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TMI Blog2003 (4) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... eforms appears to be speedy disposal of cases, inter alia, by curtailing the right of intra Court appeal. It is in this context that two significant questions have arisen before the Letters Patent Bench during the course of hearing of the instant Letters Patent Appeal No. 1246 of 1999. An objection was raised on behalf of the respondents that the letters patent appeal was not maintainable in view of Section 100A as amended and enforced by 2002 Act. On the basis of preliminary objection, the Letters Patent Bench framed two significant questions having wide ramifications which have arisen on account of amendment and enactment of Section 100A of 2002 Act. As the aforementioned two questions are likely to arise in a large number of cases and were thus of vital public importance, the Letters Patent Bench felt the necessity of referring those questions to a Full Bench for authoritative settlement. The questions referred to the Full Bench are as under:- (1) Whether Letters Patent Appeal would lie against the judgment and decree passed by the learned Single Judge in an appeal arising from an original or appellate decree or order? (2) Whether the Letters Patent Appeals filed before 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve heard Shri Ashok Aggarwal, learned counsel for the tenant-appellants, Shri R.S. Mittal who has appeared for the intervenes and supported the proposition that the letters patent appeal was maintainable and Shri Jaswant Singh, learned Senior Deputy Advocate General, Haryana for respondent Nos. 1 and 2. We have also heard Shri M.L. Sarin, learned counsel for respondent Nos. 3 to 6 who are the claimant-owners and Shri D.S. Bali, learned counsel for the interveners who has supported the proposition that no letters patent appeal is competent. Shri Ashok Aggarwal, learned counsel for the tenant-appellants has made a reference to Section 100A as amended by Section 10 of 1999 Act and also by Section 4 of 2002 Act. He has also referred to Sections 32(a) and (h) of 1999 Act and Section 16 of 2002 Act. On the basis of aforementioned provisions, the learned counsel has raised the following arguments:- (a) That the amendments carried in Section 100A by 1999 Act and 2002 Act are not retrospective in nature as is evident from the plain language of this section. According to the learned counsel the right of filing appeal had accrued to the appellants in 1991 which has also been availed. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the provisions of Clause (g) of Section 32(2), the learned counsel has submitted that the amendment made in Section 100A saves the appeal filed against the judgment of a learned Single Judge or order of the High Court issued under Articles 226 or 227 of the Constitution which stands admitted before 1.7.2002. In other words, the appeals which have already been admitted against the decision of learned Single Judge of this Court under Article 226 of 227 of the Constitution are required to be dealt with in accordance with the old provisions. He has further made a reference to Section 16(7) of 2002 Act wherein, no such savings have been made and submitted that Section 6(b)(c) and (e) of the General Clauses Act, 1897 (for brevity, 1897 Act') would save all the pending appeals from the effect of the amendment as provided by Section 16(2) of 2002 Act. Shri Mittal has further argued that the right of appeal has to be considered in the light of the, principle that the appeal is a continuation of the suit. Therefore, he went to the extreme argument that if the right of appeal was available on the date of filing the suit to a suitor, then it should continue to be available because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se appeal, which were directed against the decision of the learned Single Judge decided under Article 226 or Article 227 of the Constitution and which had been admitted before the enforcement of Section 10, namely, the substituted Section 100A. He has further referred to Section 4 of 2002 Act, which has still further substituted Section 100A. The learned counsel has also drawn our attention to Section 16(2) of the Repeal and Savings of 2002 Act and argued that only those appeals are intended to be saved, which are decided by the learned Single Judge while exercising jurisdiction under Article 226/227. In other words, a judgment delivered by the learned Single Judge while exercising appellate jurisdiction in cases like the one in hand or in appeals such as arising out of Motor Vehicles Accident Claims, no Letters Patent would be competent since those are intended to be saved. The learned counsel has placed reliance on a Constitution Bench judgment of the Supreme Court in the case of Garikapati Veeraya's case (supra) and drawn our attention to the 5th principle laid down by the Constitution Bench holding that the vested right of appeal can be taken away only by a subsequent en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of his argument he has also referred to the provisions of Section 5 of 2002 Act, which have substituted Section 102 of the Code. Therefore, according to the learned counsel, by necessary intendment even the right to continue the appeal already filed before July, 2002 has been taken away. Shri Yogesh Kumar Sharma, learned counsel for the interveners has supported the argument of Sh. Sarin. The learned counsel has placed reliance on a judgment of the Supreme Court in the case of Channan Singh and Ors. v. Smt. Jai Kaur, A.I.R. 1970 S.C. 349, where the Supreme Court has interpreted Section 31 of the Punjab Preemption Act, 1913 (as amended by the Amended Act No. 10 of 1960) to be comprehensive enough to require an appellate Court to give effect to the substantive provision of the Amending Act whether the appeal before it was one against a decree granting preemption or one refusing that relief. In this regard, he has also made a reference to paragraph 47 of the judgment in the case of Ram Sarup v. Munshi, A.I.R. 1963 S.C. 553 and argued that when the substantive law is altered during the pendency of an action, then rights of the parties are decided according to the law as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de on an application under Article 226 or 227 of the Constitution. by a single Judge of High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge. XX XX 32. Repeal and savings.-(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions 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 or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clause Act, 1897 (10 of 1897),- (a) to (f) xx xxx xx xx (g) the provisions of Section 100 A of the principal Act, as substituted by section 10 of this Act, shall not apply to or affect any appeal against the decision of a Single judge or a High Court under article 226 or article 227 of the Constitution which had been admitted before the commencement of Section 10; and every such admitted appeal shall be disposed of as if Section 10 had not come into force; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, stand repealed. (2) Notwithstanding that the provisions of this act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897),- (a) the provisions of Section 102 of the principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force; (b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act. It would also be pertinent to note that Section 100A as it stood before 1999 Act reads as under:- 100A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olly or partially repealed, expressly to state that purpose. (2) This section applies also to all (Central Acts) made after the third day of January, 1968, and to all Regulations made on or after the fourteenth day of January, 1887. 8. Construction of reference to repealed enactments.- (1) Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. [(2)] (Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted), with or without modification, any provision of a former enactment, then reference in any [Central Act] or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted.] 6. A conjoint reading of Section 100A as substituted by 1999 Act and 2002 Act would show that the language of two Sections di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -court appeal is provided. In this regard the observations of their Lordships read as under:- Section 100-A deals with two types of cases which are decided by a Single Judge, One is where the Single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated. Where, however, an appeal is filed before the High Court against the decree of a trial Court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a Single judge or by a division bench of the High Court. Where the regular first appeal so filed is heard by a division bench, the question of there being an intra-court appeal does not arise. It is only in cases where the value is not substantial that the rules of the High Court may provide for the regular first appeal to be heard by a Single Judge. In such a case to give a further right of appeal where the amount involved is nominal to a division bench will really be increasing the workload unnecessarily. We do not find that any prejudice would be caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature. Even when we come to Section 4,.'it is easy to visualise that Sub-section (1) of Section 4 states that two suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other shall lie by or on behalf of a person claiming to be the real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiffs right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19th May, 1988 shall not lie. The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words no such claim, suit or action shall lie , meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). In Collins Engl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals. In Mithilesh Kumari's case (supra) the Supreme Court has taken the view that if an appeal was pending before the Supreme Court when 1988 Act was enacted then the appeal would be governed by the provisions of 1988 Act. In that case, the plaintiff had filed a civil suit praying for the declaration to the effect that he was the sole and real owner of the suit house and the defendant be permanently restrained from transferring the suit house. The suit was decreed on 13.3.1974 declaring the plaintiff to be the sole and the real owner of the suit house and the decree had permanently restrained the defendant from transferring the suit house to any other person. An appeal was dismissed by the Additional District Judge on 23.10.1974 and the second appeal before the High Court was also dismissed on 27.3.1978. The defendant filed appeal before the Supreme Court. It was during the pendency of her appeal that 1988 Act came into force. The question which arose before the Court was as to whether the provisions of 1988 Act would apply so as to debar the plaintiff to seek any declaration. It was on these facts that the Supreme Court took the view that 1988 Act would apply and the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language shall be deemed always to have meant is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambigous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force the amending Act also will be part of the existing law. In Mithilesh Kumari v. Prem Bihari Khare, Section 4 of the Banami Transactions (Prohibition) Act, 1988 was, it is submitted, wrongly held to be an Act declaratory in nature for its was not passed to clear any doubt existing as to the common law or the meaning or effect of any statute. The conclusion, however, that Section 4 applied also to past benami transactions may be supportab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless the amending Act provides otherwise. We have carefully looked into the new substituted Section 15 brought in the parent Act by the Amendment Act, 1995 but do not find it either expressly or by necessary implication retrospective in operation which may affect the rights of the parties on the date of adjudication of the suit and the same is required to be taken into consideration by the appellate court. In Shanti Devi v. Hukum Chand (1996)5 S.C.C. 768) this Court had occasion to interpret the substituted Section 15 with which we are concerned and held that on a plain reading of Section 15, it is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99 the legislature in its wisdom preferred to save both types of pending letters patent appeals which were admitted before the enforcement of 1999 Act on the assumption that Section 100A of 1999 Act substituting Section 100A had never come into force. 14. A perusal of Section 4 of 2002 Act shows that Clause (b) of Section 100A substituted by Section 10 of 1999 Act prohibiting the remedy of appeal from the writ order or direction issued or made by a learned Single Judge on an application under Articles 226 or 227 of the Constitution was omitted. It has been made explicit by Section 4 of 2002 Act that any writ, order or direction issued by a Single Judge of the High Court under Articles 226 or 227 of the Constitution can be challenged before the Letters Patent Bench and such an appeal would be competent. It has further been made clear by Section 15 that Clause (g) of Sub-section (2) of Section 32 of 1999 Act would stand omitted. Therefore, the intent of the legislature has become absolutely clear that no appeal could be maintained from an original or appellate decree or order passed by a learned Single Judge. It is further evident from 1999 Act and 2002 Act that legislature did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt accrues to the litigant and exists as on and from the date the list 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 date of the institution of the suit or proceeding and not by the law that prevails at the date of its decisions or at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 15. The fifth proposition of law on which reliance has been placed by Shri Sarin, cannot be applied in the facts and circumstances of the present case, as to our mind, there is no express provision taking away the vested right of appeal retrospectively nor it could be read by necessary intendment. On the contrary by subsequent enactment of 2002 Act, the legislature has expressly repealed Clause (g) of Sub-section (2) of Section 32 of 1999 Act. 16. We are further of the view that Section 6 of 1897 Act has been made applicable by Section 16 of 2002 Act which is a repeal and saving clause. A perusal of Clause (c) of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nued as if the repealed enactment were still in force. In other words, such repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties get crystalised on that date. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed. We find Clause (c) of Section 6, refers the words any right, privilege, obligation ... acquired or accrued under the repleaded statute would not be affected by the repealing statute. We may hasten to clarify here, mere existence of a right not being acquired or accrued on the date of the repeal would not get protection of Section 6 of the General Clauses Act. 17. Similar view has been taken by this Court in the case of Darshan Kumar and Anr. v. Raghunandan Sharma, 1978 P.L.J. 166 and by the Supreme Court in the case of CIT v. Shah Sadiq Sons, (1987)3 S.C.C. 516. 18. The argument of Shri R.S. Mittal that the right of appeal is crystalised on the date of filing a suit would not require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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