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High Court Of Madhya Pradesh
M. Hidayatullah, C. J. and B. K. Choudhuri, J.
LALCHAND AGARWAL - Appellant
Versus
KESHAORAO JAMTHE - Respondents
Misc. (First) Appeal 123 Of 1956
Decided On : 07/31/1957
APPEAL - RIGHT OF APPEAL - SUBSTANTIVE RIGHT - TAKING AWAY - EXPRESS PROVISION OR NECESSARY INTENDMENT - CENTRAL PROVINCES AND BERAR COURTS ACT, 1917 (ACT I OF 1917), SECS. 20, 9 - MADHYA PRADESH COURTS (AMENDMENT) ACT, 1956 (ACT II OF 1956), SEC. 7.
Fact of the Case:
The appellant filed an appeal against an order passed by the Civil Judge (Class I) on 9-7-1956. The respondent contended that the appeal should have been filed before the District Court under the amended Section 20 of the Central Provinces and Berar Courts Act, 1917, as the order was passed after 1-7-1956, the date on which the Madhya Pradesh Courts (Amendment) Act, 1956 came into force.
Finding of the Court:
The court held that the right of appeal is a substantive right and can only be taken away by an express provision or by necessary intendment. The court further held that Section 7 of the amending Act did not proprio vigore have any effect on appeals arising from cases pending on 1-7-1956 and that the enactment of Section 9 of the amending Act was superfluous and did not create any necessary intendment.
Issues: Whether the right of appeal in pending cases is taken away by the Madhya Pradesh Courts (Amendment) Act, 1956.
Ratio Decidendi: The court held that the right of appeal is a substantive right and can only be taken away by an express provision or by necessary intendment. The court further held that Section 7 of the amending Act did not proprio vigore have any effect on appeals arising from cases pending on 1-7-1956 and that the enactment of Section 9 of the amending Act was superfluous and did not create any necessary intendment.
Final Decision: The court held that the appeal was tenable and overruled the objection raised by the respondent.
( 2 ) THE suit was filed on 14-2-1952 to recover a sum of Rs. 7,000/- alleged to be due on a promissory note dated 15-2-1949 executed by the defendant. After issues were framed and some witnesses examined on commission, the parties on 6-7-1955 requested the Court to refer the dispute to arbitration. The arbitrators submitted their award which was objected to by the defendant. The objections were overruled and on 9-7- 1956 a decree in terms of the award was drawn up. The present appeal was filed by the defendant in this Court under Section 39 (vi)of the Arbitration Act on 24-7-1956 and he also asked for a stay of the decree.
( 3 ) IN answer to a notice issued in the stay matter the plaintifis appeared and contended that the appeal was not tenable, an objection which the office had also raised and which it was convenient to hear in the presence of the rival parties. The objection is that though under the Central Provinces and Berar Courts Act, 1917 (Act No. I of 1917) an appeal from the order or decree of a Civil Judge, Class I, lay to the High Court, by virtue of the Madhya Pradesh Courts (Amendment) Act, 1956 (Act No. II of 1956) the (present appeal ought to have been filed before the district Court.
( 4 ) THE amending Act came into force on 1-7-1956 and it abolished the distinction between Civil Judges of the first and second classes with the result that after the appointed date there is now but one class of Civil Judges. Their jurisdiction now extends to Rs. 10,000/ -. Alongside this change the amending Act made alterations in the right of appeal as well. Whereas before the amending Act Section 20 provided for an appeal to the District court in cases upto and including Rs. 5,000/- triable by civil Judges, Class II, and an appeal to the High Court in cases up to and including Rs. 10,0007- triable by civil Judges, Class I, there is now only an appeal to the District Court in all cases up to and including Rs. 10,000/- triable by Civil Judges. A comparison of the old and new Section 20 of Act I of 1917 discloses this change:
OLD. " (a) an appeal from the decree or order of the Court of a Civil Judge (Class II) shall lie to the District Court; (b) an appeal from the decree or order of the Court of a Civil Judge (Class I) shall He - (i) Where the value of the suit or original proceeding in such court does not exceed five thousand rupees, to the District court; and (ii) where the value of such suit or original proceeding exceeds five thousand rupees, to the High Court. "
NEW. " (a) an appeal from the decree or order of the Court of a Civil Judge shall lie to the District Court; (b) an appeal from the decree or order of an additional Judge of the district Court shall lie - (i) where the value of the suit or original proceeding in such court does not exceed ten thousand rupees, to the District court; and (ii) where the value of such suit or original proceeding exceeds ten thousand rupees, to the High Court;"
( 5 ) IT, therefore, appears that the right of appeal to the High Court in cases between Rs. 5,001/- and Rs. 10,000/- marks (like the present case) is taken away and a right of appeal to the District Court substituted. The amending Act also enacts a "transitory" provision which reads:
"notwithstanding the amendments made by Section 7 of this Act, an appeal from a decree or order passed prior to the commencement of this act shall lie to the Court to which it would have lain if the amendmentes made by that section had not been made. "
( 6 ) THE contention of the respondents is that this appeal should have been filed before the District Court under the amended Section 20 because the order was passed on 9-7-1956 and the provisions of Section 9 of the amending Act did not save it. They contend that in all cases in which the order or decree was passed after 1-7-1956, the right of
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