Firm Abdul Rasool Fakruddin vs Kalyan Chand and Others

Dr. T.N. Singh, J.

The Second Appeal, lodged in this Court in 1973, had come up before one of us (Dr. T. N. Singh, J.) for hearing on 26-7-1986. When the appeal came for further hearing on 7-8-1986, objection to the maintainability of the appeal was taken on which counsel were heard on that date as also on 14-8-1986. It was considered necessary to refer the question to a Larger Bench and accordingly, on reference made to this Bench on 14-8-1986, the appeal came to be listed inexplicably lately for hearing before us no 4-7-1989.

Because of appellants'' counsel''s 1984 JLJ 511 insistence based on seven decisions of this Court that the question agitated is not moot any more, it has become necessary for us to prefix a short comment to this order. True, in as many as five decisions cited by Shri K. K. Lahoti 1983 GLR 153. this Court was required to interpret Section 97 of the CPC (Amendment) Act. 1976, for short, the Act or the Amendment Act. True also, in the referring Order, it was noted that the view expressed in this Court''s judgment in Laxmi Chand AIR 1980 All 42 FB, rendered by a learned Single Judge of this Court, was out of tunc the view a Division Bench of Gauhati High Court had expressed in Sudhir Anand, AIR 1979 P & H 262 and the fact also is that the Referring Judge had spoken for the Court in that case, indeed, in Sudhir Anand (supra), it was noted, albeit with reference to an earlier decision tendered by this Court which Shri Lahoti also cited before us. that this Court''s view on the interpretation of the relevant provision of the Amendment Act had been dissented from in decisions rendered by almost all other High Courts in the country. See Mohammad Khan Vs. State Bank of Travancore, , Kuriakose Vs. P.K. Narayanan Nair, , Hasumatiben Vs. Ambalal Krishnalal Parikh, , Mst. Sarabai Agarwalla and Others Vs. Haradhan Mohapatra and Another, Rangnath Mishra, C.J., (as his Lordship than was) (surveying entire case-law). But, we reminded ourselves of the constitutional imperative that a decision is a precedent only for what it decides and the fact of the matter is that the precise question which has fallen for our decision in this appeal had not come up for consideration of this Court in the decisions cited. We considered, therefore, unnecessary to resolve the controversy, for the purpose of deciding this appeal, as to whether the view expressed by this Court in the decisions cited on the interpretation of clause (a), or clause (g) or even clause (q), of Section 97 (2), of the Amendment Act, required reconsideration by a Larger Bench of three Judges. We could thereby extract further, unduly, disposal of this sateen years old appeal. It would suffice to refer, at this stage, to the five decisions of this Court relied on by Shri Lahoti. These are :

Laxmi Chand (supra): Dattatraya Naik 1983 J1J 242, Sitaram 1981 JLJ 171. Chuluram Vs. Bhagatram, , and. Shesh Kumar 1980 JLJ 338.

Although Shri Lahoti cited three more decisions, but those being of the years 1960, 1961 and 1967, relevance thereof to the instant controversy emerging from the interpretation of the Amendment Act, 1976 being little or none, reference to these decisions in omitted.

The instant appeal arised out of money suit valued at Rs. 3,000/-and the maintainability of the appeal is challenged on the basis of the bar contemplated u/s 102 C. P. C as mended by the Amendment Act, 1976. Thereunder, it is contempleted that, "No second appeal shall lie in any suit of the nature congnizable by Courts of Small Causes, when the amount or value of the subject-matter of he original suit does not exceed three thousand rupees". Admittedly, the cause of action for the suit arose out of a loan for Rs. 3,000/- advanced by plaintiffs/ respondents on 17-4-1964 to the defendant/ appellants. However, for the resolution of the controversy it is necessary to extract the relevant provisions of the Amendment Act, 1976 :

Repeal and savings (1)........(2) Notwithstanding that the provisions of this Act hare come into force of the repeal under subsection (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897) Clauses (a) to Clause (y) omitted, as not relevant.

(7) the provisions of Order XLI of the Fifth Schedule, as amended by Section 87 of this Act. shall not apply to or affect any appeal pending immediately before the commenecmem of the said Section 87: and every such appeal shall be disposed of as if the said Section 87 had not come into force.

Clause (za) and Ob) also omitted, as not relevant.

(3) Save as otherwise provided in sub-Section (2) the provisions of the Principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is is instituted or filed, had been acquired or had accrued before such commencement.

(Emphasis added)

Although the provisions of clauses (11. (m) and (n) of Section 97 (2) are not extracted above, we have felt it necessary still to refer to them to appreciate fully the validity of reliance by Shri Lahoti on clause (z) afore-extracted to support his contention. We have noted that the decision in Laxmi Chand (supra) was rendered with respect to clause (1). In all these three clauses, (1), (in) and (n) there is an express saving made, in terms, using the words "shall not apply to or effect any appeal......" in respect respectively to the provisions of Sections 96. 100 and 100-A, as amended by Sections 33, 37 and 38 respectively, of the Amendment Act.

Because we read something important -in a recent decision of the Apex Court in Ganpat Giri Vs. Second Additional District Judge, Ballia and Others, on the interpretation of Section 97 of the Amendment Act, we propose to, refer first to that decision. Their Lordships referred to the recommendations of the Law commission to observe that the object of Section 97 (!) was to provide currency for same procedural law: w. e. f. 1-2-1977, in all Civil Courts wherever CPC was in force. High Court''s view that U. P. Amendment of Rule 72 of Order 21 would continue to be operative despite the Amendment Act, was rejected. Due regard had to be paid to the combined effect of sub-sections (1) and (3) of Section 97. it was held. If the Act did not amend Rule 72, that was meant to be retained and made applicable to all proceedings to which local amendment was earlier applicable because the latter lost currency on being repealed by Section 97 (1). The following passage is extracted from para 11 of the decision for its direct relevance to the controversy in the instant appeal :

"11.......Sub-section (3) of S. 97 provides that save as otherwise provided in sub-sec. (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Sub-sec. (3) of S. 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings refereed to therein subject to sub-sec. (2) of S. 97". (Emphasis added.)

Their Lordship meant to indicate clearly that Section 97 (2) was exhaustive concerning "savings" curtailing or modulating the effect of the Amendment Act. Evidently, the Code, as amended by the Act, except to the extent affected by "general" or express saving contemplated u/s 97 (2), is applicable to all cases and situations even to the extent of taking away any vested right, indeed, the latter contingency is expressly contemplated under the imnobstante clause embedded in the conclusing portion of Section 97(3) "notwithstanding the fact that......" emphasised in the extract above. What the Legislature deliberately excluded in Section 97 (2) cannot be interpolated judicially therein or in sub-section (3) to neutralise the punch of the non obstante clause deliberately inserted therein.

The first question to be considered therefore, is, if any specific saving contemplated under any particular clause of sub-section (2) of Section 97 can at all be invoked with reference to the amended Section 102. If not, there would be little scope to oppose in any manner free play of sub-section (3) and the Court is bound to give full effect to the provisions thereof. Their Lordships in Ganpat Giri (supra) noticed the combined effect of three subsections of Sec. 97 to note that the Amending Act had brought about changes atonce wholesale and wholesome, in the CPC and the Courts are bound to give effect to the changes, albeit with regard also to the savings contemplated u/s 97. That position is clearly projected in the language used in sub-section (2)- "the provisions of this Act have come into force" and of sub-section (3)-"the provisions of the Principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act......", of Section 97. There can be no doubt that several savings enumerated in sub-section (2) of Section 97 are to be regarded as exhaustive because the provisions thereof are to be harmonised with those of sub-section (3) which contains the non-obstance clause in it, alongwith the words "save as otherwise provided in sub-section (2)".

It is significant that while savings are made in clauses (1), (m) and (n) with respect to Sections 96, 100 and 100-A no saving is contemplated as respects Section 102 of the Code, In the Amendment Act, Section 39 of that Act, has mended Section 102 of the Principal Act, namely, CPC, and that Section, in terms also does not contemplate any saving. It says, "in Section 102 of the Principal Act, for the words ''-''one thousand rupees", the words "three thousand rupees" shall be substituted". Reference to Section 87 of the amendment Act is made in clause (z) of Section 97(2) on which Shri Lahoti relied, but that Section has nothing to do with Section 102. Under that Section, certain new provisions in the form of Rules 3-A, 11-A, 23-A and 26-A were inserted in Order 41 and of the same Order, Rules 1, 27, 30 and 33 were amended. There cannot be any doubt that the amendment effected by Section 87 of the Amendment Act had no impact of any nature on the amendment of Section 102 which took effect without any saving, from the date of the commencement of 1976 Act, namely, 1-2-1977. Indeed, by virtue of subsection (3) of Section 97, in express terms, vested right in an appeal pending in High Court on the date of commencement of the Amendment Act was taken away by making amended Section 102 applicable to pending second appeals, albeit of a particular class.

Much argument was advanced on the basts of the general principle that an appeal is a continuation of the suit and also on the basis of the expression "without prejudice to the generality of the provision of Section 6 of General Clauses Act" occurring in Section 97 (2), but those arguments are effectively and forcefully repelled by Legislature''s deliberate effort made in sub-section (3) using the expressions, "notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement". If we have to say anything else in this regard, we may refer to Apex Court''s decision in Garikapatti Veeraya Vs. N. Subbiah Choudhury, , wherein it was observed that although a right of appeal is a vested right and it accrues to the litigant and exists on and from the date of the (sic), even that vested right of appeal can be taken away by subsequent amendment if so provided expressly or by necessary intendment.

With regard to reference in sub-section (2) of Section 97 to Section 6 of the General Clauses Act, suffice it to say that Legislature took special care to limit operation thereof by using the word "generality" by which it meant deliberately to accord primacy to the special provision enacted in the non-obstante clause of sub-section (3) with reference to cause of action accrued before commencement of the Act. ft is a well-established canon of interpretation that Legislature is presumed to use appropriate word to manifest its intention. Due importance must, therefore, be attached to the objection of Legislature in using the word "generality" See Uabaji Kandaji Garad AIR 1954 SC 192. Indeed, Section 6 of that Act itself contemplates that "unless the contrary is expressed" repeal of any enactment does not ''''affect any right privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed". Legislature has used express words in sub-section (3) to convey its intention that "save as otherwise provided in sub-section (2)", the provision of Section 97 does not affect in any manner the immediate effect of the changes in CPC brought about by the Amendment Act. A reference, in this connection, may be profitably made to decision of the Apex Court in Maharashtra Board S. H. S. E. AIR 1984 SC 153, to underscore the importance of the Rule of interpretation stated therein that were under a specific section or rule a particular subject has received special treatment, such special provision will exclude the applicability of any general provision which might otherwise govern the said topic. That apart, we may also reiterate in this context another well-established rule of interpretation that such construction of a statutory provision has to be accepted by Courts advances the intention of Legislature and remedies the mischief which the legislation proposes to thwart. See Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, , Undisputedly, the Act aims at short-circuiting civil litigation; that has to be promoted.

For ail the reasons aforesaid, we are of the view that there being no saving expressly contemplated u/s 97 (2) of the Amendment Act in respect of pending appeals, to which Section 102 applies, in terms of subsection (3) thereof amended Section 102 is applicable to pending appeals, though in respect of which cause of action had arisen prior to the commencement of the Amendment Act. Accordingly, the instant appeal, which was pending on 1-2-1977. is therefore, not maintainable because the value of the subject matter of the suit does not exceed three thousand rupees.

We have already exhaustively stated at the outset our reason for considering it to be a futile exercise to deal with the decisions of this Court in Laxmi Chand. Shesh Kumar. Chuluram, Sitaram and Dattatray Naik, all supra. We reiterate that in those cases, this Court was not required to consider precisely the question if the amended Section 102 would apply to pending second appeals; but the effect of some clauses of Sec. 97 (2). A word may still be said about Chhabiladas Mangaldas Vs. Luhar Kohan Arja, , cited by Shri Lahoti. That was on amendment of Section 102 made in 1956 and that amendment was held not retrospective. Suffice it to say that we are required in this appeal to examine the scope of the amendment of Section 102, made by Amendment Act, 1976 and we have to pronounce on the scope, ambit and effect of the amended Section with respect to the provisions of the 1976 Act. How Section 102 was amended in 1956 is of little relevance to the present controversy.

In the result, the appeal is held not maintainable and it is dismissed as such. No costs, As the appeal is being dismissed as not maintainable, we consider it unnecessary to remit the appeal to the Referring Judge for the purpose merely of observing the formality of making the formal pronouncement. That formality has become unnecessary as the Reference to this Bench was made by one of us.