The High Court, vakalat nilami 1
The appeal is disposed of with an order to transfer the appeal with all its accompaniments to the concerned District Court.
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C/FA/5229/1995 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5229 of 1995
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STATE OF GUJARAT & 1 other(s) Versus
BAI HAWABEN PUJAJABHAI MALEK & 3 other(s)
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Appearance:
MR SOHAM JOSHI, AGP for the Appellant(s) No. 1,2 LAW VERDICT for the Defendant(s) No. 1
======================================================= CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 04/02/2021
ORAL ORDER
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fact that pending this Appeal, the Bombay Civil Courts Act, 1869 has been repealed by virtue of Section 30 of the Gujarat Civil Courts Act, 2005. The provisions relating to the Appeals in the original Act is as follows:-
" Appeals. - (1)Appeal from the decrees and others passed by a court of District Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie to the High Court.
(2) Appeals from the decrees and others passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie-
3. Appeals from the decrees and others passed by a Court of Civil Judge in suits or proceedings of a civil nature shall, when such appeals are allowed by law, lie to the Court of District Judge of the district:
Provided that the High Court may, in consultation with the State Government, by notification, direct that such appeals against decrees and orders may lie to the Court of Senior Civil Judge, when the amount or value of the subject matter of the suit or proceedings is less than on lakh of rupees and thereupno appeals shall be preferred accordingly.
4. The provision of this section will apply to all decreed and others made after the appointed date irrespective for the fact whether the suits of proceedings in which they are made were
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instituted before or after the appointed date.
Thus, by virtue of this provision, the jurisdiction of the Appellate Court i.e. District Court was less than Rs. 5 Lakhs.
30. Repeal and savings-: (1) On an from the appointed dated the Bombay Civil Courts Act, 1869, in its application to the State of Gujarat, shall stand repealed.
(2) Such repeal shall not affect the previous operation of the enactment so repeased and any thing done or any action taken including the districts formed , limits defined, Courts established or constituted, appointments, rules or orders made functions assigned, powers granted, seal, or forms prescribed, jurisdiction defined or vested and notifications or notices issued by or under the provisions of the said Act and deemed to have been done or taken under the provisions thereof shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act and shall continue in force unless and untill superseded by anything done or any action taken under this Act.
(3) Notwithstanding anything contained in sub-section (1) or any other provisions of this Act or in the enactment repealed by sub-section (1) or in any other law or provision having the force of law all suits, appeals and proceedings connected therewith, pending before any Court, which under this Act have to be instituted or commenced in another Court, shall on the appointed day, stands transferred to such other Court and shall be continued and disposed off by such other Court in accordance with law as if such suti and proceedings had been instituted or commenced in such other Court under this Act.
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Andhra Pradesh High Court as well as decision of the Hon'ble Supreme Court in case of Garikapati Veeraiah v. N. Subaiya Chaudhary, reported in [1957] 1 SCR 488, and Para-11 of which has been quoted as under:
“As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line
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of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle,Their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.”
21. Thereafter, the larger Bench referred to number of authorities and proceeded to cull out the principles as follows:-
“23. From the decisions cited above the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but
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steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
22. On a proper understanding of the authority in Garikapati Veeraya (supra), which relied upon the Privy
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Council decision, three basic principles, namely,
22.1 The forum of appeal available to a suitor in a pending action of an appeal to a superior tribunal which belongs to him as of right is a very different thing from regulating procedure;
22.2 That it is an integral part of the right when the action was initiated at the time of the institution of action; and
22.3 That if the Court to which an appeal lies is altogether abolished without any forum constituted in its place for the disposal of pending matters or for lodgment of the appeals, vested right perishes, are established.
23. It is worth noting that in Garikapati Veeraya (supra), the Constitution Bench ruled that as the Federal Court had been abolished, the Supreme Court was entitled to hear the appeal under Article 135 of the Constitution, and no appeal lay under Article 133. The other principle that has been culled out is that the transfer of an appeal to another forum amounts to interference with existing rights which is contrary to well known general principles that statutes are not to be held retrospective unless a clear intention to that effect is manifested.
24. In Dhadi Sahu (supra), it has been held thus:-
“18. It may be stated at the outset that the general principle is that a law which brings about a change in
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the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them.
xxx xxx xxx
21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums.”
25. At this stage, we may state with profit that it is a well settled proposition of law that enactments dealing with substantive rights are primarily prospective unless it is expressly or by necessary intention or implication given retrospectivity. The aforesaid principle has full play when vested rights are affected. In the absence of any unequivocal expose, the piece of Legislation must exposit adequate intendment of Legislature to make the
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provision retrospective. As has been stated in various authorities referred to hereinabove, a right of appeal as well as forum is a vested right unless the said right is taken away by the Legislature by an express provision in the Statute by necessary intention."
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it was considered that the forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum, it was observed that the right becomes a vested right when the proceedings are initiated in the Tribunal of the first instance and unless the legislature by the express words or by necessary implication clearly so indicated, the vested right will continue in spite of the change of jurisdiction of the different Tribunals or forums. The Apex Court in the case of Dhadi Sahu (supra) observed as under:
“18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them.
21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so
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indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums.”
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"Admittedly, the value of the subject-matter in the suit from which this appeal arises is less than Rs.5 lakhs and the appeal is filed before 9.5.2005.Therefore, by virtue of the provisions of sub-section (3) of Section 30 of the Gujarat Civil Courts Act, 2005, the appeal is required to be transferred to the appropriate Court having jurisdiction. Accordingly, the appeal is disposed with the order to transfer the appeal with all its accompaniments to the appropriate Court."
(DR. A. P. THAKER, J)
R.S. MALEK
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2 issues framed by the court
Whether an appeal pending before the High Court, filed before the enactment of the Gujarat Civil Courts Act, 2005, must be transferred to the District Court under Section 30(3) of the Act due to its p
Whether the right of appeal is a vested substantive right that protects litigants from statutory changes altering the forum of appeal without clear legislative intent.
Colour shows how this judgement treated each authority
Garikapati Veeraiah v. N. Subaiya ChaudharyRelied on¶43
Garikapati Veeraiah v. N. Subaiya Chaudhary, reported in [1957] 1 SCR 488 · Who else cites this
Colonial Sugar Refining Company Ltd. v. IrvingReferred¶45
Colonial Sugar Refining Company Ltd. v. Irving
Commissioner of Income Tax v. Dhadi SahuRelied on¶79
Commissioner of Income Tax v. Dhadi Sahu [1994 Supp. 1 SCC 257] · Who else cites this
1 provisions across 1 enactments
STATE OF GUJARAT
BAI HAWABEN PUJAJABHAI MALEK
DR. A. P. THAKER
As recorded by the court registry
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