Gujarat High Court
Patel Kashiben Wd/O Ramabhai ... vs Bank Of Baroda on 25 January, 2021
Bench: A. P. Thaker
C/FA/1668/1996 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1668 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
PATEL KASHIBEN WD/O RAMABHAI CHAGANLAL THRO'HER HEIRS
Versus
BANK OF BARODA, & 5 other(s)
==========================================================
Appearance:
MR. DEV PATEL, ADVOCATE FOR MR MEHULSHARAD SHAH(773) for the
Appellant(s) No. 1,1.1,1.2
for the Defendant(s) No. 5,6
MR KIRIT I PATEL(628) for the Defendant(s) No. 2
MR UDAY R BHATT(192) for the Defendant(s) No. 1
MS NITA U BHATT(179) for the Defendant(s) No. 1
NOTICE SERVED BY DS(5) for the Defendant(s) No. 3,4
==========================================================
CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 25/01/2021
ORAL JUDGMENT
1. Heard Mr. Dev Patel, learned advocate for Mr. Mehul Sharad
Shah, learned advocate for the appellants and Mr. Uday
C/FA/1668/1996 JUDGMENT
Bhatt, learned advocate for respondent no.1 and Mr. Kirit
Patel, learned advocate for respondent No.2 through video
conferencing on the point of maintainability of the Appeal
and for transferring the same to the District Court, Mehsana.
2. The contention raised by the learned advocate for the
appellants is that this Appeal has been filed in the year 1996
against the order of the learned Civil Judge (Senior Division)
Mehsana in Execution Petition being CMA No. 42 of 1993
dated 30.12.1995. According to learned advocate for the
Appellants, the Bombay Civil Courts Act, 1869 has been
amended and The Gujarat Civil Courts Act, 2005 has come
into existence and by virtue of Section 30(3), the pending
Appeal is required to be transferred to the concerned
Appellate Court i.e. District Court, Mehsana as by virtue of
enhancement of the jurisdiction of the Court of District
Judge, where the amount or the value of the subject matter is
less than Rs. 5 Lakhs. It is also contended that in the
impugned order the valuation of the matter is admittedly less
than Rs. 5 Lakh and therefore, this Appeal is required to be
transferred to the learned District Judge, Mehsana. According
to him, such Appeals have already been transferred in past
but somehow this Appeal has not been transferred.
2.1 While referring to the recent CAV judgment dated 21.09.2020
passed in First Appeal No. 5 of 2013, it is contended that the
said Appeal was relating to the amendment carried out in the
Gujarat Civil Courts Act, 2005 (hereinafter referred to as 'the
C/FA/1668/1996 JUDGMENT
Act'), whereby the jurisdiction of the Civil Courts and that of
the Appellate Courts have been enhanced but there is not
corresponding amendment carried out in the remaining
Clause and, therefore, in the FA No. 5 of 2013, it was held
that at the time of amendment of such Section made by
virtue of amendment 2014, the Appeals pending before the
High Court was to be continued in this High Court. It is
submitted by the learned advocate for the appellants that
there is clear distinction as when the main Act i.e. the Gujarat
Civil Courts Act, 2005 was passed, there was specific
provision in subsection 3 of Section 30 to transfer the
pending appeals to the concerned District Courts and
accordingly, the judgment rendered in FA No. 5 of 2013 is
not applicable to the facts of the present case.
3. Learned advocates for the respondents have mainly
contended that since this Appeal has been pending in this
High Court since 1996, instead of transferring the Appeal to
the District Court, this Court may decide the same in
accordance with the law.
4. Admittedly, the present Appeal has been filed against the
order passed by the concerned Civil Judge (Senior Division)
Mehsana in CMA No. 42 of 1993 which was Execution
Petition and the order passed by the learned Civil Judge
(Senior Division) is appealable. It is also not in dispute that
the valuation of the matter is less than Rs. 5 Lakhs at the time
of filing of the present Appeal. It is also admitted fact that
C/FA/1668/1996 JUDGMENT
pending this Appeal, the Bombay Civil Courts Act, 1869 has
been repealed by virtue of Section 30 of the Gujarat Civil
Courts Act, 2005. The provisions relating to the Appeals in
the original Act is as follows:
"Appeals. (1)Appeal from the decrees and others passed by a court
of District Judge in original suits and proceedings of civil nature
shall, when such appeals are allowed by law, lie to the High Court.
(2) Appeals from the decrees and others passed by a Court of
Senior Civil Judge in original suits and proceedings of civil nature
shall, when such appeals are allowed by law, lie
(a) to the Court of the District Judge of the district when
the amount of value of the subject matter of the original suit
or proceedings is less than five lakhs of rupees [ or such
other sum as the High Court may, by notification, from time
to time specify];
(b) to the High Court in other cases.
3. Appeals from the decrees and others passed by a Court of
Civil Judge in suits or proceedings of a civil nature shall, when such
appeals are allowed by law, lie to the Court of District Judge of the
district:
Provided that the High Court may, in consultation with the State
Government, by notification, direct that such appeals against
decrees and orders may lie to the Court of Senior Civil Judge, when
the amount or value of the subject matter of the suit or proceedings
is less than on lakh of rupees and thereupno appeals shall be
preferred accordingly.
4. The provision of this section will apply to all decreed and
others made after the appointed date irrespective for the fact
whether the suits of proceedings in which they are made were
instituted before or after the appointed date.
C/FA/1668/1996 JUDGMENT
Thus, by virtue of this provision, the jurisdiction of the
Appellate Court i.e. District Court was less than Rs. 5 Lakhs.
5. The provisions of Section 30 reads as under:
30. Repeal and savings: (1) On an from the appointed dated the
Bombay Civil Courts Act, 1869, in its application to the State of
Gujarat, shall stand repealed.
(2) Such repeal shall not affect the previous operation of the
enactment so repeased and any thing done or any action taken
including the districts formed , limits defined, Courts established or
constituted, appointments, rules or orders made functions assigned,
powers granted, seal, or forms prescribed, jurisdiction defined or
vested and notifications or notices issued by or under the provisions
of the said Act and deemed to have been done or taken under the
provisions thereof shall, in so far as it is not inconsistent with the
provisions of this Act, be deemed to have been done or taken under
the corresponding provisions of this Act and shall continue in force
unless and untill superseded by anything done or any action taken
under this Act.
(3) Notwithstanding anything contained in subsection (1) or
any other provisions of this Act or in the enactment repealed by
subsection (1) or in any other law or provision having the force of
law all suits, appeals and proceedings connected therewith, pending
before any Court, which under this Act have to be instituted or
commenced in another Court, shall on the appointed day, stands
transferred to such other Court and shall be continued and disposed
off by such other Court in accordance with law as if such suti and
proceedings had been instituted or commenced in such other
Court under this Act.
(4) If there be any doubt as to which Court any suit, appeal or
C/FA/1668/1996 JUDGMENT
proceedings shall stand transferred or as to which Court any appeal
shall be preferred in accordance with the provisions of this Act, the
Court designated by the High court shall be the Court to which such
suit, appeal or proceedings shall be transferred or such appeal shall
be preferred, and the decision of the High Court shall be final.
(5) Notwithstanding such repeal, the provisions of Section 7 of
the Bombay General Clauses Act, 1904 shall apply in relation to the
repeal of the Bombay Civil Courts Act, 1869 as if the Act had been
an enactment within the meaning of the said Section 7."
5.1 By virtue of subsection (3) of Section 30, the specific
provision has been made for transferring of the Appeal, at the
time of coming into operation of the Act, 2005, with specific
wording that all such appeal shall stand transferred to the
appropriate Court. Now in view of the factual aspect of this
case, it is admitted position that the present Appeal ought to
have been sent back to the learned District Court.
5.2 Now so far as the Order rendered in First Appeal No. 5 of
2013 is concerned, it is admitted fact that the controversy
therein was that by virtue of Notification dated 14.10.2014,
the pecuniary appellate jurisdiction of the District Court as
well as subordinate Civil Court was revised. However, there
was no corresponding amendment in subsection (3) of
Section 30 of the Act. It is worthwhile to note that by dealing
with the FA No. 5 of 2013, this Court has taken into
consideration the catena of decisions of A.P. Civil Courts
(Amendment ) Act, 1989 arose before the Bench of the
Andhra Pradesh High Court as well as decision of the Hon'ble
C/FA/1668/1996 JUDGMENT
Supreme Court in case of Garikapati Veeraiah v. N. Subaiya
Chaudhary, reported in [1957] 1 SCR 488, and Para11 of
which has been quoted as under:
"11. The Supreme Court was considering this issue and in that
context, after considering the decision of the Supreme Court in
the case of Garikapati Veeraiah v. N. Subaiya Chaudhary
reported in [1957] 1 SCR 488 observed as under:
2o. In this context, we may refer with profit to the
Constitution Bench judgment in Garikapati Veeraya v.
N. Subbiah Choudhry and others [7]. In the said
decision, the Constitution Bench referred to the leading
authority of the privy council in Colonial Sugar
Refining Company Ltd. v. Irving[8]. The Constitution
Bench observed that the doctrine laid down in the
decision of the privy council in Colonial Sugar Refining
Company Ltd. (supra) has been followed and applied
by the Courts in India. The passage that was quoted
from the Privy Council's judgment is as follows:
"As regards the general principles applicable to
the case there was no controversy. On the one
hand, it was not disputed that if the matter in
question be a matter of procedure only, the
petition is well founded. On the other hand, if it
be more than a matter of procedure, if it touches
a right in existence at the passing of the Act, it
was conceded that, in accordance with a long line
of authorities extending from the time of Lord
Coke to the present day, the appellants would be
C/FA/1668/1996 JUDGMENT
entitled to succeed. The Judiciary Act is not
retrospective by express enactment or by
necessary intendment. And therefore the only
question is, was the appeal to His Majesty in
Council a right vested in the appellants at the
date of the passing of the Act, or was it a mere
matter of procedure? It seems to their Lordships
that the question does not admit of doubt. To
deprive a suitor in a pending action of an appeal
to a superior tribunal which belonged to him as
of right is a very different thing from regulating
procedure. In principle,Their Lordships see no
difference between abolishing an appeal
altogether and transferring the appeal to a new
tribunal. In either case there is an interference
with existing rights contrary to the wellknown
general principle that statutes are not to be held
to act retrospectively unless a clear intention to
that effect is manifested."
21. Thereafter, the larger Bench referred to number of
authorities and proceeded to cull out the principles as
follows:
"23. From the decisions cited above the following
principles clearly emerge:
(i) That the legal pursuit of a remedy, suit,
appeal and second appeal are really but
steps in a series of proceedings all
connected by an intrinsic unity and are to
C/FA/1668/1996 JUDGMENT
be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of
procedure but is a substantive right.
(iii) The institution of the suit carries with it
the implication that all rights of appeal
then in force are preserved to the parties
thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and
such a right to enter the superior court
accrues to the litigantand 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 prevails at the date of its decision or
at the date of the filing of the appeal.
(v) This vested right of appeal can be taken
away only by a subsequent enactment, if it
so provides expressly or by necessary
intendment and not otherwise."
22. On a proper understanding of the authority in
Garikapati Veeraya (supra), which relied upon the Privy
Council decision, three basic principles, namely,
22.1 The forum of appeal available to a suitor in a pending
action of an appeal to a superior tribunal which belongs to
C/FA/1668/1996 JUDGMENT
him as of right is a very different thing from regulating
procedure;
22.2 That it is an integral part of the right when the action
was initiated at the time of the institution of action; and
22.3 That if the Court to which an appeal lies is altogether
abolished without any forum constituted in its place for the
disposal of pending matters or for lodgment of the appeals,
vested right perishes, are established.
23. It is worth noting that in Garikapati Veeraya (supra),
the Constitution Bench ruled that as the Federal Court had
been abolished, the Supreme Court was entitled to hear the
appeal under Article 135 of the Constitution, and no appeal
lay under Article 133. The other principle that has been culled
out is that the transfer of an appeal to another forum
amounts to interference with existing rights which is contrary
to well known general principles that statutes are not to be
held retrospective unless a clear intention to that effect is
manifested.
24. In Dhadi Sahu (supra), it has been held thus:
"18. It may be stated at the outset that the general
principle is that a law which brings about a change in
the forum does not affect pending actions unless
intention to the contrary is clearly shown. One of the
modes by which such an intention is shown is by
C/FA/1668/1996 JUDGMENT
making a provision for changeover of proceedings,
from the court or the tribunal where they are pending
to the court or the tribunal which under the new law
gets jurisdiction to try them.
xxx xxx xxx
21. It is also true that no litigant has any vested right
in the matter of procedural law but where the question
is of change of forum it ceases to be a question of
procedure only. The forum of appeal or proceedings is a
vested right as opposed to pure procedure to be followed
before a particular forum. The right becomes vested
when the proceedings are initiated in the tribunal or the
court of first instance and unless the legislature has by
express words or by necessary implication clearly so
indicated, that vested right will continue in spite of the
change of jurisdiction of the different tribunals or
forums."
25. At this stage, we may state with profit that it is a well
settled proposition of law that enactments dealing with
substantive rights are primarily prospective unless it is
expressly or by necessary intention or implication given
retrospectivity. The aforesaid principle has full play
when vested rights are affected. In the absence of any
unequivocal expose, the piece of Legislation must exposit
adequate intendment of Legislature to make the
provision retrospective. As has been stated in various
authorities referred to hereinabove, a right of appeal as
well as forum is a vested right unless the said right is
C/FA/1668/1996 JUDGMENT
taken away by the Legislature by an express provision
in the Statute by necessary intention."
5.3 The Judgment of the Hon'ble Supreme Court in case of
Commissioner of Income Tax v. Dhadi Sahu [1994 Supp. 1
SCC 257], has also been referred to and the observation
made therein is also been incorporated in Para12, which
reads as under:
"12. On a perusal of the oral judgment dated 17.06.2015 and
the judgement dated 29.05.2020, it is borne out that this
judgment of the Hon'ble Supreme Court in the case of
Garikapati Veerayya (supra) has been also extensively
considered and it was held that the forum of appeal available
to a suitor in a pending action of an appeal, which belonged
to him as of right is a very different thing from regulating
procedure. That it is an integral part of the right when the
action was initiated at the time of the institution of the suit,
would indicate that the right of appeal is not a mere matter of
procedure, it is a substantive right. Based on these
observations of the Hon'ble Supreme Court which considered
the decision in the case of Commissioner of Income Tax v.
Dhadi Sahu (1994 Supp.1 SCC 257] the Supreme Court
observed that right of appeal as well as a forum is a vested
right unless the said right is taken away by the legislature by
an express provision in the statute by necessary intention.
Considering para 24 in the case of Dhadi Sahu (supra) where
it was considered that the forum of appeal or proceedings is a
vested right as opposed to pure procedure to be followed before
a particular forum, it was observed that the right becomes a
C/FA/1668/1996 JUDGMENT
vested right when the proceedings are initiated in the Tribunal
of the first instance and unless the legislature by the express
words or by necessary implication clearly so indicated, the
vested right will continue in spite of the change of jurisdiction
of the different Tribunals or forums. The Apex Court in the
case of Dhadi Sahu (supra) observed as under:
"18. It may be stated at the outset that the general
principle is that a law which brings about a change in
the forum does not affect pending actions unless
intention to the contrary is clearly shown. One of the
modes by which such an intention is shown is by
making a provision for changeover of proceedings,
from the court or the tribunal where they are pending
to the court or the tribunal which under the new law
gets jurisdiction to try them.
21. It is also true that no litigant has any vested right
in the matter of procedural law but where the question
is of change of forum it ceases to be a question of
procedure only. The forum of appeal or proceedings is a
vested right as opposed to pure procedure to be followed
before a particular forum. The right becomes vested
when the proceedings are initiated in the tribunal or the
court of first instance and unless the legislature has by
express words or by necessary implication clearly so
indicated, that vested right will continue in spite of the
change of jurisdiction of the different tribunals or
forums."
C/FA/1668/1996 JUDGMENT
5.3 Thus, the above decisions clearly indicate that if there is
express words or by necessary implication clearly indicated
by the legislature regarding the standing over transfer of the
proceedings, then in view of that expressed provisions, the
matter needs to be conducted by the new forum or by the
same forum.
6. Admittedly as observed earlier, when present appeal was
filed, the old Act of Bombay Civil Courts Act, 1869 was in
existence and new Act i.e. The Gujarat Civil Courts Act, 2005
has been enacted wherein there is specific provision in sub
section (3) of Section 30 regarding transfer of the Suit and /
or Appeal to the Court wherein there is enhancement of the
monetary jurisdiction of that Court. Therefore, since the
provisions of Section 30 of the Gujarat Civil Courts Act, 2005
is applicable in the present case, the present Appeal is
required to be transferred to the appropriate Court having
jurisdiction as was done in other matters pending before this
Court at the relevant time. One of such order has been passed
by the Coordinate Bench on 3.8.2005 in Appeal From Order
No. 50 of 2004 in the case of Bachubhai Jivabhai Solanki v.
Sagar Maniben Gokalbhai Kodavala & others, which reads as
under:
"Admittedly, the value of the subjectmatter in the suit from
which this appeal arises is less than Rs.5 lakhs and the appeal
is filed before 9.5.2005.Therefore, by virtue of the provisions
C/FA/1668/1996 JUDGMENT
of subsection (3) of Section 30 of the Gujarat Civil Courts
Act, 2005, the appeal is required to be transferred to the
appropriate Court having jurisdiction. Accordingly, the appeal
is disposed with the order to transfer the appeal with all its
accompaniments to the appropriate Court."
7. Thus, in view of the aforesaid facts and circumstances, the
submission made by the learned advocate for the Appellant is
accepted and the value of the subject matter being less than Rs.5
Lakhs and the appeal is filed before 9.5.2005, by virtue of sub
section (3) of Section 30 of the Gujarat Civil Courts Act, 2005, this
Appeal is to be transferred to the concerned District Court for
disposal in accordance with law.
Accordingly, the Appeal is disposed of with an order to
transfer the Appeal with all its accompaniments to the appropriate
Court i.e. District Court, Mehsana.
(DR. A. P. THAKER, J)
SAJ GEORGE
