BACHI RAM Vs. BACHI RAM AND OTHERS

JUDGEMENT

(1.) This is an appeal by Bachi Ram of Birhi Ram defendant, against the order dated 23 -4 -1969 of the Addl. Civil Judge, Nainital, allowing the appeal of the plaintiffs and thereby setting aside the order d/ - 9th July, 1968, of the Munsif Nainital, and directing the trial court to proceed with the suit in accordance with law after framing necessary issues. For the disposal of the appeal it is not necessary to record a finding whether an appeal against the order of the Munsif deciding one issue and conditionally deciding the other issue was or was not maintainable before the Distt. Judge. We can easily start with the assumption that the appeal was not maintainable. Even then the High Court can pass a suitable order in exercise of the revisional jurisdiction and once such a jurisdiction is exercised by this Court the order passed would, in substance, be the Fame as has been done by the learned Civil Judge.

(2.) A confusion has arisen because it was not realised that the Kumaon Tenancy Rules framed under the Scheduled Districts Act, 1874, had been completely repealed u/S. 54(2) of the Kumaon and Uttarakhand ZA and LR Act, 1960. This Act came into force with effect from 1 -7 -1966, prior to the decision of the issues by the learned Munsif.

(3.) While determining the procedure and the right of appeal one must keep in mind that any amendment in a procedural law takes effect retrospectively, while amendments in substantive laws prospectively. Further, the courts of law have always regarded the right of appeal to a civil court as a more valuable right than appeal to a revenue court. The Kumaon and Uttarakhand ZA and LR Act, 1960, contains both substantive and procedural provisions. Consequently, after the repeal of the Kumaon Tenancy Rules, the provisions of the above Act regarding procedure were applicable to all the pending suits unless under the power to remove difficulties some other procedure was prescribed. In the Kumaon and Uttarakhand ZA and LR Act there is no provision for making reference to the revenue court. Consequently, any suit properly instituted before the Munsif shall have to be finally decided by him, even though similar issue in a freshly instituted suit would be decided by the revenue court. This view must be taken on a consideration of the difference between S. 242 of the UP Tenancy Act and S. 331 of the UP ZA and LR Act. S. 331 has been made applicable under the Kumaon and Uttarakhand ZA and LR Act also.