KUSUMBEN CHHOTUBHAI BHANDARI Vs. GUJARAT HOUSING BOARD

JUDGEMENT

(1.) Heard learned Counsels for the parties. A preliminary objection has been raised on behalf of the respondents that, in view of Sec. 8 read with Sec. 26 of the Bombay Civil Courts Act, the appeal against the order under appeal lay to the District Court and not to the High Court directly, inasmuch as the valuation of the suit out of which this appeal has arisen is less than Rs. 50,000.00. Learned Counsel for the appellant urged that right of an appeal is a vested right of the party to the suit. Such right comes into existence as on the date of filing of the suit. As on the date the suit was filed, an appeal arising out of a suit which was valued at Rs. 20,000/- or more, lay directly to the High Court as the provision then stood. The subsequent amendment in the provision would not take away the parties' right to file an appeal directly to High Court under the said provision, as that right came to be vested in the parties on the date of filing of the suit. For the said proposition, learned Counsel relies on 1968(IX) GLR 24 and AIR 1969 Guj 94.

(2.) Having carefully considered the rival contentions, in my opinion, the preliminary objection merits to be sustained.

(3.) Law is trite that right of appeal is a vested right and it vests in the litigant at the time when the action is brought. At the same time, it is equally true that such right is to void the order challenged in the superior Court only, but there is no such right as to the forum where the appeal can be filed. In this connection, reference may be made to the case of Maria Christine De Souza Soddar v. Maria Zurna Pereira Pinto , AIR 1979 SC 1352. In the aforesaid case, the question directly arose as to the effect of change in law as to the forum of appeal during the pendency of the suit on deciding the question the Court to which appeal would lie from the decree or orders passed in such suit after the amendment had come into existence. In the aforesaid case, the suit had been instituted in the Court at Margao on 15-3-1960 by the plaintiffs who were respondents before the Supreme Court. As on the date the suit was filed under the provisions of Portuguese Civil Procedure Code, the appeal was required to be filed in the Court which decided the suit. However, after filing of the suit, the territories of Goa, Daman and Diu were liberated and became a part of the Union of India with effect from December 20, 1961. The Parliament enacted Goa, Daman and Diu (Extension of the Code of Civil Procedure, 1908 and Arbitration Act, 1940) Act, 1965 (Act XXX of 1965) with the corresponding provisions of the Portuguese Code being repealed. After the Code of Civil Procedure became applicable to the territories of Goa, Daman and Diu, the appeal against the order passed by the Court, at Margao was filed in the Court of Judicial Commissioner, Goa. The contention was raised that the appeal had not been filed in proper Court on the identical grounds as has been raised by the respondent. The contention that since the right of appeal had been conferred by Portuguese Court, the forum where it could be lodged was also governed by the Portuguese Code, was not accepted. The Court quoted with approval, the following passage from Salmond's Jurisprudence (12th Edition) pointing out that, two of the Courts the proceedings must be instituted is essentially of procedural law, which reads as under :