Back
2000 Supreme(Raj) 330
High Court Of Rajasthan
Judgename : Bhagwati Prasad
Tulsi Das - Appellant
Versus
Mooli Devi - Respondent
Civil Revision Petition No. 22 of 1996
Decided On : 05/03/2000
S.D. Rajpurohit, for the Appellant
Rameshwar Chouhan, for the Respondents
The competence of a Division Bench in making a reference and the binding nature of a Division Bench decision on a single judge.
Headnote:
Rule 19 - Jurisdiction of Civil Court - The court considered the interpretation of Rule 19 of the Rajasthan Civil Court Ordinance and its retrospective application, particularly in relation to the change in forum of appeal and substantive right of appeal. The court also examined the absence of a saving clause and the intentional omission of provisions, ultimately relying on the decision of the Hon’ble Supreme Court to uphold the competence of a Division Bench in making a reference.
Fact of the Case:
The trial Court dismissed the petitioner's application based on the transfer of the case by the District Judge under Section 24 CPC, citing a Division Bench decision.
Finding of the Court:
The court held that disagreement with the Division Bench decision can only be expressed by a Division Bench and that sitting singly, the Court is bound by the decision of the Division Bench. Consequently, the revision petition was dismissed.
Issues: Interpretation of Rule 19 of the Rajasthan Civil Court Ordinance, retrospective application, change in forum of appeal, intentional omission of provisions, and competence of a Division Bench to make a reference.
Ratio Decidendi: The court relied on the decision of the Hon’ble Supreme Court to uphold the competence of a Division Bench in making a reference and emphasized that disagreement with a Division Bench decision can only be expressed by a Division Bench.
Final Decision: The revision petition was dismissed.
Bhagwati Prasad, J.-The present revision petition arises out of the decision of the trial Court dated 9-11-1995 whereby an application filed by the petitioner was dismissed by the trial Court.
2. Learned Counsel pressed before the trial Court that in view of Rule 19 of the Rajasthan Civil Court Ordinance (hereinafter called ‘the Ordinance’), this case is not liable to be tried by the Court of Civil Judge (Junior Division). The trial Court held that in view of a Division Bench decision of this Court the case has been transferred by the District Judge while exercising powers under Section 24 CPC Learned Counsel for the petitioner urges that the decision of the Division Bench requires reconsideration for the following reasons:
1. If Section 19 is held to be retrospective, the cases pending before District Judge of the valuation exceeding Rs. 10,000/-and upto Rs. 25,000/-would go to the Munsif and those exceeding Rs. 25,000/-and upto Rs. 50,000/-would go to Civil Judge, whereby the forum of first/second appeal would be changed from Single Bench/Division Bench of High Court to District Judge/Single Bench. Further the scope of second appeal would be curtailed as in the former case Letters Patent Appeal lies on fact and law both as that is rehearing by the Division Bench under Section 96 CPC whereas in the later case that would lie only on substantial question of law under Section 100 CPC That way the substantive right of appeal would be altered whereas the right of appeal remains Intact as that existed at the time of institution of lis, unless the same is altered by express statutory provision or by necessary intendment of the statute as has been held by the Apex Court in AIR 1953 S.C. 221, AIR 1957 S.C. 540, AIR 1960 S.C. 980 and AIR 1975 SC 1843.
2. Thechange in forum of appeal from High Court to that of District Judge has also been held to be permissible only as aforesaid in 1957 RLW 468: (AIR 1957 Rajasthan 336) while applying amended Section 21 of the Rajasthan High Court Ordinance.
3. There is no express provision applying Section 19 on the pending suits. On the contrary through Section 6-A of the Amending Act 1992, the amendments made in Section 21 regarding appeals, have been made applicable to the suits or proceedings pending on 12-8-1992 also. This is pertinent to note that Section 6-A was not there in the amending Ordinance but was new insertion in the Amending Act. While inserting Section 6-A to apply amended Section 21 to the pending suits/proceedings, if the legislature wanted to apply other amended provisions or amended Section 19 also, nothing prevented the legislature to enact such provision. Omission is intentional and as such there is no scope for thinking of any contrary intention of the legislation.
4. In AIR 1972 S.C. 1935 it has been held that omission to provide limitation under Sections 68 and 75 of the ESI Act and on the other hand providing limitation for claim of payment of any benefit under the regulations, shows clearly the Intention that on the ground of limitation. In the former case, the right was not to be fettered and such rule prescribing limitation was held to be ultra vires. The proposition applies to the omission in the present case.
5. (1995) 2 Raj LW 482 has not even tangentially considered above aspects and on the contrary the absence of saving clause has been considered with an approach not permissible qua the substantive law. In 1971 Raj LW 166 : (AIR 1971 Rajasthan 242) that aspect did not arise as in that case, transfer was from Civil Judge to Munsif and even an iota of right of appeal did not alter, as such 1971 Raj LW 166 had no application.
3. I have considered the submissions made by the learned Counsel for the petitioner at Bar. The Hon’ble Supreme Court has considered the competence of a Bench making a reference in a case of Coir Board Ernakulam. Kerala State v. Indira Devi P.S. reported in (2000) 1 SCC 224 and has held as under:-
“The Judgment delivered by seven learned Ju
