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2003 DIGILAW 119 (RAJ)

MANGI LAL v. KRISHI UPAJ MANDI

2003-01-28

B.PRASAD

body2003
Judgment B. PRASAD, J. ( 1 ) HEARD these appeals are filed against the orders of the courts below, wherein, the valuation of the suit was less than Rs 25,000/- The valuation being less than Rs 25,000/- today when these appeals are being considered as second appeals, the question arises as to whether such appeals can be entertained or not ( 2 ) LEARNED counsel for the petitioner in these two appeals has urged that the basic question which requires consideration of this court is the import of Section 6 of General Clauses act, 1897 (hereinafter referred to as general clauses Act, 1897) ( 3 ) ACCORDING to the learned counsel for the appellant, as and when the lis starts, the right of appeal, if provided at that time accrues to the litigant as a vested right. In terms of amendment to the Code of Civil Procedure as introduced in 1999 and 2002, there had been no attempt by the Legislature to take away any vested right. Section 16 of the Code of Civil procedure (Amendment) Act, 2002 (hereinafter referred to as amendment of 2002) saves section 6 of General Clauses Act in its generality. ( 4 ) IN the aforesaid background, learned counsel for the appellant submits that as and when an appeal was presented to the High court, the right which was saved to the appellant by virtue of Section 6 of the General clauses Act, came into operation. The term "admitted" as used in Section 5 of the Amendments of 2002, is a fresh event. Word "admission" is not used very frequently in Civil Procedure Code The term "admission" was used in Order 41 Rule 19 CPC. It was when the appeal was re-admitted after its rejection in default. ( 5 ) THE learned counsel for the appellants submits that anything which has a conotation of admission, in Rajasthan High Court Rules, would not be relevant for determining the import of term "admission" as occuring in the amendment in Civil Procedure Code made in 2002 and 1999. An appeal having been filed or a right having been there to file an appeal prior to amendments cannot be taken away with reference to the interpretation or understanding of the Rajasthan High Court Rules. An appeal having been filed or a right having been there to file an appeal prior to amendments cannot be taken away with reference to the interpretation or understanding of the Rajasthan High Court Rules. Thus, the learned counsel for the appellant urges that having filed an appeal, it should be deemed that the appeal has been admitted and a right which has been understood to have been accrued in terms of Section 6 of General Clauses will save the appeal from being hit from provisions of section 16 (2) (a) of the Amendment of 2002 ( 6 ) LEARNED counsel for the appellant further urged that the terms "admission" further occurs before the beginning of Rule 9 of Order 41 CPC. Here, it has been provided as a caption for following orders describing "procedure on admission of appeals". It would therefore, means as to what procedure will be adopted by the court concerned after an appeal is admitted. ( 7 ) LEARNED counsel for the appellant urged that the term "admitted/admission" has not been used in Rule 9 or other rules of this part of CPC. What has been described in these rules is a particular procedure for hearing. Rule 11 provides that an appeal is dismissed without issuing notice. Rule 12 of Order 41 provides procedure, when the appeal is not dismissed under Rule 11 A notice is issued and the appeal is set for hearing In all these provisions, the term "admission" has not been used. The legislature has not thought it proper to use word "admission" here. It will imply that it had no intention of importing the meaning of the term "admission" as it occures in the Rajasthan High court Rules. The court will not make an endeavour to interject the term "admission" at this stage, to the provisions of Civil Procedure code. If such an attempt is made, the saving clause as contained in Section 16 of the amendment of 2002 would bar an appeal. ( 8 ) LEARNED counsel for the appellants further submitted that vested rights are not taken away unless there is an express provision He places reliance on the following paragraph of a decision in the case of ms. Hoosein Kasam dada v. The State of Madhya Pradesh and ors. :-"a right of appeal is not merely a matter of procedure. It is a matter of substantive right. Hoosein Kasam dada v. The State of Madhya Pradesh and ors. :-"a right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by, the inferior court. Such a vested right 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. " ( 9 ) THE last quetion raised by the learned counsel for the appellant is that a vested right accrued in him, the moment the lis started. The lis started, when the suit was filed and the suit was filed on 5-1-1987. On this date, the provisions regarding a second appeal as it stood in Civil Procedure Code were as under :-"100. Second Appeal (1) Save as otherwise expressly provided in body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question; provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. ( 10 ) I propose to decide the last objection first. ( 10 ) I propose to decide the last objection first. ( 11 ) THE provision of CPC narrated hereinabove makes it clear that High Court gets jurisdiction to hear an appeal finally when the substantial question of law is framed Unless, a substantial question of law is framed in a second appeal, the court does not get a jurisdiction to hear the appeal. Right of hearing to the respondent will only accrue to the respondent after issuance of notice. Process of framing the substantial question of law and issuance of notice, is known in common parliance in the High Courts of the country, as admission of appeal. ( 12 ) FRAMING of substantial question of law and issuance of notice to the other party has universal acceptance in the legal circles of this country, as far as second appeals are concerned. As and when appeals are entertained in High Courts, the term "admission" is used. At this stage, to understand the purport of the word "admission" as used in the Amendment of 2002, it would not be unfair to look into these practices which are commonly understood in the legal circles. May be that the term "admission" is used in Civil Procedure Code only after the amendment or prior to the amendment in the initial stage at Rule 9 of order 41 but the word "admission" has been used and understood widely It is understood in relation to a stage when the appeal is accepted by the court for hearing. Even, the purport of Rule 11 is to the effect that after preliminary hearing in an appellate court, fate of the appeal is judged after preliminary hearing. If it is considered fit for the issuance of notice, then the stage of Rule 12 of Order 41 CPC comes, otherwise, the appeal is rejected. The process adopted in or after Rule 11 of Order 41 CPC is also after preliminary hearing which is in consonance with the High Court Rules. In order 41, existence of a heading prior to rule 9 does not take away the import of admission which could be understood by joint reading of Order 41, Rule 9 and High Court rules. ( 13 ) RULE 11 and Rule 12 of Order 41 of the Civil Procedure Code is quoted herein below for ready reference"11. In order 41, existence of a heading prior to rule 9 does not take away the import of admission which could be understood by joint reading of Order 41, Rule 9 and High Court rules. ( 13 ) RULE 11 and Rule 12 of Order 41 of the Civil Procedure Code is quoted herein below for ready reference"11. Power to dismiss the appeal without sending notice to lower court the Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal. (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. (4) Where an Appellate Court, not being the High Court, dismisses an appeal under Sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. 11-A. Time within which hearing under Rule 11 should be concluded. Every appeal shall be heard under Rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed. 12. Day of hearing appeal. (1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal. (2) Such day shall be fixed with reference to the current business of the court. ( 14 ) THE term "admission" can be read in these provisions of Civil Procedure Code because the Legislation cannot be considered to be non-workable. To make it workable, it is necessary to read the term "admission" in these rules. The present appeals have not been admitted so far in terms of High Court rules. It has not been also heard as required by Rule 11 of Order 41 CPC, then neither the question of dismissal or issuance of notice arises so far. There had been no preliminary hearing after filing of these appeals. The appeals were adjourned without the application of mind of the court. It has not been also heard as required by Rule 11 of Order 41 CPC, then neither the question of dismissal or issuance of notice arises so far. There had been no preliminary hearing after filing of these appeals. The appeals were adjourned without the application of mind of the court. Whether a substantial question of law could be framed or not has not been considered. Thus, there being no occasion to the court for holding any preliminary hearing as provided in Rule 11 of Order 41 CPC or in terms of the Rajasthan High Court Rules or under Section 100 CPC, it cannot be said that these appeals have been admitted. Having not been admitted, the pecuniary valuation being less than Rs 25,000. 00. these appeals when considered after Amendment of 2000 are barred under Section 102 of CPC. These appeals are as such, cannot be considered to be maintainable as second appeals ( 15 ) THE time of hearing under Rule 11 is sixty days Though, no time is prescribed for any hearing in the High Court for initial hearing but then, it has to be heard in a reasonable time. Having not been subjected to preliminary hearing, no right can be seen to have accrued to the appellants. In facts, if delay does any thing to a litigation, it tends to frustrate it. It cannot be seen to create a right in the appellant. ( 16 ) REFERENCE can be made here to a supreme Court decision in the case of roop singh through LRs v. Ram Singh Through lrs, wherein, Honble Supreme Court has considered the question of jurisdiction of High court as to when does High Court gets jurisdiction in second appeal. Honble Supreme Court has held as under:-"under Section 100 CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeal which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact. " ( 17 ) THE purport of this finding of Honble supreme Court is that unless there is a substantial question of law, High Court does not get a jurisdiction. That being the position, before a jurisdiction is conferred of appellate court, there cannot be seen a vested right in any litigant. " ( 17 ) THE purport of this finding of Honble supreme Court is that unless there is a substantial question of law, High Court does not get a jurisdiction. That being the position, before a jurisdiction is conferred of appellate court, there cannot be seen a vested right in any litigant. Vested right is controlled by the powers of the appellate court. The appellate court being High Court, it gets jurisdiction only after framing of substantial question of law. That being so, the vesting is not absolute It is contingent on framing of substantial question of law. Substantial question of law having not been framed before the amendment, the right of second appeal cannot be considered to be indefeasible. ( 18 ) THIS Court in Unna Ram v. Smt. Geeta Devi has considered that question and has held that no appeal would be maintainable where the suit was not exceeding Rs. 25,000. 00, where the case has not been admitted prior to 1-7-2002 in view of the Amendment of 2002 and has held that no such appeal would be maintainable. The purport and import of section 6 was considered by this court in the aforesaid case and has come to the conclusion that in view of Supreme Court decision reported in Union of India and Ors. v. India charge Chrome and Anr4, wherein, it has been observed that mere pendency of an application does not govern the law applicable, it has been held that it would be the relevant law prevailing on the date of decision making which has to be applied. Thus, in view of the law laid down by Supreme Court and relied by this court also, no appeal can be said to be available to the appellants in the facts and circumstances of this case. ( 19 ) LEARNED counsel for the appellants has prayed that these appeals may be treated as revisions. The learned counsel is granted one week time to take appropirate steps. Put up after two weeks. Appeal dismissed as not maintainable.