Motiram Yeshwant Gaikwad vs Sou. Akkatai Uttam Trimukhe
2003 Latest Caselaw 323 Bom

ORDER

R.M.S. Khandeparkar, J.

1. Heard the learned counsel for the petitioner. Perused the records.

2. The petitioner challenges the judgment and order dated 28/4/1994 by which the trial Court has dismissed the suit for recovery of an amount of Rs. 1,500/-. It is the contention of the learned Advocate for the petitioner that in view of the provisions contained in Section 96(4) of Code of Civil Procedure which debars filing of appeal against the judgment and decrees passed by the lower Court involving the claim or valuation below Rs. 10,000/-, the Petitioner has no remedy, other than the revision application.

3. The records disclose that suit filed by the petitioner for recovery of money of Rs. 1,500/- against the respondent has been dismissed by the trial Court on the ground that the petitioner is engaged in money lending business but does not possess necessary licence for such business and, therefore, no suit for recovery of money t the instance of the petitioner is maintainable in terms of the provisions of Bombay Money lenders Act, 1946. The said decision has been delivered after arriving at the finding that the petitioner has proved that the respondent had borrowed an amount of Rs. 1,500/on 9/6/1991 from the petitioner but the evidence on record corroborates the defence of the respondent as regards the money lending business by the petitioner and further that there is admission by the petitioner that he had filed about eight suits for recovery of money borrowed from him and some of the suits were decreed and some others had been dismissed, yet few are pending. However, the petitioner has not obtained any licence under the said Act for such business and as per Section 10 of the said Act, without such licence, no suit for recovery of money by a person engaged in such business is maintainable. The trial Court has also held that the transaction in question is not an isolated one as sought to be contended by the petitioner.

4. According to the petitioner the trial Court erred in holding that the petitioner is money lender within the meaning of the said Act and that therefore, required licence under the said Act. However, as the transaction is of Rs. 1,500/- which is less than the limited value of Rs. 10,000/- and therefore, in terms of Section 96 of the Civil Procedure Code no appeal lies against such decree and hence in absence of alternative remedy, the petitioner has no option than to approach this Court in revisional jurisdiction.

5. Section 96(4) of the Civil Procedure Code reads thus;

"96. Appeal from original decree -

(1) .....

(2) .....

(3) .....

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees."

The Sub-section (4) above was inserted in Civil Procedure Code by Amendment Act 1976 limiting the value of the subject matter of Rs. 3,000/-. The same was increased to Rs. 10,000/- by Act No. 46 of 1999 w.e.f. 1/7/2002.

6. Plain reading of Section 96(4) of the Civil Procedure Code would show that the appeal lies against the decree in a suit even where the amount of valuation of the subject matter of the suit does not exceed to Rs. 10,000/-, on a question of law, though the question of facts are not permissible to be agitated in such appeal. This does not mean that parties are left with no remedy against a decree passed by the trial Court in a case where the value does not exceed to Rs. 10,000/-. It should not be forgotten that right of appeal is not an inherent right, but it is essentially a creature of statute. Unless the statute gives the right of appeal, the same does not exists. At the same time, it can not be disputed that once such right is conferred by a statute, it becomes a vested right; however, the same can always be subjected to conditions which may be imposed by the Legislature, in which case a party would not be entitled to exercise such right without fulfillment of those conditions. Bearing in mind this well settled principles of law, if one peruses Sub-section (4) of Section 96 quoted above, it is apparent that the same comprises of two conditions relating to the exercise of right of appeal against a decree passed by the Civil Court. The first condition is that, for the purpose of regular appeal against a decree, the valuation of the suit has to exceed Rs. 10,000/-. Otherwise, the second condition is that, the interference by the appellate Court can only be on the point of law and not otherwise. Therefore, the contention that the petitioner has no right of appeal, cannot be accepted.

7. Section 96(4) only regulates the right of appeal by restricting the exercise thereof in case where the value of the suit does not exceed Rs. 10,000/-. That does not mean that the right of appeal is taken away by the said provision of law. Under the said provision of law, merely the appellate Court's interference has been regulated and restricted to the question of law in specified cases, i.e. where the valuation does not exceed to Rs. 10,000/-.

8. In the case in hand, as far as the claim for recovery of money of Rs. 1,500/- from the respondent is concerned, the trial Court has given finding in favour of the petitioner. However, the suit has been dismissed on the ground that the petitioner is a money lender without licence under the said Act and hence cannot file the suit for recovery of money. Perusal of the revision application discloses that a challenge to the impugned judgment is basically in relation to the finding regarding the status of the petitioner as the money lender within the meaning of the said Act based on undisputed facts on record. The question as to whether certain undisputed facts placed on record discloses the status of the petitioner as the money lender within the meaning of said Act or not is certainly a question of law and obviously therefore, can be gone into by the appellate Court in an appeal which can be filed under Section 96(1) read with Section 96(4) of the Civil Procedure Code.

9. Whether the established facts on record reveal that the petitioner is a money lender within the meaning of said Act or not being dependent upon an inference to be drawn from the established facts on record, certainly it would be the question of law for consideration by the Appellate Court and, therefore, nothing prevents the petitioner from filing an appeal under the said ground of challenge and, therefore, question of interference by this Court in revisional jurisdiction in the impugned judgment does not arise.

10. For the reasons stated above, there is no case for interference in the impugned judgment in the revisional jurisdiction and hence, the Revision Application is dismissed, with no order as to costs.