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2002 DIGILAW 1412 (MAD)

Gandhimathi Ramayya v. Syed Mohideen

2002-11-15

K.GOVINDARAJAN

body2002
Judgment :- The above S.A.SR.Nos.91854 and 91858/2002 are posted to decide the maintainability on the basis of the objections raised by the Registry. 2. The respondent/plaintiff filed a suit in O.S.Nos.1568 of 1986 and 1215 of 1990, on the file of the II Additional District Munsif Court, Tiruchirapalli, which was decreed in the judgment and decree dated 26.6.1998, and the same was confirmed in A.S.No.194/1998 on the file of the I Additional Sub-Court, Tiruchirapalli, in the common judgment and decree dated 26.7.2002. Aggrieved against the said judgment an decree, the defendant has filed the above Second Appeal. 3. The said objection was raised by the Registry on the basis of Sec.5 of the Code of Civil Procedure (Amendment) Act 2002, hereinafter called as the Act 22 of 2002, under which new Provision for Section 102 of the Code of Civil Procedure is substituted. The said Act came into force with effect from 1.7.2002. 4. In the present case, admittedly, the value of the suits is only Rs.4,783.00 (O.S.1568 of 1986) and Rs.6300.00 (O.S.No.1215 of 1990) and so the Registry has raised an issue regarding the maintainability of the above Second Appeals as the value of the suit does not exceed Rs.25,000/- as contemplated under Sec.102 of the Code of Civil Procedure as it stands today. 5. Learned counsel appearing for the appellant has submitted that the Code of Civil Procedure is only a procedural law and so the amendment would apply only prospectively and the right to file appeal is not a matter of procedure but it is a substantive right which accrued to the appellant on the date of filing of the suit and the amendment cannot take away the said right and so second appeal is maintainable under unamended Section 102. In support of his submission, the learned counsel relied on the decision of the Apex Court in Garikapati v. Choudhry, AIR 1957 S.C. 540 and the Hon'ble Judges of the Apex Court after relying on a number of judgments of various High Courts and after elucidating certain principles have held that filing of appeal is not a mere matter of procedure, but is a substantive right which right can be taken away only by a subsequent enactment, if it is so provided expressly or by necessary intendment. 6. 6. Again in the decision in Maharaja Chintamani Saran Nath Shahddeo v. State of Bihar, AIR 1999 S.C. 3609 , the Apex Court has culled out the same principles while considering the scope of Bihar Act 15/1974 amending the provision of Act 30 of 1950. 7. The Constitution Bench of the Apex Court in the decision in Shyam Sunder v.Ram,Kumar, AIR 2001 S.C. 2472 , had an occasion to deal with the scope of Haryana Amendment Act 1995, (Act of 1913) amending the provisions of Punjab Pre-emption Act, has held that every litigant has a vested right in substantive law but no such right exists in procedural law and a procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. From the above, it is clear that the right of appeal once conferred is a substantive right and would accrue to the litigant from the time when he enters the portals of the Court. However, as laid down in the said decision, the vested right of appeal can be taken away by the competent legislature by a subsequent enactment if it is so provided expressly or even by necessary intendment. 8. We have to now decide the maintainability of the above Second Appeals on the basis of the above said settled principles. The decree passed by the trial Court on 26.9.98 has been confirmed by the lower appellate Court on 26.7.2002. So the decree in the present case was made after the amendment came into force, i.e., on 01.07.2002 and as stated already, if the said Amendment Act is applied, the Second appeals are not maintainable. 9. Prior to the amendment under the Act 22 of 2002, Sec.102 reads as follows:- "102. No second appeal in certain suits:- No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees." The present provision which is substituted under Sec.5 of Act 22 of 2002 reads as follows:- "102. No second appeal in certain cases:- No second appeal shall lie from any decree, when the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees". 10. No second appeal in certain cases:- No second appeal shall lie from any decree, when the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees". 10. Section 17(2)(a) of the Code of Civil Procedure (Amendment) Act, 2002 deals with Repeal and Savings, which reads as follows:- "17.Repeal and savings:- (1) ... ... ... (2) Notwithstanding that the provision of this Act have come into force or repeal under sub-section(1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897). (a) the provision of section 102 of the principal Act as substituted by section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of section 5 and every such appeal shall be disposed of as if section 5 had not come into force." 11. According to the abovesaid amendment, the High Court cannot entertain Second Appeal against the decree having subject-matter of the original suit, for recovery of money not exceeding Rs.25,000/-. The intention of the Parliament was to affect such vested right of appeal. The whole purpose was to cut down the litigative process and for the purpose of minimising the delay in the finalization of adjudication. 12. As held by the Apex Court in the decisions cited supra, the right of appeal is substantive in nature and it cannot be taken by substituting new provision by way of amendment and such a right of appeal is available to the party in spite of the amendment, unless contrary intention appears in the amendment Act. It is also well settled as held in the decisions of the Apex Court cited supra that the said procedure would not be operative retrospectively unless the statute expressly or by implication indicates the same. 13. So, the issue now raised regarding the maintainability of the Second Appeals have to be decided on the basis of Sec.17 of the Act 22 of 2002. It is stated that the amended Sec.102 shall not apply to or affect any appeal which has been admitted before the said amendment came into force. 13. So, the issue now raised regarding the maintainability of the Second Appeals have to be decided on the basis of Sec.17 of the Act 22 of 2002. It is stated that the amended Sec.102 shall not apply to or affect any appeal which has been admitted before the said amendment came into force. If that is so, though right to file appeal is available to the appellant, in view of the contrary intention under Sec.17 of the Act 22 of 2002 not to keep alive the said right accrued, the said right under the Code of Civil Procedure prior to the said Amendment Act does not survive. 14. Under Sec.17(2) of the said Act, it is stated that "without prejudice to generality of section 6 of the General Clauses Ac, 1897", Sec.6 of the General Clauses Act 1897 saves the right accrued under any enactment so repealed. But Sec.6 of the General Clauses Act itself mentions "unless contrary intention appears". The contrary intention is indicated in Sec.17(2)(a) of the said Act 22 of 2002. The limit to which the right survives is provided for in Sec.17(2)(a), according to which, the amended Sec.102 of the Code of Civil Procedure shall apply to the cases which are not admitted by the High Court before the commencement of the said Act. If a contrary intention is expressed in the repealing Statute, the rights under the repealed Statute are certainly affected. So, it cannot be said that the words "without prejudice to the generality of Sec.6 of the General Clauses Act, 1897" do not lend to the construction that all rights under the Code before the amendment survive, notwithstanding the said amendment. 15. While considering the scope of amendment of Sec.102 by Code of Civil Procedure (Amendment) Act 1976 the Learned Judge of the Orissa High Court in Handibandhu vs. Bhagaban, A.I.R. 1982 ORI 150, held as follows: "10. Sub-sec.(3) of Sec.97 makes it clear that save as otherwise provided in sub-sec.(2) the provisions of the Principal Act as amended in 1976, would be applicable to all suits, proceedings, appeals or applications pending at the commencement of the Act or instituted or filed thereafter notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement. This provision expressly takes away the right of appeal. It clearly indicates that the Legislature was conscious of the principle that rights and causes of action vested prior to the coming into force of an amending enactment are saved unless taken away expressly or by necessary implication. To meet this situation, sub-sec.(3) of S.97 has been enacted expressly taking away the vested right. The instant case is not covered by the specific savings made in sub-sec.(2) of S.97. It is, therefore, not possible to accept the argument advanced on behalf of the appellant that S.97(3) does not affect the vested right of appeal. The contention that S.6 of the General Clauses Act still preserves the right of appeal is not acceptable. Section 6 of the General Clauses Act itself provides "unless a different intention appears, the repeal shall not affect any right, privilege or obligation or liability acquired or incurred under any enactment so repealed." Since sub-section (3) of S.97 of the Amendment Act indicates a different intention, Sec.6 of the General Clauses Act cannot be pressed into service. My conclusion, therefore is that the provisions of S.102, C.P.C., as amended in 1976, are retrospective and the second appeal having been filed after the commencement of the Amendment Act of 1976 is not maintainable." 16. In view of the above discussion, this Court sustain the objections raised by the Registry stating that the unnumbered Second Appeals are not maintainable and so, they are rejected. C.M.P.SR Nos.91855 and 91859 of 2002 are also rejected.