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2012 Supreme(Bom) 395
2012 (3) ALLMR 1
High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. MOHIT S. SHAH, THE HONOURABLE MR. JUSTICE S.P. DESHMUKH & THE HONOURABLE MRS. JUSTICE SADHANA JADHAV
Shri Vijay @ Ambadas Dattatraya Pawar & Others
Versus
Ramappa Ambannappa Masare & Others
FIRST APPEAL NO.1081 OF 1996 WITH CROSS OBJECTION ST.NO.1445 OF 1998 WITH CIVIL APPLICATION NO.8306 OF 1998 IN CROSS OBJECTION ST NO.1445 OF 1998 WITH FIRST APPEAL NO.1158 OF 1996 WITH WRIT PETITION NO.3174 OF 1992 WITH CIVIL APPLICATION NO.5864 OF 2000 IN WRIT PETITION NO.3174 OF 1992
Decided on: 22-02-2012
For the Appellant:P.K. Dhakephalkar, Sr.Advocate.
For the Respondents:R1, V.B. Naik, Ms. Deepa Ahuja & R.S. Alange, Advocates.
Headnote:Bombay Civil Courts Act, 1869 - Sections 26 and 28-B(2) [As amended in 2011] - Pecuniary jurisdiction of District Court - Since pecuniary jurisdiction of District Court is raised from 2 lacs to 10 lacs by amendment, w.e.f.16.1.2012 hence all first appeals in which valuation of suit is upto Rs. 10 lacs, pending before High Court stood transferred to concerned District Courts on 16.1.2012.
By Government Notification dated January, 2012 public shed in the Government of Maharashtra Extraordinary Gazette of the same date, the date "16 January, 2012" is appointed as the date on which the Amending Act of 2011 shall come into force. In view of the aforesaid amendments in the Principal Act, now it is crystal clear that all appeals in which the amount or the value of the subject- matter does not exceed Rs. 10 lakhs and were pending before the High Court immediately before 16 January, 2012, shall stand transferred to the concerned District Courts and such District Courts shall deal with such appeals. In other words, all the first appeals under the Code of Civil Procedure in which the amount or value of the subject matter is up to Rs. 10 lakhs and which were pending before the High Court on 15 January, 2012 stood transferred to the concerned District Courts on 16 January, 2012.
Bombay Civil Courts Act, 1869 - Section 28-B(2) [as amended in 2011] - Appeal - Since in view of Amending Act, 2011, an appeal pending before High Court as on 15.1.2012 is covered by Section 28-B(2) of Act hence such an appeal stand transferred to District Court for being heard and decided again by concerned District Court.
Even if the submission that the question may be raised in Second Appeal regarding applicability of Amending Act to pending appeals is the Court hearing the Second Appeal may set aside the judgment and decree of the District Court and hold that the First Appeal was required to be heard by the High Court and, therefore, the first appeal pending before 13th January, 1999 still be treated as pending before the High Court. Even if it be so, such an appeal would be treated as pending before the High Court as on 15 January, 2012 and would therefore, be covered by Section 28-B(2) of Bombay Civil Courts Act, 1869, as inserted by the Amending Act of 2011 and the legal consequence would be that such an appeal would also stand transferred to the District Court for being heard and decided again by the concerned District Court.
Constitution of India - Articles 142 and 226 - Prospective overruling. - Decision of Division Bench, overruling decision of single Judge by giving prospective effect to its decision is just and proper.
In the instant case the Division Bench taking a view that if the judgment of Single Judge is overruled with retrospective effect, there was going to be needless confusion and endless mischief and, therefore, out of necessity applied its decision with prospective effect. There could be no dispute about the fact that the District Courts which decided the appeals transferred pursuant to the judgment of Single Judge were apparently clothed by the said judgment with the powers and functions of the first Appellate Court when the appeals were heard and decided by them. At the time of hearing and deciding those first appeals, they had lawful authority to hear and decide those appeals. The District Judges who decided those appeals were not intruders or usurpers of office. It was subsequently on account of the Division Bench judgment that it was realised that such appeals were required to be heard by the High Court. Hence, the judgments rendered by the District Courts during the aforesaid period of eight years were not required to be pronounced a nullity. The Division Bench judgment, in effect, merely applied the doctrine which has been holding the field for the last six centuries.
MOHIT S. SHAH, C.J.
These appeals with cross objections and writ petition are placed before us pursuant to the order dated 4 March 2011 of a learned Single Judge of this Court (Coram : A.S.Oka, J.) by which the learned Single Judge has also formulated the following questions :
i) Whether the amendment to Section 26 of the Bombay Civil Courts Act, 1869 made by Maharashtra Act No.III of 1999 is prospective or retrospective and whether the amended section 26 will apply to the appeals pending in this Court on the date on which the amending Act came into force?
ii) If it is held that section 26 as amended is not applicable to the appeals which were pending in this Court, whether the view taken by the Division Bench of this Court in the case of Mahendra Panmal Duggad Jain and another Vs. Bhararilal Panmal Duggad Jain and another [2008(6)-Bombay Cases Reporter-699] will apply only prospectively?
2. First Appeal N0.1158 of 1996 is directed against the judgment and decree dated 7 August 1996 passed by the learned Joint Civil Judge (Senior Division) in Special Civil Suit No.33 of 1992 valued at rupees one lakh for jurisdiction. By the said decree, the learned Judge partly decreed the suit in favour of the plaintiff for an amount of Rs.48,000/-. The first appeal is filed by the defendant.
3. First Appeal No.1081 of 1996 (with cross-objections therein) are directed against the judgment and order dated 14 February 1995 passed by the learned District Judge, Solapur in Civil Misc. Appeal No.248 of 1989 under Section 41E of the Bombay Public Trusts Act, 1950.
4. Writ Petition No.3174 of 1992 is filed by the judgment debtor for challenging order dated 15 October 1991 passed by the learned Joint Civil Judge (Junior Division), Solapur in Regular Darkhast No.287 of 1991.
5. In view of subsequent developments after the reference made by the aforesaid order dated 4 March 2011, it would not be necessary to refer to the reasoning of the learned Single Judge in the order of reference or the reasoning of the Division Bench from which the learned Single Judge has differed. We will set out the broad contours of the controversy and then refer to the subsequent developments.
6. The original controversy is about the status of the First Appeals which were filed before this Court prior to 13 January 1999 and which were pending on that date when the Bombay Civil Courts (Amendment) Act, 1998 (Maharashtra Act No.III of 1999), which came into force on 13 January 1999.
7. Section 26 of the Bombay Civil Courts Act, 1869 (for short "the Principal Act") governing the pecuniary jurisdiction of the Civil Appellate Courts provides that in all the suits decided by the Civil Judge of which amount or value of the subject matter exceeds a particular amount, the appeal from that decision will lie to High Court. The following table indicates the particulars of amounts referred to in Section 26 of the Principal Act :
Pecuniary Jurisdiction of the District Court as the Appellate Court
Prior to 1977 upto Rs. 10,000/-
From 1977 " Rs. 25,000/-
From 1983 " Rs. 50,000/-
From 13 January 1999 " Rs. 2,00,000/-
From 16 January 2012 " Rs. 10,00,000/-
8. The controversy arose as to what was to happen to the appeals pending in this Court as on 13 January 1999 (i.e. the date of coming into force of Act of 1999) of which the amount or value of subject matter was Rupees 2 lakhs that is to say, the issue before this Court was whether the amended Section 26 which came into force with effect from 13 January 1999 would apply to the appeals pending before this Court as on 12 January 1999 in which amount or value of the subject matter was up to Rs.2 lakhs.
9. After considering various judgments of the Apex Court, a learned Single Judge of this Court by judgment and order dated 16 December 1999 in First Appeal No.411 of 1983 (Tukaram Pandurang Gaikwad Vs. Hababi Eabumiya Shaikh and Others) held that the amended provisions of Section 26 will apply even to the appeals which
