RAM SWAROOP GHAMANDILAL JAIN Vs. HAZARILAL PYARELAL

JUDGEMENT

(1.) WHETHER in view of the provisions of Section 97 (2) (1) of the Code of Civil Procedure (Amendment) Act, 1976 (No. 104 of 1976) the right of appeal in suits instituted prior to coming into force of the Amending Act are saved from the clutches of Section 96 (4), Civil Procedure Code is only question canvassed in this second appeal arising out of a suit for recovery of Rs. 3,000/- on the basis of a writing. The plaintiff claimed that the defendant had taken a sum of Rs. 1,000/- as loan and executed a note in writing and he did not pay the amount in spite of demand. The suit was contested and the plaint allegations were denied. The learned trial Court decreed the suit. An appeal was preferred against the decree passed by the trial Court which has been dismissed by the learned appellate Court on 3-9-1981 holding that the appeal was not maintainable and was covered by the provisions of Section 96 (4), Civil Procedure Code as amended and as there was no question of law involved the appeal was dismissed.

(2.) THE contention of the learned counsel for the appellant is that there was a right of appeal under the law against appeals of original decrees under Section 96, Civil Procedure Code. By the aforesaid Amending Act, clause (4) was added and the right of appeal was restricted from a decree of any suit of the nature cognizable by Courts of Small Causes when the amount of value of the subject-matter of the original suit did not exceed Rs. 3,000/- to questions of law only. The learned Counsel argued that this provision has no application in view of the saving clause i. e. Section 97 (2) (1) of the Amending Act.

(3.) ON the other hand, it has been contended that the suit was decided after the enforcement of the Amending Act and consequently the provisions of Section 96 (4) as stood amended applied. This is a very important question of law. Under Section 96 as it stood prior to the amendment by the Amending Act, 1976, an appeal lay from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court. The Amending Act i. e. Civil Procedure Code (Amendment) Act, 1976 (No. 104 of 1976) introduced clause (4) which limited the right of appeal in any suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter of the original suit does not exceed Rs. 3,000/- to questions of law only. Before the learned lower appellate Court an objection was raised on behalf of the respondent that the appeal was not maintainable in view of Section 96 (4) and this contention prevailed with the lower appellate Court. The learned Court referred to AIR 1967 SC 344, Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, M. P. and a decision of Rajasthan High Court reported in AIR 1981 Raj. 14, Bhurilal v. Smt. Shobhabai. It relied upon the decision in the case of Bhurilal v. Smt. Shobhabai (supra) and held that the suit was decided after the coming into force of Amending Act, the provisions of Section 96 (4) applied.