TUKARAM PANDURANG GAIKWAD Vs. HABABI EABUMIYA SHAIKH

JUDGEMENT

(1.) RESPONDENT Nos. 1 and 2 (Original Plaintiff Nos. 1 and 2) had filed Special Civil Suit No. 296 of 1972 against the Appellant (Original Defendant No. 1) and Respondent Nos. 3 and 4 (Original Defendant Nos. 3 and 4) for declaration and partition. The suit was filed in the year 1972 in the Court of the Joint Civil Judge, Senior Division, Pune, who, by his Judgment dated 10.3.1983 decreed the claim. Feeling aggrieved thereby, Defendant No. 1 has filed this Appeal. The suit was valued at Rs. 43.460/ - for the purpose of Court fee and jurisdiction.

(2.) WHEN the appeal came up before me for hearing, Shri Anturkar, learned Advocate for the Appellant, submitted that in view of the provisions of the Bombay Civil Courts (Amendment) Act, 1998 (Act No. III of 1999) which came into force on 13.1.1999, this appeal cannot lie on the file of the High Court and it will have to be sent back to the District Court, Pune, for disposal according to law. The submission of Shri Anturkar was strongly opposed by Shri Irani, the learned Advocate for Respondent Nos. 1 and 2, who submitted that the said Amendment is prospective in nature and that it cannot have retrospective application. Since the point raised by Shri Anturkar is of a considerable importance and is related to the forum of appeal, I have heard both the learned Advocates at length. Section 26 of the Bombay Civil Courts Act, 1869, as it stood prior to 13.1.1999 read as under: In all suits decided by a Civil Judge of which the amount or value of the subject -matter exceeds fifty thousand rupees, the appeal from his decision shall be direct to the High Court. By the Maharashtra Act No. III of 1999, the words 'fifty thousand rupees' have been substituted by the words 'two lakh rupees'. It, therefore, follows that only the appeals arising out of suits in which the valuation of the subject -matter is more than two lakh rupees will henceforth lie to the High Court, and those appeals in which valuation of the subject -matters is less than rupees two lakhs will have to be filed in the District Court. But the dispute is in respect of the appeals arising out of the suits which are already decided by the Civil Judges in which valuation of the subject -matter is less than rupees two lakhs and which are pending in this Court. It is a question for consideration whether the High Court should retain those appeals pending on its file and dispose them of according to law or whether it is necessary, in view of the above mentioned Amendment, to remit those appeals to the concerned District Courts. The question is, therefore, whether the Amendment to Section 26 of the Bombay Civil Courts (Amendment) Act, 1869, effected by Act No. III of 1999 operates prospectively or retrospectively.

(3.) IN Hitendra Vishnu Thakur v. State of Maharashtra : 1995CriLJ517 the Apex Court considered the ambit and scope of an Amending Act and its retrospective operation with reference to Clauses (b) and (bb) of Sub -section (4) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act (28 of 1987), as amended by Act 43 of 1993. The following principles were laid down in the said case : (i) a statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas a Statute which merely affects procedure, unless such a construction is textually impossible is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature. (iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law. (iv) A procedural Statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished. (v) A Statute which not only changes the procedure but also creates a new rights and liabilities, shall be construed to be prospective in operative, unless otherwise provided, either expressly or by necessary implication, and liabilities.Section 26 of the Bombay Civil Courts Act, 1869 Sub -section (4) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act (28 of 1987), as amended by Act 43 of 1993. Section 26 of the Bombay Civil Courts Act, 1869 Sub -section (4) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act (28 of 1987), as amended by Act 43 of 1993. Section 20 of the Terrorist and Disruptive Activities (Prevention) Act (28 of 1987), as amended by Act 43 of 1993. Section 26 of the Bombay Civil Courts Act Order 43, Rule 1 of the Code of Civil Procedure,