KASHINATH TIMA GAVDE Vs. NARAYAN SADASHIV DHAVLIKAR DEAD

JUDGEMENT

(1.) THIS civil revision application is placed before us pursuant to the reference made by a Single Judge of this Court by order dated 4th May, 2001 expressing doubts regarding the view taken by another Single Judge of this Court in the case of (Shri Rosario Salvador Liberado Carneiro v. Shri Devidas Ganoati Shirodkar and another), reported in 2000 (1) Goa. L. T. 36, overlooking the well settled legal position enunciated in (Maria Christine de Souza Soddar and others v. Maria Zurna Pereira Pinto and others), reported in A. I. R. 1979 S. C. 1352.

(2.) THIS Civil Revision Application No. 64 of 2001 is filed against the order dated 19-6-2000 of the Additional District Judge II, Panaji, dismissing the Misc. Civil Appeal No. 120/99 of the petitioners as not being maintainable in view of the notification dated 18th August, 1998 amending section 22 of the Goa, Daman and Diu Civil Courts Act, 1965 whereby the pecuniary jurisdiction of the District Court to hear appeals from orders of the trial Court is enhanced from Rs. 25,000/- to Rs. 1,00,000/ -. The appeal is directed against the order dated 12th March, 1998 passed by the Civil Judge, Senior Division, Ponda confirming the order of ex parte injunction in favour of the plaintiffs/respondents herein. The said order was passed by the trial Court in suit filed by the respondents in the year 1991 wherein the subject matter of the suit was valued at Rs. 30,000/ -. At the relevant time the forum for filing appeals against orders passed by the Civil Judge, S. D. in suits valued at more than Rs. 25,000/- was the High Court. The impugned order granting temporary injunction was passed on 12th March, 1998. By notification dated 18th August, 1998, the Goa, Daman and Diu Civil Courts Act was amended raising the jurisdiction of the District Court to hear appeals from suits valued upto Rs. 1,00,000/ -. The appeal was filed by the petitioners against the said order on 6-11-1998 in the District Court. The said appeal came to be dismissed by the Additional District Judge by order dated 19th June, 2000 in view of the objection to the jurisdiction taken by the respondent that the impugned order having been passed prior to the amendment enhancing pecuniary jurisdiction, the appeal lay before the High Court and not the District Court. The respondents raised objection to the maintainability of the appeal on the decision of a Single Judge of this Court in the matter of Shri Rosario Salvador Liberado Carneiro v. Shri Devidas Ganoati Shirodkar and another, reported in 2000 (1) Goa. L. T. 36. It was therefore contended by the respondents that the forum of appeal against the impugned order was the High Court and not the District Court. It was at that stage brought to the notice of the District Judge by the petitioners herein that the view of the learned Single Judge of this Court in the aforesaid case was not in accordance with the principles laid down by the Apex Court in the case of Maria Christine de Souza Soddar v. Maria Zurna Pereira Pinto and others (supra ). The District Court however accepted the objection raised by the respondent on the ground that the decision of this Court in the matter of Shri Rasario Salvador Liberado Carneiro v. Shri Devidas Ganoati Shirodkar (supra) was binding on the District Court and that the same could not be said to be per incuriam since it makes reference to the decision of the Apex Court in the matter of (Garipati Vesnaya v. N. Subbiah Choudhary), reported in A. I. R. 1957 S. C. 540 and accordingly the District Court dismissed the appeal as not maintainable.

(3.) FROM the order dated 4-5-2001, it appears that the learned Single Judge felt it necessary to refer the matter to the Division Bench in view of the fact that the decision of the Apex Court in Maria Christine de Souza Soddar and others v. Maria Zurna Pereira Pinto and others (supra) was not brought to the notice of the Court in the matter of Shri Rasario Salvador Liberado Carneiro v. Shri Devidas Ganoati Shirodkar (supra ). The Court in the matter of Maria Christine de Souza Soddar and others v. Maria Zurna Pereira Pinto and others (supra) had taken the view that the forum where the appeal should be lodged is a procedural matter and the right to file appeal is a substantive right. Substantive right can only be taken away by specific provision of the enactment or by necessary implication.