LAKHMICHAND Vs. MITTHU

JUDGEMENT

(1.) The facts leading to this revision are that the applicant in this revision instituted a suit against the non-applicant for recovery of Rs. 1895/- on 24-81976. The trial Court dismissed the suit on 28th June, 1978. The applicant then preferred an appeal before the Additional District Judge, Sagar, being Civil Appeal No. 23-B of I97S, which was dismissed by the judgment and decree dated 25-11-1981 on the ground that it was not maintainable under Section 96, C. P. C. as amended by the Code of Civil Procedure (Amendment) Act, 1976, for the reason that there was no question of law involved in the appeal. It is this judgment of the Additional District Judge which is challenged in this revision by the plaintiff,

(2.) The argument of the learned counsel for the plaintiff is that the suit was instituted before the coming into force of the Amendment Act of 1976 and that the right to prefer an appeal in accordance with, unamended Section 96 accrued to the plaintiff on the date of institution of the suit and this right has not been affected by the Amendment Act.

(3.) It is well settled that the right of appeal accrues to the parties to the suit on the date of the institution of the suit according to the law then in force and, therefore, there is a presumption that a subsequent change in law restricting the grounds of appeal will not apply to appeals arising from the suits instituted earlier; (see Kasibai v. Mahadu, AIR 1965 SC 703 at p. 705). The presumption, therefore, is that the plaintiff-applicant's right to prefer the appeal under Section 96 as it stood on the date of the institution of the suit was unaffected by the Amendment Act. The question is whether Section 97 of the Amendment Act contains any provision to destroy this presumption. Section 97 of the Amendment Act has been construed in four Division Bench cases of this Court: Chuturam V. Bhagatram, 1980 MPLJ 37 : AIR 1980 Madh Pra 16; Sheshkumar v. Kesheo Narayan, 1980 MPLJ 335 : AIR 1980 Madh Pra 166; Sitaram v. Chaturo, 1981 Jab LJ 171 and Dattatray v. Mangal, AIR 1983 Madh Pra 82. In the last mentioned case, the ratio decidendi of the earlier Division Bench cases which were followed is stated to be as follows (at p. 84): "Section 97 of the Amendment Act has been construed in three Division Bench decisions of this Court. These decisions are Chuluram v. Bhagatram, (AIR 1980 Madh Pra 16); Sheshkumar Pradhan v. Kesheo, (AIR 1980 Madh Pra 166) and Sitarani v. Chaturo, (1981 Jab LJ 171). It has been held in these cases that the specific savings made in Clauses (a) to (zb) of Section 97 (2) are without prejudice to the generality of the provisions of Section 6. General Clauses Act, 1897, and, therefore, if a vested right arose under Section 6, General Clauses Act, that would also be preserved by Section, 97 (2) unless a clear intention is evinced either in Clauses (a) to (zb) or in other provisions of the Amendment Act to negative continuance of such a right. Section 97 (3) which makes the Code as amended apply to every proceeding pending at the commencement of the Amendment Act has its operation "save as otherwise provided in sub-section (2) of Section 97". The implication of these words is to subordinate Section 97 (3) to Section 97 (2) and if a right is saved under Section 97 (2) it is not taken away by Section 97 (3). As already seen, Section 97 (2) is rot limited to savings in Clauses (a) to (zb) but it also preserves the generality of the provisions of Section 6, General Clauses Act. Therefore, if a vested right of suit or appeal can be said to be preserved either by Clauses (a) to (zb) of Section 97 (2) or by Section 6, General Clauses Act, it is not taken away by Section 97 (3)."