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1996 DIGILAW 220 (KER)

Kunnappadi Kalliani v. Lekharaj

1996-06-11

P.K.BALASUBRAMANYAN, P.SHANMUGAM

body1996
Judgment :- Balasubramanyan, J. These appeals are filed under S.96 of the Code of Civil Procedure. The first of the appeals is filed against the decree in O.S.23 of 1992 on the file of the Subordinate Judge's Court of Trichur. The suit giving rise to that appeal was filed on 30.12.1991. The suit was one for declaration that the sale deed impugned in the suit was not binding on The plaint schedule property of the plaintiff, that the plaintiff had title and possession over the property and for a perpetual injunction restraining the defendants from interfering with the possession of the plaintiff. The plaintiff valued the reliefs claimed in the plaint at Rs. 28,000/-. On the suit being dismissed on 29,2.1996, the plaintiff filed the appeal in this Court, on 29.5.1996. 2. Under S.12 of the Kerala Civil Courts Act, all appeals from the decree of a District Court or a Subordinate Judge's Court lay to High Court save as provided in S.13 of the Act. Originally, S.13(1) provided that the appeals from decrees in suits, the subject matter of which did not exceed Rs. 7,500/-, lay to the District Court. The limit was raised to Rs. 10,000/- with effect from 26.3.1959 by virtue of Act 12 of 1959. The limit under S.13(1) for appeals to the District Court was again raised to Rs. 25,000/- by the Kerala Civil Courts (Amendment) Act, 1984 with effect from 6.1.1984. The limit was further raised to Rs. 2 lakhs by the Civil Courts (Amendment) Act, 6 of 1996, with effect from 27.3.1996. When this appeal was filed in this Court on 29.5.1996, the office sought a clarification as to whether in view of the amendment brought in by Act 6 of 1996, the appeal would be maintainable in this Court. Court explained that since the suit giving rise to the appeal was filed before the coming into force of Act 6 of 1996, going by Ss.12 and 13 of the Civil Courts Act as they stood at that time, the appeal lay to this Court. He clarified that the amendment will apply only to suits filed after the amendment came into force. He also requested that the matter to be posted before the Bench. 3. He clarified that the amendment will apply only to suits filed after the amendment came into force. He also requested that the matter to be posted before the Bench. 3. When the question of maintainability of the appeal in this Court came up before the learned Single judge, counsel for the appellant relied on the decision in Clara v. Augustine (1984 KLT 377) rendered at a time when a similar doubt was raised on the amendment brought about to S.13 of the Civil Courts Act by the Amendment Act of 1984. The learned Single Judge felt that though the decision of the Division Bench covered the situation, in view of the innumerable instances of a similar nature that are likely to arise, it would be better if a Division Bench were to consider the question once more and pronounce on the maintainability of the appeal in this Court. The matter was thereafter placed before the Division Bench. Considering the importance of the question involved notice was given to all counsel practising in this Court indicating that any counsel inclined in that behalf are free to throw light on the question involved. Thereafter, arguments were heard not only from counsel for the appellant but also from other counsel who wanted to make submissions in that behalf. 4. Second of the appeals was filed in this Court on 30.5.1996 challenging a final decree passed in O. S.1 of 1992 on the file of the Subordinate Judge's Court of Tellicherry. The judgment of the Court below was rendered on 8.8.1995. The valuation shown in the plaint exceeded Rs. 25,000/- but did not exceed Rs. 2 lakhs. The officer therefore, raised the objection referred to above, to the maintainability of the appeal in this Court. Counsel represented the appeal bringing to the notice of the Court the decision of the Division Bench in Clara v. Augustine (1984 KLT 377) and the decision of the Supreme Court in Garikapathi v. Subbiah Chowdhary (AIR 1957 SC 540). The office sent up that appeal also before the Bench in view of the pendency of the earlier reference pending before this Court. 5. The office sent up that appeal also before the Bench in view of the pendency of the earlier reference pending before this Court. 5. There cannot be any doubt that the legal position regarding the maintainability of the appeal in this Court in suits filed prior to the coming into force of Act 6 of 1996 with effect form 27.3.1996 is covered by the decision in Clara v. Augustince (1984 KLT 377). Therein, their Lordships, relying on the decision of the Supreme Court in Garikapathi v. Subbiah Chowdhary (AIR 1957 SC 540) held that a similar amendment made with effect from 6.1.1984 could not affect the appeals to be filed from decrees in suits instituted prior to that date. Their Lordships held that the finding of a suit carried with it the right to approach the appellate forum on the basis of the position obtaining as on the date of the filing of the suit and in the absence of any indication in the amendment that it was intended to operate retrospectively, the appeal continue to lay in this Court in suits instituted before that date. The Division Bench relied on the propositions enunciated in Garikapathi's case regarding the nature of right of appeal and the content of that right. In the light of the propositions clearly enunciated in Garikapathi's case the inclusion arrived at by the Division Bench in Clara's case is clearly justified. 6. The propositions enunciated in Garikapathi's case to a considerable extent relied on the decision Colonial Sugar Refining Company v. Irving (1905 AC 369 (A)) and also noticed the other leading decisions on the subject. It is clearly laid down that it is not merely the right of appeal in the abstract but even the right of appeal to a particular forum is saved unless a contrary intention is expressed or necessarily implicit in the amending Act interfering with or restricting the right of appeal. This position was re-affirmed by their Lordships in KasiBahi v. Mahadu (AIR 1965 SC 703) by observing: "it is true that as a general rule, alterations in the law of procedure are retrospective, but a right of appeal to a particular forum is a sustantive right and is not lost by alteration in the law unless provision is made expressly in that behalf or a necessary implication arises". It can be seen that the above view has been reiterated by the Supreme Court in C.I.T. v. Dhadi Sahu (1993) 199 ITR 610) and in C.I.T. v. Sharadamma (JT 1996 (4) SC 90). Though in the context of the imposition of a further restriction in the right of appeal the aspect was again considered in the decision in Ramesh Singh v. Cinta Devi (1996) 3 SCC 142) and the effect of the earlier decisions of the Supreme Court referred to therein was stated as follows: "unless the new Act expressly or by necessary implication makes the provisions applicable retrospectively, the right to appeal will crystalise in the appellant on the institution of the application in Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the new Act". In view of this subsequent pronouncement, the position adopted in Clara v. Augustine (1984 KLT 377) has only to be accepted as regards the present amendment as well and it has to be held that the appeal is maintainable to this Court. 7. During the course of the arguments it was brought to our notice that the correctness of the decision in Clara v. Augustine (1984 KLT 377) was canvassed before a learned Single Judge in the light of the decision of another Division Bench in Vasu v. Pathooty Amma (1990 (1) KLT 670) and the learned judge by order dt. 26.8.1992 has referred the question for decision to a Division Bench. It appears that the said reference has not yet been answered. We do not think it appropriate to pronounce on the correctness or otherwise of the decision in Vasu v. Pathooty Amma (1990 (1) KLT 670) on this occasion, especially since the order of reference in that behalf will have to be answered in the reference made in A. S.379 of 1992 and that question will have to be considered while answering the reference in A. S.379 of 1992. 8. We may also notice that the position regarding maintainability of appeals in this Court has remained settled by virtue of the decision in Clara v. Augustine for the last 12 years. The guidance given by this court in that decision has been followed by the Subordinate Courts all over the States and appeals had been filed and disposed of in the light of the ratio of that decision. The guidance given by this court in that decision has been followed by the Subordinate Courts all over the States and appeals had been filed and disposed of in the light of the ratio of that decision. We see no compelling reason to differ from the guidelines given in Clara v. Augustine and to upset the ration of that decision. We may incidentally mention that the correctness of the decision in Clara v. Augustine was challenged before another Division Bench more or less immediately after that decision was rendered and that Division Bench in the decision in Joshua v. Geevarghese Mar Discourus (1979-85 KUC 243) agreed with the view expressed in Clara v. Augustine and held that there was nothing in the amending Act of 1984 either expressly or by necessary implication taking away the right of appeal which had accrued to the appellant on his commencement of the lis. While making the amendment of 1996 the Legislature had adopted the same device by merely enhancing the valuation of the subject- matter from Rs. 25,000/- to Rs. 2 lakhs. Since it must be taken that the Legislature was aware of the legal position laid down by this court when the same device was adopted by it in the year 1984, no intention could now be attributed to the Legislature that it was intended by the amendment of S.13(1) of the Civil Courts Act to interfere with the accrued right of the litigants to appeal to this Court. 9. In view of the legal position thus emerging, we find no reason to differ from the view expressed by the Division Bench in Clara v. Augustine (1984 KLT 377). We therefore hold that appeals from decrees of Subordinate Judge's Courts in suits instituted prior to 27.3.1996 would continue to lie in this Court, if they were maintainable in this Court, prior to 27.3.1996. In view of our above conclusion, we hold that the above appeals are maintainable in this Court and direct the office to number them and to send them up for admission before the appropriate bench.