RAGHUNATH HANUMANT MANE Vs. SADASHIV DAMODAR DATAR

JUDGEMENT

(1.) THE suit from which this appeal arises was filed by the plaintiff to recover Kg. 5,025. 2. 3 from the defendant. This claim haa been substantially decreed by the learned Civil Judge, Senior Division, Poona and the defendant challenges this decree in the present appeal. At the hearing of that appeal, a preliminary objection has been takenly the respendent that the appeal against the decree in suit does not lie to this Court and should have been filed in the District Court at Poona. This preliminary objection is based upon the provisions of Bombay Act (LIV [54] of 1949 ). The suit was filed on 21-3-1918, and has been decreed on 31-3-1950. Bombay Act (LIV [54] of 1949) came in force on 1-3-1950, and the argument for the respondent is that the decree under appeal is governed by the provisions of the said Act and under Section 26, Bombay Civil Courts Act, as amended by Bombay Act (LIV [64] of 1949) an appeal against a decree like the present would lie to the District Court and not to the High Court.

(2.) NOW, Bombay Act (LIV [s4] of 1949) purports to amend four sections of the Bombay Civil Courts Act, (xiv [14] of 1869 ). Section 2 of the new Act amends Section 16, Bombay Civil Courts Act. This latter section deals with the original jurisdiction of Assistant Judges and it provides that the District Judge may refer to any Assistant Judge subordinate to him original suits "of which the subject-matter does not amount to ten thousand rupees in amount or value". In respect of decrees or orders passed in such suits the said section further provided that the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject-matter does not exceed or exceeds five thousands rupees. Now, as a result of the amendment made, we have to read the words "fifteen thousand rupees" instead of "ten thousand rupees", and "ten thousand rupees" instead of "five thousand rupees". Section 3 of Act (LIV [54] of 1949) purports to amend Section 24, Bombay Civil Courts Act. Under Section 24 as it originally stood the jurisdiction of the Civil Judges, Junior Division, extended to Rs. 5,000 subject to an increase up to Rs. 7,500 in the cases mentioned by the proviso to the said section. By the amendment, the initial limit of Rs. 5,000 in regard to Civil Judges, Junior Division, is now raised to Rs. 10,000 and the limit within which this amount can be extended is raised from B8. 7,500 to Rs. 15,000. Then we have Section 4 of the new Act which purports to amend Section 26, Bombay Civil Courts Act. Before the amendment of Section 26, the position was that in all suits decided by a Civil Judge of which the amount or value of the subject-matter exceeded Rs. 5,000 the appeal from his decision lay direct to the High Court. As a result of the amendment, the amount of Rs. 5,000 mentioned in this section is now raised to Rs. 10,000. The result is that in all cases to which the amended Section 26 applies an appeal shall lie direct to the High Court against decree passed in any suit by a Civil Judge only where the amount or value of the subject-matter exceeds Bs. 10,000. Section 5 of the new Act amends Section 28a, Bombay Civil Courts Act. The said amendment is made on similar lines. The last section in the new Act provides that the amendments made in the Bombay Civil Courts Act by the present Act by the provisions of ss. 2 to 5 shall not have any effect in respect of and apply to certain suits and proceedings and certain appeals, and the main question which we have to consider in deciding the preliminary objection is whether the decree against which the present appeal has been preferred attracts the provisions of Section 6 of the new Act. There are two sub-sections under Section 6. Section 6 (a) refers to :

(3.) THE legal position with regard to the litigants' right to file art appeal is fairly well-settled. The amendments made by the present Act cannot be said to be, merely procedural. It they had been merely procedural, they would obviously have been retrospective. But in so far as one of these amendments changes the forum of appeal in some cases it cannot be said that this change is a mere matter of procedure. It clearly touches a right which was in existence at the time when the Act was passed, and this right to file an appeal in a higher forum has been always regarded as an important right vesting in the litigants at the time when the suits oc proceedings are instituted. There is no doubt that when the present suit was instituted the parties to the suit had a right to come to this Court in appeal against the decree that may ultimately be passed in the suit. If this right which had vested in the parties at the time when the suit was instituted is intended to be taken away by the present amending Act, such intention must appear clearly and unambiguously in the provisions of the Act. As observed by Lord Macnaughten in Colonial Sugar Refining Go. v. Irving, (1905) A. C. 369 : (74 L. J. P. C. 77)