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2008 Supreme(Bom) 367
IN THE HIGH COURT OF BOMBAY
K.J.ROHEE & R.C.CHAVAN, JJ.
MAHENDRA PANMAL DUGGAD JAIN – Appellant
Versus
BHARARILAL PANMAL DUGGAD JAIN - Respondent
CIVIL APPLICATION NO.5500 OF 2004 IN FIRST APPEAL NO.620 OF 1994.
Decided on : 10.03.2008.
Shri M.G. Bhangde, Sr. Advocate for Appellant.
Shri M.V.Samel, Advocate for Respondents.
The main legal point established in the judgment is that the absence of a saving clause in an amending Act does not necessarily impact the retention of pending appeals in the High Court, and the principles regarding the retrospective application of changes in forum and the vested right of appeal are crucial in determining the jurisdiction of the court.
Headnote:
Civil Application - Re-transfer of Appeal - Bombay Civil Courts Act, 1869 - Section 26, Section 3 - The court discussed the amendments made to the Bombay Civil Courts Act, 1869 and the implications on the jurisdiction of the High Court and District Court. The court analyzed the absence of a saving clause in the amending Act of 1999 and its impact on pending appeals. The court also considered the principles established in Commissioner of Income Tax Vs. Dhadi Sahu and Air India Vs. Union of India regarding the retrospective application of changes in forum and the vested right of appeal.
Fact of the Case:
The appellants sought re-transfer of the appeal to the High Court, contending that appeals filed and entertained by the High Court prior to the amendment to the Bombay Civil Courts Act were not liable to be transferred to the District Court.
Finding of the Court:
The court held that the absence of a saving clause in the amending Act of 1999 was not material, and pending appeals were liable to be retained in the High Court itself. The court relied on the provisions of Section 7(b) of the Bombay General Clauses Act and the principles established in previous judgments.
Issues: The main issue was whether appeals filed and entertained by the High Court prior to the amendment to the Bombay Civil Courts Act were required to be transferred to the District Court due to the increase in appellate jurisdiction.
Ratio Decidendi: The court's decision was based on the interpretation of the amending Act of 1999, the absence of a saving clause, and the principles established in previous judgments regarding the retrospective application of changes in forum and the vested right of appeal.
Final Decision: The court allowed the civil application and overruled the judgment in Tukaram Vs. Hababi, directing that the suits or appeals already decided may not be reopened.
Per Chavan J.
1. By this Civil Application the appellants in First Appeal No.620 of 1994 sought re-transfer of the appeal to this Court. The appeal arose out of suit valued at Rs.63,710/-, bearing Special Civil suit No.31 of 1983 which was decided by the 5th Joint Civil Judge Senior Division, Nagpur by his judgment and decree dated 26.08.1994. The appeal was filed before this Court and was pending when Bombay Civil Court Act, 1869 was amended w.e.f. 13.01.1999. As a result of this amendment the appellate jurisdiction of the District Court was increased from Rs. Fifty Thousand to Rs. Two lakh. Consequently the Registrar of this Court, by his order dated 06.06.2000, transferred the appeal to the District Court in view of the administrative direction of this Court dated 24.02.2000. The applicants applied to the District Court for re-transferring the appeal to the High Court, contending that the appeals filed and entertained by the High Court prior to the amendment to the Bombay Civil Courts Act which came into force on
13.01.1999 were not liable to be transferred to the District Court The 6th Additional District Judge rejected this application. The applicants, therefore, filed present application for re-transfer of the appeal to this Court.
2. In the meantime, the question, as to whether such appeals would lie before the High Court or were required to be transferred to the District Court had been raised before another single Judge of this Court in First Appeal No.411/1983 (Tukaram Vs. Smt. Hababi, reported at 102(1) BLR 654), who, by his order dated 16.12.1999, held that the appeal was required to be transferred to the District Court. Similar orders were passed by learned Single Judges in Khalil Nabi Vs. Gulam Hussain, reported at 2003(2) Mh.L.J. 991, and Pune Municipal Corpn., Vs. Kanhayalal reported at 2005(2) Mh.L.J.89. The learned Single Judge of this Court, who heard the present application for re-transfer of the appeal, considered the judgment of the learned single Judge but expressed inability to concur with the view taken by the learned single Judge. Therefore, by order, dated 29th October, 2004, he directed the Registry to place the matter before the Hon'ble Chief Justice for being referred to a larger Bench. This is how the present application has been placed before us.
3. The learned counsel, appearing for the parties upon consideration of law applicable expressed that an appeal which had been filed before the High Court and entertained by it prior to coming into force the amending Act on 13.01.1999 could not have been ordered to be transferred to the District Court.
4. The Bombay Civil Courts Act had been amended from time to time
enhancing the jurisdiction of the Civil and District Courts. While amending the Act by the Maharashtra Civil Courts (Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1977 original jurisdiction of the Civil Judge, Junior Division was increased to Rs.25,000/- and appellate jurisdiction of the District Court was increased from Rs.10,000/- to Rs.25,000/-, by amending the provisions of Section 26 of the Act and incorporating a saving clause in form of Clause 19 of the Amending Act, which reads as under :
The amendments made by this Act in any of the Act aforesaid shall not have any effect in respect of and apply to any suits, appeals or other proceedings of a civil nature filed and pending before any Court on the date of commencement of this Act, and such proceedings shall be continued and disposed of by that Court, as if this Act had not been passed; and any appeal, revision application or other proceedings of a civil nature in respect of any decree or order passed by any Court before the date of commencement of this Act shall be filed before and heard and disposed of by the Court competent to entertain such proceedings before such commencement, as if this Act had not been passed..
5. Section 26 of the Bombay Civil Court Act was further amended by the Bombay Civil Court Amendment Act,
