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2007(1) JLJ 112
S.L. Jain, J.
Archana Kumar (Smt.) and another v. Bhanu Kumar Jain
First Appeal No. 109 of 1986; Decided on 1.3.2006.
Learned counsel for the appellants submitted before the learned Single Judge that in view of the remand order passed by Hon‘ble Supreme Court of India on 17.12.2004 the matter is to be heard by a Division Bench because the judgment and decree which was set aside by the Supreme Court was rendered by a Division Bench of this Court.
The learned Single Judge in his order dated 22.6.2005 observed that the case was remanded by the apex Court not to the Division Bench but to the High Court for decision on merits. The learned Single Judge also observed that in view of the amendment in the Rules the first appeal, the valuation of which does not exceed Rs.3 lacs, is to be heard by a Single Judge. However, the counsel for the appellants sought time to argue on this issue and the case was adjourned.
Thereafter, on 17.1.2006 the counsel for the appellants filed this application (IA No.742/2006) paying that the matter be placed before the Division Bench comprising the same Hon‘ble Judges who heard the first appeal earlier. [Paras 10 to 12
Held: In view of the Rules made under Article 225 of the Constitution and in view of the allocation of the business amongst the Judges made by the Chief Justice the first appeal upto the valuation of Rs.3 lacs is to be heard by a Single Judge, The Rules made under Article 225 of the Constitution do not deal with substantive right. They deal with merely matters of procedure. The amendment made in the rules with effect from 2.5.2005 shall be presumed to be retrospective because it is procedural.
Since the amendment in question affects the matter of procedure only, therefore, it applies to all appeals pending as well as future. (1966)1 All ER 524 relied on. AIR 1972 SC 1871, AIR 1968 SC 1286, AIR 1966 SC 1206 and AIR 1975 SC 963 followed. Interpretation of statutes by Maxwell, 11th Edn. 216 referred to. [Para 20
(2) Appeal -- right to -- is a substantive right -- is vested in a suitor from the inception of suit. AIR 1975 SC 2037, AIR 1957 SC 540, AIR 1971 SC 57, AIR 1973 SC 405 and AIR 1953 SC 221 followed. 1958 JLJ 427 relied on. [Para 17
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1. This order shall decide interlocutory application No. 742/06 filed by the appellants for hearing of the appeal by a Division Bench of this Court.
2. A suit was filed by the plaintiff-respondent against the appellants defendants as an indigent person for partition of the suit property by meets and bounds in two equal shares. The suit was decreed by the VI ADJ, Jabalpur.
3. Being aggrieved by this judgment and decree of the trial Court, the appellants-defendants filed this appeal before this Court under section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code").
4. The appeal was initially valued at Rs.1 ,54,000/- Under the then existing Rules and Orders of this Court, first appeal under the Code, the valuation of which exceeded Rsone lac, was to be heard by Division Bench. On4.3.1987 IA No.941187 was allowed and valuation of the appeal was amended from Rs.1 ,54,000/- to Rs.77,000/-. Despite this amendment registry went on listing the case before the Division Bench on few dates.
5. However, on 16.3.1994 and thereafter till 21.8.1996 the matter was listed before Single Judge. On 21.8.1996 the appeal was decided by the learned Single Judge of this Court.
6. Against the judgment and decree passed by of the learned Single Judge, both the parties preferred appeals. Letters patent appeal filed by the appellants-defendants was registered as LPA No.250/96 and the appeal filed by plaintiff was registered as LPA No.251196. The Division Bench referred the matter to Full Bench for clarification of certain legal position. As per the legal position made clear, the Division Bench sent back the case to the learned Single Judge for fresh decision. Thereafter, the appeal was listed for hearing before learned Single Judge on 30.10.2001 and 1.11.20~. On 4.12.2001, the learned Single Judge passed the following order:
"On careful perusal of the case it is noted that the plaintiff has filed this civil suit for partition valuing his claim at Rs.1,54,000/- Such suit was decreed in full by the learned trial Judge. On 30.1.1986 the first appeal was filed valuing the claim at Rs.1,54,000/- and a Court fees of Rs.6,770/- was affixed. The case was being dealt with by the Division Bench.
On 16.2.1987 the appellant filed IA No.961187 for correction of valuation. New valuation was put to Rs.77,000/-. This application was allowed and the case was listed before the Single Judge.
However, later on, on 15.7.1996, the appellant once again applied for correction of the valuation of the appeal. This time he claimed such valuation to be Rs.1,54,000/- and submitted additional Court fee of Rs.6,355/-.
However, this application remained undecided. The application is likely to affect the jurisdiction of the Single Bench, hence the same be listed before an appropriate Bench for decision."
In compliance of this order, the matter was listed before the Division Bench. The arguments were heard by a Division Bench of this Court and the judgment was delivered on 19.12.2002.
7. Against the judgment and decree of the Division Bench, plaintiff Bhanu Kumar filed SLP (Civil) before the apex Court which was registered as Civil Appeal No.8246/2004. The apex Court allowed the appeal and set aside the judgment and decree dated 19.12.2002 and remitted the case to this Court directing thus:
"The appeal is, Therefore allowed, the impugned judgment is set aside and the case remitted to the High Court for consideration of the case of the parties on merits of the matter."
8. Clause (d) of rule 1, Chapter I of section 1 of Rules and Orders of this Court, as existed prior to 2.5.2005 was thus:
"(1) The following matters shall ordinarily be heard and disposed of by a Judge sitting alone:
xxx xxx xxx xxx
(d) An appeal of a civil nature under any Act of the Central or State Legislature or first appeals under the Code of Civil Procedure, the value of which does not exceed the sum of Rs.l,00,000/- and any application or reference made under such Acts, if such appeals, ap
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