Gopala Pillai v. Sayyed Muhammad — 1965 DIGILAW 84 (KER)

Judgment :- 1. In this appeal, on behalf of the appellant, the learned Advocate General attacks the decree and judgment of the learned Subordinate Judge of Quilon dismissing the plaintiff's suit O.S. No. 168/1957. 2. The plaintiff instituted the suit in question for recovery of a sum of Rs. 4949-1-3 from the defendant stated to be due as balance outstanding from the defendant in respect of pattuvaravu transactions that he had with the plaintiff, including interest that had accrued due on the original amount that was found due as on 31-12-1955. According to the plaintiff the defendant had pattuvaravu dealings both in cash and rice from the plaintiff's shop and that as per the plaintiff's accounts a sum of Rs. 4888-12-0 was due from the defendant as on 31-12-1955. In spite of demand it is the case of the plaintiff that the amount has not been paid and therefore the suit was instituted for recovery of the said amount from the defendant. 3. The defendant admitted that he had pattuvaravu dealings with the plaintiff in money and rice from 1953 till the end of April 1955. But the defendant pleaded that he had those transactions with the plaintiff because he had taken some contract work in the Chavara Minerals which contract work came to a close by the end of April 1955 and therefore after 1st May 1955 he had no dealings with the plaintiff either in cash or by way of taking rice on credit. But the defendant also pleaded that in respect of the amount due to the plaintiff at the end of April 1955 a sum of Rs. 670 was found due. But the defendant set up a further plea that the plaintiff's son-in-law, one Balakrishna Pillai, the defendant's nephew one Abdul Rashid, and a gentleman from Coimbatore by name Ali Khan were conducting as partners a business at Quilon in the name of "The Happy World Amusement Park", which ended in loss and inasmuch as the plaintiff appears to have suffered loss the attempt of the plaintiff is to recover the same from the defendant by making false entries in the books of account. Therefore the defendant pleaded that excepting a sum of Rs. 670 that he owed to the plaintiff in respect of pattuvaravu transactions that he had with him, the rest of the claim is absolutely false and unfounded. 4. Therefore the defendant pleaded that excepting a sum of Rs. 670 that he owed to the plaintiff in respect of pattuvaravu transactions that he had with him, the rest of the claim is absolutely false and unfounded. 4. The learned Subordinate Judge after a consideration of the materials placed before him ultimately came to the conclusion that the plaintiff has not proved that the defendant had pattuvaravu transactions with him from 1st May 1955 till 31st December 1955 and that he has also not satisfactorily established the dealings which are disputed by the defendant. I will revert to the various items of evidence that have been adverted to by the learned Subordinate Judge, as well as his findings on these aspects a little later, when I consider the attack levelled as against the dismissal of the suit instituted by the plaintiff by the learned Advocate General on his behalf. Ultimately the learned judge dismissed the plaintiff's claim excepting to the extent to which it was admitted by the defendant namely in the sum of Rs. 670, together with interest on the same as directed in the decree. The rest of the claim was disallowed. It is this dismissal substantially of the claim of the plaintiff by the learned Subordinate Judge that is under attack in this Appeal by the learned Advocate General on behalf of the plaintiff appellant. 5. Mr. K. Velayudhan Nair, learned counsel for the defendant respondent, before dealing with the contentions of the learned Advocate General regarding the merits arising for decision in this appeal, has taken a preliminary objection to the maintainability of the appeal in this Court. According to Mr. Velayudhan Nair the appeal, as against the decree of the learned Subordinate Judge is not maintainable in this Court, and inasmuch as the value of the suit itself was only Rs. 4949-1-3 the proper forum which could entertain the appeal is the Court of the District Judge of Quilon. Therefore the learned counsel urged that this appeal will have to be dismissed on this short ground. On the other hand, the learned Advocate General, having due regard to certain decisions of this court, to which I will refer presently and in view of the provisions contained in the Kerala Civil Courts Act, 1957 which have no retrospective effect prior to amendment urged that the appeal filed in this court is perfectly maintainable. On the other hand, the learned Advocate General, having due regard to certain decisions of this court, to which I will refer presently and in view of the provisions contained in the Kerala Civil Courts Act, 1957 which have no retrospective effect prior to amendment urged that the appeal filed in this court is perfectly maintainable. Under the provisions of the Travancore-Cochin Civil Courts Act, 1951, which were in force on the date of institution of the present suit, the proper forum for entertaining an appeal as against the decree of a Subordinate judge is this Court, and therefore the learned Advocate General urged that the preliminary objection raised on behalf of the respondent will have to be over-ruled. 6. Before I consider the attack based as against the judgment of the learned Subordinate Judge on merits, I will deal with the preliminary objection raised by Mr. Velayudhan Nair, learned counsel for the defendant respondent regarding the maintainability of the appeal in this court. The suit itself was originally instituted on 6-2-1956 in the District Court of Quilon, and it was later on transferred to the Subordinate Judge's Court, Quilon on 22-6-1957 and numbered as O.S. 196/57. The suit was dealt with and disposed of by the learned Subordinate Judge by his judgment dated 10th December 1958. I have already mentioned that the value given in the plaint is Rs. 4949-1-3. Deducting the sum of Rs. 670-1-0 which has been decreed in favour of the plaintiff, the balance amount is the subject of consideration in this appeal. But there is no controversy that whichever is the forum for the appeal, that will have to be decided by the valuation given in the original plaint, as well as the court which disposed of the suit itself. 7. In my view, the position appears to have been well settled by the Division Bench decision of this court rendered by Koshi, C.J., and myself, reported in Kunju Kunju v. Neelakantan (1957 KLT. 980) wherein we had to consider the principles laid down by the Judicial Committee of the Privy Council in the decision reported in the Colonial Sugar Refining Company Ltd, v. Irving (1905 A.C. 369) which principles have been reiterated and re-affirmed by our Supreme Court in the decision reported in Garikapathi v. Subbiah Choudhry (AIR. 1957 SC. 540). 980) wherein we had to consider the principles laid down by the Judicial Committee of the Privy Council in the decision reported in the Colonial Sugar Refining Company Ltd, v. Irving (1905 A.C. 369) which principles have been reiterated and re-affirmed by our Supreme Court in the decision reported in Garikapathi v. Subbiah Choudhry (AIR. 1957 SC. 540). Having due regard to the principles laid down in the decisions referred to above, the learned Chief Justice and myself considered the provisions of the Travancore-Cochin Civil Courts Act, 1951, as well as the provisions of the Kerala Civil Courts Act, 1957 before it was amended by the Kerala Civil Courts (Amendment) Act, 1959, Act 12 of 1959. After considering all those provisions we have expressed the opinion that in respect of suits instituted before the coming into force of the Kerala Civil Courts Act, 1957, appeals arising from decisions of Subordinate Judge's Courts wherein the valuation is below Rs. 7500, will have to be filed in this court, irrespective of the date on which judgment is pronounced. We have also in the earlier part of the judgment in that decision held that the Kerala Civil Courts Act, 1957, (Act 1 of 1957), was not intended to be retrospective in operation. Therefore normally one should proceed on the basis that the position is now concluded as against the stand urged on behalf of the respondent. But Mr. Velayudhan Nair, learned counsel for the respondent relied upon a decision of my learned brother Madhavan Nair, J. reported in M.R.M. Sons v. Union of India (1960 KLT. 1327), as well as a later Division Bench decision by T.K. Joseph, Ag. C.J., and Mathew, J., reported in Narayanamoorthy Konar v. Viswanathan (1963 KLT. 471), as supporting the stand that is now taken by him in this appeal. Therefore the learned counsel urged that in this case the appeal will have to be filed not in this Court, but only in the District Court, Quilon. The question is whether those decisions in any manner detract from the principles laid down by the Division Bench decision of this Court in Kunju Kunju v. Neelakantan (1957 KLT. 980). 8. Therefore the learned counsel urged that in this case the appeal will have to be filed not in this Court, but only in the District Court, Quilon. The question is whether those decisions in any manner detract from the principles laid down by the Division Bench decision of this Court in Kunju Kunju v. Neelakantan (1957 KLT. 980). 8. Before I advert not only to the decision rendered by Koshi, C.J., and myself, as well as the other decisions, referred to above, it is desirable at this stage to advert to some of the salient provisions of the three enactments in question, namely the Travancore-Cochin Civil Courts Act, 1951 (Act 22 of 1951), the Kerala Civil Courts Act, 1957 (Act 1 of 1957) and the Kerala Civil Courts (Amendment) Act, 1958, (Act 12 of 1959). Under the Travancore-Cochin Civil Courts Act, 1951 it will be seen that S.12 provides that the jurisdiction of a District Judge or a Subordinate Judge extends, subject to the rules contained in the Code of Civil Procedure, 1908, to all original suits and proceedings of a civil nature. Subsection (2) of S.12 states that the District Court shall be deemed to be the principal Civil Court of original jurisdiction in the District. Sub-section (4) of S.12 which deals with the jurisdiction of a District Munsiff, is to the effect that it extends to all like suits and proceedings not otherwise exempted from his cognisance of which the amount or value of the subject matter does not exceed Rs. 3000/-. But there is a proviso to sub-section (4) of S.12 which empowers the Government by following the procedure indicated therein, to confer even on a District Munsiff jurisdiction in respect of suits the amount or value of the subject matter does not exceed Rs. 5000. Under this provision the Government is also given the power to withdraw such jurisdiction by issuing a notification. I am only referring to this aspect because normally the jurisdiction of a District Munsiff extends only in respect of suits and proceedings in which the amount or value of the subject matter does not exceed Rs. 3000; but if there is a notification issued by the Government under the proviso to sub-section (4) of S.12 the jurisdiction may be extended up to Rs. 5000. 3000; but if there is a notification issued by the Government under the proviso to sub-section (4) of S.12 the jurisdiction may be extended up to Rs. 5000. Similarly, under S.22 which deals with appeals, sub-section (1) thereof provides that appeals from decrees and orders of the District Munsiffs and Subordinate Judges, when such appeals are allowed by law, will lie ordinarily to the District Court. But there again an exception is made that when the amount or the value of the subject matter of the suits exceeds 3000 rupees, whether it is decided by the District Munsiff or a Subordinate Judge, the appeal shall lie to the High Court. Sub-section (2) of S.22 provides that appeals from original or appellate decrees or orders of a District Court, when such appeals are allowed by law, shall lie to the High Court. Pausing here, it will be seen that under sub-section (1) of S.22 a direct appeal even against a decision of a District Munsiff lies to the High Court provided the amount or value of the subject matter of the suit exceeds 3000 rupees, and that is the same case in respect of decrees or orders of a Subordinate Judge also. Therefore, if the provisions of the Travancore-Cochin Civil Courts Act, 1951, apply, inasmuch as in this case the value of the suit is above Rs. 3000, notwithstanding the fact that the suit was decided by the Subordinate Judge, the appeal will lie only to the High Court. But another point arises as to what is the nature of the right of appeal and when exactly that right accrues to the party in a litigation. That is a different aspect which will be dealt with by me later. 9. When that was the position, the Kerala Civil Courts Act, 1957 (Act 1 of 1957) came into force with effect from 12-1-1957. There are three provisions in this statute which require to be noted, namely S.11,12 and 13. It may be stated that in both the Travancore-Cochin Civil Courts Act, 1951 as well as the Kerala Civil Courts Act, 1957, the different classes of courts in a District have been enumerated, namely Court of a District Judge, Court of a Subordinate Judge, and Court of a Munsiff. S.11 of the Kerala Civil Courts Act, 1957 deals with jurisdiction of a District Court and Subordinate Judge's Court in original suits. S.11 of the Kerala Civil Courts Act, 1957 deals with jurisdiction of a District Court and Subordinate Judge's Court in original suits. Subsection (2) of S.11 provides that the jurisdiction of a Munsiff's Court extends to all like suits and proceedings not otherwise exempted from its cognizance of which the amount or value of the subject-matter does not exceed five thousand rupees. S.12 deals with appeals from decrees and orders of District Court or Subordinate Judge's Court. So far as decrees or orders of District Court or Subordinate Judge's Court are concerned, it is provided in S.12 that, subject to what is stated in S.13, regular and special appeals, when such appeals are allowed by law, shall lie from the decrees or orders of a District Court or a Subordinate Judge's Court to the High Court. S.13 which deals with appellate jurisdiction of District Court and Subordinate Judge's Court, provides that appeals from the decrees and orders of a Munsiff's Court and where the amount or value of the subject matter of the suit does not exceed 7500 rupees, from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court. It is not necessary to note the two provisos occurring in Section. Therefore it will be seen that having due regard to the provisions of S.12 and 13 of the Act, normally if the provisions of that statute apply, in cases where the amount or value of the subject matter of the suit does not exceed 7500 rupees and if the decision has been rendered in respect of such a suit by the Subordinate Judge, an appeal will lie only to the District Court. We are not concerned in this case with decrees and orders of Munsiff's Court. 10. It will be seen that under S.13 of the Kerala Civil Courts Act, 1957 as it originally stood, the forum for an appeal against a decree of a Subordinate Judge's Court is the District Court provided the amount or value of the subject matter of the suit does not exceed Rs. 7500. But there was an amendment effected to that Act by the Kerala Civil Courts (Amendment) Act, 1958 (Act 12 of 1959). 7500. But there was an amendment effected to that Act by the Kerala Civil Courts (Amendment) Act, 1958 (Act 12 of 1959). It is not necessary to refer to the various other amendments effected by this Act,' excepting to note the amendment effected to S.13 of the parent Act. That amendment was effected by S.4 of the Amendment Act of 1958. That provides that S.13 of the original Act has to be renumbered as sub-section (1) of that Section; and in sub-section (1) so renumbered, for the words "seven thousand and five hundred rupees", the words "ten thousand rupees" are to be substituted. Pausing here, it will be seen that according to the amendment, if a decision is rendered by a Subordinate Judge in a suit the amount or value of which is less than Rs. 10,000/-, according to the amended provision an appeal will lie to the District Court, i. e., the jurisdiction of the District Court to entertain appeals has been enhanced. Sub-clause (2) of S.4 of the Amendment Act incorporated sub-section (2) in S.13 of the original Act. S.13 (2) clearly shows that the provisions of sub-section (1) shall apply to original decrees and orders of a Subordinate Judge's Court passed after the commencement of the Civil Courts (Amendment) Act, 1959, notwithstanding the fact that the suits in respect of which such decrees and orders have been passed, were instituted before such commencement. 11. The provisions of sub-section (2) of S.13 of the Kerala Civil Courts Act, 1957 as it now stands after the amendment clearly indicates that the provisions of the statute in respect of the forum for an appeal will apply even in respect of suits instituted before the commencement of the Amendment Act, provided the decrees or orders are passed by the Subordinate Judge's Court after the date of commencement of the Act. There is no controversy that the Amendment Act came into force only on 24-3-1959. Therefore if the Amendment Act applies there can be no controversy that the present appeal is maintainable only before the District Court. Similarily if the provisions of the Kerala Civil Courts Act, 1957 as they stood before the amendment, also apply there can be no controversy that the forum for an appeal against the decree of a Subordinate Judge's Court is the District Court, and not this Court. Similarily if the provisions of the Kerala Civil Courts Act, 1957 as they stood before the amendment, also apply there can be no controversy that the forum for an appeal against the decree of a Subordinate Judge's Court is the District Court, and not this Court. The question that arises is whether the provisions of these statutes apply and as to whether the decision of this Court reported in Kunju Kunju v. Neelakantan (1957 KLT. 980) has in any manner been modified by any later decision of this court. That is an aspect that will have to be considered by me. 12. But before I advert to the Division Bench decision of this Court referred to above, it is necessary to refer to the decision of the Privy Council, as well as the decision of the Supreme Court, because it is the principles that have been laid down in those decisions that have been adopted by Koshi, C.J., and myself while rendering the decision in Kunju Kunju v. Neelakantan (1957 KLT. 980). In Colonial Sugar Refining Company v. Irving (1905 A.C. 369) the Judicial Committee of the Privy Council had to consider the effect of the Australian Commonwealth Judiciary Act, 1903. It must be stated that proceedings in that case were initiated on 25-10-1902 in the Supreme Court of Queensland. The Supreme Court rendered their decision in the proceedings on 4th September 1903. But in the meanwhile, on 25-8-1903 the Australian Commonwealth Judiciary Act, 1903 had been passed and had received the Royal assent. Under that statute appeals as against decisions of the Supreme Court of Queensland had to be filed not in the Privy Council according to the law as it originally stood, but to the High Court of Australia. But notwithstanding the passing of the Judiciary Act referred to above, and notwithstanding the fact that a decision was rendered by the Supreme Court prior to the passing of that statute, the party aggrieved by the decision of the Supreme Court filed an appeal before the Privy Council. Objection was taken by the respondent to the maintainability of the appeal before the Privy Council on the ground that the right of appeal to the Privy Council has been taken away by the Australian Commonwealth Judiciary Act, 1903. Objection was taken by the respondent to the maintainability of the appeal before the Privy Council on the ground that the right of appeal to the Privy Council has been taken away by the Australian Commonwealth Judiciary Act, 1903. That contention is dealt with by the Privy Council, and one of the questions that has been considered by their Lordships of the Privy Council is as to whether a right of appeal is a vested right, and if so, what is the period or stage when that right accrues to a litigant. Lord Macnaghten, delivering judgment on behalf of Their Lordships of the Privy Council, considers at page 372 of the report, the question as to whether The Australian Commonwealth Judiciary Act, 1903 is retrospective or not, and observes: "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 ease 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." From the extract quoted above it will be seen that a right of appeal is a vested right and not a mere matter of procedure. The Privy Council also observes that 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. And the Privy Council also says that unless the Statute has been retrospectively brought into force and has clearly destroyed the right to approach the Privy Council by way of appeal in a pending action, it should not normally be considered to be taken away by a statute which comes into force during the pendency of the litigation. And the Privy Council also says that unless the Statute has been retrospectively brought into force and has clearly destroyed the right to approach the Privy Council by way of appeal in a pending action, it should not normally be considered to be taken away by a statute which comes into force during the pendency of the litigation. In that particular case the Privy Council, overruling the objections of the respondent came to the conclusion that the appeal filed before the Privy Council notwithstanding the passing of the Australian Commonwealth Judiciary Act, 1903, was perfectly valid and competent. 13. Our Supreme Court in Garikapati v. Subbiah Choudhury (AIR. 1957 SC. 540) had to consider the question as to whether in respect of a suit instituted prior to the commencement of the Constitution, the valuation of which was above Rs. 10,000/- but less than Rs. 20,000/- the right of an appeal, which, but for the Constitution, could have been taken to the High Court and then later on to the Federal Court, was lost by the coming into force of the Constitution. That question is very exhaustively considered by the majority judgment which was rendered by S.R. Das, C.J. No doubt Venkatarama Ayyar, J. has taken a different view. Their Lordships, after an exhaustive survey of all the authorities bearing on this point, refer to the observations of Lord Macnaghten in Colonial Sugar Refining Company Limited v. Irving (1905 A. C. 369). The Supreme Court also takes note of the fact that that decision has been followed by a later decision of the Privy Council reported in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi (AIR. 1927 P.C. 242). The learned Chief Justice then summarises the principles which emerge from a consideration of all the decisions referred to above. That summary is contained at page 553 of the report, and that is to the following effect: "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. (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 & 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." In particular, it will be seen that under proposition No. (iii) it is the view of the Supreme Court that the institution of the suit carries with it the implication that all rights of appeal are preserved to the parties thereto till the rest of the career of the suit. If I may say so with respect, the stage at which this right accrues to the party is emphasised in proposition No. (iv) that the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant as and from the date the lis commences, i. e. the moment a suit or other proceeding is instituted, it is well-known the lis commences. If that is so, according to the Supreme Court, the right to enter a superior court by way of appeal accrues to the litigant the moment he institutes the action in question. Then the learned judges, if I may say so with respect, in the latter part of proposition No. (iv) emphasise that though the right of appeal may be actually exercised when the adverse judgment is pronounced, that right is to be governed by the law prevailing at the date of 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. 14. 14. Going by the principles enunciated above, if I may say so with respect, in this case it will have to be held that on the date when the suit was instituted, namely 6-2-1956, in the District Court, the lis commenced and all the rights the party had under the Travancore-Cochin Civil Courts Act, 1951, are safeguarded by approaching this Court directly as against any decision that may be rendered in the suit. No doubt that decision may be rendered by the court long afterwards. But anyhow the forum of appeal has to be considered, not having due regard to the provision of law prevailing on the date when the judgment is rendered, but really as on the date when the lis itself commenced. No doubt this principle may not apply if that vested right of appeal had been categorically and unambiguously taken away by a subsequent enactment; and that is reiterated by Their Lordships of the Supreme Court in proposition No. (v) extracted above. But the question is as to whether the provisions of the Kerala Civil Courts Act, 1957 are retrospective or not. 15. That question directly arose for consideration before the learned Chief Justice and myself in the decision reported in Kunju Kunju v. Neelakantan (1957 KLT. 980). It will be seen that there were three appeals filed in this Court as against decisions rendered by the Subordinate Judge's Courts concerned. One of the appeals was from the Malabar area, and that was governed by the Madras Civil Court Act; and I do not think it necessary to consider that appeal for the present purpose. But it will be seen that two of the appeals were as against the decisions rendered by the Subordinate Judge's Court of Attingal, in suits which were originally instituted in the District Court, Trivandrum, but later on transferred to the Subordinate Judge's Court, Attingal. Admittedly those suits were instituted in the District Court concerned, long prior to the commencement of the Kerala Civil Courts Act, 1957. After decision was rendered by the Subordinate Judge's Court in the said suit, appeals were filed in this court. Objection was taken regarding the maintainability of the appeals in this Court after the coming into force of the Kerala Civil Courts Act, 1957. After decision was rendered by the Subordinate Judge's Court in the said suit, appeals were filed in this court. Objection was taken regarding the maintainability of the appeals in this Court after the coming into force of the Kerala Civil Courts Act, 1957. No doubt the appeals themselves were filed in this court after the coming into force of that Act, and therefore the question that this court had to consider was whether the appeals were governed by the provisions of the Travancore-Cochin Civil Courts Act, 1951 or the Kerala Civil Courts Act, 1957. In that connection, Koshi, C.J., who rendered the judgment, refers to the observations of Lord Macnaghten in the decision of the Privy Council reported in Colonial Sugar Refining Company Limited v. Irving (1905 A.C. 369), to which reference has already been made by me earlier. The learned Chief Justice summarises the five propositions laid down by Das, C.J., in the decision of the Supreme Court reported in Garikapati v. Subbiah Choudhry (AIR. 1957 SC. 540). After considering all these aspects, the learned Chief justice winds up the discussion by holding that the Kerala Civil Courts Act, 1957 is not retrospective in its operation. We have also indicated in that decision that the necessary conclusion that follows from our decision is that appeals filed in this court against decisions of the Subordinate Judge's Courts, notwithstanding the fact that the valuation of the suit was below Rs. 7500/- are perfectly competent. We have also observed in that decision that if any appeals had been preferred before the District Court, they would have to be returned for presentation to this Court. The learned Chief Justice states that "Appeals arising from decisions of the Subordinate Judge's Courts in suits instituted before the Kerala Civil Courts Act was enacted, where the valuation is below Rs. 7500/- will have to be filed in this Court irrespective of the date on which the judgment is pronounced". It will be particularly noted that the view of this Court in that decision was very clear and unambiguous, namely that the Kerala Civil Courts Act, 1957 was not retrospective and it does not apply to the appeals then before us. We have also made it clear that the Act will not apply in respect of suits instituted before the Kerala Civil Courts Act was enacted where the valuation is below Rs. We have also made it clear that the Act will not apply in respect of suits instituted before the Kerala Civil Courts Act was enacted where the valuation is below Rs. 7500/-, irrespective of the date on which judgment is rendered, i. e. in cases where judgment has been rendered after the coming into force of the Act, the provisions of that Act will not apply for purposes of considering the forum where appeals against such decisions have to be filed. We have also made an observation in that decision to the effect that the provision as to appeals to the District Courts from the decisions of Subordinate Judge's Courts will remain a dead-letter for some years to come unless the Legislature thinks it proper to make the provision retrospective. And the effect of this observation was the amendment effected to S.13 of the original Act by the Kerala Civil Courts (Amendment) Act, 1958 (Act 12 of 1959) which came into force on 24th March 1959. 16. I have already adverted to the provisions of the Kerala Civil Courts (Amendment) Act, 1958. Under the Amendment Act it is made clear that in respect of suits of the valuation mentioned therein the right of appeal as against the decisions of a Subordinate Judge is to the District Court notwithstanding the fact that the suits themselves had been instituted prior to the commencement of the Act, but subject to this qualification, namely that the decrees or orders are passed after the coming into force of the Act. In this case, I have already indicated that the decision was rendered by the Subordinate Judge's Court on 10th December 1958, i. e. long before the coming into force of the Kerala Civil Courts (Amendment) Act, 1958. Therefore that provision does not apply. According to the decision of this Court in Kunju Kunju v. Neelakantan (1957 KLT. 980) it also follows that the Kerala Civil Courts Act, 1957 also does not apply. Therefore normally I should hold following the decision of the Division Bench of this Court referred to above, that the provisions of the Travancore-Cochin Civil Courts Act, 1951 apply to the present case, and the appeal is perfectly competent in this Court. 17. But Mr. 980) it also follows that the Kerala Civil Courts Act, 1957 also does not apply. Therefore normally I should hold following the decision of the Division Bench of this Court referred to above, that the provisions of the Travancore-Cochin Civil Courts Act, 1951 apply to the present case, and the appeal is perfectly competent in this Court. 17. But Mr. Velayudhan Nair, learned counsel for the respondent referred me to the decision of my learned brother Madhavan Nair, J., reported in M.R.M. Sons v. Union of India (1960 KLT. 1327), as well as the decision of a Division Bench of this Court reported in Narayana Moorthy Konar v. Viswanathan (1963 KLT. 471), where according to the learned counsel a slightly different view has been expressed. Before I refer to these decisions it is necessary to refer to another Division Bench decision of this court rendered by Sankaran, C.J., & Anna Chandy, J., reported in Ramunni Kurup v. Chirutha (1959 KLR.1289). No doubt in that case it will be seen that the suit was valued at Rs. 5919/- and it was instituted prior to the passing of the Kerala Civil Courts (Amendment) Act, 1958. It will also be seen that the decree in the suit was also passed prior to the passing of the Amendment Act. In that decision the learned Chief Justice states that appeals against decrees and orders in suits the value of which is less than ten thousand rupees would no doubt after the amendment lie to the District Court. But having regard to clause (2) of S.4 of the Kerala Civil Courts (Amendment) Act, 1958, the learned Chief Justice emphasises that decrees & orders passed prior to the passing of the Amendment Act will be governed by the pre-existing law. The learned Chief justice further states that under that law appeals against decrees and orders in suits of the category as the present one would lie to the High Court and not to the District Court. Pausing here for a minute, though this decision does not refer to the Division Bench decision in Kunju Kunju v. Neelakantan (1957 KLT. 980), the principles laid down in this decision are almost identical to the principles laid down by us in the earlier decision, namely, Kunju Kunju v. Neelakantan (1957 KLT. 980). Pausing here for a minute, though this decision does not refer to the Division Bench decision in Kunju Kunju v. Neelakantan (1957 KLT. 980), the principles laid down in this decision are almost identical to the principles laid down by us in the earlier decision, namely, Kunju Kunju v. Neelakantan (1957 KLT. 980). No doubt in Ramunni Kurup v. Chirutha (1959 KLR.1289) this court had to consider as to whether the provisions of S.13 of the Kerala Civil Courts (Amendment) Act, 1958 will apply. But the point to be noted is that if those provisions do not apply, then it is only the old law that would apply, namely the Travancore-Cochin Civil Courts Act, 1951, because the Kerala Civil Courts Act, 1957 has been held to be not retrospective. No doubt the decision in Ramunni Kurup v. Chirutha (1959 KLR.1289) the Division Bench even takes the view that even in respect of an order passed by a court in a suit in which decree had been passed prior to the commencement of the Kerala Civil Courts (Amendment) Act, 1958, the provisions of the old law will govern. But it is not necessary to consider this aspect, excepting to note that the principles laid down by myself and Koshi, C. J., in Kunju Kunju v. Neelakantan (1957 KLT. 980) have been affirmed to this extent, namely that if the provisions of the Kerala Civil Courts (Amendment) Act, 1958 do not apply, the old law will apply, namely the Travancore-Cochin Civil Courts Act, 1951. 18. In M.R.M. Sons v. Union of India (1960 KLT. 1327) Madhavan Nair, J., had to consider the question regarding the forum where an appeal is to be filed as against a decision rendered by a Munsiff's Court to whom a suit was transferred by the District Court. In that case it will be seen that in view of the provisions contained in the Travancore-Cochin Civil Courts Act, 1951, no suit can be instituted as against the Union of India in a Munsiff's Court, and therefore the suit appears to have been instituted in the District Court. But after the passing of the Kerala Civil Courts Act, 1957, inasmuch as the embargo placed upon the Munsiff's Court from entertaining such suits stood withdrawn by the repeal of the Travancore-Cochin Civil Courts Act, 1951, the District Court transferred the suit for disposal to the file of the Munsiff's Court. But after the passing of the Kerala Civil Courts Act, 1957, inasmuch as the embargo placed upon the Munsiff's Court from entertaining such suits stood withdrawn by the repeal of the Travancore-Cochin Civil Courts Act, 1951, the District Court transferred the suit for disposal to the file of the Munsiff's Court. The Munsiff's Court disposed of the suit on 21st July 1958. That date of decision was certainly after the Kerala Civil Courts Act, 1957 came into force, namely 12-1-1957, and before the Kerala Civil Courts (Amendment) Act, 1958 came into force, i. e. 24-3-1959. It is seen that against the decision of the Munsiff's Court an appeal was filed to the District Court. But objection was taken before the District Court regarding the maintainability of the appeal, and the District Court, accepting that objection, returned the appeal for presentation to the High Court. In the High Court the appeal was filed along with an application to excuse the delay in filing the appeal. It will be seen from the judgment that no attempt appears to have been made by the appellant to satisfy the High Court that the return of the appeal by the District Court was in any manner erroneous. On the other hand it is seen that the respondent before the learned judge took up the position that the appeal filed in the High Court is perfectly competent in view of the decisions of the Supreme Court and also of the Privy Council referred to above. The learned judge no doubt reiterates this position, namely 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. The learned judge in fact says that this proposition is above challenge. But the learned judge says that the further contention that the application of this rule will apply even when a suit instituted in a court of a particular grade stood transferred to a court of lower grade and it was disposed of by the latter court, is difficult to accept. But the learned judge says that the further contention that the application of this rule will apply even when a suit instituted in a court of a particular grade stood transferred to a court of lower grade and it was disposed of by the latter court, is difficult to accept. The learned judge's view appears to me that the proposition 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 filing of the appeal, does dot apply to "cases where a suit was instituted in one court but was subsequently transferred or withdrawn to another court of a different lower grade and disposed of by the latter". The learned judge further says that in such cases the forum of appeal is to be determined as at the date of the institution of the proceeding in the suit in the court which came to decide the suit. On this line of reasoning the learned judge ultimately comes to the conclusion that inasmuch as the suit was tried and disposed of ultimately by the Munsiff's Court, notwithstanding the fact that it was originally instituted in the District Court, the forum of the appeal will have to be considered by the law prevailing as on the date when judgment was rendered, and it is therefore the view of the learned judge that the appeal was properly filed in the first instance in the District Court, and that the District Court acted erroneously in returning the appeal. The learned judge has also expressed the opinion that there is no provision in any statute which gives a right of appeal to a party directly to the High Court against a decision of the Munsiff's Court. It is not necessary for me to go into this controversy because I have already referred to the fact that under sub-section (1) of S.22 of the Travancore-Cochin Civil Court Act, 1951 under the particular circumstances mentioned therein, a right of appeal is given directly to the High Court as against a decision of the Munsiff's Court also. It is not necessary for me to go into this controversy because I have already referred to the fact that under sub-section (1) of S.22 of the Travancore-Cochin Civil Court Act, 1951 under the particular circumstances mentioned therein, a right of appeal is given directly to the High Court as against a decision of the Munsiff's Court also. But the learned judge came to the conclusion that on the date when the proceedings in the case before him were commenced in the Munsiff's Court, the forum for the appeal from the decree of the Munsiff's Court was only the District Court and not the High Court and therefore the appeal was rightly preferred in the District Court of Trivandrum. In consequence the learned judge directed return of the appeal filed in this court. 19. In the decision of my learned brother Madhavan Nair, J., referred to above, there is absolutely no reference to the Division Bench decision of this Court reported in Kunju Kunju v. Neelakantan (1957 KLT. 980). As I have already indicated, that Division Bench decision clearly laid down two propositions, namely that the Kerala Civil Courts Act, 1957 is not retrospective in its operation, and secondly that the forum of the appeal will be the High Court as against decisions of Subordinate Judge's Courts in respect of suits instituted prior to the commencement of the Kerala Civil Courts Act 1957, notwithstanding the fact that such decisions themselves were rendered after the coming into force of that statute. I am particularly emphasising this aspect because in the decision in Kunju Kunju v. Neelakantan (1957 KLT. 980) the suit was originally instituted in a court of higher grade, namely the District Court, and that Court transferred the suit to a court of lower grade, namely the Subordinate Judge's Court, and it was the latter court that ultimately disposed of the suit; and it is in that connection that we had to consider the question as to where exactly the appeal had to be filed. Evidently the decision of this Court in Kunju Kunju v. Neelakantan (1957 KLT. 980) does not appear to have been brought to the notice of my learned brother Madhavan Nair, J., when he rendered the decision in M. R. M. Sons v. Union of India (1960 KLT. Evidently the decision of this Court in Kunju Kunju v. Neelakantan (1957 KLT. 980) does not appear to have been brought to the notice of my learned brother Madhavan Nair, J., when he rendered the decision in M. R. M. Sons v. Union of India (1960 KLT. 1327); because the learned judge says that the principle 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 the decision or at the date of the filing of the appeal, will not apply to cases where the suit was instituted in one court of a higher grade, but was subsequently transferred to another court of a different grade and disposed of by the latter court. That exactly was the position before us in Kunju Kunju v. Neelakantan (1957 KLT. 980) and notwithstanding the fact that the suit was tried and disposed of by a court of lower grade, than the one where it was originally instituted to which case the learned judge says that principle will not apply, we held otherwise. Therefore if I may say so with respect, the observations made by Madhavan Nair, J. in the decision reported in M.R.M. Sons v. Union of India (1960 KLT. 1327) are too wide; and if I may say so again with great respect, run counter to the principles laid down by the Supreme Court, as well as by the direct decision of the Division Bench of this court in Kunju Kunju v. Neelakantan (1957 KLT. 980). I have already adverted to the fact that proposition No. (iv) laid down by Das, C.J., in Garikapati v. Subbiah Choudhury (AIR. 1957 SC. 540) categorically emphasises that the right to enter a superior Court by way of appeal accrues to a litigant as on the date the lis commences and not on the date the decision is rendered by the court. If I may say so with great respect, the observations of the learned judge in M.R.M. Sons v. Union of India (1960 KLT. 1327) run counter to the proposition enunciated by the learned Chief Justice of the Supreme Court in the decision referred to above. That is why, I should think that the decision of this Court in Kunju Kunju v. Neelakantan (1957 KLT. 1327) run counter to the proposition enunciated by the learned Chief Justice of the Supreme Court in the decision referred to above. That is why, I should think that the decision of this Court in Kunju Kunju v. Neelakantan (1957 KLT. 980) was not evidently brought to the notice of the learned judge when the learned judge made those observations. 20. The decision of the Division Bench of this Court reported in Narayanamoorthy Konar v. Viswanathan (1963 KLT. 471) need not detain me long. It will be seen that in that case the learned judges refer to the decision of the Division Bench of this Court in Kunju Kunju v. Neelakantan (1957 KLT. 980) and observe that the Kerala Civil Courts Act, 1957 was amended in view of that decision. That shows that the learned judges did not in any manner cast any doubt about the correctness of that decision. In that case the learned judges had to consider the question as to the forum for appeal, in respect of an order passed by the Subordinate Judge's Court in execution proceedings on 6th July 1959, i. e. after the date of the commencement of the Kerala Civil Courts (Amendment) Act, 1958. Therefore, having due regard to the provisions contained therein, inasmuch as the order was passed by the Subordinate Judge's Court, in a suit the value of which was less than Rs. 10,000, the learned judges, if I may say so with respect, applying the provisions of S.13 of the Kerala Civil Courts Act, 1957, as amended by the Kerala Civil Courts (Amendment) Act, 1958, held that the appeal to the District Court was perfectly competent. In that connection, no doubt the learned judges refer to the connotation of the word 'instituted' occurring in S.13 (2) of the Kerala Civil Courts (Amendment) Act, 1958. But that question does not arise in the case on hand. 21. Therefore, respectfully adopting the principles laid down by the Judicial Committee of the Privy Council in the decision reported in Colonial Sugar Refining Company v. Irving (1905 A.C. 369), and which have been reiterated and reaffirmed by Their Lordships of the Supreme Court in the decision reported in Garikapati v. Subbiah Choudhury (AIR. 1957 SC. 540), & also following the decision of this Court reported in Kunju Kunju v. Neelakantan (1957 KLT. 1957 SC. 540), & also following the decision of this Court reported in Kunju Kunju v. Neelakantan (1957 KLT. 980) which is really based upon the decisions of the Privy Council and the Supreme Court adverted to above, the contention of the learned counsel for the respondent that this appeal is not maintainable in this Court, will have to be over-ruled. In consequence I hold that this appeal is perfectly competent and maintainable in this Court. (Paragraphs 22 to 31 dealing with the merits of the case are omitted) xxx xxx xxx xxx 32. I an not inclined to accept the contention of the learned counsel for the respondent that in any event a decree can be given as against the defendant only in respect of the transactions covered by Ext. P-1. Even if that contention is accepted it will follow that the transactions under Ext. P-1 are fairly substantial and they take in a major portion of the plaint claim. Once the books of account are accepted and the fact that the defendant must have had the transactions with the plaintiff even after 1-5-1955 is also accepted, in my view, the decree of the learned Subordinate Judge dismissing the plaintiff's claim in other respects cannot be allowed to stand. 33. In the result, in modification of and over and above the decree passed by the learned Subordinate judge in favour of the appellant plaintiff, the plaintiff is given a decree for the entire amount as claimed in the plaint. The appeal is allowed, and the appellant will get his costs from the defendant both in this court as well as in the court below. But the plaintiff appellant will have a decree for interest only at 6% on the amount claimed by him from 31-12-1955 on the principal of Rs. 4888-12-0 till date of suit, and thereafter at the same rate. Allowed.