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PETITIONER: LAKSHMI NARAIN

       Vs.

RESPONDENT: FIRST ADDITIONAL DISTRICT JUDGE,ALLAHABAD

DATE OF JUDGMENT: 20/12/1962

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1964 AIR  489            1964 SCR  (1) 362  CITATOR INFO :  R          1970 SC 878  (9)

ACT: Transfer  of  Appeal-Power  of  High  Court-Enhancement   of Jurisdiction  of  District Court-Transfer  of  first  appeal pending  in High Court to District  Court-Validity-Power  of District  Court to hear the appeal-Code of Civil  Procedure, 1908  (Act  V  of 1908) s. 24 (1)  (a)-U.   P.  Civil  Laws, (Reforms  and Amendment) Act, 1954 (U.P. 24 of 1954),  s.  3 (1).

HEADNOTE: The  U.  P. Civil Laws (Reforms and  Amendment)  Act,  1954, amended  s. 21 (1) (c) of the Bengal, Agra and  Assam  Civil Courts  Act,  1887, so as to enable the District  Courts  to hear  first appeals valued up to Rupees ten thousand and  by s.  3  (1)  provided  that  any  proceeding  instituted   or commenced  in "any court prior to the commencement  of  this Act, shall, not  withstanding any amendment  herein     made continue to be heard and decided by such Court."  The appellant  brought  a suit  in the Civil  judges  court  for possession of certain properties.That suit was dismissed  on November 27, 1951.  He preferred a first appeal to the  High Court  on  February 8,1952.  That  appeal;  was  transferred under  s. 24 (1) (a) of the Code of Civil Procedure  by  the Chief Justice in Chambers and without notice to the parties, to  the  District  judge  of  Allahabad  for  hearing.   The appellant  appeared  before that Court and raised  a  preli- minary  objection  as to the jurisdiction of that  court  to hear   the  appeal.   The  objection  was  overruled.    The appellant moved the High Court under Art. 226.  Single judge who  heard the petition dismissed it in limine relying on  a decision of the Division Bench.  Appeal against the decision was summarily dismissed by the Division Bench. Held,  that under s. 3 (1) of the Act, the High Court  alone was  Competent to hear the appeal pending before it; and  by transferring the same to the District Court it had failed to give effect to the concluding words of the section. Section  24 of the Code of Civil Procedure  postulates  that

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the  Court  to  which  an  appeal  is  transferred  must  be competent 363 to  dispose of it.  In the face of s. 3 (1) of the Act,  the District Court was not competent to hear the appeal. Although  the  object of the Act was to give relief  to  the High Court, it was clear that the Legislature did not  grant that relief in respect of pending first appeals. Held,  further,  that  no costs can  ordinarily  be  granted against a court and the High Court was in error in doing so. Sarjudei v. Rampati Kunwari, 1962 All.  L. J. 544 and  Cyril Spencer v. M. H. Spencer, 1955 All.  L. J. 307, considered.

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 784 of 1962. Appeal  from the judgment and order dated July 13, 1962,  of the Allahabad High Court in Special Appeal No. 82 of 1962. M.   C. Setalvad, Attorney-General for India and B.    C. Misra, for the appellant. K.   S. Hajela and C. I-.  Lal, for respondent No. 1. J. P. Goyal, for the intervener. 1962.   December,  20.   The  Judgment  of  the  Court   was delivered by SINHA,C.  J.-When we had finished the hearing of the case on December  13,  1962, we intimated to the  parties  that  the appeal was allowed and that our reasons would follow. The  only  question  for determination  in  this  appeal  is whether  under  the  provisions  of the  U.  P.  Civil  Laws (Reforms  and  Amendment) Act (U. P. XXIV  of  1954)  -which hereinafter will be referred to as the Act-a first appeal in a suit decided prior to the enactment of the Act,  involving a valuation of less than ten thousand rupees could be 364 transferred for hearing and disposal to a District ,Judge or Additional  District judge.  The First  Additional  District judge, Allahabad, is the first respondent in this appeal and appeared   through  counsel  at  the  hearing.   The   other respondents,  who were the respondents in the  main  appeal, have   not  entered  appearance  and  apparently   are   not interested in the result of this appeal. In  order to bring out the points in controvery between  the parties  it is necessary to state the following facts.   The appellant,  as plaintiff, instituted suit No. 7 of  1949  in the  Court  of the Civil judge, Mathura, for  possession  of certain properties, on January 26, 1949, against respondents two  and three.  That suit stood dismissed on  November  27, 1951.   The unsuccessful plaintiff preferred a first  appeal to  the  High,Court of Judicature at Allahabad, and  it  was numbered  First  Appeal No. 37 of 1952.   The  First  Appeal aforesaid  remained pending in the High Court from  February 8, 1952, when it was instituted, until April 23, 1952,  when it  was  notified to the parties that the  appeal  had  been transferred  to the Court of the District judge,  Allahabad, for  hearing.   This order was passed by the  learned  Chief Justice  in  Chambers, under s. 24 (1) (a) of  the  Code  of Civil  Procedure,  on his own motion without notice  to  the parties  concerned.   The order of the Chief justice  is  in these terms :               "It is hereby ordered that first appeals  men-               tioned in the list annexed hereto  transferred               under orders of this Court to the Court of the               District judge Allahabad, are now  transferred               from  that  Court  to the  Court  of  the  1st

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             Additional District Judge at Allahabad." In  the  list  annexed  is  the  appeal  now  in,  question, alongwith  a  number of other appeals.  This  order  of  the learned Chief justice appears to have been passed in view of the recent legislation, the Act aforesaid., 365 which amended a large number of statutes, one of them  being the  Bengal, Agra and Assam Civil Court Act (XII  of  1887). Section  21,  cl.  (a) of sub-s. (1) was amended  so  as  to substitute ten thousand rupees’ for "five thousand  rupees’, thus enabling District Courts to entertain first appeals  up to  a  valuation  of ten  thousand  rupees.   The  appellant appeared   before  that  Court  and  raised  a   preliminary objection  as to the jurisdiction of that Court to hear  the appeal.  The Court overruled the preliminary objection as to its jurisdiction, by its order dated May 31, 1962, observing that  it could not contravene the orders of the  High  Court and  that  the remedy of the appellant, if any, lay  in  the High  Court itself.  Thereupon the appellant moved the  High Court under Arts. 226 and 227 of the Constitution for a writ of certiorari for calling for the records of the appeal, and for  a writ of prohibition restraining the first  respondent from  hearing  the  appeal.  The writ  petition  was  placed before  a single judge of that Court (Dwivedi, J.),  who  by his  order  dated,July 11, 1962, dismissed the  petition  in view  of  a  Division Bench ruling of the same  Court  in  a judgment dated November 14, 1961, in the case of Sarjudei v. Rampati  Kunwari  (1).   The learned  Single  judge  rightly pointed out that he could not go behind the decision of  the Division Bench, even though it was pressed upon him that the decision  required  reconsideration.   The  appellant   then preferred  an  appeal from the order of the  learned  Single judge,  dismissing the appeal in limine.  The  appeal  being Special Civil Appeal No. 82 of 1962, was dismissed summarily on July 20, 1962, on the ground that the question raised  in the  appeal  was concluded by the decision of  the  Division Bench  aforesaid.  The Division Bench refused to  refer  the question  to  a larger bench and preferred  to  follow  that decision.   The appellant moved the High Court  for  special leave to appeal to this court which was granted, and that is how  the appeal has come to this Court.  The Division  Bench pointed out that though (1)  1962 All.  L.J. 544, 366 the question had "been exhaustively dealt with by this Court in  the case of Sarjudei v. Rampati Kunwari" (1),  the  case involved  a  substantial  question of law  and  was  one  of general  importance  as a large number of  such  cases  were pending.  In view of those considerations, the Court granted the certificate under Art. 133 (1) (c) of the  Constitution. Curiously  enough the Court granted costs to  the  appellant against the First Additional District judge, Allahabad,  who was  the  opposite party No. 1 in the High  Court  in  those proceedings. Before  we  deal with the main point in controversy,  it  is necessary  to  point  out  that this Act  had  come  up  for consideration  before a Division Bench (Agarwala and  Mulla, JJ.)  in  First Appeal No. 60 of of 1955, and  its  judgment dated  February 18, 1955, is reported in the case  of  Cyril Spencer v. M. H. Spencer. (2).  The learned judges held that the right of appeal was not merely a matter of procedure but a  matter of substantive right and the right of appeal  from the decision of an inferior tribunal to a superior  tribunal becomes  a vested right -at the date of the  institution  of the  suit.  They also relied upon the provisions of s. 3  of

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the  Act, which will hereinafter be dealt with, and came  to the conclusion that the right of coming up in appeal to  the High  Court  having become vested before the Act  came  into force  could not be affected by the provisions of  the  Act, and that, therefore, all appeals which lay to the High Court under  the pre-existing law would still continue to  lie  in the High Court if the suit had been instituted prior to  the coming  into effect of the Act.  In the result they  allowed the  appeal to be filed in the High Court.  That case  is  a clear  authority for the proposition that the Act, by  s.  3 (1),  had saved pending appeals in the High Court  from  the operation  of the Act.  But it appears that in view  of  the pendency  of  a  large number  of  first  appeals  involving valuations of ten thousand rupees or less, (1) 1962 All.  L. J. 544. (2) 1955 All.  L.J. 307. 367 the  High Court was inclined to reconsider the matter,  and, therefore, gave notice to the parties in a number of pending first appeals and heard the matter afresh.  The judgment  of the  Court, by a Division Bench consisting of Desai, C.  J., and  Ramabhadran,  J., is reported in  Surjudei  v.  Rampati Kunwari  (1).   This  time the Bench came  to  a  conclusion ’different from that of previous Division Bench of the  same High Court.  It is the correctness of this decision which is challenged before us. Turning  to the merits of the decision, it appears that  the High Court recognised the legal position that the Act had no restrospective operation, and that the right to appeal to  a superior  tribunal is a vested right which is determined  at the date of the institution of the suit or proceeding.   The High  Court,  in  that  view of  the  matter,  accepted  the position that in spite of the Act the pending appeal in that Court could be disposed of by it.  But it took the view that the  Act did not have the effect of amending the  provisions of  s. 24 of the Code of Civil Procedure, under  which  "the right  of a litigant to an appeal is always subject  to  the right  of  the High Court to transfer it under s.  24."  The High Court further took the view that this overriding  power of  the High Court to transfer a case to a  competent  Court was  in supersession of the party’s right to have  the  case tried by a particular Court.  The High Court rightly  raised the question whether District judges or Additional  District judges  were  competent  to dispose of cases  like  the  one before  them.   The  question thus rightly  posed  has  been wrongly  answered  by reliance upon the  doctrine  that  the right  of the High Court to transfer a case from  itself  to another  Court  or from one Court to another  overrides  the right of a party to have its case determined by a particular Court.   In effect, the High Court took the view that  after the enforcement of the Act, appeals involving valuations  up to (1)  1962 All.  L. J. 544. 368 ten  thousand rupees could be dealt with by District  judges or  Additional  District judges, and, therefore,  they  were competent  to deal with them, though such appeals could  not have  been entertained by those Courts on the date on  which they were preferred, having in view the date of the decision of the suit.  The Court further held that it was  irrelevant to   consider  whether  or  not  the  Act  had  been   given retrospective  effect.  The High Court emphasized  the  fact that  appeals like the one before them had been  transferred to  the District Courts not under the provisions of the  Act but  under  s. 24 of the Code of Civil Procedure.   In  this

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connection,  the High Court proceeded to make the  following observations :               "It  is  enough that the U.  P.  Amending  Act               contains no provision taking away our power to               transfer the appeals under Sec. 24, C. P.  C.,               or no provision laying down that the  District               judges  are  not  competent  to  hear  appeals               arising  out of suits instituted prior to  its               enforcement.    There   is  nothing   in   the               provisions of Sec. 3 of the Act to render  the               District  judges  incompetent  to  bear  them.               Sub-Sec. (1) reserves rights acquired prior to               the  enforcement,  but as  we  have  explained               earlier,  if the right of the parties  to  the               appeals  is affected, it is not on account  of               our  enforcing  any  provision of  it  but  on               account of our exercising our power under Sec.               24, C. P. C".               With  all respect, the High Court has  comple-               tely  misdirected itself in  interpreting  the               provisions of s. 3 (1) of the Act, which  must               govern this case.  That section runs as  under               :                "Any  amendment  made by this Act  shall  not               affect  the  validity, invalidity,  effect  or               conse.  quence  of anything  already  done  or               suffered,  or any right, title, obligation  or               liability               369               already  acquired, accrued or incurred or  any               release  or  discharge of or  from  any  debt,               decree, liability, or any jurisdiction already               exercised,  and any proceeding  instituted  or               commenced  in any Court prior to  the  commen-               cement of this Act shall, notwithstanding  any               amendment herein made continue to be heard and               decided by such Court." The  High  Court  has not given effect  to  the  words  many proceeding instituted or commenced in any Court prior to the commencement   of  this  Act  shall,   notwithstanding   any amendment  herein made continue to be heard and  decided  by such  Court."  Now,  giving full effect to  the  words  just quoted  of s. 3(1) of the Act, the High Court and  the  High Court  alone  would  be competent to  hear  and  decide  the appeals  pending  before it.  In other words,  the  District Courts  were  not  competent  to  hear  such  appeals,   and therefore,  the High Court could not have transferred  those appeals  to  be heard by the District  judge  or  Additional District judge, inasmuch as s. 24 postulates that the  Court to  which  the  suit  or  appeal  or  other  proceeding   is transferred  should  be competent to try or dispose  of  the same.   On the date the appeal in question was preferred  in the  High Court, the District Courts were not  competent  to hear  such a case.  The competency of those Courts  to  hear such cases arises by virtue of the amendment to s. 21 of the Civil Courts Act, aforesaid.  We are here not concerned with the question whether in the absence of a saving clause, like the  one  introduced by s. 3(1), the High Court  would  have been right in taking recourse to s. 24 of the Code of  Civil Procedure.   But  in the face of s. 3(1) of the Act,  it  is impossible  to hold that the District Courts were  competent to  hear appeals of the valuation of ten thousand rupees  or less  in suits decided before the Act came into  force,  and appeals from which were pending before the High Court. 370

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The High Court was led to the conclusion to which it came in view  of the declared objects and reasons for  the  Amending Act.   As a matter of fact, the High Court has  relied  upon the  following  extract from the Statement  of  Objects  and Reasons:               "In order to reduce the volume of work in  the               High  Court and to ensure quicker disposal  of               appeals,  the  Bengal, Agra  and  Assam  Civil               Courts Act, 1887, is proposed to be amended so               that appeals in cases from Rs. 5,000/- to  Rs.               10,000/- in valuation may be heard by District               judges". It  is  true,  as pointed out by the High  Court,  that  the object  behind the amendment in question was to give  relief to  the  High  Court.  But the High Court was  in  error  in thinking that the legislature amended the law as "the relief was  required  instantaneously." The Amending Act  may  have given  relief to the High Court in respect of appeals to  be instituted after the commencement of the Act, but it did not grant  the much required relief to that Court in respect  of pending,   first  appeals.   On  a  plain  reading  of   the provisions of s. 3(1), it is clear that the legislature  did not grant that very much needed instantaneous relief.  If it intended  to  do  so, it has failed to give  effect  to  its intentions by the words used in s. 3(1). The  High  Court was fully cognizant of the  legal  position that  District  judges  could hear  only  such  appeals,  on transfer  by the High Court, as they were competent to  hear and  dispose of.  But  its conclusion that  such  competency was there on the date the Act came into effect, suffers from the infirmity that it does not give effect to the concluding words of s. 3(1). For  the  reasons aforesaid, it must be held that  the  High Court had not taken the correct view of the legal  position. The appeal is accordingly allowed 371 and  the order of the High Court transferring the appeal  to the.  District judge or the Additional District judge is set aside.  It is directed that the appeal be heard by the  High Court  itself,  in the absence of any law to  the  contrary. There  will be no order as to costs throughout, as the  main respondent  in this Court and below was a Court itself,  and ordinarily no costs are granted against a Court. Appeal allowed.