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2007 DIGILAW 747 (KAR)

NITYANANDA AUTO STORES v. BIRLA TYRES

2007-11-16

V.JAGANNATHAN

body2007
JUDGMENT V. Jagannathan, J. Heard the learned Counsel for the appellant on the question of maintainability of this appeal. 2. Following the amendment brought to the Karnataka High Court Act, 1961, the Karnataka Small Causes Courts Act, 1964 and the Karnataka Civil Courts Act, 1964, by the Karnataka Act No. 26 of 2007, which has been published in the gazette on 28-8-2007, the office has raised an objection with regard to the maintainability of this appeal as the value of the suit property is more than Rs.1,00,000/- and as such, in view of the change in the pecuniary jurisdiction affected by the amending act, the office has opined that this appeal is not maintainable before this Court. 3. The learned Counsel for the appellant Shri Vijay Krishna Bhat submitted that the office objection is not sustainable because once a suit is instituted, it also implies that all the rights of appeal then in force are preserved to the parties thereto till rest of the carrier of the suit and he further contended that the right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exits as on and from the date the lis commences and therefore, the said vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. Relying on the above proposition of law laid down by the Apex Court in the case reported in AIR 1957 SC 540 and also drawing support from another decision of Calcutta High Court reported in AIR 1977 Calcutta 43, it was contended by the learned Counsel that as the right of appeal cannot be taken away, the present appeal that is filed will have to be heard by this Court and as such, the office objection will have to be over ruled. 4. Having thus heard the learned counsel and also taking note of decisions cited and law laid down therein, I am unable to agree with the contentions put forward for the following reasons. 5. The amending Act No. 26/2007 by which pecuriary limits have been raised as indicated in Section 4 of the Amending Act, in the cause for the office to raised the objection as mentioned above. 5. The amending Act No. 26/2007 by which pecuriary limits have been raised as indicated in Section 4 of the Amending Act, in the cause for the office to raised the objection as mentioned above. Section 5 of the Amending act reads as under: Pending cases not to be affected: Notwithstanding anything containing in the Act, all suits, appeals or revision and other proceedings connected therewith pending before the High Court, District Court, Court of Civil Judge (Senior Division), Civil Judge (Junior Division) and Small Causes Court. On the date of commencement of this Act shall be continued and disposed on by the respective Courts in which they are pending as if the amendment made under this Act has not been made”. 6. It is therefore clear from a reading of Section 5 that only in respect of those suits, appeals or revision that are pending before the Courts mentioned in Section 5, as on the date of commencement of the Amending Act, such suits, appeals, or revisions shall have to be continued and disposed of by the respective courts in which they are pending. In other words, if no such appeal was pending before this Court as on the date of commencement of the Amending Act, and if the appeal has been filed before this Court subsequent to the date of commencement of this Act, such appeals will have to be decided by the Court which has got the jurisdiction by virtue of the pecuniary limits having been modified by the amending act. 7. Even in the two decisions cited by the learned Counsel for the appellant, it has been made clear that though the vested right of appeal comes into existence as on and from the date of the lis, yet, the Apex Court has also observed at para-23 in the case of Garikapati Veeraya Vs. N. Subbaiah Choudhry and others ( AIR 1957 SC 540 thus: “This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise”. Even in the case of Taramoni Dasi Vs. N. Subbaiah Choudhry and others ( AIR 1957 SC 540 thus: “This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise”. Even in the case of Taramoni Dasi Vs. Kalidasi Mahji and Others (AIR 1977 Calcutta 43), a Division Bench of the Calcutta High Court has observed thus: “The legislature can take away such vested right by way of amendment and if such vested right is taken away then the forum will be changed and the forum will be determined according to the provisions of the Amendment Act”. 8. In view of the aforesaid principles laid down by the Courts and Section 5 of the Amending Act also mentioning in clear terms that it is only those appeals which were pending on the date of commence- ment of the Amending Act, shall be continued and disposed of by the respective courts, it implies that the appeals that are filed subsequent to the date of commence- ment of the Act will have to be decided by the Court which has got pecuniary jurisdiction to decide the same in view of the changes brought about by the Karnataka Amendment Act No.26/2007. For the aforesaid reasons, the office objection raised is sustained and this appeal therefore will have to be filed before the concerned District Court. Office is directed to return the papers to the appellant and the same shall be filed within fifteen days of the receipt from this Court, before the concerned Court and the question of limitation in so far as filing of appeal is concerned shall not come in the way. The appeal is disposed of accordingly.