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1995 JLJ 98
U.L Bhat, C.J. and M.V. Tamaskar, J.
In re-Reference v. Krishna Deosingh
Misc. Civil Case No. 298 of 1994; Decided on 13.5.1994.
(2) Appeal -- right of -- inheres in every party -- is a creature of statute -forum is a matter of procedural law -- even if cause of action accrued prior to change of forum party has to come to new forum. AIR 1957 SC 540, AIR 1975 SC 1843 and AIR 1976 SC 237 followed. [Para 7
(3) Revision -- right of revision is not a substantive right -- it is not continuation of original proceeding or suit -- it relates to procedural law. AIR 1968 SC 1336, AIR 1980 SC 892 and AIR 1980 SC 1575 followed. [Para 8
(4) Law -- procedural amendment of law applies retrospectively in absence of anything contrary -- change of forum is procedural. AIR 1976 SC 237 and AIR 1964 SC 1256 followed. [Para 9
(5) Civil P.C., 1908 -- S. 115 (as amended in 1994) -- amendment has got retrospective effect -- revisions pending before District Judges before the date of amendment i.e. 16.3.1994 -- have to be decided by them -- after the date of amendment revisions have to be filed before the High Court alone.
The amendment is one in the domain of procedural law. There is no specific provision in the 1994 Amendment Act indicating legislative intention to the effect that the amendment would act only prospectively, nor is there anything in the provision from which such an intention can be gathered. The amendment has retrospective effect in the sense that if an aggrieved party has not filed revision before the District Judge before 15.3.94, he cannot thereafter file revision before the District Judge, but is required to file it before the High Court even though the suit or proceeding in which the order was passed was instituted prior to the amendment and the order sought to be impugned was passed prior to the amendment. There is no provision in the Act taking away the jurisdiction of the District Judge to decide the revision pending before that forum on 16.3.94, nor can such an intendment be inferred from any provision of the 1994 Amending Act. The power of the District Judges to deal with the revisions pending on 16.3.1994 has not been taken away. AIR 1986 SC 1499, AIR 1967 SC 1419, AIR 1980 SC 892, AIR 1980 SC 1575,1986 JLJ 344 (FB) and AIR 1973 All. 390 (FB) relied on. [Paras 10 & 12
¼1½ okn && okn ykus dk vf/kdkj izR;sd O;fDr dk varfuZfgr vf/kdkj gS && bldk pyk, tkus ;ksX; gksus ds fy, fof/k dk dksbZ izkf/kdkj visf{kr ugha gS && ;g i;kZIr gS fd og fdlh dkuwu }kjk oftZr ugha gksA ¿ iSjk 7À
¼2½ vihy && dk vf/kdkj && izR;sd i{kdkj esa varfuZfgr gksrk gS && ;g dkuwu dh l`f"V gS && U;k;ky;] izfØ;k laca/kh fof/k dk fo"k; gS && okn gsrqd U;k;ky; ifjofrZr fd, tkus ds iwoZ izksn~Hkwr gqvk gks rc Hkh i{kdkj dks u, U;k;ky; ds ikl tkuk gksaxkA , vkb vkj 1957 ,l lh 540] , vkb vkj 1975 ,l lh 1843 rFkk , vkb vkj 1976 ,l lh 237 vuqlfjrA ¿ iSjk 7À
¼3½ iqujh{k.k && iqujh{k.k dk vf/kdkj lkjHkwr vf/kdkj ugha gS && ;g ewy dk;Zokgh vFkok okn dh fujarjrk ugha gS && ;g izfØ;kRed fof/k ls lacaf/kr gSA , vkb vkj 1968 ,l lh 1336] , vkb vkj 1980 ,l lh 892 rFkk , vkb vkj 1980 ,l lh 1575 vuqlfjrA ¿ iSjk 8À
¼4½ fof/k && fof/k ds izfØ;k laca/kh la‘kks/ku dk izHkko fdlh foijhr ckr ds vHkko esa] Hkwry{kh gksrk gS && U;k;ky; dk ifjorZu izfØ;kRed gSA , vkb vkj 1976 ,l lh 237 rFkk , vkb vkj 1964 ,l lh 1256 vuqlfjrA ¿ iSjk 9À
¼5½ flfoy izfØ;k lafgrk] 1908 && /kkjk 115 ¼1994 esa ;Fkk la‘kksf/kr½ && la‘kks/ku dk izHkko Hkwry{kh gS && ftyk U;k;k/kh‘kksa ds le{k la‘kks/ku dh rkjh[k vFkkZr~ 16-3-1994 ds iwoZ yafcr iqujh{k.k && muds }kjk fofuf‘pr fd, tk,¡xs && la‘kks/ku dh rkjh[k ds i‘pkr~ dsoy mPp U;k;ky; ds le{k gh Qkby fd, tkuk gksaxsA
la‘kks/ku] izfØ;k laca/kh fof/k ds izHkko {ks= dk gSA 1994 ds la‘kks/ku vf/kfu;e esa dksbZ fofufnZ"V mica/k ugha gS ftlls fo/kkf;dk dk ,slk vk‘k; bafxr gksrk gks fd bl la‘kks/ku dk izHkko dsoy Hkfo";y{kh gksxk( ml mica/k dk ,slk Hkh dqN ugha gS ftlls ,slk vk‘k; le>k tk ldsA la‘kks/ku dk izHkko Hkwry{kh gS bldk rkRi;Z ;g gS fd ;fn fdlh O;fFkr i{kdkj us 15-3-67 ds iwoZ ftyk U;k;k/kh‘k ds le{k iqujh{k.k Qkby ugha fd;k gS] og rRi‘pkr~ ftyk U;k;k/kh‘k ds le{k iqujh{k.k Qkby ugha dj ldrk] vfirq mPp U;k;ky; ds le{k Qkby fd;k tkuk visf{kr gS] Hkys&gh okn vFkok dk;Zokgh ftlesa vkns‘k ikfjr fd;k x;k Fkk] la‘kks/ku ds iwoZ ikfjr fd;k x;k gksA ml U;k;ky; esa 16-3-94 dks yafcr iqujh{k.k fofuf‘pr djus dh ftyk U;k;k/kh‘k dh vf/kdkfjrk Nhuh tkus dk dksbZ mica/k vf/kfu;e esa ugha gS] vkSj u fdlh ,sls vk‘k; dk fu"d"kZ 1994 ds la‘kks/ku vf/kfu;e ds fdlh mica/k ls fudkyk gh tk ldrk gSA 16-3-94 dks yafcr iqujh{k.kksa ij fopkj djus dh ‘kfDr ftyk U;k;k/kh‘kksa ls Nhuh ugha xbZ gSA , vkb vkj 1986 ,l lh 1499] , vkb vkj 1967 ,l lh 1419] , vkb vkj 1980 ,l lh 892] , vkb vkj 1980 ,l lh 1575] 1986 ts ,y ts 344 ¼iw.kZ U;k;ihB½ rFkk , vkb vkj 1973 bykgkckn 390 ¼iw.kZ U;k;ihB½ voyafcrA ¿ iSjk 10 rFkk 12À
U.L. Bhat, C.J. -- This reference is made by the District Judge Jabalpur u/s 113 of the Code of Civil Procedure. We issued notices to the Advocate General, High Court Bar Association and the Jabalpur District Bar Association, indicating that we were prepared to hear any counsel who may examine the legal position and make a useful contribution to the decision on the question referred to.
2. We have heared Shri N.S. Kale, Shri Ravish Agrawal, Shri R.S. Tiwari, Shri Deepak Verma, Shri H.B. Agrawal, Shri R.P. Jain and the Addl. Advocate General Shri Anoop Choudhary.
3. Section 115 of the Code of Civil Procedure (for short the Code) confers on the High Court what is known as revisional power. The power consists of calling for the record of the case which has been decided by any Court subordinate to the High Court and in which no appeal lies and the subordinate Court appears to have exercised jurisdiction not vested in it by law or to have failed to exercise jurisdiction so vested or to have acted in exercise of jurisdiction illegally or in material irregularity. High Court is empowered to make any such order as it thinks fit. The proviso introduced by the Amending Act of 1976 imposed further restrictions on the power of the High Court.
4. By the Code of Civil Procedure (Madhya Pradesh Amendment) Act, 29/1984 (for short the 1984 Amending Act) which came into force on 18.8.84, section 115 was amended. Revisional power of the High Court in cases arising out of original suits or other proceedings of the value of Rs. 20,000/- and above was left intact and revisional power in other cases was conferred on District Judge. In Ramchandra Jagannath and others v. Dattatraya Shankarrao and another [1986 JLJ 344 = 1986 MPLJ 406], a Full Bench of this Court held that all revision petitions pending in the High Court on 14.8.84 had to be disposed of by the High Court and with effect from that date, revision petitions against orders passed by subordinate Courts either before or after that date could be filed only before the District Judges. The Full Bench approved the two earlier decisions of the Division Benches in Gayaprasad and another v. Deepchand and another [1986 MPLJ 524] and in Pirbux v. Babulal Dwarka [1986 MPU 720].
5. By the Code of Civil Procedure (M.P. Amending Act) 4/1994, section 115 has been substituted, restoring the provision as it was before the 1984 Amending Act came into force on 16.3.94.
6. The District Judge reported that a large number of civil revisions are pending in the District Court as on 16.3.94. He has referred the following question:
"Whether the District Court has jurisdiction to decide the civil revisions pending in the District Court just before and at the time of coming into force the Amending Act No.4 of 1994 in respect of orders passed by subordinate Courts when District Judge had no revisional jurisdiction."
7. It is necessary to appreciate the exact scope of right of suit, right of appeal and' "right" of revision. There is an inherent right in every person to bring a suit of a civil nature unless the suit is barred by any statutory provision. A suit for its maintainability requires no authority of law and it is enough if no statute bars the suit. A right of appeal inheres in every party and must have for its maintainability clear authority of law. In other words, right of appeal is a creature of statute. If there is statutory provision regarding appeal, subject to those provisions, a party has a right of appeal. This principle can be illustrated by referring to section 96 of the Code which states, inter alia, "an appeal shall lie from every decree..." Statutory right of appeal is a matter of substantive right and not merely a matter of procedural law or adjectival law. This right becomes vested in a party when proceedings are first initiated and such right could not be taken away except by express provision or provision containing necessary implication. There is a distinction between taking away right of appeal
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