Madhya Pradesh High Court
Tarun Kumar Gupta vs Vijay Kumar Bandil on 20 February, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
MISC. PETITION No. 5205 of 2022
TARUN KUMAR GUPTA
Versus
VIJAY KUMAR BANDIL AND OTHERS
&
MISC. PETITION No. 3021 of 2022
JAGDISH PRASAD GUPTA
Versus
VIJAY KUMAR BANDIL AND OTHERS
Appearance:
Shri N.K. Gupta - senior counsel with Shri Y.P.S. Rathore -
learned counsel for the petitioner in both petitions.
Shri Kamal Mangal -learned counsel for the respondent [R-1]
in both petitions.
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Reserved on 11.02.2025
Delivered on 20.02.2025
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ORDER
M.P. No.5205 of 2022 has been filed by the petitioner
assailing the order dated 31.10.2022 passed in Civil Suit
No.192A/2017 passed by learned 1 st Civil Judge, Class II to Vth
Additional Judge, Morena District Morena and M.P. No.3021 of
2022 has been filed by the petitioner assailing the order dated
01.07.2022 passed in Civil Suit No.193A/2017 by learned 1 st Civil
Judge, Class II, Morena District Gwalior whereby the applications
preferred by the petitioners under Section 151 CPC have been
rejected by the learned trial Court holing that the amendment in Civil
Procedure Code is not retrospective but prospective.
2. Short facts of the case are that the respondent/plaintiff filed
a suit for eviction against the petitioner seeking eviction on the
ground of 12(1)(a), (b) and (f) of M.P. Accommodation Control Act.
Written statement was filed by the petitioner/defendant denying the
averments as pleaded in the plaint and the learned Trial Court framed
the issues. After framing of issues, plaintiff-Vijay Kumar Bandil
alongwith two other witnesses i.e. Pradeep Kumar Kamal and
Kishore Bandil submitted their statements in chief as per the
provision under Order 18 Rule 4 CPC. The petitioner submitted an
application under Section 151 CPC stating that by notification dated
04.05.2022, Rule 4-A has been inserted and according to which, the
evidence of the witnesses in attendance shall be taken orally in open
Court in its presence and under the personal direction and
superintendence of the judge and affidavit is not admissible in
evidence and as CPC is a procedural law, therefore the said amended
provision will apply retrospectively. The learned Trial Court heard
the arguments on the application and rejected the same with the
finding that the amendment as brought in the procedural law is
prospective and not retrospective. Hence, assailing the orders dated
31.10.2022 and 01.07.2022, the present petitions have been filed.
3. Learned senior counsel Shri N.K. Gupta on behalf of
petitioner had laid the foundation of his submissions by asserting,
that it was a settled proposition of law, that alteration of substantive
law is always presumed and treated as having only prospective
implications, unless the legislative enactment itself, expressly or
impliedly mandates it to be retrospective and in contradistinction to
the above, it was submitted, that an amendment to a procedural
enactment is always presumed and treated to have retrospective
effect, except when intended otherwise, expressly or impliedly,
through the legislation itself.
4. It was also asserted that vide amendment in the Code of
Civil Procedure vide The Code of Civil Procedure (Madhya Pradesh
Amendment) Act, 2020, Rule 4-A has been inserted vide notification
dated 04.05.2022 which provides that the evidence of the witnesses
in attendance shall be taken orally in open Court in the presence and
under the personal direction and superintendence of the judge and as
such the said amendment would have a retrospective effect and from
the said amendment, it is not evident that legislature had intended
otherwise expressly or impliedly, thus, the said amendment shall be
applicable to the pending proceedings and when the plaintiff's
evidence has not yet started except for filing of affidavit under Order
18 Rule 4 CPC on 11.01.2019, learned trial Court was legally bound
to record statement of plaintiff orally in open Court but ignoring the
legal position, learned trial Court has rejected the application u/S.
151 CPC wherein prayer was made to record statement of plaintiff
orally in the court. To bolster his submissions, learned senior counsel
for the petitioner has relied upon the judgment of Hon'ble Apex
Court rendered in the case of Sudhir G. Angur and others Vs.
M.Sanjeev and others reported in (2006) 1 SCC 151 Para 11 and
referring to Para 11, it was argued that all procedural laws are
retrospective unless the legislature expressly states to the contrary
and procedural laws in force must be applied at the time when the
suit or proceeding comes on for trial or disposal.
5. On the other hand, learned counsel for the respondent No.1
submits that a procedural statute should not generally speaking be
applied retrospectively where the result would be to create new
disabilities or obligations or to impose new duties in respect of
transactions already accomplished.
6. It was further argued that a statute should not be so
construed as to create new disabilities or obligations or impose new
duties in respect of transactions which were complete at the time the
amending Act came into force and the effect of the application of
this principle is that pending cases, although instituted under the old
Act but still pending, are governed by the new procedure under the
amended law, but whatever procedure was correctly adopted and
concluded under the old law cannot be opened again for the purpose
of applying the new procedure and herein case since the affidavit as
required under the Code of Civil Procedure prior to insertion of Rule
4-A under The Code of Civil Procedure (Madhya Pradesh
Amendment) Act, 2020 vide notification dated 04.05.2022, were
already filed on 11.01.2019 now it is not incumbent upon the trial
Court to again record statement in the open court as provided in the
amended provision. Learned counsel for the respondent has also
referred to Section 6 of the General Clauses Act in the aforesaid
regard and it was submitted that learned trial Court has not
committed any irregularity and illegality in rejecting the application
under Section 151 CPC for again recording the statement of
respondent/plaintiff in the open Court especially when affidavits
under Order 18 Rule 4 CPC were already on record much prior to
the amendment and insertion of Rule 4-A. Thus, prayed for dismissal
of the petitions.
7. Heard learned counsel for the parties and perused the
record.
8. The core issue which is put before this Court is as to
whether in the light of insertion of Rule 4-A under The Code of Civil
Procedure (Madhya Pradesh Amendment) Act, 2020, vide
notification dated 04.05.2022, the statement of witnesses would be
required to be recorded orally in the open Court even though the
statements on affidavit under Order 18 Rule 4 CPC were already
submitted prior to insertion of the amendment.
9. In that regard, this Court deems it appropriate to first quote
provisions of amended Rule 4-A as well as various judgments of the
Apex Court dealing with the issue of applicability of amendment in
the procedural laws.
10. Amended Rule 4-A is reproduced below:-
"4-A. Except as provided in Rule 4, the evidence of the witnesses
in attendance shall be taken orally in open Court in the presence
and under the personal direction and superintendence of the
judge."
11. In Hitendra Vishnu Thakur Vs. State of Maharashtra (1994)
4 SCC 602, one of the questions which the Apex Court was examining was
whether clause (bb) of Section 20(4) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 introduced by an Amendment Act
governing Section 167 (2) CrPC in relation to TADA matters was in the
realm of procedural law and if so, whether the same would be applicable to
pending cases. ..... The Court summed up the legal position with regard to
the procedural law being retrospective in its operation and the right of a
litigant to claim that he be tried by a particular Court, in the following
words:
'26. (i) A statute which affects substantive rights is presumed
to be prospective in operation unless made retrospective,
either expressly or by necessary intendment, whereas a
statute which merely affects procedure, unless such a
construction is textually impossible, is presumed to be
retrospective in its application, should not be given an
extended meaning and should be strictly confined to its
clearly defined limits.
(ii) Law relating to forum and limitation is procedural in
nature, whereas law relating to right of action and right of
appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but
no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be
applied retrospectively where the result would be to create
new disabilities or obligations or to impose new duties in
respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also
creates new rights and liabilities shall be construed to be
prospective in operation, unless otherwise provided, either
expressly or by necessary implication."
12. In Nani Gopal Mitra Vs. State of Bihar AIR 1970 SC 1636,
the Hon'ble Apex Court declared that amendments relating to procedure
shall operate retrospectively subject to the exception that whatever be the
procedure which was correctly adopted and proceedings concluded under
the old law the same cannot be reopened for the purpose of applying the
new procedure. The following passage is, in this regard, apposite :
5........... The same principle is embodied in Section 6 of the General
Clauses Act which is to the following effect:
***
6. The effect of the application of this principle is that pending
cases, although instituted under the old Act but still pending, are
governed by the new procedure under the amended law, but
whatever procedure was correctly adopted and concluded under the
old law cannot be opened again for the purpose of applying the new
procedure. ..... It is not hence possible to accept the argument of the
appellant that the conviction pronounced by the Special Judge,
Santhal Parganas, has become illegal or in any way defective in law
because of the amendment to procedural law made on 18-12-1964.
In our opinion, the High Court was right in invoking the
presumption under Section 5(3) of the Act even though it was
repealed on 18-12-1964 by the amending Act. We accordingly reject
the argument of the appellant on this aspect of the case."
13. In another matter reported in (2000) 8 SCC 99 Rajendra Kumar
Vs. Kalyan, the Hon'ble Apex Court in Para 20, 21 and 22 has held has
under:-
"20. We do feel it expedient to record that the analysis as
effected by the High Court stands acceptable and as such
we refrain ourselves from dilating on this aspect of the
matter any further. It is pertinent to add in this context
that some differentiation exists between a procedural
statute and statute dealing with substantive rights and in
the normal course of events, matters of procedure are
presumed to be retrospective unless there is an express
ban onto its retrospectivity. In this context, the
observations of this Court in the case of Jose Da Costa
Vs. Bascora Sadasiva Sinai Narcornim (1976) 2 SCC 917
is of some relevance. This Court in para 31 of the Report
observed: (SCC p. 925)
"31. Before ascertaining the effect of the enactments
aforesaid passed by the Central Legislature on pending
suits or appeals, it would be appropriate to bear in mind
two well-established principles. The first is that while
provisions of a statute dealing merely with matters of
procedure may properly, unless that construction be
textually inadmissible, have retrospective effect attributed
to them, provisions which touch a right in existence at the
passing of the statute are not to be applied retrospectively
in the absence of express enactment or necessary
intendment (see Delhi Cloth and General Mills Co. Ltd. v.
CIT, AIR 1927 PC 242).
The second is that a right of appeal being a substantive
right the institution of a suit carries with it the
implication that all successive appeals available under
the law then in force would be preserved to the parties to
the suit throughout the rest of the career of the suit. There
are two exceptions to the application of this rule, viz. (1)
when by competent enactment such right of appeal is
taken away expressly or impliedly with retrospective
effect and (2) when the court to which appeal lay at the
commencement of the suit stands abolished
(see Garikapati Veeraya v. N. Subbiah Choudhry AIR
1957 SC 540 and Colonial Sugar Refining Co. Ltd. v.
Irving 1905 AC 369)."
21. Still later this Court in Gurbachan Singh v. Satpal
Singh (1990) 1 SCC 445 expressed in the similar vein as
regards the element of retrospectivity. The English courts
also laid that the rule that an Act of Parliament is not to
be given retrospective effect applies only to statutes which
affect the vested rights; it does not apply to statutes which
alter the form of procedure or the admissibility of
evidence, or the effect which the courts give to evidence;
if the new Act affects matters of procedure only, then,
prima facie, it applies to all actions pending as well as
future (see in this context the decisions of the House of
Lords in the case of Blyth v. Blyth (1966) 1 All ER 524;
A.G. v. Vernazza (1960) 3 All ER 97). In Halsbury's Laws
of England (4th Edn., Vol. 44, para 925, p. 574) upon
reference to Wright v. Hale (1860) 6 H&N 227 and
Gardner v. Lucas (1878) 3 AC 582 (HL) along with some
later cases including Blyth v. Blyth it has been stated:
"The presumption against retrospection does not apply to
legislation concerned merely with matters of procedure or
of evidence; on the contrary, provisions of that nature are
to be construed as retrospective unless there is a clear
indication that such was not the intention of Parliament."
22. The law thus seems to be well settled that no person
has, in fact, a vested right in procedural aspect -- one
has only a right of prosecution or defence in the manner
as prescribed by the law for the time being and in the
event of any change of procedure by an Act of Parliament
one cannot possibly have any right to proceed with the
pending proceeding excepting as altered by the new
legislation and as such we need not dilate on the issue
any further."
14. Reliance can also be had to the matter of Securities and
Exchange Board of India Vs. Ajay Agarwal, (2010) 3 SCC 765,
wherein in paragraphs 40 and 41, the Hon'ble Apex Court has held
as under:-
"40. Provisions of Section 11-B being procedural in
nature can be applied retrospectively. The Appellate
Tribunal made a manifest error by not appreciating
that Section 11-B is procedural in nature. It is a time-
honoured principle if the law affects matters of
procedure, then prima facie it applies to all actions,
pending as well as future. [See K. Kapen Chako v.
Provident Investment Co. (P) Ltd. (1977) 1 SCC 593,
wherein A.N. Ray, C.J. laid down those principles].
41. Maxwell in his Interpretation of Statutes also
indicated that no one has a vested right in any course of
procedure. A person's right of either prosecution or
defence is conditioned by the manner prescribed for the
time being by the law and if by the Act of Parliament, the
mode of proceeding is altered, then no one has any other
right than to proceed under the alternate mode. (Maxwell
on Interpretation of Statutes, 11th Edn., p. 216.) These
principles, enunciated by Maxwell, have been quoted
with approval by the Supreme Court in its Constitution
Bench judgment in Union of India v. Sukumar Pyne, AIR
1966 SC 1206."
15. The legal position which is culled out from the above
enunciations is that a statute which affects substantive rights is
presumed to be prospective in operation unless made retrospective,
either expressly or by necessary intendment, whereas a statute
which merely affects procedure, unless such a construction is
textually impossible, is presumed to be retrospective in its
application and also a procedural statute should not generally
speaking be applied retrospectively where the result would be to
create new disabilities or obligations or to impose new duties in
respect of transactions already accomplished. Pending cases
although instituted under old Act but still pending are covered by
the new amended law but whatever procedure was correctly
adopted and concluded under the old law cannot be open again for
the purpose of applying new procedure.
16. In the context of aforesaid, if the analogy is applied to the
present case, it could be observed that the affidavit of statement
under Order 18 Rule 4 CPC so far as respondent-plaintiff is
concerned was filed on 11.01.2019 much prior to the insertion of
Rule 4-A in Order 18 Rule 4 CPC by way of State amendment and
till date the evidence of plaintiff has not started and it is nobodies
case that procedure of filing statement on affidavit was not correct
procedure. Thus, when the procedure for recording of statement on
affidavit was correctly adopted and concluded under the old Act,
according to this Court, it cannot be opened again for the purpose
of applying new procedure so far as the statement of
respondent/plaintiff is concerned.
17. Since other witnesses of plaintiffs, if any, are yet to depose
their statements, the procedure that could be adopted for recording
their statements would be in accordance with procedure contained
under amended Rule 4-A.
18. Though learned trial Court had not rejected the application
of petitioner on the aforesaid grounds and had gone to reject the
application on a ground which is not legally sustainable, but as
discussed above since from various dictums of Hon'ble Apex Court,
the law appears to be settled in this regard, this Court does not find
any reason to interfere with the impugned order.
19. Accordingly, present petitions being devoid of merits, are
hereby dismissed.
(MILIND RAMESH PHADKE)
ojha JUDGE
