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2005 DIGILAW 73 (HP)

PARTAP SINGH v. SATYA DEVI

2005-03-28

M.R.VERMA

body2005
JUDGMENT M.R. Verma, J. :- This order is meant to dispose of the preliminary objection raised by the learned Counsel for the respondent regarding maintainability of the present appeal. 2. The facts relevant for the purpose of disposal of the said preliminary objection are that predecessor-in-interest of the respondents-plaintiffs (hereinafter referred to as the respondents) instituted a suit against the appellant-defendant (hereafter referred to as the appellant) for rendition of accounts and recovery of the due amount i.e. Rs. 15,000/-. The trial Court decreed the suit for rendition of accounts to the extent of >Rs. 1,000/-. The respondents preferred an appeal which was allowed by the learned District Judge, Hamirpur and a decree for recovery of Rs. 14,000/- along with interest was passed in favour of the respondents against the appellant. The aggrieved appellant preferred the present appeal. The Memorandum of Appeal was initially filed on 22.12.2001, however, it was held under various objections including being unstamped and was returned to the learned Counsel for the appellant on 3.1.2002 for removal of the objections and was refiled on 25.7.2002. When this appeal came up for admission, the preliminary objection regarding maintainability of the appeal was raised. 3. I have heard the learned Counsel for the parties on the said preliminary objection. 4. It was contended by the learned Counsel for the respondents that in view of the provisions of Section 102 of the Code of Civil Pr6cedure (hereinafter referred to as the Code) as they are in force after the amendment of the Code by the Amending Acts of 1999 and 2002 a second appeal shall not lie in a case where the subject matter is for recovery of money not exceeding Rs. 25,000/-. Therefore, the value of the subject matter of the suit being less than Rs. 25,000/-, it is not maintainable. 5. On the other hand, the learned Counsel for the appellant contended that the appeal, no doubt, was filed on 25.7.2002 i.e. after the enforcement of the amended provisions of the Code but it was initially filed before such enforcement, therefore, Section 102 of the Code as amended has no application to the maintainability of the present appeal which will be governed by the unamended provisions wherein there is no bar in filing an appeal even in a case where the subject matter of the suit for recovery is less than Rs. 25,000/-. 25,000/-. To substantiate his contention, the learned Counsel has relied on Mannan Lal v. Chhotka Bibi (dead) by her legal representatives and others, AIR 1971 SC 1374. 6. It may be pointed out here that there is no dispute that in the suit the original plaintiff Milkhi Ram (since deceased and represented by his Legal Representatives, the respondents) laid a claim against the appellant on the ground that he was entitled to recover a sum of Rs. 15,000/- from him on account of sale of his land by the appellant as his General Power of Attorney and thus evidently the suit is for recovery of a sum less than Rs. 25,000/-. It is also not in dispute that a second appeal in a decree in such a suit will not lie on and after 1.7.2002 when the Code of Civil Procedure (Amendment) Act, 2002 (hereinafter referred to as the Amending Act of 2002) came into force. The dispute is as to whether the provisions of Section 102 of the Code as amended by the Amending Act of 2002 are or are not applicable to the present appeal. 7. In Manna Lais case (supra, the Memorandum of Appeal in Special Appeal No. 880 of 1962 was presented by the High Court on 9.11.1962. The High Court directed payment of additional Court fee. The memorandum was thus accepted and registered in January, 1963. Against this background, a question arose before the Apex Court whether there was an appeal pending before the High Court on 12.11.1962 i.e. the date immediately preceding the enforcement of UP High Court (Abolition of Letters Patent Appeals) Act which came into force on 13.11.1962 which abolished the right of such appeal. Against this background and in view of Section 582-A of the Code of Civil Procedure, 1882, the Apex court held as under :- "The above Section therefore, mitigates the rigour of Section 4 of the Court Fees Act and it is for the Court in its discretion to allow a person who has filed a memorandum of appeal with deficient court-fee to make good the deficiency and the making good of such deficiency cures the defect in the memorandum not from the time when it is made but from the time when it was first presented in Court." 8. In view of the above, what can be said is that the present appeal though refiled after removal of objections including that of nonpayment of the Court fee on 25.7.2002 but in view of the Memorandum having admittedly been filed on 22.12.2001, the appeal shall be treated to have been filed on 22.12.2001. However, this conclusion by itself has no bearing on the question of maintainability of the present appeal. 9. Section 102 of the Code as substituted by the Amending Act of 2002 came into force with effect from 1.7.2002. It provides that 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. This Section came to be substituted by virtue of the provisions of Section 11 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 5 of the Amending Act of 2002. Section 16 of the Amending Act of 2002 saves certain appeals from the bar created by Section 102 of the Code and the relevant part thereof reads as under :- "16(2)(a) - The provisions 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." 10. It is clear from a bare reading of the aforesaid provisions that it saves such appeals from the bar created by Section 102 of the Code wherein the subject matter of the suit for recovery of money is not more than twenty-five thousand rupees only if such appeals have been admitted before the commencement of Section 5 i.e. before 1.7.2002. 11. It is not in dispute that the present appeal has not been admitted as yet and at the time of raising of the objection it was listed for admission itself. Therefore, evidently it is not saved from the operation of the provisions of Section 102 of the Code and is, therefore, barred by the statute, hence, not maintainable. 12. The preliminary objection is accordingly disposed of.