Gujarat High Court
Gujarat Electricity Board Deleted vs Kesharbhai Bhagvanbhai Gohil on 16 January, 2024
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 194 of 1997
==========================================================
GUJARAT ELECTRICITY BOARD DELETED & 1 other(s)
Versus
KESHARBHAI BHAGVANBHAI GOHIL & 2 other(s)
==========================================================
Appearance:
MR VIRAL J DAVE(5751) for the Appellant(s) No. 3
for the Defendant(s) No. 1.1,1.10,1.11,1.12,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9
DECEASED LITIGANT for the Defendant(s) No. 1
DELETED for the Defendant(s) No. 3
KRISHNAN M GHAVARIYA(8133) for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 16/01/2024
ORAL ORDER
[1] Heard learned advocates for the respective
parties. Perused the record.
[2] On perusal of papers, it appears that the suit is
of the year 1994. Present appeal has been filed in the year
1997. During the pendency of the appeal, Legislature has
passed Gujarat Civil Courts Act, 2005, wherein there is a
specific provision under Section 30 (3) to the effect that all
the appeals and suits etc. pending on that date, which are
valued at less than Rs.5,00,000/-, are to be transferred to
the concerned trial Court.
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
[3] Admittedly, the present Appeal has been filed
against the judgment and decree dated 30.11.1996 passed
by the learned 2nd Jt. Civil Judge (S.D.), Amreli in Special
Civil Suit No.13 of 1994. 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 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Act, 1869 has been repealed by virtue of Section 30 of the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
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
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
thereupon 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.
Thus, by virtue of this provision, the
jurisdiction of the Appellate Court i.e. District Court
was less than Rs. 5 Lakhs.
[4] 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
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
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 suit 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 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."
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
4.1 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.
4.2 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 Supreme Court in case of Garikapati Veeraiah v.
N. Subaiya Chaudhary, reported in [1957] 1 SCR 488, and
Para-11 of which has been quoted as under:
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
"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 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
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
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 well known 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 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
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
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
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 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
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
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
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 retrospectively. The
aforesaid principle has full play when vested rights
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
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 taken away by the Legislature by
an express provision in the Statute by necessary
intention."
4.3 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
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
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
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.
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
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."
4.4 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.
5. 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 subsection (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
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
other matters pending before this Court at the relevant
time. One of such order has been passed by the
Coordinate Bench on 4.2.2021 in Appeal From Order
No.5444 of 1995 in the case of M/s. H. K. Chemicals v.
M/s. Ajanta Chemicals - A Partnership Firm, which reads
as under:-
"6. 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
subsection (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."
6. In view of above, the submission made by the
learned advocate for the Appellant is required to be
accepted as the value of the subject matter being less than
Rs.5 Lakhs and the appeal is filed before 9.5.2005, by
virtue of subsection (3) of Section 30 of the Gujarat Civil
Courts Act, 2005, this Appeal is ordered to be transferred
to the concerned District Court for disposal in accordance
with law.
7. Accordingly, the Appeal is disposed of with an
NEUTRAL CITATION
C/FA/194/1997 ORDER DATED: 16/01/2024
undefined
order to transfer the Appeal with all its accompaniments to
the appropriate Court i.e. District Court, Amreli.
8. In view of disposal of the appeal, Civil
Application, if any, will not survive. It is disposed of
accordingly.
(D. M. DESAI,J)
MANOJ
