Kotwal Madholal vs Abdul Rashid

Jaswant Singh, J.

(1) This is an appeal against an order dated April 11, 1972, oft be learned District Judge, Bhadarwah, dismissing as incompetent the appeal

preferred by the plaintiffappellant against the judgment dated July 19, 1971, of the Sub Judge, Bhadarwah, passed in;3 suit for accounts instituted

under the Agriculturist's Relief Act, 1933(1926 A. D ).

(2) After hearing the learned counsel for the parties at considerable length, we are of the opinion that this appeal must succeed.

(3) Although Section 5 of the Agriculturists Relief Act was struck down by a Division Bench of this court in Haji Ahmad Bhat Vs. Shaban Ganai

1969 K L J 221. as unconstitutional and void on the ground that it offended Articles 13and 11 of the Constitution, no adverse observation

regarding the other provisions of the Act were made therein. On the contrary, it was specifically observed in that case that the provisions of

Section 5 were severable from the main Act. The effect of this striking d own of Section 5 of the Act was that it became nonest, wholly ineffectual

and destitute of any legal effect. In the absence of Section 5, let us see if the appellant had a right of appeal under any other provision of law

enforce at the commencement of the Us. It would be useful in this connection to refer to Section 18 of the Agriculturist's Relief Act which provides

;

''Except in so far as these are inconsistent with this Act, the provisions of the Code of Civil Procedure, and the Jammu and Kashmir State Civil

Courts Act. 1977, shall apply in all suits and proceedings before the court under this Ace. The Court exercising jurisdiction under Sec. 4 shall for

the purposes of the said Code, and the said Act be deemed inferior to the District Court.

(4) A plain reading of the above quoted pro. vision of the Act would show that the provisions of the Code of Civil Procedure and the Jammu and

Kashmir State Civil Courts Act, 1977 (1920 AD) in so far as they are not inconsistent with the Agriculturist's Relief Act, have b en made

applicable to suits and proceedings under the Act i e. the Agriculturist's Relief Act Now as the pro. visions of the Civil Procedure Code and the

State Civil Courts Act relating to the appeals are not inconsistent with the provisions of the Agriculturist's Relief Act, we have no hesitation in

observing that the right of appeal in the present case would be governed by Section 96 of the Code of Civil Procedure and Section 34 of the State

Civil Courts Act.

(5) According to Action 96 of the Civil Procedure Code, a right of appeal from every decree passed by any court exercising original jurisdiction

lies till the court authorised to hear appeals from the decision of such court. The court authoriesed to bear appeals from the court of the Sub Judge,

Bhadarwah, instant the in case is the court of the District Judge, Bhadarwah. Thus an appeal firm the aforesaid judgment of the Subordinate Judge,

Badarwah. lay to r he District Judge, Badarwah That an appeal lay to the Distt Judge in the present case is also evident from a perusal of Section

64 (1) of the State Civil Courts Act, 1977 (1920 AD), which provides :

(1) Save as aforesaid an appeal from a decree or order of a subordinate Judge shall lie 1

(a) to the District Judge where the value of the original suit in which the decree or order was made did not exceed two thousand and five hundred

rupees and

(b) to the High Court in any other case.''

(6) The position that emerges, therefore, is that there being no inconsistency between the provisions of the Agriculturist's Relief Act, Sec. 96 of the

Code of Civil Procedure and Section 34 of the Civil Courts Act, an appeal from the judgment and decree of the Subordinate Judge, Bhadarwah,

lay to the District Judge, Bhadarwah. This aspect of the matter seems to have been missed by the learned District Judge in passing the impugned

order.

(7) We according1y allow the appeal, set aside the judgment and order passed by the District Judge, Bhadarwah and remand the case to him with

the direction to admit the appeal to its original number and dispose of the same according to law. The parties have been directed to appear before

the District Judge, Badarwah, for further directions on May 2, 1974.

(8) In conclusion we wish to make it cleat that the observation made by their Lordships of the Division Bench in Haji Ahmad Ganai Vs. Sudhan

Ganai (Supra) regarding the nonexistence of the right of appeal either to a creditor or to a debtor will not stand in the way of the entertainment of

the aforesaid appeal by the District Judge. The said remarks appear to have been made by their Lordships merely to indicate the consequences

which might have been said to flow from the absence of Section 5. Their Lordships were also fully aware of the observations made by their

Lordships of the Supreme Court from time to time that the right of appeal is not a mere matter of procedure but is a substantive or a vested right

and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be

actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the

suit or proceeding and not by the law that prevail ac the date of its decision or at the date of the filing of the appeal.

(9) In view of all this, the aforesaid observation of their Lordships of the Division Bench can not be interpreted to mean that the right of appeal

which was otherwise available to a plaintiff or to a defendant under any other relevant provision of law e. g. under Section 96 of the Code of Civil

Procedure or Section 31 of the State Civil Courts Act, would be divested.