Vasava Narottam Unju vs Shah Ambalal Maganlal

N.G. Shelat, J.—Mr. Shah, the learned Advocate for the Appellant contended that the learned District Judge, Godhra, who decided the

appeal, had no jurisdiction to entertain and decide the same. He pointed out that the suit was filed in the Court of the Civil Judge Junior Division at

Kalol by reason of his having jurisdiction to entertain the suit as the defendant resided at Chandpur within the jurisdiction of the said Court, having

regard to Section 20, Clause (a) of the Civil Procedure Code. That Chandpur, according to him, remained no longer within the jurisdiction of

either that Court or of the District Court, when appeal against the decision in suit was preferred inasmuch as that village of Chandpur has been

transferred from that Division and put into a different Division by reason of a Notification No. CPR 1259/8897/43, published in the Bombay

Government Gazette on 15-10-1959 whereby the Government of Bombay, in exercise of its powers conferred by Section 22 of the Bombay Civil

Courts Act, 1869, directed that the authorities specified in column (1) of the schedule to annexure... In Column 1 of the schedule the villages are

set out and one of them is Chandpur, a place of residence of the defendant. Thus, according to him, the District Court which decided the appeal

had no jurisdiction to entertain and decide the same. In support of his contention, he invited a reference to a case of Allah Del Begam v. Kesri Mal

ILR (1906) All 93, where it has been held that: ""where a certain area is transferred by a Government Notification from the jurisdiction of one

District Judge into the jurisdiction of a different District Judge, an appeal preferred after the date on which the notification takes effect must be

received and entertained by the District Judge into which jurisdiction the area from which the appeal comes has been transferred."" On the other

hand, it has been contended by Mr. Shah, the learned Advocate for the respondent that the said Notification in no way takes away the authority or

jurisdiction of the District Court, Panchmahals of entertaining an appeal against any decision given by a Court subordinate to it, and therefore, it

continues to have the same authority over any such decision till the final termination of that case. Apart from that position, he also contended that

having regard to the question of such territorial jurisdiction involving local limits of any particular Court, it has to be considered having regard to

Section 21 of the Code of Civil Procedure; and if no such objection has at all been raised in that respect before the Court passes a decree, it is not

permissible to raise any such question in the Court of appeal or revision unless there has been a consequent failure of justice.

In order to consider as to whether the District Court at Godhra was within its powers to hear this appeal, we have to turn to Section 96 of the

Civil P. C. which provides that save where otherwise expressly provided in the body of the CPC or by any other law for the time being in force, an

appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of

such Court. We have, therefore, to see whether the District Court, Panchmahals, had an authority to entertain and hear appeals from the decisions

of the Court of the Civil Judge, Junior Division, Kalol. Such an authority of the District Court arises out of Section 8 of the Bombay Civil Courts

Act, 1869, which provides that except as provided in Sections 16, 17 and 26, the District Court shall be the Court of Appeal from all decrees and

orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force. Now it is clear that Sections 16, 17

and 26 do not come in the way and at the same time it is an undisputed fact that in absence of any such notification, dated 15-10-1959 the District

Judge at Panchmahals had the authority to entertain and hear the appeal from the decree passed by the Court of the Civil Judge, Jr. Dn., at Kalol,

which was subordinate to it. But the question is whether that authority or power is affected by the Notification so as to justifiably say that on the

day when it was filed, it had no such authority in view of the provisions of any law for the time being in force. In other words was the law at that

date so changed as to take oven the authority of the District Court Panchmahals and give the same authority to the District Court, Baroda as urged

before this Court?

Now, the suit was decided by the Court of the Civil Judge, Junior Division at Kalol, on 9-10-1959 and the Court had jurisdiction to decide the

same. The Notification whereby the village of Chandpur came to be transferred from the jurisdiction of the Civil Court at Kalol to that of

Vaghodia, Baroda District, was to take effect from 16-10-1959. The defendant has however preferred an appeal in the Court of the District

Judge, Panchmahals, at Godhra, thereafter i.e. on 10-11-1959. Thus only at the date when he filed the appeal against the decision of the Civil

Judge, Junior Division, Kalol, in that suit, that village of Chandpur was no longer within the territorial limits of the District of Panchmahals as also of

the jurisdiction of the trial Court. It is on that ground that the contention is raised by the learned Advocate for the appellant that if a suit were to be

filed against a defendant, after that Notification became effective from 16-10-1959, the trial Court had no jurisdiction and when that is so, the

appeal against any such decision in a suit filed after 16-10-1959, would lie to the District Judge at Baroda. Therefore, according to him, the

District Court at Godhra had no jurisdiction to hear the appeal instituted in that Court Now as already observed above that Notification does not

provide for withdrawing the authority of the District Court, Panchmahals, or transferring the authority in that respect to the District Court at Baroda

in respect of any such suits either pending in Kalol Court, or appeals pending in Godhra Court. Nor does it provide any change in respect of such

decisions in suits in relation to the filing of appeals after 16-10-59, to the Court of appeal. The Notification merely says that particular villages are

transferred from one division to the other and no more. Thus if on the basis of such transfer of villages, jurisdiction in filing original suit after 16-10-

1959, was to be sought it had to be on that basis but it cannot have a retrospective effect so as to affect pending matters or matters decided before

it came in force. It cannot, therefore, be said that the jurisdiction of the District Court was in any way so restricted or taken away in respect of any

such particular matters as is sought to be urged by Mr. Shah for the Appellant

A reference was invited to the decision in Saithu Muhammad Rowther v. Meemi Kadir AIR 1957 TC. 43, where a similar question as the one

raised before this Court had arisen. The facts of the case were that a Notification was published by the Government on 12-8-1955, in exercise of

the powers conferred by Section 11 of the Travancore-Cochin Civil Courts Act. It brought about certain changes in the territorial jurisdiction of

several courts as specified in that Notification. One of such changes was to transfer Chowara village from the jurisdiction of the Ernakulam

Munsiff''s court to the jurisdiction of the Perumbavoor Munsiff''s Court with effect from 17-8-1955. There was nothing in that notification

suggesting that it intended any change in the jurisdiction which the Ernakulam Munsff''s Court had properly exercised in relation to Chowara village

up to the appointed date, i.e. 17-8-55. The appeals against the decrees passed by the Ernakulam Munsiff''s court in the suits which were all

properly entertained by that Court prior to 17-8-1955, were preferred to the Anjikaimal District Court having appellate jurisdiction over the

Ernakulam Munsiff''s Court. The contention was that the appeal lay not in that Court but to the Perumbavoor District Court. It was then held: that

the Court in which a suit has been properly instituted retains its jurisdiction to deal with the suit at all stages upto its logical termination unless the

case is transferred to another Court by order of a superior Court or unless such jurisdiction is vested by the express provision of law. It has been

further observed that this position holds good not only in the matter of the trial of the suit, but also in the matter of appeals and also of the execution

of the decree that may be passed in the suit. The observations further go to the effect that this is not a mere matter of procedure, but is a matter of

substantive right so far as the parties to the suit are concerned,

This decision found its support from the decision of the Federal Court in AIR 1943 24 (Federal Court) The question in that case was whether

the separation of Burma from India in the year 1937, had the effect of depriving the Trichinopoly Court of its jurisdiction to continue a suit in

respect of the properties which were situated in Burma. The suit was instituted in the year 1932, when Burma was part of India and some of the

items of properties included in the suit were those situated in Trichinopoly, while the remaining items were properties situated in Burma, There was

no dispute on the question that the suit was properly commenced and that the Court was competent to adjudicate upon the claims relating to both

these sets of properties. The Federal Court ruled that a right to continue a duly instituted suit is in the nature of a vested right and it cannot be taken

away except by a clear indication to that effect in the subsequent enactment or statutory notification limiting the jurisdiction of the Court which had

already entertained the suit in proper exercise of the jurisdiction it had at the time of the institution of the suit. It was also point-ed out that:

the true position is not whether there to any express provision permitting the continuance of pending proceedings but whether there is any clear

indication against the continuance of pending proceedings to their normal termination.

Another case referred to is of the Supreme Court in Merla Ramanna Vs. Nallaparaju and Others, . There the question was one of jurisdiction to

execute a decree by a Court. The subject-matter of the decree had come to be transferred subsequently to the jurisdiction of another Court; and in

that respect it was observed by their Lordships that it is settled law that the Court which actually passed the decree does not lose its jurisdiction to

exercise it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another Court.

In the case of Raghunath Hanumant Mane Vs. Sadashiv Damodar Datar, , a similar principle has been enunciated. There the Court had to

consider the effect of the amendment made by the Bombay Civil Courts (Amendment) Act, 1940 and it was observed by Gajendragadkar J. after

examining the provisions of the Amendment Act as follows:

The legal position with regard to the litigants'' right to file an appeal is fairly well settled. The amendments made by the present Act cannot be said

to be merely procedural. If they had been merely procedural, they would obviously have been retrospective. But in so far as one of these

amendments changes the forum of appeal in some cases it cannot be said that this change is a mere matter of procedure. It clearly touches a right

which was in existence at the time when the Act was passed, and this right to file an appeal in a higher forum has been always regarded as an

important right vesting in the litigants at the tune when the suits or proceedings are instituted. There is no doubt that when the present suit was

instituted the parties to the suit had a right to come to this Court in appeal against the decree that may ultimately be passed in the suit. If this right

which had vested in the parties at the time when the suit was instituted is intended to be taken away by the present amendment Act, such intention

must appear clearly and unambiguously in the provisions of the Act.

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It would thus be clear that in dealing with the preliminary objections raised before us in the present appeal we must bear in mind that the parties to

the present suit had a right to come to this Court in appeal against the decree that would be passed in this suit. There is no doubt that Legislature

can take away that right if they deem it proper to do so. But the right must be taken away expressly or by necessary implication. It must appear

manifest on reading the provisions of the amending Act that there was no doubt whatever that Legislature intended by the amending Act to take

away the parties'' right in the matter of appeal."" This decision was followed in a subsequent decision in Prabhakar Bhaskar Vs. Usha Prabhakar,

and the observations quoted hereinabove were also followed in that subsequent decision.

The same line of reasoning has been adopted in the case of Doongarmal and Another Vs. Roopsingh and Others, . In that case Section 21 of

the Rajasthan Civil Courts Ordinance, 1950, as amended by Rajasthan Act (6 of 1956), was considered; and it was held that Section 21 of the

Rajasthan Civil Courts Ordinance, 1950, as amended by Rajasthan Act (6 of 1956), which came into force on 11-4-1956 can have no application

to suits decided before the amendment was brought into force though appeals therefrom were actually filed after the amendment. It was further

held that no doubt a right of appeal is not mere procedural matter and it pertains to the domain of substantive rights. Such a right cannot be allowed

to be taken away retrospectively unless an express provision to that effect has been made by the Legislature or the same result is deducible on the

principle of necessary intendment. It has been further observed that where a judgment from which an appeal lies is pronounced a right of appeal at

once arises to the aggrieved party to appeal from the decision given, to a Court which would be authorised to receive it at that time. It has been

further observed that the aggrieved party would be within his rights on that very day to prefer an appeal from the decision by which he was feeling

aggrieved, and in consonance with the law which was in force then, he would be well within his right to institute his first appeal in the High Court

This right cannot, in any way, be affected simply because he filed his appeal not immediately after the judgment sought to be appealed against was

delivered, but he presented the appeal later within the period of limitation permitted to him under the law. It follows that this right cannot be

allowed to be affected by any amendment of the law which may have been brought into force in between the pronouncement of the judgment and

the presentation of the appeal. For, to allow this to be done would be to give a retrospective effect to the amendment contrary to the well-settled

principle that laws touching the substantive rights of parties, as contradistinguished from their procedural rights, should be applied prospectively

only, a retrospective operation being only permissible where legislature has made an express provision to that effect or such a result is irresistibly

deducible on the theory of necessary intendment.

Mr. Shah for the appellant on the other hand relied upon two decisions in support of his contention.

In ILR (1906) All 93, construction of Section 17(1) of the Civil Courts Act (No. XII of 1877) was considered. Section 17(1) of that Act

provided as follows:--

Where any Civil Court under this Act has from any cause ceased to have jurisdiction with respect to any case, any proceeding in relation to that

case, which, if that Court had not ceased to have jurisdiction, might have been had therein may be had in the Court to which the business of the

former Court has been transferred

Having regard to this provision, it was obvious that by reason of the Notification of the Government referred to in that case the District Judge has

ceased to have jurisdiction. We have no such provision in the Notification issued u/s 22A of the Bombay Civil Courts Act; nor do we find any such

provision which can help the present appellant. This case cannot therefore, help the appellant as it proceeded on the construction of a different type

of provision contained in Section 17(1) of the Civil Courts Act 1877.

The other case relied upon by the learned Advocate for the appellant is of M. Subbayya v. M. Rachayya AIR 1915 Mad 362. That case, no

doubt supports the argument advanced by the learned Advocate for the appellant but with respect, it is not possible to agree with the reasoning

and the conclusion arrived at therein.

The principle that can be deduced from the authorities referred to above, at any rate, lays down clearly the position that the right of appeal is

not merely a procedural matter but it is a substantive right and that such a right can only be taken away by express provision to than effect. Such a

right cannot be allowed to be taken away retrospectively unless expressly provided for by the Legislature. A right of appeal arises to a party with

the institution of the suit and, at any rate, at the date when the decision has been given by the Court, so as to consider the authority of the superior

Court having right to hear the appeal in respect of any such case. As already pointed out hereinabove, the Notification does not affect any pending

cases or cases decided by the Court prior, to the Notification coming into force or in any way affecting the jurisdiction of the appellate Court in

respect of the decisions in those suits. The institution of the suit was proper and that continued till the decision of the suit and the right of appeal

arose on 9-10-1959. The Notification issued under the Bombay Civil Courts Act did not exist and, therefore, in any view of the matter, the right to

appeal u/s 96 C. P. C. was to the District Judge at Godhra, which Court had the jurisdiction over the Court at Kalol. The District Court at Godhra

was authorised to hear the appeal over the decision of the Civil judge Jr. Dn. Kalol. That jurisdiction of the District Court has not been affected by

any express provision and the District Court was not in any way wrong in entertaining the appeal and deciding the same.

In the present case, the defendant himself had gone in appeal. He had raised a contention in the lower Court on the footing that by reason of

the Notification issued on 3-4-1959 by the Governor of Bombay u/s 7 of the Bombay Land Revenue Code the Civil Court had no jurisdiction to

entertain the suit; but that obviously could not affect the jurisdiction of the Civil Court unless any Notification under the Bombay Civil Courts Act

was issued. That ground was taken in appeal and if was negatived by the learned District Judge. It was further observed by the learned District

Judge that it was admitted by both the sides that no such Notification was issued by the Governor of Bombay u/s 22A of the Bombay Civil Courts

Act transferring the said village within the jurisdiction of the Kalol Court to that of Baroda Court. Naturally, therefore, the learned District Judge

had no occasion to go into that question. If the defendant himself had chosen the forum of going in appeal before the District Court at Godhra and

if he wanted to raise any contention about the District Court at Godhra having no jurisdiction to entertain the appeal, it was his duty to produce that

Notification and have the decision obtained in that respect. It was only at the time of hearing of this appeal that this contention has come to be

raised. Thus he can be taken to have waived any such point and, at any rate, such a contention cannot be allowed to be raised at this stage in

appeal. But, in the view that I have taken it is not necessary to go into that aspect of the case.

Thus, the District Court at Godhra had authority to hear the appeal and there was nothing wrong in the District Court at Godhra hearing the

appeal from the decision of the Court at Kalol.

The next point raised by Mr. Shah in this appeal was that the writing, Ex. 24, has been wrongly admitted in evidence by the trial Court.

According to him the writing appears on adhesive stamps. While the upper two stamps have been cancelled by reason of the defendant putting his

signature thereon, the two stamps therebelow have not been cancelled. The contention was that Section 12 of the Stamp Act has been

contravened, which provided as follows:--

12(1) (a) Whoever affixes any adhesive stamp to any instrument chargeable with the duty which has been executed by any person shall, when

affixing such stamp cancel the same so that it cannot be used again;

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(2) Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, so far as such stamp is

concerned, be deemed to be unstamped.

Then he invited a reference to the case of Kasan Shah v. Atta Ullah, AIR 1933 Lah 148 (2), which lays down that such a document would be

inadmissible in evidence. That was a case of a promissory note on which four stamps were affixed, three of them were cancelled and one was not

cancelled; and it was held that the document was inadmissible in evidence. In the instant case, the writing Ex. 24, has been held by both the Courts

not to be a promissory note as such and it cannot therefore, stand in line with consideration of such a question which would arise in respect of a

promissory note. The only effect arising out of want of cancellation of any stamp in any such writing arises u/s 12(2) of the Stamp Act and it is,

therefore, to be deemed as unstamped. Treating the same as unstamped document, the trial Court has by passing an order on 17-10-1959

directed the plaintiff to pay the stamp required to be affixed on an instalment-bond. He also directed him to pay a certain penalty re quired to be

paid for the same. In all he was required to pay Rs. 185.57, before it was admitted in evidence. Apart from that position, u/s 35 of the Bombay

Stamp Act, 1958, where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 53, be called in

question at any stage of the same suit or proceeding on the ground that the instrument has not been duly Stamped. Thus, once the document is

admitted in evidence, it would not be open to the defendant to challenge the admission of any such document in that suit on any such ground that

the instrument has not been duly stamped. Mr. Shah, the learned Advocate for the respondent referred to a decision of Javer Chand and Others

Vs. Pukhraj Surana, , saying that such a question is not permissible to be raised now by the defendant at this stage. It was held in that case as

follows:

Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or as not been properly stamped, the

party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has

to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a

document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses,

Section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a

Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised

by the same Court or a Court of Superior Jurisdiction"".

The mere fact that the defendant remained absent at the time of hearing of the suit is no justification to urge to this Court that he had no opportunity

to oppose the admission of any such writing. He could well have attended the Court and taken precautions to see that the document was not

admitted.

The claim has been decreed by the trial Court and there is nothing that can be urged in that respect

In the result, therefore, this appeal fails and is dismissed with costs.