@JUDGMENTTAG-ORDER
S.L. Jain, J.@mdashThis order shall decide interlocutory application No. 742/06 filed by the appellants for hearing of the appeal by a Division Bench of this Court.
2. A suit was filed by the plaintiff/respondent against the appellants/defendants as an indigent person for partition of the suit property by meets and bounds in two equal shares. The suit was dismissed by the 6th A.D.J., Jabalpur.
3. Being aggrieved by this judgment and decree of the trial court, the appellants/defendants filed this appeal before this Court u/s 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code").
4. The appeal was initially valued at Rs. 1,54,000/-. Under the then existing Rules and Orders, of this Court first appeal under the Code the valuation of which exceeded Rs. one lac was to be heard by Division Bench. On 4-3-87 I.A.No. 941/87 was allowed and valuation of the appeal was amended from Rs. 1,54.000/- to Rs. 77,000/-. Despite this amendment Registry went on listing the case before the Division Bench on few dates.
5. However, on 16-2-94 and thereafter till 21-8-96 the matter was listed before single Judge. On 21-8-96 the appeal was decided by the learned single Judge of this Court.
6. Against the judgment and decree passed by of the learned single Judge both the parties preferred appeals. Letters Patent Appeal filed by the appellants/defendants was registered as L.P.A. No. 250/96 and the appeal filed by plaintiff was registered as L.P.A. No. 251/9G. The Division Bench referred the matter to Full Bench for clarification of certain legal position. As per the legal position made clear the Division Bench sent back the case to the learned single Judge for fresh decision. Thereafter, the appeal was listed for hearing before learned single Judge on 30-10-2001 and 1-11-2001. On 4.12.2001, the learned single Judge passed the following order :
On careful perusal of the case it is noted that the plaintiff has filed this civil suit for partition valuing his claim at Rs. 1,54,000/-. Such suit was decreed in full by the learned trial judge. On 30.1.86 the first appeal was filed valuing the claim at Rs. 1,54,000/- and a court fees of Rs. 6.770/- was affixed. The case was being dealt with by the Division Bench.
On 16.2.87 the appellant filed I.A.No. 961/87 for correction of valuation. New valuation was put to Rs. 77.000/-. This application was allowed and the case was listed before the single judge,
However, later on, on 15.7.96, the appellant once again applied for correction of the valuation of the appeal. This time he claimed such valuation to be Rs. 1,54,000/- and submitted additional court fee of Rs. 6355.
However, this application remained undecided. The application is likely to affect the jurisdiction of the single Bench, hence the same be listed before an appropriate Bench for decision.
In compliance of this order, the matter was listed before the Division Bench. The arguments were heard by a Division Bench of this Court and the judgment was delivered on 19.12.2002.
7. Against the judgment and decree of the Division Bench plaintiff Bhanu Kumar filed SLP (Civil) before the Apex Court which was registered as Civil Appeal No. 8246/2004. The Apex (sic) allowed the appeal and set aside the judgment and decree dated 19-12-2002 and remitted the case to this Court directing thus:
The appeal is, therefore, allowed, the impugned judgment is set aside and the case remitted to the High Court for consideration of the case of the parties on merits of the matter.
8." Clause (d) of Rule 1, Chapter I of Section 1 of Rules & Orders of this Court, as existed prior to 2-5-2005 was thus :
(1) The following matters shall ordinarily be heard and disposed of by a Judge sitting alone :
xxx xxx xxx xxx xxx
(d) An appeal of a civil nature under any Act of the Central or State Legislature or first appeals under the Code of Civil Procedure, the value of which does not exceed the sum of Rs. 1,00,000/- and any application or reference made under such Acts, if such appeals, applications or reference is not otherwise expressly provided for.
(emphasis supplied).
9. With effect from 2nd May 2005 the above extracted Clause (d) was amended and the word and figure "Rs. 3,00,000/-" were substituted in place of word and figure as Rs. "1,00,000/-". The result is that with effect from 2-5-2005 the first appeal, the value of which does not exceed Rs. 3 lac is to be heard and disposed of by a Judge sitting alone. Therefore, this first appeal was listed before the learned single Judge on 22-6-2005.
10. On 22.6.2005, learned Counsel for the appellants submitted before the learned single Judge that in view of the remand order passed by Hon''ble Supreme Court of India on 17-12-2004 the matter is to be heard by a Division Bench because the judgment and decree which was set aside by the Supreme Court was rendered by a Division Bench of this Court.
11. The learned single Judge in his order dated 22-6-2005 observed that the case was remanded by the Apex Court not to the Division Bench but to the High Court for decision on merits. The learned single Judge also observed that in view of the amendment in the Rules the first appeal, the valuation of which does not exceed Rs. 3 lac is to be heard by a single Judge. However, the counsel for the appellants sought time to argue on this issue and the case was adjourned.
12. Thereafter, on 17-1-2006 the counsel for the appellants filed this application (I.A.No. 742/2006) praying that the matter be placed before the Division Bench comprising the same Hon''ble Judges who heard the first appeal earlier.
13. I have heard Shri J.P. Sanghi learned senior counsel with Shri Shrikant Dubey for the appellant and Shri R.S. Tiwari for the respondent and perused the order of the Apex Court.
14. Learned Counsel for the appellants submitted that the right of appeal is a vested right and such a right 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 date of the institution of the suit or proceeding and not by the law prevailing on the date of its decision or on the date of the filing of the appeal. 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. Learned senior counsel appearing for appellants elaborating his contention further submitted that the suit was filed on 14-6-1976. The right of appeal vested in the parties thereto will be governed by the law as it prevailed on that date. It is on that date that the parties acquired the right, if unsuccessful, to go up in appeal from the court of ADJ to the High Court. As on the date of filing of the suit the appeal under the then existing rules was to be heard by a Division Bench of this Court, if the appeal is heard by single Judge it will be infringement of the vested right. Learned Counsel vehemently submitted that it is a vested right of the appellants that the appeal be heard by the Division Bench. Relying on Rajaram v. Vithabai and Ors. 1990 LLJ 71, learned senior counsel also submitted that the order of remand is binding.
16. Learned senior counsel appearing for the appellants in support of his contention that the appeal should be heard by Division Bench relied on
17. So far as the contention of the learned Counsel for the appellant that the right of appeal is a substantive right and is vested in a suitor from the inception of the suit is concerned, the same appears to be a correct proposition of law. In the case of
A right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated and before a decision is given by the inferior Court. Such a vested right cannot be taken away except by express enactment or necessary Intendment....
In the case of
23 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 but 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 a 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 date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) The 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.
18. From the aforesaid exposition of law it is manifest that the right of appeal is a substantive right and a 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. But the amendment in the Rules & Orders of this Court framed under Article 225 of the Constitution does not take away the vested right of the party to file the appeal. The vested right of appeal in the present case is governed by Section 96 of the Code.
19. The rules under Article 225 of the Constitution of India provide for the regulation and distribution of the business of the Court. Each High Court has a number of Judges. It is, therefore, not practicable that all the Judges should hear every case that comes before the Court. So the rules of the High Court provide that any function which is directed to be performed by the High Court in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof, appointed or constituted for such purpose. By virtue of Article 225 of the Constitution the power that was conferred on the High Courts u/s 108 of Government of India Act, 1915 and under corresponding section of Government of India Act 1935 was kept alive and the High Courts still enjoy the same unfettered power as they enjoyed under the Government of India Act, 1915 or Government of India Act 1935 of making rules and providing whether an appeal has to be heard by one Judge or more Judges or by Division Courts consisting of two or more Judges of the High Court. It is for the Chief Justice to arrange for the sitting of the Court. The function of assignment of judicial work amongst the Judges of the High Court, whether sitting singly or in Division Courts, is entrusted by law to the Chief Justice and the Judge or Judges derive their power to hear specified class of cases only from the allocation of business amongst Judges made by the Chief Justice or from the Rules made under Article 225 of the Constitution.
20. In view of the Rules made under article 225 of the Constitution and in view of the allocation of the business amongst the Judges made by the Chief Justice the first appeal upto to the valuation of Rs. 3 lac is to be heard by a single Judge. The Rules made under Article 225 of the Constitution do not deal with substantive right. They deal with merely matters of procedure. The amendment made in the rules with effect from 2-5-2005 shall be presumed to be retrospective because it is procedural. Lord Denning in Blyth v. Blyth (1966) 1 All ER 524 stated thus :
The rule that an Act of Parliament is not to be given retrospective effect applies to statute which affect vested rights. It does not apply to Statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the courts give to evidence.
Since the amendment in question affects the matter of procedure only, therefore, it applies to all appeals pending as well as future.
21. In series of decisions some of which may be referred here a principle has been stated that change in the law of procedure operates retrospectively and unlike law relating to vested right is not only perspective. See:
22. The reason of the above principle has bean expressed in interpretation of Statutes, by Maxwell 11th Edition, page 216 in the following words :
No person has a vested right as in any course or procedure. He has only right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by any Act of Parliament the mode of procedure is altered he has no other right than to proceed according to alteration made.
Since the rule prescribing the procedure for hearing has been altered the appellants have no other right than to proceed according to the altered rule. If the substituted rule requires the present appeal to be heard by single Judge, it cannot be said that hearing of the case by single Judge will tantamount to taking away the vested right of appellants. If by express words new arrangement is made for the hearing of the appeal by a single Judge, such a change in rule operates retrospectively and applies to pending appeals. The amendment in Clause (d) of Rule 1 of Chapter 1 of Section 1 of the Rules & Orders of this Court applies to pending appeals also.
23. In Prabhu Narayan v. A.K. Srivastava AIR 1975 SC 963, it has been specifically observed that M.P. High Court Rules made under Article 225 of the Constitution cannot make any substantive law and the rules themselves on a perusal would show that they relate merely to procedural matter unlike the rules made u/s 122 of the Code. This judgment clinches the issue as to whether the rules framed under Article 225 are substantive law or relates to merely the procedural matters.
24. Rules framed by the High Court relating to distribution of work only regulate the hearing of cases. They are formed for convenience and proper working of the Court and do not affect jurisdiction of the Bench hearing a case. The regulation of the sitting of the Judges of the Court is only an administrative power of the Chief Justice to facilitate the performance of the judicial function of the Court. A litigant has no right to get his case decided by any particular number of Judges, it being internal management of the High Court with which the litigant has no concern.
25. There is a clear distinction between the relief and mode of procedure for obtaining such relief. The relief remains unaffected by change of procedure. The procedure for enforcing a vested right is no portion of the right nor does it alter or affect the vested right. Where a rule merely alters the procedure without altering the substantive right of the parties, the new procedure would be retrospective in its operation. In other words if a statute deals with a procedure in an action and does not affect the right of the parties, the new procedure will prima facie apply to all pending as well as future proceedings.
26 General rule is that where the rights are not statutorily altered retrospectively, procedure is. Although, retrospective operation is very misunderstood branch of law but it certainly means that pending cases are governed by the new procedure under the amended rule. The amendment of the procedural rule will apply from and after the date when amendment came into force and is retrospective only in the sense that even pending cases will be governed for future stage of the procedure.
27. There is no vested right in having a case heard by a particular strength of Bench. The rule in question relates to forum and quorum. The provisions of amended rule relate only to a change of forum or quorum, therefore, is simply a matter of procedure.
28. The counsel for the appellants could not show that the amendment in the rule would prejudice rights established under the old rule. No suitor has a vested right or interest in the course of procedure nor any right to complain if during the course of the litigation the procedure is changed, unless no injustice Is done. The right of the suitor is to bring in action and to have it conducted according to rule and practice of the court in which he brings it. If any rule alters the mode of procedure then he had a right to have it conducted in the altered mode. Altered mode in the present case takes nothing and causes no injustice.
29 Learned Counsel for the appellants submitted that the Supreme Court, by implication has directed that the appeal shall be heard by Division Bench.
29. It is difficult to countenance this contention. I have reproduced above the direction of the Supreme Court. The Supreme Court has remanded the case to this Court for consideration of the cases of the parties on merits of the matter. The Supreme Court has not directed that the matter shall be heard by same Bench which decided the appeal earlier or by some other Division Bench of this Court. The appeal shall be heard by the appropriate Bench in terms of the Rules. As the amended rule provides the hearing of the appeal by single Judge, the matter is to be heard by a single Judge.
30. The upshot of the above discussion is that amendment in Clause (d) of Rule 1 Chapter I of Section 1 of Rules and Orders of this Court framed under Article 225 of the Constitution of India does not take away or create new right, Quorum of Bench is not inseparably interwoven with vested right of appeal given u/s 96 of the Code. Rule providing for quorum of Bench for hearing of appeal can be treated as procedural and apply to pending as well as future appeals, therefore, first appeal of the value not exceeding Rs. 3 lac can be hoard and disposed of by a Judge sitting alone. Since the Supreme Court has not directed that the appeal shall be heard by Division Bench, the arrangement made in the rule shall prevail. Therefore, this appeal can be heard by a judge sitting alone. Consequently, I.A. No. 742/2006 is dismissed.
31. As the Supreme Court has directed this Court to dispose of the appeal at an early date and preferably within period of three months from the date of communication of the order, list the case for final hearing on March 7, 2006 as item No. 1. It is hoped that the parties to the lis shall co-operate in early disposal of the case in compliance of the directions of the Apex Court.
