Judgment ( 1. ) THE appellant - defendant no. l has directed this appeal under Section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 23. 11. 93 passed by the Ist Additional District Judge to the Court of District Judge, Chhindwara in Civil Appeal No. 2-B/87 decreeing the suit of respondent no. 1 against it by setting aside the judgment and decree dated 14. 10. 1986 passed by the First Civil Judge, Class-1, Chhindwara in Civil Original suit No. 2-B/84 whereby such suit was dismissed. ( 2. ) THE facts necessary to adjudicate this appeal in short are that the plaintiff - respondent no. 1 herein filed money suit against the appellant for recovery of Rs. 10500 in the trial court contending that he being Contractor-is doing the business of transportation of the coal for the appellant subject to acceptance of 1 is tender. In response of the NIT floated by the appellant the respondent no. 1 submitted his tender for transportation of the coal from the directed mines to the destination. He was directed to deposit Rs. 34,000 as earnest money. In this regard rs. 34,000 was permanently deposited with the appellant on dated 5. 2. 1982, out of which the earnest money was deposited. As the respondent no. 1 could not fulfill the vested interest of the official of the appellant, then such official with the connivance of some other Contractor even after accepting the aforesaid tender on dated 22,3. 1982 did not issue the work order to the respondent no. 1. While the respondent no. 1 by spending the huge sum engaged the trucks for the aforesaid work. In the absence of the work order he suffered the loss of Rs, 50,000, on which a notice dated 22. 4. 1982 was given to the appellant by him. The same was replied, vide dated 4. 5. 1982 by the appellant stating that the appellant is ready to issue the work order if the respondent no. I does not proceed for any proceeding in continuation of the said notice. After receiving such reply when the respondent no. 1 contacted the official of the appellant for issuing the work order then he was directed to deposit again Rs. 10,000 as earnest money. The same was deposited by him with the bank - respondent no. 2 and such receipt dated 21. 5. After receiving such reply when the respondent no. 1 contacted the official of the appellant for issuing the work order then he was directed to deposit again Rs. 10,000 as earnest money. The same was deposited by him with the bank - respondent no. 2 and such receipt dated 21. 5. 1985 was submitted in the office of the appellant. Inspite of that no work order was issued to the respondent no.-1, on which the respondent no. 1 again gave a notice dated 4. 10. 1982 to the appellant and respondent no. 2 to refund the aforesaid earnest money of Rs. 10,000 but the same was not refunded on which the impugned suit for recovery of the money was filed by him. ( 3. ) IN the written statement of the appellant, it is stated that in response of the nit dated 4. 1. 1982- carrying out the transportation of coal from Dighinia open cost mines to the Railway Side Parasia, the plaintiff - respondent no. 1 submitted his tender on dated 6.-2. 1982 alongwith the receipt dated 5. 2. 1982 depositing Rs. 34,000 as earnest money in compliance of the terms of the tender form. On opening the aforesaid tender, vide dated 8. 2. 1982 due to difference of the rates such work could not be alloted to the plaintiff-respondent no. 1. Subsequent to this the earnest money of Rs. 34,000 was never claimed by the plaintiff, hence the same was not refunded. Thereafter in response of the another NIT dated 20. 2. 1982 for transportation of the coal from Sethia open caste mines to the directed destination the plaintiff submitted his tender on dated 22. 3. 1982 with a prayer to deposit its earnest money Rs. 10,000/- from the aforesaid Rs. 34,000/- deposited with respect of the earnest money of said earlier tender. Accepting, such prayer the tender of the plaintiff was taken in bid and on opening the same it was accepted as per directed terms and conditions. Thereafter on dated 19. 4. 1982 the work order was issued by the appellant to respondent no. 1. In compliance of the same when the work was not begun, then again by prescribing the time limit to begin the work a modified work order dated 24. 4. 1982 was also issued to respondent no. 1. Inspite it the work was not started with in the prescribed period. 1. In compliance of the same when the work was not begun, then again by prescribing the time limit to begin the work a modified work order dated 24. 4. 1982 was also issued to respondent no. 1. Inspite it the work was not started with in the prescribed period. It is also stated that contrary to the terms of subsequent tender, the entire sum of Rs. 34,000/- of the earnest money of said earlier tender, out of which Rs. 10,000 was adjusted in the second tender on 22 March 1982, was withdrawn in toto by the respondent no 1. In order to rectify such mistake the respondent no. I again deposited Rs. 10,000/- as earnest money, vide dated 21. 5. 1982 and its bank receipt was submitted in the office of the appellant alongwith a covering letter stating that in compliance of the terms he deposited Rs. 10,000/- which has been withdrawn by him and also shown his incapacity to perform the directed work. Accordingly the respondent no. 1 plaintiff has neither fulfilled the terms of the tender nor started the work of the contract, hence in view of such violation of the terms his aforesaid earnest money has been forfeited. In such premises prayer for dismissal, of the suit is made. ( 4. ) IN view of the pleadings of the parties after framing issues the evidence was recorded. On appreciation of the same, the suit of. the plaintiff - respondent no. 1 was dismissed by the trial court. On filing the appeal by respondent no. 1 the same was allowed and by setting aside the decree of trial court his suit was decreed for the sum of Rs. 10,000 alongwith interest and the cost. The same is under challenge at the instance of the defendant no. 1 in this appeal. ( 5. ) THIS appeal was admitted vide order dated 22. 7. 1994 on following substantial question of law:- "whether the finding of the lower appellate court that Ex. D-3 relates to the suit contract given to the plaintiff by the appellant is perverse by reason of the fact that it is not based upon any pleadings or evidence of the plaintiff but on the other hand is contrary to the admission of the plaintiff himself that Ex. D-3 relates to some other work order. " ( 6. D-3 relates to the suit contract given to the plaintiff by the appellant is perverse by reason of the fact that it is not based upon any pleadings or evidence of the plaintiff but on the other hand is contrary to the admission of the plaintiff himself that Ex. D-3 relates to some other work order. " ( 6. ) THE learned counsel of the appellant - defendant no. l Shri Greeshm Jain after taking me with the pleadings, evidence and the exhibited documents argued that the first NIT was floated by the appellant on dated 4. 1. 1982. In response of it with receipt of Rs. 34,000/- dated 5. 2. 1982 the plaintiff submitted his tender on 6. 2. 1982. Due to difference of the rates such work was alloted to some other tenderer vide dated 8. 2. 1982 but thereafter up to 22. 3. 1982 the aforesaid earnest money was not taken away by the plaintiff. Meanwhile the another NIT was floated by the appellant on 20. 2. 1982. In response of it again respondent no. 1 submitted his tender on 22. 3. 1982 with a prayer that its earnest money Rs. 10,000 be adjusted from the amount of earnest money of Rs. 34,000/- deposited for earlier tender. Considering that prayer with a direction to adjust Rs. 10,000/- as earnest money of such second tender was taken into the bid. On opening the same his tender was accepted for the directed work. Accordingly it is apparent that there were two different proceedings were drawn up for inviting two different tenders. In the first proceeding the tender of the plaintiff was not accepted while in the second proceeding his tender was accepted on which the work order was also issued vide dated 19. 4. 1982 (Ex. D/2-A ). The same was modified, vide letter dated 24. 4. 1982 (Ex. D/1-A ). In support of the arguments he also referred Ex. D-4, the terms and conditions of the tender and the contract. According to the terms if work is not carried out by the Contractor within the prescribed period or he shows his incompetency to perform the contract then in such situation appellant had a right to forfeit the earnest money. He further stated that after accepting the tender and before issuing the work order, although the earnest money of the subsequent tender Rs. He further stated that after accepting the tender and before issuing the work order, although the earnest money of the subsequent tender Rs. 10,000 was adjusted from the sum of Rs. 34,000/-deposited as earnest money of earlier tender but the respondent no. 1 has taken away the entire sum of rs. 34,000 on dated 16. 4. 1982 from the office of the appellant and the same was given by the official of the appellant due to some human error. Subsequently, to rectify the aforesaid error respondent no. 1 again deposited Rs. 10,000/- as earnest money with the bank and its receipt alongwith the letter exhibit D-3 was submitted in the office of the appellant on dated 21. 5. 1982. He said that according to the language of this letter the plaintiff has specifically stated that because of some reason he can not carry out the alloted work of the transportation as his engaged dumper- Contractor has run away and also prayed to refund the earnest money. The same could not be refunded as per terms of the tender and the contract. Considering all these aspects the suit of the plaintiff was rightly dismissed by the trial court but by setting aside such decree the appellate court has decreed the suit under wrong premises. With these submissions he prayed for setting aside the decree of the trial court by allowing this appeal. ( 7. ) IN response of the aforesaid arguments appearing counsel of the respondent no. 1 said that the findings of the appellate court for decreeing the suit are based on proper appreciation of the evidence and also is in conformity with law. The same do not require any interference at this stage. He also argued that this appeal is preferred against the money decree of Rs. 10,000 with interest. In view of the bar created by Section 102 of CPC this appeal could not be entertained under section 100 of the CPC and prayed for dismissal of the appeal. ( 8. ) WITH respect of the objection of Section 102 of the CPC. The appellants counsel submitted that this appeal was admitted by framing the substantial question of law before introducing the amended provision of Section 102 and such provision is not made enforceable with retrospective effect. Therefore such objection of the other side is not sustainable. ( 9. ( 8. ) WITH respect of the objection of Section 102 of the CPC. The appellants counsel submitted that this appeal was admitted by framing the substantial question of law before introducing the amended provision of Section 102 and such provision is not made enforceable with retrospective effect. Therefore such objection of the other side is not sustainable. ( 9. ) HAVING heard, I have gone through the record and the impugned judgement ( 10. ) IT is true that after introducing the amended provision of Section 102 of the cpc w. e. f 1. 7. 02 no second appeal shall lie from any decree when the subject matter of the original suit is for recovery of money not exceeding Rs. 25,000. It appears from such amended Act that such provision has not been enforced with retrospective effect. Considering the aforesaid question on earlier occasions in the matter of Food Corporation of India and another Vs. Munnilal Singh and another reported in AIR 2003 Madhya Pradesh 66. The same was answered by this court as under: - "now the question remains whether any appeal which was pending on 1. 7. 2002 will be governed by the aforesaid S. 102 of the Code of Civil Procedure. Code of Civil Procedure (Amendment) Act 2002 under relevant provision is S. 16 (2), which reads as under:-"16 (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub - sec (1) has taken effect, and without prejudice to the generality of the provisions of S. 6 of the General Clauses Act 1887:- (a) the provisions of S. 102 of the principal Act as substituted by S. 5 of this Act shall not apply to or affect any appeal which had been admitted before the commencement of S. 5; and every such appeal shall be disposed of as if S. 5 had not come into force. " The aforesaid clause provides that the appeals which are pending on 1. 7. 2002 and already admitted before commencement of S. 5 (substitution of S. 102) are to be disposed of as if S. 5 has not come into force. ( 11. ) IN view of the aforesaid precedent of this court, on examining the case at hand, it is apparent that this appeal was filed on dated 14. 2. 7. 2002 and already admitted before commencement of S. 5 (substitution of S. 102) are to be disposed of as if S. 5 has not come into force. ( 11. ) IN view of the aforesaid precedent of this court, on examining the case at hand, it is apparent that this appeal was filed on dated 14. 2. 1994 and the same was admitted by framing the substantial questions of law on 22. 7. 1994 long before introducing the new provision of Section 102 of CPC. ( 12. ) EVEN otherwise it is settled provision of law that-right to appeal is always accrued by the parties on the very date of initiation the suit, claim or the proceeding in the trial court and such right could not be taken away from the parties unless the subsequent enactment is made by the legislature, for taking away such right of the parties. Such question was answered by the Supreme Court presided over by five Judges in the matter of Garikapati Veeraya Vs. N. Subbish Choudhary and others reported in AIR 1957 SC 540 (V 44 C 83 July in which it was held as under : -. 23. From the decisions cited above the following principle clearly emerge: (i) That the legal pursuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vetted right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) 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. 24. In the case before us the suit was instituted on April 22,1949 and on the principle established by the decisions referred to above the right of appeal vested in the parties thereto at that date and is to be governed by the law as it prevailed on that date that is to say, on that date the parties acquired the right, if unsuccessful, to go up in appeal from the sub-court to the High court and from the High Court to the Federal Court under the federal Court (Enlargement of Jurisdiction)Act, 1947 read with ci. 39 of the Letters Patent and Ss. 109 and 110 of the Code of civil Procedure provided the conditions thereof were satisfied. The question for our consideration is whether that right has been taken away expressly or by necessary intendment by any subsequent enactment That respondents to the application maintain that it has been so taken away by the provisions of our Constitution. ( 13. ) IN view of the aforesaid, it is held that the bar created under Section 102 of the CPC is not applicable to the present appeal, although the valuation of this appeal is below Rs. 25,000/ -. Accordingly, the appeal is held to be maintainable. ( 14. ) COMING to consider the circumstances to answer the aforesaid framed substantial question of law, it is noted that on extending the opportunity to adduce evidence the plaintiff has examined as many as two witnesses Pradeep Kumar poddar (PW-1), plaintiff himself and Suresh S. Sirali (PW-2), the Administrative officer of the appellant-defendant no. 1. ( 15. ) IN the deposition of Pradeep Kumar Poddar (PW-1) he categorically stated that his earlier tender deposited with the earnest money of Rs. 34,000/- was not accepted. Thereafter he submitted the second tender with a prayer to adjust the earnest money from the amount of earnest money deposited for the earlier tender. By accepting, such prayer his second tender was accepted. He further said that after accepting the tender when the work order was not issued then he gave a notice, Ex. P-1 dated 22. 4. 1982 to the appellant. The same was replied on by the defendant no. 14th May 1982, Ex. P-2 and thereafter he deposited Rs. By accepting, such prayer his second tender was accepted. He further said that after accepting the tender when the work order was not issued then he gave a notice, Ex. P-1 dated 22. 4. 1982 to the appellant. The same was replied on by the defendant no. 14th May 1982, Ex. P-2 and thereafter he deposited Rs. 10,000/-with the Union Bank of India and also proved its certificate dated 8th February 1983 (Ex. D/3) showing such deposit with the bank on dated21st May 1982. The aforesaid deposition of the plaintiff- respondent no; 1 shows that there were two different tenders submitted by him, out of which first tender was not accepted he accepted the existence and averments of Ex. D-4 in para 7 of his cross examination, in which the terms and conditions of the tender and contract are mentioned. As per page no. 2 of Ex. D-4 subsequent tender proceeding was floated on 20. 2. 1982. As per terms mentioned on page no. 9 of Ex. D-4 Rs. 10,000/- as earnest money was deposited by the respondent no. 1. It is undisputed fact between the parties that such earnest money of Rs. 10,000 was adjusted at the request of respondent no. l from the sum of Rs. 34,000 deposited as earnest money of the earlier tender. In such premises, it has been revealed that there were two different NIT, one was floated in the month of January 1982 and opened on 8th February 1982 and the second tender was floated on 20th February- 1982 and opened on 22. 3. 1982. The case of the respondent no. 1 stating that the work order was not issued to him by the defendant no. 1, does not appear to be trustworthy as in para 6 of the deposition the plaintiff himself has admitted his signature on the work order dated 19. 4. 1982, Ex. D-2-A and modified work order dated 24. 4. 1982 Ex. D-1-A. Such admission of the plaintiff - respondent no. 1 by virtue of Section 58 of the Evidence Act is binding against the plaintiff. On perusing ex. D-2-A and Ex. D-1-A. It is apparent that same were issued by the appellant to the plaintiff - respondent no. 1 as work order to carry out the work. In compliance of the such direction of work order dated 19. 4. 1982 (Ex. On perusing ex. D-2-A and Ex. D-1-A. It is apparent that same were issued by the appellant to the plaintiff - respondent no. 1 as work order to carry out the work. In compliance of the such direction of work order dated 19. 4. 1982 (Ex. D/2-A), when the work was not started then by Ex. D-l dated 24. 4. 1982 in continuation of the earlier work order with some additional direction to perform the work was given to the respondent no. 1. According to Ex. D-l-A the date of commencement of the work was directed to be reckoned from the 10th day of issuance of such subsequent work order and the contract period was fixed five months therefrom ( 16. ) IT appears from deposition of Suresh S. Sirali (PW-2), that before issuing the work orders, the amount of Rs. 34,000/- deposited as earnest money for the earlier tender was taken away in toto by the respondent no 1 from the office of the appellant, but subsequently again Rs. 10,000 was deposited by the plaintiff on dated 21. 5. 1982 with the bank. Such witness further stated that subsequent to 21. 5. 1982 issuance of fresh work order was not necessary as such Rs 10. 000 was deposited with respect of the earnest money for the accepted subsequent tender and also to rectify the mistake by which the entire sum of Rs. 34,000/-was taken away by the respondent no. 1. ( 17. ) PRADEEP Kumar (PW-1) the plaintiff in para 7 of his deposition has categorically admitted that Ex. D-3 was written by him. As per endorsement on it the same was submitted in the office of the appellant on dated 21. 5. 1982 by the respondent no. 1. This letter was addressed to the General Manager of the appellant with a prayer to refund the earnest money and also shown respondent no. 1 his disability in performing the alloted work in following words :- ( 18. ) THE aforesaid letter itself shows that the plaintiff submitted his tender for dighawali Mines but that work was not alloted to him on which he took away his earnest money deposited with respect of such earlier tender but money kept with respect of the earnest money of subsequent tender was also taken by the respondent no 1 Thereafter he again deposited such earnest money. It shows that the plaintiff himself has bonafidely deposited the earnest money of Rs. 10,000 with respect of subsequent tender to rectify the mistake as the same was withdrawn under some mistake. The aforesaid letter further speaks that due to some reason the plaintiff can not carry out the alloted work as his Dumper Contractor had run away and also he prayed to refund his earnest money. Looking to the language of this letter the only inference can be drawn that the plaintiff - respondent no. 1 had not started the work alloted by Ex. D-1-A and D-2-A and thereafter even after depositing the earnest money again on dated 21,5. 1982 he disclosed his incapacity to earn out the alloted work that is why he prayed the appellant for refunding the earnest money. According to the term no. 20 of the tender if the work is not carried out in terms and conditions of the tender and the work order then appellant has a right to forfeit the earnest money. ( 19. ) AS per terms of the contract and the tender mentioned in Ex. D-4, on failure of the respondent no. 1 to perform the contract the appellant had a right to forfeit the deposited earnest money and in such premises the approach of the trial court appears to be just and proper by which the suit of the respondent no. 1 was dismissed but on appeal, the appellate court has committed error in decreeing the suit against the appellant on reconsideration. Such approach of the appellate court is not sustainable and liable to be set aside. ( 20. ) IT is settled proposition of law that the plaintiff is bound to prove his case on his own leg. He can not get the advantage of any weakness of the defendant for getting the decree in his favour. Although in the present matter no witness has been examined on behalf of the present appellant - defendant no. 1, but merely on this ground no adverse inference could be drawn against the appellant for setting aside the finding of the appellate court holding the letter, Ex. D/3 to be related with suit transaction and not with any other transaction. In view of Section 58 of Evidence Act on taking into consideration the admission of the respondent no. 1 in his deposition with respect of Ex. D/3 to be related with suit transaction and not with any other transaction. In view of Section 58 of Evidence Act on taking into consideration the admission of the respondent no. 1 in his deposition with respect of Ex. D/3 the approach of the appellate court about this document do not appear to be contrary to the admission of respondent no. 1. ( 21. ) IN the aforesaid premises, the framed question is answered, accordingly holding that there were two different tenders were submitted by the respondent no. 1 out of which his first tender was not accepted while the second tender of the plaintiff was accepted on 22. 3. 1982 and in connection of this second tender, Ex. D-3 letter was submitted by the respondent no. 1 in the office of the appellant stating that he could not carry out the alloted work, on which the earnest money of Rs. 10,000 was forfeited by the appellant as per term no. 20 of the tender mentioned at the backside of page no. 4 of Ex. D/4. In such premises, the respondent no. 1 did not have right to get refund of the earnest money of Rs. 10,000/ -. ( 22. ) IN view of the aforesaid, answer of the question the judgment and decree passed by the appellate court deserves to be and is hereby set aside and the judgment and decree of the trial court dismissing the suit of respondent no. 1 is hereby restored. The respondent no. 1 shall bear his own cost "of this litigation and also pay the costs of the respondent no. 1 throughout. The counsel fee is quantified as per schedule. In pursuance of this judgment, the appellant shall be entitled to get refund the sum alongwith the interest at the prevalent banking rate from the date of payment till its realization from the respondent no. 1. if the same was deposited by the appellant under direction or execution of the impugned decree and withdrawn by the respondent no. 1. The decree be drawn up accordingly. ( 23. ) THE appeal is allowed with aforesaid observation as indicated above. Appeal allowed.