Dismissed

Vikas Baburao Sonawane v. State of Maharashtra and Ors.

Bombay HC6 Feb 2012WP/2444/2012

Case brief

AI extract

What is this about?

The petitioner challenged the Bombay Civil Courts (Amendment) Act, 2011, specifically the power of a District Court to hear transferred appeals from any earlier stage or de-novo. The court held the provision valid and dismissed the petition, clarifying that District Courts inherit full appellate powers of the High Court.

What did the court decide?

Writ petition dismissed with a declaration that the impugned statutory provisions are valid and not constitutionally incompetent.

Vikas Baburao Sonawane Vs State of Maharashtra… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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O.O.C.J.

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WRIT PETITION (LODGING) NO. 228 OF 2012

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Vikas Baburao Sonawane ....Petitioner Versus State of Maharashtra & ors. ...Respondents

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Mr. A. V. Anturkar i/b. Mr. S. B. Deshmukh with Mr. Amol Gatne, advocates for the petitioner.

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Mr. Niranjan Pandit, AGP for respondent Nos. 1 & 2.

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Mr. Darius Khambatta, senior counsel with Mr. Rajesh Datar, respondent No.3.

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CORAM : MOHIT S SHAH, C.J. & RANJIT MORE, J.

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DATED : 6th February, 2012.

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P.C.:

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By way of this writ petition under Article 226 of the Constitution of India, the petitioner challenges the provisions of Sub-Section (2) of Section 28-B of the Bombay Civil Courts Act, 1869 as inserted by Section 6 of the Bombay Civil Courts(Amendment) Act, 2011 (Maharashtra Act No.XLIV of 2011). The petitioner herein had filed First Appeal No. 1975 of 2007 under Section 96 of the Code of Civil Procedure, 1908 in this Court.

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The Bombay Civil Courts Act, 1869, provides for pecuniary jurisdiction of different civil courts for trial of suits of a civil nature,

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particularly the court of Civil Judge (Junior Division) and court of Civil Judge (Senior Division). Section 24 of the Act provides that the court of Civil Judge (Junior Division) shall hear and decide the suits in which the amount or value of the subject matter does not exceed a particular amount. Similarly, Section 26 provides for the court which will hear the appeals arising from the decrees which may be passed by court of Civil Judge (Junior Division) or court of Civil Judge(Senior Division). From time to time, the limits of pecuniary jurisdiction of trial courts as well as appellate courts have been revised.

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Recently, Bombay Civil Courts (Amendment) Act, 2011 has been enacted for further upward revision of the limits of pecuniary jurisdiction of the civil courts trial courts as well as appellate civil courts in the State of Maharashtra. While Section 24 has revised the limits of pecuniary jurisdiction of the trial courts from Rs.1,00,000/- to Rs.5,00,000/-, Section 26 has revised the limits of pecuniary jurisdiction of District Court as the appellate court from Rs.2,00,000/- to Rs.10,00,000/-.

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Section 6 of the Amendment Act has inserted Section 28(B) for transfer of pending suits and appeals in the following terms :-

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“28B. On the commencement of the Bombay Civil Courts (Amendment) Act, 2011,-

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(1) all suits in which the amount or value of the subject

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matter does not exceed rupees five lakhs and which are pending before the Court of Civil Judge (Senior Division), immediately, before such commencement, shall stand transferred to the concerned Court of Civil Judge (Junior Division) and such court may deal with such suit from the stage which was reached before such transfer or from any earlier stage or de-novo as such court may deem fit;

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(2) all appeals in which the amount or value of the of the subject matter does not exceed rupees ten lakhs and pending before the High Court immediately before such commencement, shall stand transferred to the concerned District Court and such District Court may deal with such appeal from the stage which was reached before such transfer or from any earlier stage or denovo as such court may deem fit;

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Provided that, this section shall not apply to any suits and appeals which are pending before the Court of Civil Judge (Senior Division) or, as the case may be, before the High Court, which are statutorily provided under the relevant enactment before such Court.”

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(emphasis supplied by the petitioner)

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By notification dated 4^th January, 2012 published in the Government Gazette dated 30^th December, 2011, 16^th January, 2012 is notified as the date of commencement of the above Amending Act of 2011.

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The petitioner is particularly aggrieved by the words “or from

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any earlier stage or de-novo as such court may deem fit” in subsection (2) of Section 28B.

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It is submitted by learned counsel for the petitioner that once the High Court has admitted a first appeal and it is pending before this Court on the date of commencement of the Amending Act, which is 16^th January, 2012, the District Court has been given the power to deal with the appeal transferred to it from any earlier stage or de-novo as the District Court may deem fit. The grievance is that where the High Court had admitted the appeal prior to 16^th January, 2012 and the same was pending for final hearing, upon the transfer of the said appeal to the concerned District Court, the District Judge may revoke the order of admission and set-down the appeal for fresh admission. It is submitted that this would amount to allowing the District Judge to set-aside the order of admission of the appeal which was passed by the High Court. It is submitted that though the Legislature has the power to transfer the appeals pending before the High Court to District Court, the Legislature could not have empowered the District Court to deal with the appeal from any ealier stage or de-novo.

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Mr. Khambatta, learned senior counsel appearing for respondent

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No.3, has opposed the writ petition and submitted that once the CPC

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appeals are transferred from the High Court to a District Court, the District Court had to be invested with all the appellate powers of the High Court, and therefore, the words “or from any earlier stage or de-novo as such court may deem fit” do not suffer from any infirmity.

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Learned counsel for the petitioner also submitted that, in the event, a first appeal was dismissed for default by the High Court before 16^th January, 2012, then, such an appeal would not stand transferred from the High Court to District Court. The appellant in such a case, will not be able to file an application for restoration before the District Court nor would it be possible for the High Court to entertain an application for restoration in an appeal which would not now lie before the High Court.

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Having heard learned counsel for the parties, we are of the view that there is no substance in either of the apprehensions voiced by learned counsel for the petitioner.

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We find considerable substance in the submission made by Mr. Khambatta, learned senior counsel, that once the appeal is transferred by the Amending Act from the High Court to a District Court, the District Court would necessarily have to be invested with all the powers of the High Court as the Court of Appeal. There may be a case where the High Court

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admitted an appeal and granted interim injunction or stay in favour of the appellant and against the respondent. However, after transfer of the appeal to the District Court, it would still be open to the respondent to move the appellate court to vacate any interim stay or injunction by contending that certain relevant facts were suppressed from the High Court. If the impugned words were not to be found in sub-section (2) of Section 28B, the District Court may find itself without any power to revoke the interim or adinterim stay or injunction order passed by the High Court prior to transfer of such appeals. To deal with such kind of cases, the Legislature in its wisdom rightly conferred the powers on the District Court to deal with the appeal from the stage which was reached at the time of such transfer or any earlier stage or de-novo as the District Court may deem fit. In our view, therefore, the underlined words in sub-section 2 of Section 28A “or from any earlier stage or de-novo as such court may deem fit” do not suffer from any legislative incompetence or any other constitutional infirmity.

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Dealing with the second apprehension voiced on behalf of the petitioner, where a first appeal was dismissed for default by the High Court prior to 16^th January, 2012, in such a case, if the appellant desires to move an application for restoration, such an application will have to be treated as an application for review and thereafter moved before the High Court and, in case, the restoration application is allowed, the first appeal will stand

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revived, but it will immediately stand transferred to the concerned District Court.

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In view of the above discussion, we find no merit in this writ petition. Subject to the observations made hereinabove, the writ

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petition is dismissed.

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(CHIEF JUSTICE)

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(RANJIT MORE, J.)

Vikas Baburao Sonawane v. State of Maharashtra and Ors.

Case brief

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What did the court decide?

Vikas Baburao Sonawane v. State of Maharashtra and Ors.

Case brief

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What did the court decide?

What the court decided

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