this contention which would in effect lead to the following consequences: (a) Even after the commencement of the Act and in spite of section 25 thereof, the pre-existing Courts would continue to function as such for suits instituted before such commencement. (b) The ambit of the unfettered provision for construction of references in section 26 of the Act would be so restricted as not to apply to appeals arising out of suits instituted and proceedings commenced before the Act. (c) The express provision relating to appeals arising out of suits and proceedings instituted or commenced before the Act made in subsections (2) and (3) of section 13 would be rendered otiose. The true meaning of any part of a statute is that which best harmonises with every part of it and a construction which will leave without effect any part of a statute must be rejected. This is based on the principle that every statute must be presumed to be a harmonious enactment. It is on this basis that one part of a statute is properly called in aid to help the construction of another. Having regard to these principles of construction, we are of opinion that the Act provides expressly as well as by necessary intendment that all appeals filed after its commencement shall be governed by the provisions therein made even though such appeals arise out of suits instituted and proceedings initiated prior to such commencement. In the view that we have taken of this appeal, we direct that the memorandum of appeal shall be returned for presentation to the proper Court. Costs here shall be costs in the appeal. Counsel's fee Rs. 25. Memorandum of appeal returned for presentation to proper Court. Appeal dismissed.