C. Suryanarayan vs Ratanlal and others

Naik, C.J.—The second appeal dated Dai 16, 1353 Fasli, November 21, 1943 was filed by the defendant against the concurrent decrees and judgments of the Courts below, whereby a suit to recover Rs. 4,373-9-3 from the appellant has been allowed.

The plaintiffs, who are respondents before US, instituted the suit to recover the amount as the price of castor-seeds sold to the appellant between Amardad, 3, and Mehir 13, 1848 Fasli: June 9 and August 19,1S39. In his written statement the appellant admitting the purchases of the commodity set up payment of the full amount claimed producing seven receipts from June 7 to June 17, 1889 purporting to have been signed either by respondent I, or his agent and further alleged the remaining sum of Rs. 326-3-0 to have been paid on 10-8-1939 through one Mohd. Ibrahim, though no receipt for this amount had been given.

The trial Court framed two issues in the case, the first being whether the appellant had paid the full amount and taken the receipts A-1 to A-7. The burden of this issue having regard to the allegation in the written statement was rightly placed upon the appellant and he produced eight witnesses including himself, together with his account-books and a judgment of the City Small Causes Court, wherein his claim for prices of some tires and sale proceeds of certain bonds had been decreed against the respondents. The evidence of respondent I, as well as the person who is alleged to have signed poem of the receipts were recorded on behalf of the claimants. The trial Court on this evidence held that as the appellant''s witness No. 6 has in his cross examination admitted about payments for purchases of castor-seeds being generally entered in the account books, Narsivan Rao the Gumashta has admitted the payments by the respondents not being entered in the appellant''s account books, and as the appellant himself has admitted absence of such entries in his account-books which are also corroborated by the Commissioner appointed to inspect the account books, the rest of the evidence about these payments cannot be relied upon and, therefore, the issue was decided against the appellant and the suit decreed. The lower appellate Court has concurred in this finding.

In this second appeal, the main question is whether the prices of the oil seeds have been paid by the appellant. There is also a further legal point arising out of the extension of the CPC at the date of the hearing of this appeal to Part B States. Section 101 of the Code has been relied upon by the respondents in support of the arguments that second appeal can now be entertained only on question of law and inasmuch as the appellant seeks to vacate the findings of lower Court on facts, this second appeal on questions of fact can DO longer be entertained.

I shall first deal with the legal question. At the time when the second appeal was filed in the High Court, the Hyderabad CPC was operative. In this Code, there is no section parallel to S. 101, Indian Civil Procedure Code. On the other hand, second appeals under S. 601 of the Code lay to the High Court from the decrees of the appellate Courts subordinate to the High Court; but in the money suit, where the value of the subject matter was Rs. 1,000 or less, no second appeal lay unless the judgments of the two Courts differed or both the Court B had wrongly concurred on plain questions of facts. Having regard to the valuation of the subject-matter in this suit, the exception to the section is not applicable and the appellant could at the date of the filing of his memorandum of appeal challenge the concurrent findings of two Courts on questions of facts. The question, therefore, to be determined is how far this right had been taken away by the extension of the Indian CPC to Part-B States.

Now, a right of appeal is a substantive one and generally where an act takes away a substantive right, it is not to be construed retrospectively except by express enactment or by necessary implication. That was held by the Privy Council in the Colonial Sugar Refining Go. Ltd. v. Irving, (1905) A. C. 369. The case has been followed in several Full Bench cases by the High Courts in this country. In Ram Singha v. Shankar Dayal, 60 ALL. 965 (F. B.), the question arose whether the earning into force of the new Tenancy Act under which no appeal was provided for, deprived a defendant of his right of appeal which he would have had if the old Tenancy Act had continued to be operative. It was there held that aright of appeal in a suit is governed by the law prevailing at the date of the institution of the suit and not by the law prevailing at the date of the decision of the appeal. Again in AIR 1928 627 (Lahore) it was held that the enactment of the Sikh Gurudwaras Act and the issue of a Notification under it did not bar the jurisdiction of the High Court to deal with an appeal against a decree of the subordinate Courts passed in a suit under S. 92 of the Civil P. C. where an appeal was pending when the Act came into force or the Notification was issued. Tek Chand J. at page 631 of the report observes:

It is an established canon of interpretation that ''statutes should be interpreted if possible, so as to respect vested rights

and in the absence of anything in an enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed.

The principles have been applied not only where a right of appeal is altogether taken away; but also where it is modified. In Sadar Ali and Others Vs. Doliluddin Ostagar, the second appeal was filed in the High Court and on or about 4-4.1928, it was dismissed by a Single Judge who also refused to declare the case as a fit one for Letters Patent Appeal. The necessity of declaring a case to be a fit one was added by amendment to Cl. 15 of the Letters Patent of that Court after 14-1-1928, and the contention of the applicant in this case was that the new clause could not be applied to his case; for to do so would be to impair his substantive right which was in existence prior to 14-1-1928. It was held that the date of the presentation of the second appeal to the High Court was not the date which determined the applicability of the amended Cl. 15; but the date of the institution of the suit. Again, the Madras High Court had to consider similar amendment in their Letters Patent in Thayammal and Others Vs. A. Muthukumaraswami Chettiar, where the Full Bench held that the amended Letters Patent which came into force on 31-1 1928, making the judgment of a Single Judge of the High Court in a second appeal appealable only with the leave of the Judge did not apply retrospectively to second appeals pending at the time of the amendment.

The above cases are sufficient authorities for accepting the general proposition that the institution of a suit carries with it the right to appeal according to the law prevailing at the time of the institution and further the right to appeal is preserved unless the legislature has either abolished the Court to which the appeal then lay or has expressly or by necessary intendment given the abolishing Act a retrospective effect. I have, therefore, to ascertain whether there is anything either in the Indian CPC or in the (Amendment) Act II [2] of 1951, taking away either expressly or by necessary indictment the vested right of the appellant to have his second appeal adjudicated on questions of fact under S. 602 of the repealed Hyderabad Civil Procedure Code. Section 184, Indian Civil P. C. says:

Nothing in the Code shall affect any present right of appeal which shall have accrued to any party at its commencement.

I do not in this case wish to express any opinion on the conflict of decisions about the application of the words ''present right of appeal'' to appeals against decision given after the enforcement of the Civil Procedure Code; for in this case, admittedly the decree appealed against as well as the memorandum of the second appeal are both prior to the extension of the Indian CPC to Part B States. There is no doubt that the words ''present right of appeal'' in S. 164 covers this appeal. Thus, there is nothing in the Code itself divesting the appellant of his vested right. Then again, by S. 20 of Act II [2] of 1951, the repeal of any Act is not to affect any right accrued under any law so repealed and I have already shown that the right to second appeal under S. 602 of the repealed CPC had accrued to the appellant. Therefore, there is neither express or implied intention of the Parliament to deprive the present appellant of his right of appeal under S. 602, Hyderabad Civil P. C., and I can in this appeal adjudicate on questions of facts also.

On these questions, the contentions of the appellant''s Advocate that: (i) The Courts below have wrongly held the receipts produced by the appellant as not proved; for the evidence of one witness is sufficient to prove a fact and each receipt has one witness deposing to the signature on it; (ii) The Courts below have erred in holding the payments not proved just because the names of the persons who paid the money and to whom the money was paid did not appear in the appellant''s account-books; for such names appear in receipts which are similar in form to the printed receipts of the respondents'' shop and the amounts mentioned in them tally with entries in the appellant''s books, differences in dates being of no importance; (iii) In the Small Causes Court, the respondent has counter-claimed for only Rs. 1,979-8-1 on account of the castor-seeds and that contention having been rejected his present suit for the larger amount is palpably false; and (iv) The lower Court has further erred in not giving the appellant an opportunity to inspect the respondents'' account-books.

I am of the opinion that none of the contentions should prevail. The appellant has come into the witness bus and he was in his cross examination at p. 124 of the paper book asked whether each of the disputed payments was entered in his account books. He admitted absence of any such entry. It is surprising that out of eight such payments claimed, there is not one that has been entered in the appellant''s account-books. Then, question relating to entries about each payment was again put to P. W. 7 in his cross examination and he also admits that none has been entered in the books. Further, I was not satisfied at the hearing of this appeal whether any of the items has been entered even a day or two later in the account-books. This failure of appellant''s own account-books to substantiate his defence of payments has rightly been relied upon by Courts below to disbelieve evidence given in its support.

Coming to the counter-claim in the Small Causes Court, only the judgment of the Small Causes Court has been filed, any recitation in the judgment about the pleading is no evidence of what the pleading contains, and I cannot ascertain from the judgment in what terms the counter-claim was made in the written statement of the case. Respondent 1 when in witness box has not been asked to explain the alleged conflict. Moreover, it is not clear whether the counter claim was about this or some other transaction.

As regards the receipts, respondent I and other person whose signature appears on some of the receipts have come into the witness box and denied their signatures. Respondent 1 when deposing had his account-books before him and nothing was elicited in his cross examination which could discredit his case. Therefore, it becomes a question of weighing evidence and I am satisfied that the lower Courts have not erred in disbelieving appellant''s evidence. The burden of proving the issue of payment was rightly cast upon the appellant and he having failed to discharge the burden, the suit has rightly been decreed.

There is also no force in the contention that the nature of the transaction is such that it should always be in cash. The receipts relied on by the appellant show that some time the transactions were in cash and at others credit was given. Under these circumstances, I see no reasons to interfere in this second appeal and it is dismissed with costs.

M.A. Ansari, J.

I agree.