M. R. M. Sons v. Union of India — 1960 DIGILAW 392 (KER)

Judgment :- 1. This appeal raises an interesting question as to the forum for appeal against a decree of a Munsiff in a case, originally instituted in a District Court, but subsequently transferred to the Munsiff's Court for trial and disposal. 2. The suit is by a consignee of goods for damages for non-delivery of goods. The 1st defendant is the Union of India represented by the General Manager of the Southern Railway. The 2nd defendant is the consignor company. 3. Under S.21 of the Travancore-Cochin Civil Courts Act, XXII of 1951, suits or other proceedings against the Union of India were to be instituted only in the District Court having local jurisdiction. Accordingly, this suit was filed as O.S. No. 37 of 1954 in the District Court of Trivandrum. 4. The Act XXII of 1941 was repealed and the Kerala Civil Courts Act 1 of 1957 came into force on 15th February 1957. As per the latter Act suits against the Union of India, in which the value of the subject-matter was not above Rs. 5,000, came within the cognizance of the Munsiff's Courts. Thereupon he District Court transferred the suit under S.24 (1) (a) of the Code of Civil Procedure to the Court of the Munsiff at Trivandrum, who registered it as O.S. No 523 of 1957 on his file, tried it in due course and disposed of the same on 21st July 1958. From that decree the plaintiff appealed before the District Court, Trivandrum as A.S. No. 840 of 1958. When the appeal came up for hearing the respondent contended that the forum for appeal is determined by law at the institution of the suit and that, this suit having been originally instituted in the District Court, the appeal lay to the High Court only. The learned District judge accepted that contention and by his order dated 10th February 1960 returned the memorandum of appeal for presentation to the High Court. Accordingly, the plaintiff has presented this appeal in this High Court on 22nd February 1960, along with an application to condone the delay that happened in the filing of the appeal in this Court. When that application came up for disposal before me, I ordered notice to be given to the respondents and the Advocate-General for hearing on the maintainability of the appeal in this Court. When that application came up for disposal before me, I ordered notice to be given to the respondents and the Advocate-General for hearing on the maintainability of the appeal in this Court. The respondents have entered appearance; but neither the Advocate-General nor any Government Pleader on his behalf cared to appear when the matter was taken up forbearing. 5. It is not disputed that the proper forum for appeal from the decree of the Munsiff is the District Court. S.13 of the Kerala Civil Courts Act 1 of 1957 enacts: "Appeals from the decrees and orders of a Munsiff's Court shall, when such appeals are allowed by law, lie to the District Court." There is no provision in any statute entitling a party to appeal to the High Court straight from the decree of a Munsiff in a regular Original Suit. The contention of the respondents is that the right of appeal is a vested right and is 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. This proposition as it is, is above challenge. It has been laid down by the Judicial Committee of the Privy Council in the Colonial Sugar Refining Company Limited v. Irving, 1905 A. C. 369 and reiterated by our Supreme Court in Garikapathi Veeraya v. Subbiah Choudhry, AIR. 1957 S.C. 540. 6. But the further contention that the application of this rule to the instant case leads to the conclusion that this appeal lies only in this High Court is not acceptable to me. The cases in which it was enunciated were all cases where the suits were instituted and disposed of by the same court of first instance. The proposition does not apply to cases where a suit was instituted in one court but was subsequently transferred or withdrawn to another court of a different grade and disposed of by the latter. In the latter cases the forum for appeal is determined as at the date of institution of the proceedings in the suit in the court which came to decide the suit. It is not the institution of the suit that then matters, but only the institution of the proceedings in the suit in the court which disposed of the case. In the latter cases the forum for appeal is determined as at the date of institution of the proceedings in the suit in the court which came to decide the suit. It is not the institution of the suit that then matters, but only the institution of the proceedings in the suit in the court which disposed of the case. If a suit is tried throughout in one court, as it normally happens in most cases, there is no occasion to distinguish between the two events above mentioned and we say that the forum for appeal is determined as at the institution of the suit. Even in cases where the suit is instituted in one court and disposed of by another court of the same grade to which it became transferred, the some rule may apply. But in cases where the suit was instituted in one court but was withdrawn or transferred to another court of a different grade the two events have to be reckoned separately and then the forum for appeal must be determined only as at the institution of proceedings in the suit in the court which disposed. Of the suit, and not as at the original institution of the suit as such. 7. The absurdity of reckoning the original institution of a suit for purposes of appeal, irrespective of the fact that it was actually tried and disposed of by a court of a different grade, cannot be exaggerated. I need not multiply instances; suffice to point out one such for illustration here. Suppose a suit instituted in a Munsiff's Court involving a question as to the interpretation of the Constitution is withdrawn to the High Court under Art.228 of the Constitution and is tried and disposed of by the High Court. If the forum for appeal is to be determined as at the original institution of the suit in the Munsiff's Court, irrespective of the fact that it came to be tried and disposed of by the High Court the appeal from the decree of the High Court has necessarily to be filed in the District Court, which contingency, I am sure, nobody will agree to. On the other hand, if we take into consideration the date of the institution of the proceedings in the High Court which disposed of the suit as the factor for determining the forum for appeal, the appeal will lie either to a Division Bench of the High Court if the decision was by a Single Judge, or to the Supreme Court if the decision was by a Bench of the High Court. It is clear therefore that to determine the forum for appeal, the date that is material is the date of the institution of proceedings in the suit in the court which disposed of the same, and not the date of its first or original institution in a court where-from it was subsequently withdrawn or transferred to another court. 8. Admittedly, on the date when the proceedings in the instant suit was commenced in the Munsiff's Court, the forum for appeal from a decree of the Munsiff was the District Court only, and not the High Court. It follows that this appeal has to be preferred in the District Court, Trivandrum. The memorandum of appeal in this case will therefore be returned to the appellant to be re-presented in the District Court, Trivandrum. Ordered accordingly. 9. Since the appellant adopted a quiescent attitude in regard to the incorrect order of the learned District judge directing him to take the memorandum of appeal to this court, he is not entitled to his costs in this court, although the attitude of the respondent does not deserve any exemption in his favour.