Ramanivas Gupta and Others vs Maliram and Others

B. Subhashan Reddy, J.—These appeals are preferred against the judgment and decree rendered by the Court below. In fact, out of one suit, four appeals are filed which are before me and it is stated that one more appeal is yet to be numbered as there was a delay in preferring the same and that the delay was condoned only last week and that appeal is yet to be numbered. Totally there are 13 defendants. While defendants 11,12 and 13 filed CCCA No. 39/94 represented by Mr. C. Poorniah; CCCA No. 41/94 is filed by defendants 3 and 5 represented by Mr. M.V.S. Suresh Kumar; CCCA No. 47/94 is filed by the widow of defendant No. 1 represented by Mr. C.V. Mohan Reddy and CCCA No. 49/94 is filed by defendants 2 and 4 represented by Mr. T. Veerabhadrayya and another appeal is said to have been filed by defendants 9 and 10 represented by Mr. Singh.

The 1st defendant is the karta and his co-parcener sons are defendants 2, 3,4 and 5. The 1st defendant died and his widow is brought on record as Legal Representative. Defendants 6, 7 and 8 are the brothers of the 2nd plaintiff. Defendants 9 and 10 are said to be the nephews of defendant No. 1 Defendants 11, 12 and 13 are the purchasers from defendants 9 and 10. The suit in O.S. No. 856/85 was instituted in the Court of the IV-Additional Judge, City Civil Court, Hyderabad by (1) Devikinandan, (2) Mahavir Prasad and (3) Maliram relating to three shops and residential portion on the first floor thereon situated at Charkaman, Near Charminar, Hyderabad two furlongs away from the premises of this Court. On 29-7-87the 1st plaintiff withdrew the suit and the 2nd plaintiff withdrew the suit on 26-2-91. Then in the fray, there was only 3rd plaintiff who prosecuted the suit claiming the relief for one shop and the corresponding residential portion on the first floor, corresponding to 1/3rd share. The said suit was decreed by a judgment dated 16-2-1994.

It is pertinent to mention that each of the appeals in which the judgment is assailed, relates to the same shop and corresponding portion thereon valued at Rs. 1,52,000/-, that is, the value of each of the appeal. Even though these appeals are of 1994, they were directed to be heard on 12-7-94 and because of that, these appeals came up before this Court for hearing.

A preliminary objection was raised by Mr. D.V. Reddy, the learned Counsel for the respondent-decree-holder submitting that as the suit was instituted on 22-7-85 and the value of the suit was Rs. 1,52,000/- in so far as the decree-holder was concerned, as plaintiffs 1 and 2 withdrew, at that time the first appeals were to be heard only by a Division Bench as pecuniary jurisdiction of the single Bench was Rs. 50,000/- while in excess thereof the jurisdiction was that of the Division Bench. As such, Mr. D.V. Reddy contended that these appeals should be posted before the Division Bench and this Court being a single Bench cannot hear the same. His argument is that for determining the jurisdiction of the single Bench or Division Bench on the basis of the pecuniary jurisdiction, the date of the institution of the suit is criteria and not the date of either filing of the appeal or hearing of the same. Further, his argument is that the appeal is a substantive right and that the amended rules are only prospective in operation and not retrospective and that under Rule 1(3 )(c) of the Andhra Pradesh High Court Appellate side Rules, the Rules of the High Court of Judicature, Andhra Pradesh, at Hyderabad as it stood on 27-3-86 conferred jurisdiction on the single Judge to hear the first appeals on civil side upto a pecuniary jurisdiction of Rs. 50,000/- and it was raised to Rs. 3 lakhs only from 27-3-86 and that the suit having been instituted on 22-7-85 the same should determine the jurisdiction to hear the appeals and if that be so, the single Bench will not: have the jurisdiction and the Division Bench has to hear the appeals. Mr. D. V. Reddy has cited the judgments rendered by this Court in Rayalaseema Bank Ltd. Vs. Tharigopala Pedda Narayanappa and Another, , Saraswathula Kameswaramma and Another Vs. Radhakrishna and Co. and Others, , M. Srikrishnaiah v. S.S. Kumar, 1980 APLJ 375 and Mukund Deo (Dead) represented by his legal representatives Kasibai and Others Vs. Mahadu and Others, . In Rayalaseema Bank''s case (lst cited supra), the point which fell for consideration was as to whether the appellate side Rules are statutory Rules or administrative Rules. It was held that the appellate side Rules are statutory Rules and not mere administrative in nature. In S. Kameswaramma''s case (2nd cited supra) the point decided was as to whether Section 17(1) of the Andhra Pradesh Civil Courts Act, 1972 was retrospective or prospective. In M. Srikrishniah''s case (3rd cited supra), the point decided was entirely different. There were two reliefs-one was below Rs,20,()0()/- which was then the pecuniary jurisdiction of the single Judge and another relief was beyond that value. Relying upon Section 50 of the Andhra Court-Fee and Suits Valuation Act the learned Judge held that the value of the appeal has to be taken as more than Rs. 20,000/- (Rs.32,000/- in that case) and as such held that the matter has to be heard by a Division Bench. In Kasibai''s case (4th cited supra), it was held that the right of appeal is a substantive a right and while dealing with the jurisdiction of the High Court during Nizam''s regime when Hyderabad CPC was operative, u/s 602 thereof the Second Appeal was to be heard not only on question of law but also on question of fact. It was held by the Supreme Court that the said right being substantive right that has to be treated as an appeal u/s 602 of Hyderabad CPC and not u/s 100 CPC where the scope is very limited to deal with question of law. In S. Kameswaramma''s case (2nd cited supra), a Division Bench of this Court while interpreting Section 17 of the Andhra Pradesh Civil Courts Act and while reiterating the earlier judgment rendered by this Court held that appeal is a substantive right and the date of institution of the suit determines the right to appeal before a particular forum and as the forum at the relevant point of time was the High Court, the District Judge was not having jurisdiction to hear the appeal.

M/s. T. Veerabhadrayya, C. Poorniah, S. Venkat Reddy have argued the matter and M.V.S. Suresh Kumar adopting their arguments, have argued contra. They have submitted that the judgments cited by Mr. D.V. Reddy, the learned Counsel for the respondent-decree-holder are inapplicable to these cases as they did not deal with this point and that the appeal is a substantive right and the right of appeal on the date of institution of suit cannot be changed with retrospective effect unless expressed by a provision contained in Amendment Act or deducible by a necessary implication. But, the appellate side Rules mentioned above are only procedural in nature and that the forum of appeal is not changed as the High Court being the forum remains unaltered. Venkata Chenchayya v. Ramalingam, AIR 1957 A.P. 744 is a Division Bench judgment interpreting the appellate side Rules framed by the High Court and it was held that the appellate side Rules are statutory in nature and not merely administrative and that the said Rules are Rules of procedure. The decision in Ittavira Mathai Vs. Varkey Varkey and Another, is cited in support of the proposition that the party has got no right to insist that appeal be heard either by a single Judge or Division Bench or Full Bench. Repelling such an argument, the Supreme Court held as under:

"Whether it is to be heard by one, two or a larger number of judges is merely a matter of procedure. No party has a vested right to have his appeal heard by a specified number of judges. An appeal lay to the High Court and the appeal in question was in fact heard and disposed by the High Court and, therefore, no right of the party has been infringed merely because it was heard by two judges and not by three judges."

In view of the above discussion, what is deducible is that the appeal is a substantial right and unless the amending statute takes away the right of appeal expressly or by a necessary implication, is only prospective in operation and that the date of filing of the suit governs the appellate forum. In the instant case, the appeals lie to the High Court and the said right of appeal is not taken away and that is in tact. While the pecuniary jurisdiction of the single Bench hearing of appeals was Rs. 7,500/-, it was increased to Rs. 10,000/-, then to Rs. 20,000/-, then to Rs. 50,000/- and now presently it is Rs. 3 lakhs. It is true that when the suit was filed on 22-7-85 the pecuniary jurisdiction of a single Bench was only Rs. 50,000/- and it was enhanced to Rs. 3 lakhs only from 27-3-86 by amending Rule 1(3)(c) of the appellate side Rules. This rule is only a Rule of procedure, and as such, it is retrospective in operation. When a civil appeal comes up for hearing whatever pecuniary jurisdiction mentioned under Rule 1(3)(c) governs the situation and it cannot be determined in the context of the date of the institution of the suit as the value of the suit has got nothing to do with the jurisdiction of the single Bench hearing the first appeals, as the value of the appeal at the time of hearing is a criterion. As the value of the appeal as on this date is only Rs. 1,52,000/- being less than Rs. 3 lakhs, the single Bench is entitled to hear the appeals and as such, I over rule the objection raised by Mr. D.V. Reddy and hold this issue in favour of the appellants.

Mr. D.V. Reddy submitted that his client wants to engage a senior counsel and mentioned the name of senior Counsel Mr. Parasaran and seeks for adjournment of the appeals for regular hearing on the other points.

Post the appeals in usual course for hearing on 28-11-1994 and not as part heards.