Bhim Singh v. Mohan Lal Agrawal — 1991 DIGILAW 273 (PAT)

JUDGMENT Satyeshwar Roy, J. The respondent filed a suit valued at Rs. 17,600/- in the court of the Subordinate Judge, Dhanbad on 6-4-1987. The suit was decreed in his favour. The appellant, who was defendant in that suit, filed Title Appeal No. 24 of 1991 on 17.5.1991 in the court of the District Judge, Dhanbad against the judgment and decree of the trial. Court. The appeal was valued at Rs. 17,600/-. The appeal was listed before the District Judge on 28.6.1991 to dispose of the objection filed by the respondent about the maintainability of the appeal before that Court. The learned District Judge noticed that pecuniary jurisdiction of the District Judge to entertain appeal was raised from Rs. 10,000/- to Rs.50,000/- from May, 1987 and held that as the suit has been filed on 6.4.1987 i.e. prior to the raising of the pecuniary jurisdiction, the appeal did not lie before the District Judge. He relied on Kartik Nath Jha Vs. Smt Sheela Thakur : 1988 BBCJ 767 : He ordered for returning the memorandum of appeal. After receipt of the memorandum of appeal, the appellant has filed this appeal in this Court. 2. On 11.7.1991 the appeal was listed under the heading "For Orders". The appeal was ordered to be listed before a Division Bench on 12.7.1991 to hear on the question of maintainability of the appeal. On 12.7.1991, learned counsel appearing on behalf of the parties were heard on this point. 3. The question involved in this appeal is : in view of the fact that pecuniary jurisdiction of the District Judge has been raised from Rs. 10,000/- to Rs. 50,000/- in May, 1987, whether the appeal lay before the District Judge or before this Court. 4. All the relevant facts for disposing of the question have been noticed above. It is necessary to notice Kartik Nath Jha (supra) which has been relied upon by the learned District Judge. 5. From the judgment of Karlik Nath Jha (supra) it appears that the suit was filed in 1985 and that was decreed ex-parte. The defendant filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree. That was rejected Against that, miscellaneous appeal was filed in this Court. The value of the suit as well as the value of the appeal was Rs. 13,000/-. The defendant filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree. That was rejected Against that, miscellaneous appeal was filed in this Court. The value of the suit as well as the value of the appeal was Rs. 13,000/-. When the appeal was filed in the High Court, the pecuniary jurisdiction of the District Judge was Rs. 50,000/-. The question arose : whether the appeal was maintainable in the High Court. The learned Single Judge held that as the suit which was valued at Rs. 13,100/- when the pecuniary jurisdiction of the District Judge was not exceeding Rs. 10,000/-, the appeal was maintainable in the High Court, notwithstanding the fact that when the appeal was filed in this Court, pecuniary jurisdiction of the District Judge was Rs. 50,000/-. 6. Different classes of Courts have been constituted under the Bengal, Agra and Assam Civil Courts Act, 1887 (the Act). Section 18 of the Act, provided the extent of original jurisdiction of the District or Subordinate Judge. Section 19 prescribes the extent of jurisdiction of Munsif. Section 21 of the Act, provides the forum of appeal from a decree or order of a Subordinate Judge which shall lie either to the District Judge or to the High Court, according to the valuation of the suit. The pecuniary jurisdiction of the District Judge to entertain appeals from a decree or order of a Subordinate Judge has been raised from time to time. Prior to May, 1987, the District Judge has jurisdiction to entertain appeals not exceeding Rs. 10,000/-. By Bengal Agra and Assam Civil Courts (Bihar Amendment ordinance, 1987 (Ordinance), which subsequently became Act, the pecuniary jurisdiction of the District Judge was raised to Rs, 50,000/-. It is not in dispute that the provision made in the Ordinance came into force with effect from 26.5.1987. 7. In Kartik Nath Jha (supra) the learned Single Judge referred Messers. Hoosein Kasam Dada (India) Ltd. vrs. The State of Madhya Pradesh and others: A.I.R. 1953 Supreme Court 221 : Garikapati Veeraya vrs. N. Subbiah Choudhry and others: A.I.R 1957 S.C. 540: Damoder Prasad vrs. The State of Bihar and others: 1978 B.B.C.J. 308: and Bibhuti Narayan Singh Vrs. 7. In Kartik Nath Jha (supra) the learned Single Judge referred Messers. Hoosein Kasam Dada (India) Ltd. vrs. The State of Madhya Pradesh and others: A.I.R. 1953 Supreme Court 221 : Garikapati Veeraya vrs. N. Subbiah Choudhry and others: A.I.R 1957 S.C. 540: Damoder Prasad vrs. The State of Bihar and others: 1978 B.B.C.J. 308: and Bibhuti Narayan Singh Vrs. State of Bihar: C.W.J.C. No. 4611 of 1978 disposed of on 3.9.1986 and held that as section 3 of the Ordinance by which the pecuniary jurisdiction of the District Judge was raised from Rs. 10,000/- to Rs. 50,000/- was not given retrospective effect, appeals from suits, value of which was more than Rs. 10,000/- and which were filed prior to 26.5.1987, shall lie to the High Court and not to the District Judge. The cases noticed above were not discussed in the judgment. 8. The facts in H.K. Dada (supra) are that the assessee being aggrieved by to order of assessment dated 10.5.1950 of sales tax under Central Provinces and Berar Sales Tax Act, 1947, filed an appeal before the Sales Tax Commissioner under section 22 (1) of that Act. Along with the memo of appeal, no proof of payment of tax, subject matter of the appeal, was filed by the assessee as was required by the proviso to section 22(1) of the Act, as amended on 25.11.1949. The appellate authority declined to admit the appeal. The assessee moved the Board of Revenue and contended that as the assessment proceeding was started before the amendment on 25.11.1949, that had no application to the appeal filed by the assessee and it would be governed by the unamended proviso to section 22(1). Under the unamended proviso, the requirement was that along with the memorandum of appeal, proof of payment of admitted tax or penalty was required to be filed, whereas by the amend meet, the proof of payment required was with regard to the tax with penalty, if any, which were the subject matter of the appeal. Under these facts, the Supreme Court held that the amendment of the proviso has placed a substantial restriction on the assessee's right of appeal and as at the time when the proceeding of assessment was started no such restriction was there, the right of the assessee shall be governed by the unamended proviso. Under these facts, the Supreme Court held that the amendment of the proviso has placed a substantial restriction on the assessee's right of appeal and as at the time when the proceeding of assessment was started no such restriction was there, the right of the assessee shall be governed by the unamended proviso. In the case under our consideration, by the amendment of the Act, only the forum has been changed and no restriction has been imposed. The law laid down in Dada (supra) shall have no application to the facts of this case. 9. From the judgment of Garikapati (Supra), it appears that a suit was filed in 1949. The parties there to had a vested right of appeal on terms and conditions then in force and where the judgment sought to be appealed from a judgment- of reversal and the value of' the subject matter was above Rs. 10,000/-, the forum was Federal Court under the provisions of the Old Civil Procedure Code read with the Government of India Act, 1935 and the Federal Court (Enlargement of jurisdiction) Act, 1947. On the Commencement of the Constitution, Federal Court was abolished and that Court was not available for filing the appeal. It was held that such a vested right of appeal was not a matter which falls under Article 133 of the Constitution and the power with respect of such right of appeal which was exercisable by the Federal Court immediately before the commencement of the Constitution was exercisable under Article 135 by the Supreme Court. It was thus held that the right to appeal subsisted notwithstanding abolition of Federal Court. 10. In Damodar Prasad (supra), a Bench of this Court was dealing with section 11 as amended of the Bihar Public Land Encroachment Act, 1956. The original forum of the appeal was before the District Judge By Ordinance of 1975 the appellate forum was changed to Collector or the Commissioner as the case may be. Appeals pending in the court of the District Judge were transferred to the court of the Collector and/or the Commissioner. The question arose whether the pending appeals could have been so transferred by the District Judge. It was held that since the amendment had not been given retrospective effect, the District Judge could not have transferred the appeals. 11. Appeals pending in the court of the District Judge were transferred to the court of the Collector and/or the Commissioner. The question arose whether the pending appeals could have been so transferred by the District Judge. It was held that since the amendment had not been given retrospective effect, the District Judge could not have transferred the appeals. 11. In Bibhuti Narayan Singh (supra) the order of Collector under the Bihar Public Land Encroachment Act, 1956 was challenged. The proceeding was initiated on 24.3.1974. Appeal lay to the District Judge or High Court, according to the valuation of the public land in question. In 1976 by amendment, Collector was made the appellate forum and Commissioner, if the original order was by Collector. Question arose that in view of the fact that when the proceeding was initiated the appellate forum was the District Judge, whether appeal lay there, notwithstanding the amendment. Relying on Ram Singha vrs. Shankar Dayal: A.I.R. 1928 All. 437 : it was held that appeal lay before the District Judge. It was observed that Ram Singha (supra) had been approved by the Supreme Court in H.K. Dada (Supra). 12. In Rama Singh a (supra), the matter was under Agra Tenancy Act. A suit for arrears of rent was filed. Right of appeal was there then under that Act, if the decree, irrespective of value of suit, went against the defendant. Act, was amended with effect from 7.9.1926 where in it was provided that no appeal lay when the value of the subject matter was less than Rs. 200/-. It was held that the amendment did not apply to lis pending prior to 7.9.1926 and the defendant's right of appeal under the old Act, remained unimpaired. 13. In the judgments of Allahabad High Court, the Supreme Court and Damodar Prasad (Supra) the law laid down is that a right of appeal from the decision of an inferior tribunal to a superior tribunal is a substantive right and becomes vested in a party when proceeding are first initiated. Such a vested right of appeal cannot be taken away, except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication. Such a vested right of appeal cannot be taken away, except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication. If by amendment substantial restriction is put on the vested tight of a party, such restrictions shall not apply to such vested rights. If substantive right is not changed by law with retrospective effect, the original forum of appeal where appeals were pending shall be heard by that forum and cannot be transferred to the new forum. In none of these case), except in Bibhuti Narayan Singh (supra), it has been laid down that change of forum of appeal is change in substantive law and not change in procedural law. 14. I have already noticed in detail the facts of Ram Singha (supra). In that case, the question involved was not change of forum as in Bibhuti (supra) but its abolition. This was approved by the Supreme Court in H.K. Dado (supra). The law laid down in Ram Singh a (supra) had no application to Bibhuti (supra). 15. In New India Insurance Co. Ltd. vrs. Smt. Shanti Misra; A.I.R. 1976 Supreme Court 237 : the question was whether the application with regard to the claim compensation arising out of an accident caused by a motor vehicle before the constitution of Claims Tribunal under section 110-A of the Motor Vehicles Act, 1939 (the Act) would lie before the Civil Court under the ordinary law or before the Claims Tribunal which was constituted subsequently. It was held by the Supreme Court that by Section 110-A and 110-F of the Act, there was no change in law, but was merely a change of forum i.e. a change of adjactival or procedural law and not of substantive law. "It is well established proposition that such a change of law operates retrospectively and the person bas to go to the new forum, even if his cause of action or right of action accrued prior to the change of forum. He will have a ve6ted right of action but not a verted right of forum," (Exphasis added). This is the law which is applicable to the facts of our case. 16. He will have a ve6ted right of action but not a verted right of forum," (Exphasis added). This is the law which is applicable to the facts of our case. 16. When the present suit, subject matter of the appeal, was filed by the plaintiff, the forum of appeal was the High Court. This forum was changed by amendment before the decree was passed. The law laid down in New India Insurance Company (supra) was not. noticed either in Bibhuti (supra) or in Kartik Nath Jha (supra). The law laid down is also not supported by the law laid down on the facts in Ram Singha, H.K. Dada, Garikapati and Damodar Prasad, an referred to above. The law laid down in Bibhuti (supra) or in Kartik Nath Jha (supra)' is not good law. 17. It is held that this appeal lies before the District Judge. The office shall return the memorandum of appeal along with the court fee to the appellant for presentation before the District Judge, Dhanbad, who shall accept it if filed within fourteen days from the date of receipt of the memorandum of appeal by the appellant. 18. We make it clear that appeals filed in this Court before the amendment Ordinance, 1987, shall have to be heard by this Court. We arc informed that large number of appeals were filed in this Court following Kartik Nath Jha (supra). In order to avoid hardship to the litigants it is held that such appeals whose value is upto Rs. 50,000/- and which have been admitted by this court for hearing shall be heard by this Court. All appeals whose value is upto Rs. 50,000/- but have been filed in this Court and which have not been admitted shall be returned to the appellants for filing before the District Judge concerned. The District Judge shall condone the delay in filing the appeal if it was filed within time in this Court and if filed within fourteen days from the date of receipt of memorandum of appeal from the office of this Court. In other cases if application under section 5 of the Limitation Act, 1963 is filed, the District Judge shall dispose of the same in accordance with law. Let copies of the judgment be sent forthwith to the District Judges. S. Hoda, J. : I agree. Appeal disposed with observations.