Ram Niwas Vs. Mithan Lal and ors. - Court Judgment

D.S. Tewatia, J.

1. The determination of the ambit of sub-ss. (2)(a) and (3) of S. 97 of the Civil P. C. (Amendment) Act, 1976, hereinafter referred to as the Amending Act, is the legal issue of some substance that falls for consideration in this referred revision petition.

2. This revision petition, in the first instance, came up before Goyal, J. who finding himself unable to subscribe to the view enunciated by Sharma, J. in two reported decisions in Darshan Kumar v. Raghunandan Sharma, (1978) 80 Pun LR 368 and Surjit Singh v. Sardara Singh, (1978) 80 Pun LR 779 and a similar view taken in Orissa High Court decision reported in Nanda Kishore Moharana v. Mahabir Prasad Lath, AIR 1978 Orissa 129 and also finding a contrary view being taken in Mohan Dass v. Kamala Devi, AIR 1978 Raj 127, referred the matter to the larger Bench and that is how the matter is before us.

3. In order to appreciate the legal point, a reference to certain basic facts at this very stage would be relevant. The petitioner herein preferred objections under S. 47 of the Civil P. C. which were dismissed by the executing Court, vide order dated 16-7-1977. Against that order, the objector preferred an appeal to the District Judge who held that, in view of the amendment effected in S. 2(2)(a) of the Civil P. C. by S. 3 of the Amending Act, the order passed under S. 47 of the Civil P. C. ceased to be a decree and, therefore, no appeal was competent. This order came to be assailed in the High Court in the present revision petition.

4. For facility of reference, the relevant provisions of the Civil P. C. as these stood prior to the amendment and after the amendment deserve to be noticed at this stage:

5. Sub-clause (a) of clause (2) of S. 2 of the unamended Civil P. C. was in the following terms:--

''2. In this Act, unless there is anything repugnant in the subject or context-

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(2) 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 47 or S. 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

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6. Sub-clause (a) of clause (2) of S. 2 of the amended Civil P. C. is in the following terms:

''2. In this Act, unless there is anything repugnant in the subject or context-

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2. 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

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Further the relevant provisions of S. 97 of the Amending Act are as under:--

'97. (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force on the repeal under sub-s. (1) has taken effect, and without prejudice to the generality of the provisions of S. 6 of the General Clauses Act, 1897 (10 of 1897)-

(a) the amendment made to clause (2) of S. 2 of the principal Act by S. 3 of this shall not affect any appeal against the determination of any such question as is referred to in S. 47 and every such appeal shall be dealt with as if the said,, S. 3 had not come into force;

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(3) Save as otherwise provided in sub-section (2), the provisions of the principal' Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement'.

The facts involved in the case of Darshan Kumar (supra) were that one Vishnu Dutt Aggarwal, owner of the property in dispute, on 2-9-1964, obtained an order. of ejectment against one Raghunandan Sharma. Before this order could, be executed, Darshan Kumar petitioner purchased the suit property from Vishnu Dutt Aggarwal on 7-7-1975. He then on 1-9-1976 filed a suit for possession of the said property on the ground that the tenancy of Raghunandan Sharma, had come to an end and he was a trespasser. In the return an objection was taken that the suit for possession was not maintainable as the petitioners should have executed the order of ejectment obtained by Vishnu Dutt Aggarwal. On 30-11-1976, petitioner Darshan Kurnar filed an application before the learned trial Court that suit under Section 47, sub-section (2) of the Civil P, C. as unamended, he converted into an execution petition. This prayer was turned down by the learned trial Court on the ground that sub-section (2) of Section 47 of the Code had, by then, been deleted and it was not open to him to convert the suit into an execution petition. It is this order that came up in challenge in the revision Petition in the High Court, Sharma J., who decided the revision petition, observed that the opening words used in sub-section (3) of Section 97 of the Amending Act were 'save as Otherwise provided in sub-section (2)'. These words clearly implied that sub-section (2) should dominate the field and sub-section (3) would apply only to those cases to which sub-section (2) would not be applicable. And that substantive rights of the litigants had thus been preserved by the legislature under sub-section (2) of Section 97 by expressly laying down that the provisions of that statute would not affect the generality of the provisions of Section 6 of the General Clauses Act and thus Section 6 of the General Clauses Act enjoyed precedence over the provisions of Section 97 of the Amending Act.

7. In Surjit Singh's case (supra), the facts were that a decree for possession by Way of preemption was passed in respect of agricultural land. When the respondent took out execution proceedings, the petitioner therein raised an objection that the decree was unexecutable on the ground that if execution was allowed, the total land which the respondent would come to possess would go beyond his permissible area. These objections were dismissed by the learned executing Court on 22-4-1978. The petitioner went up in appeal before the learned Additional District Judge, Ambala. That appeal was dismissed on the ground that because of the amended Civil P. C. no appeal lay against the order passed by the learned executing Court dismissing the objections filed under Section 47 of the Code of Civil Procedure. Following his earlier decision in Darshan Kurnar case (supra), Sharma, J. observed that substantive rights of the parties which became subject-rnatter of proceedings instituted Prior to the amendment of the Code had been preserved by the legislature under sub-section (2) of S, 97 of the Amending Act.

8. In Nanda Kishore Maharana's case (supra), the facts were that the executing Court dismissed the objections preferred under Section 47 of the Code. The aggrieved party preferred an appeal before the District Judge on 4-7-1975. when that appeal failed, the aggrieved party preferred a second appeal in the High Court. In the High Court the respondent raised a preliminary objection challenging the maintainability of the appeal on the ground that by the amendment of the Code in the year 1976 orders passed under Section 47 of the Code would not be taken to be a decree and so that appellant could not prefer the said appeal against the order of the Court below determining a question under Section 47 of the Civil P. C. In the facts mentioned in the judgment it is not clear as to whether the appeal was preferred after the Amending Act had come into force or it was at that time pending. The learned Judge, however, took the view that the provisions of sub-section (2) of Section 97 of the Amending Act protected the right that existed prior to the coming in force of the Amending Act.

9. The facts involved in Mohan Dass, case (supra) were that it was a case of special leave under Section 18 of the Rajasthan High Court Ordinance, 1949, directed against the judgment of the learned Single Judge dated 9-5-1977. A preliminary objection was raised that in view of the amendment of clause (2) of Section 2 of the principal Act by Section 3 of the 'Amending Act, the appeal was not maintainable. P. D. Kudal, J., who delivered the judgment for the Court, repelled the contention with the following observations:

'......... The basic question for consideration is, whether by the Amending Act, 1976, the necessary intendment can be inferred by which a right of appeal has been taken away. In the scheme of the Amending Act, 1976, it is writ large that the litigation should be shortened and curtailed and by omission of the words 'Section 47 or', the orders under Section 47, Civil P. C. are no more appealable. The intention of the Legislature, therefore, is that decree-holder should be able to reap the fruits of his decree as expeditiously as possible, and that the judgment-debtor should not be allowed to have a second inning by way of frivolous objections and thus defeat the very purpose of the decree. The Legislature further intended that execution matter should be disposed of as expeditiously as possible and hence these amendments in our considered opinion, the necessary intendment can be clearly inferred from the fact that appeals against the orders under Section 47, Civil P. C. are barred'. We, however, find no detailed discussion in any of the decided cases referred to us from either side.

10. Mr. P. C. Mehta, learned counsel or the petitioner, has contended that he language of clause (a) of sub-section (2) and sub-section (3) of Section 97 of the Amending Fleet leaves no scope for any doubt that application of clause 6 of the General Clauses Act far from being dispensed with was on the contrary invoked in express terms by the Amending Act and that once it is held that clause 6 of the General Clauses Act continued to apply, then all rights that vested in a litigant on the date of the filing of a suit in view of the law then prevailing would remain intact and available to the litigating parties throughout the career of their suits. in support of the above wide proposition, he sought sustenance from the following observations of their Lordships of the Supreme Court in Garikapati Veeraya v. N. Subbiah Chaudhry, AIR 1957 SC 540.

''From the decisions cited above the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit appeal and second appeal are really put steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested, right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the rate of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the rate of the filing of the appeal.

(v) This vested right of appeal can be given away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise'.

11. The learned counsel for the petitioner also placed reliance on Jose Da Costa v. Bascora Sadashiva Sinai Narcornin, AIR 1975 SC 1843, and drew our pointed attention to the following observation therefrom:

''Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well-established principles. The first is that 'While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment' (see Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commr.) 54 Ind. App. 421: (AIR 1927 M 242). The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule, viz. (1) when by competent enactment such right of appeal is taken away expressly or impliedly With retrospective effect and (2) when the court to which appeal lay at the commencement of' the suit stands abolished (see Garikapati Veeraya v. N. Subbiah Choudhry 1957 SCR 488: (AIR 1957 SC 540) and Colonial Sugar Refining Co. Ld., Irving, 1905 AC 369)''.

There is no dispute with the proposition of law enunciated by their Lordships in the aforesaid two decisions, but whether any right vested, in a litigant under the existing law, after the enforcement of a subsequent law, survives or not with or without the aid of Section 6 of the General Clauses Act would depend on the languge used in the Amending Act, and the intention of the legislature. which the amending statute attempted to effectuate.

12. A bare reading of sub-section (3) minus the expression 'save as otherwise provided in sub-section (2)' would show that the legislature expressly intended the principal Act as amended to apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such amendment notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceedings, appeal or application was instituted or filed had been acquired or had accrued before such commencement. The legislature could not have expressed its intention in language most unequivocal than the one we find used above in sub-section (3) and if sub-section (2) had stood as mentioned above, then no doubt whatsoever could be entertained that not only the suit, proceeding, appeal or application that were pending were to be governed by the principal Act as amended, but even those which were to be filed, were to be so governed despite the fact that right or cause of action had accrued, in pursuance whereof the suit, proceeding, appeal or application was to be instituted or filed had been acquired or had accrued before the commencement of the Amending Act. When considered in that undiluted form, that was the effect of sub-section (3).

13. Now we have to see as to what extent the expression 'save as otherwise provided in sub-section (2)' dilutes such drastic retrospective effect of the Amending Act. This takes us to sub-section (2) in order to examine the ambit of the said provision.

14. If sub-section (2) had stood minus the expression 'and without prejudice to the generality of the provisions of S. 6 of the General Clauses Act, 1897 (10 of 1897)' then there could be no controversy and doubt about the scope thereof which was to save from the application of the Amending Act only such pending matters as were enumerated in cls. (a) to (z) thereof, but then the question arises, what to make of the expression 'and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897)'. The learned counsel for the petitioner interpreted the incorporation of the said expression in sub-section (2) as being intended by the legislature to protect such, rights as accrued to a litigant on the filing of the suit under the then prevailing law for being availed throughout the career of the said suit in regard to matters enumerated in cls. (a) to (z) of sub-section (2) of Section 97 of the Amending Act.

15. On the other hand, on behalf of the respondents, it was argued that the, use of the said expression in sub-section (2) signifies no such thing as urged on behalf of the petitioner. What it signifies, according to the learned counsel for the respondents, is that despite Section 6 of the General Clauses Act what the legislature intended to save were the pending matters enumerated in cls. (a) to (z) of sub-section (2) and nothing more.

16. At this stage, relevant provisions of Section 6 of the General Clauses Act require noticing:

''6. Where this Act, or any Central Act or Regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything. duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed;

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17. If one is to accept the interpretation put upon sub-section (2) on behalf of the petitioner, then sub-section (3) becomes totally redundant and otiose, but if we accept the interpretation sought to be put on behalf of the respondents, then use of the expression 'and without prejudice to the generality of the provisions of Section 6 of the General Clause Act, 1897 (10 of 1897)' in sub-section (2) becomes totally irrelevant.

18. Sub-section (2) has to be interpreted keeping in view the well known rule of interpretation that the language of statute has to be so construed as to save the vested right from being taken away if that can be done without doing violence to the language of the statute an, if it does not conflict with the express or necessarily implied intention of the legislature which it sought to give effect to by enacting the said statute. However, one can also not lose sight of another equally important rule of interpretation of statutes that the Court has to harmonise various provisions as it has to be assumed that the legislature does not enact anything that is irrelevant or contrary to the purpose behind the enactment.

19. When the construction of sub-section (2) is approached in the light of the aforesaid rule of interpretation, that one reaches an inescapable conclusion.

(1) that the legislature intended to the incorporating sub-section (2) to save the enumerated pending matters alone from the application of the principal Act amended:

(2) that by way of abundant caution the legislature used the expression 'and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897, (10 of 1897),' in order to fully effectuate its intention of saying the pending matters enumerated in cls. (a) to (z) of sub-section (2); and

(3) that the use of the said expression was not intended at all by the legislature either to bring within the purview of sub-section (2) any pending matter that bed not been enumerated therein or saving the institution of any such matter after the commencement of the Amending Act from the application thereof.

When sub-section (2) is so read, then this provision is completely harmonised with sub-section (3) and use of the expression 'and without prejudice to the generality of the provisions of Section 6 of the. General Clauses Act, 1897 (10 of 1897)' in sub-section (2) is also not rendered irrelevant.

20. Mr. Mehta, learned counsel for the petitioner, then sought to argue that the perusal of clause (a) of sub-section (2) of Section 97 of the Amending Act would show that the language used therein is, different from the language used in the other clauses of sub-section (2) and that Wherever the legislature intended to save matters pending before the commencement of the Amending Act, only it has expressly said so. Since in clause (a) of Sub-section (2) no such expression as 'pending immediately before the commencement of the said Section' as used in cls. (a) to (z) thereof is used, it would show that in regard to the appeal against the order disposing of the objections under Section 47, not only the pending appeal, but also the appeal to be filed is also intended to be protected.

21. We find no merit whatsoever in this. contention. Clause (a) of sub-section (2) can make sense when between. the two words 'appeal' and. 'against', either the word 'pending' or 'to be filed' or 'to be preferred' or 'to be instituted' is used. If the word 'pending' is used, then it clearly brings in accord this clause with the intention behind sub-s. (2) which was to save matters pending immediately before the coming into force of the relevant provisions of the principal Act, but if the words 'to be preferred' or 'to be filed' or 'to be instituted' are read between the two words 'appeal' and 'against' occurring in clause (a), then it would render the amendment effected in clause (2) of S. 2 of the principal Act by S. 3 of the Amending Act as wholly nugatory, in that it would protect the character of the-order disposing of the objections arising even from a suit filed after the commencement of the Amending Act.

22. Our reasons for the aforesaid conclusions will become immediately clear from the mere reading of clause (e) with the insertion of the latter category of words, as when the said words are so incorporated, clause (a) would read:

''(a) the amendment made to clause (2) of S. 2 of the principal Act by S. 3 of this Act shall not affect any appeal 'to be instituted' against the determination of any such question as is referred to in S. 47 and every such appeal shall be dealt with as if the said S. 3 had not come into force.'

Clause (a), when so read in simple language, would mean this 'any appeal filed against the determination of any such question as is referred to in S. 47 shall be dealt with as if the said S. 3. which amended clause (2) of S. 2 of the principal Act, had not come into force'. When so read, we find no limiting words in the clause which may confine the scope of saving to an appeal to be filed against an order disposing of objections under S. 47 arising only in a suit instituted prior to the commencement of the Amending Act alone.

23. For the aforesaid reasons, we are clearly of the view that clause (a) of sub-section (2) of S. 97 of the Amending Act saves only the pending appeal against the determination of the objections filed under S. 47, that is, the pending appeal should not be non-suited on the ground that no such appeal was competent by virtue of clause (2) of S. 2 of the principal Act, as amended by S. 3 of the Amending Act.

24. In the present case, the appeal was not pending before the District Judge when the Amending Act became operative. The appeal in question was filed after the Amending Act came into force. Such appeal on the day on which it was filed was clearly incompetent and, therefore, the District Judge rightly dismissed the same on that ground. Accordingly, we find no merit in this revision petition and dismiss the same but with no order as to costs.

25. Revision dismissed.