SHAH VARDHILAL AMRITLAL Vs. BHURALAL AND BHAGAJI

JUDGEMENT

(1.) The original plaintiff has preferred this Revision Application against the judgment and order of the learned District Judge Banaskantha dated 2/11/1982 whereby he allowed the appeal and dismissed the plaintiffs suit. The facts leading to this Revision Application briefly stated are as under:

(2.) The plaintiff instituted a Civil Suit No. 29 of 1972 in the Court of the learned Civil Judge (Junior Division) Deodar to recover a sum of Rs. 2 C00.00 with interest and costs. The aggregate amount claimed in the suit was Rs. 2 540 inclusive of interest up to the date of the institution of the suit. That suit was decreed by the learned trial Judge against which the defendants preferred an appeal to the District Court Banaskantha. That Appeal No. 56 of 1974 was heard by the learned Assistant Judge Banaskantha at Palanpur who by his judgment and order dated 20/10/1976 dismissed the appeal and confirmed the decree of the trial Court. Against that decision the defendants preferred a Second Appeal No. 157 of 1977 in this Court on 21/03/1977. That Second Appeal was called on for hearing before N. H. Bhatt J. who allowed the Second Appeal by his judgment and order dated 25/03/1982 set aside the order passed by the lower appellate Court and directed that the appeal be heard afresh in the light of the observations made in the judgment and in accordance with law. While disposing of the Second Appeal certain observations came to be made in regard to two documents Exhibits 31 and 34 as it was felt that they had been materially tampered with by the plaintiff and could not be relied upon. In view of this finding it was ordered that the matter should go back to the lower appellate Court for re-assessment of evidence without taking into consideration the said two documents Exhibits 31 and 34. In other words the direction given to the lower Appellate Court was that while re-assessing the evidence on record the lower Appellate Court should totally ignore from consideration Exhibits 31 and 34. Accordingly the matter went back to the lover Appellate court and the learned District Judge heard the appeal afresh and disposed it of by the impugned order of 2/11/1982. Ignoring the two documents Exhibits 31 and 34 the learned District Judge came to the conclusion that there was no independent evidence Supporting the entries made in the account books of the plaintiff and the evidence of the plaintiff in this behalf could not be relied upon implicitly. In that view that he took he allowed the appeal and dismissed the plaintiffs suit. The Plaintiff has therefore approached this Court in revision.

(3.) At the hearing of this Revision Application Mr. Zaveri the learned advocate for the plaintiff raised a preliminary contention namely that the order passed by N. H. Bhatt J. in Second Appeal was a nullity inasmuch as no Second Appeal lay against the order of the learned District Judge in appeal as the suit was in the nature of a Small Cause Suit since the amount of the original suit did not exceed Rs. 3 0 Sec. 102 of the Code of Civil Procedure reads as under: 102 No Second Appeal shall lie 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 three thousand rupees. The words three thousand rupees were substituted for the words one thousand rupees by the Code of Civil Procedure (Amendment) Act 1976 (hereinafter called the Amendment Act). According to sec. 97(3) of the Amendment Act save as otherwise provided in sub-sec. (2) thereof the provisions of the Code of Civil Procedure as amended by this Act shall apply to every suit proceeding appeal or application pending at the commencement of this Act or instituted or filed after such commencement notwithstanding the fact that the right cause of action in pursuance of which such suit preceding appeal or application is instituted was filed had been acquired or had accrued before such commencement. Sec. 97(2) does not refer to sec. 102 of the Code and therefore it was argued by Mr. Zaveri that by virtue of sec. 97(3) of the Amendment Act the provision of sec. 102 as amended would apply to pending proceedings including an appeal and therefore the Second Appeal No. 157 of 1977 which came to be disposed of on 25/03/1982 was not competent. The decree passed by the High Court in pursuance of its judgment in the aforesaid Second Appeal was therefore clearly without jurisdiction and a nullity and all consequential proceedings on remand would also be of no avail argued the learned counsel for the petitioner.