FIRM MURLIDHAR Vs. FIRM KISHORILAL

JUDGEMENT

(1.) THE preliminary point which Bhandari J. has referred for our consideration is

(2.) THE facts relevant to the context have been aptly summed up by Bhandari J. The plaintiff instituted the suit to which the appeal relates for recovery of over Rs. 6,000/- from the defendants in the court of the Civil Judge, Alwar on July 26, 1948. The learned Civil Judge dismissed the suit on the 22nd of March 1954. It is important to remember that at the time of the institution of the suit, the Alwar state Civil Procedure Code, 1947 (No. 16 of 1947) was in force in the erstwhile alwar State. The law relating to Civil Courts was provided in the United States of matsya Civil Courts Ordinance, 1948 (No. 5 "of 1948) promulgated on the 28th march 1948 which applied to Alwar also and under Section 10 of this Ordinance, the institution of the suit in the court of the Civil Judge, Alwar was proper. The above Ordinance also provided for the forum of appeals. Section 16 referred to cases where an appeal would lie to the High Court at Matsya from the decree or order of a District Judge or an Additional District Judge; while Section 17 provided for appeals from the decree or order of a Munsiff or that of a Civil Judge. Subsection (2) of Section 17 which is material to the discussion runs has follows:--

(3.) AT the hearing of the appeal, a preliminary objection was taken that the appeal should have been filed in the court of the District Judge, Alwar and not in the High court. This argument is based on Section 17 (2) of the United State of Matsya Civil courts Ordinance under which as shown above, an appeal from a decree or order of the Civil Judge passed on the original side lay to the District Judge. It is contended that it is this section which would operate to govern the forum of appeal, and not section 21 of the Rajasthan Civil Courts Ordinance, which repealed the earlier Ordinance, specially when the court to which the appeal lay continued to subsist even after the repeal. The forum of appeal is to be determined not by the change in the law at the time when the decree was passed but by the law as it was at the date of institution of the suit because a right of appeal is not merely a procedural right but a substantive right of the parties, which could not be affected by any repeal unless the law provided for it expressly or by necessary intendment. The argument found favour with Modi J. in two earlier decisions of this Court. In the case of Nandlal v. Mt. Chotan, First Appeal No. 64 of 1952 D/- 24-11-1958 (Raj) he held that an appeal against the judgment and decree of the Civil Judge jaipur City under similar circumstances should have been filed before the District judge, Jaipur, which was the forum of appeal from the decision of the Civil Judge in cases instituted before the Rajasthan Civil Courts Ordinance, 1950 came into force. In other words, according to the learned Judge, the change of forum of appeal by the Rajasthan Civil Courts Ordinance did not affect the forum under the jaipur Civil Courts Act of 1944 in relation to suits instituted prior to the change. This was in consonance with the view which the learned Judge had already taken in the case of Jaskaran v. Bhanwarlal Civil Misc. First Appeal No. 38-B of 1954 D/1-10-1958 (Raj ). As Bhandari J. observes, if the above view prevails, the memorandum of appeal in the present case will have to be returned to the appellants to be presented to the court of the District Judge, Alwar. He, however, thought for the reasons set out in his order of reference that the matter deserved consideration by a larger Bench and has accordingly made this reference. The 'earned Judge also recognised that the point under reference was likely to affect several other appeals pending in this Court of a similar nature in which either the matsya law or the law of the former Jaipur State was under consideration.