Govinda vs Vaidyanath

Khaliluzzaman Siddiki, J.—This is a civil suit for simple money claim instituted by the pltf.-resp. against the deft. a Police Patel of Talini village. The suit is on the basis of a promissory note. The defendant admitted the execution of the promissory note, but raised certain objections as to the consideration amount; and further alleged that he has discharged the loan to the extent of Rs. 500/-by handing over 4 khandies of cotten at Rs. 125/- per khandy. The Trial Court decreed the plaintiff''s suit to the extent of the principal amount afar deducting the payment alleged. The items of interest etc. were not allowed in view of the non-compliance of the provisions of the Money lenders'' Act and we are not concerned with that part of the case in this appeal. The first Appellate Court allowed the plaintiff''s appeal and decreed the plaintiff''s case to the extent of the whole of the principal amount holding that the payment by delivery of cotton was not proved in fact and secondly on the ground that as the delivery of cotton was to the plaintiff''s son, it was not a sufficient payment as it was not proved that he (the son) was the Agent for the plaintiff, his father, to receive that payment. Mr. Ardhapurkar, Advocate for the plaintiff, takes a preliminary objection that in view of the coming into force of the Indian CPC from the 1st of April, 1951, no second appeal lies u/s 100 of that Code except on certain specific conditions which are not present here.

The appeal was filed on 9th February, 1951, when the Hyderabad CPC was in force. The Indian CPC came into force in the place of Hyderabad Code subsequently. There is no doubt that the usual rule is that matters relating to adjective law and procedure come into force at once with all the following advantages and disadvantages (but without affecting substantial rights) and even the pending proceedings come within the operation of the Code. A procedure has been prescribed and it must be followed in all cases, unless either the subsequent code in its own contents or by the law under which it is made applicable makes any provision exempting or reserving the operation of the Code with regard to any particular or any kind of proceedings. Here the very order under which the new Code is applied makes necessary provisions to keep these appeals outside the operation of the Indian Code only in certain matters as are involved in this appeal. The real decision of this preliminary objection depends on the determination of the question whether the right to file an appeal and to prosecute it before a superior Court is a mere rule of procedure or it is in the nature of a substantive right. I am of the opinion that a right to appeal from the judgment of one Court to a superior Court is a right that is conferred by statutory provision and does not merely arise in course of procedure (as in the case of the various stages of a trial) it is a valuable right which directly bears on the result of the suit; and cannot be considered as merely one of the progressive steps towards the prosecution of the suit. Such a right can only be taken away by direct and express provision. When a judgment is delivered in a case by a Court it concludes all the points at issue between the parties (substantial and other) and either there is a right to appeal from that judgment or there is not. This right, if it existed at the time of the delivery of the judgment, cannot be swept away under any general provision and must, if at all, be taken away by a special provision in that regard. Even in the absence of the saving clause as it exists in this case of the suppression of the Code, I would have held that the right to appeal depends on the law that (sic)xisted at the time of the pronouncement of he judgment. Whenever an appeal is filed legitimately under a specific provision of law, that remains to be done is to hear that pending appeal, which has passed the stage of its being presentable or not. I, therefore, overrule the preliminary objection and hold that this second appeal is maintainable, under the law in force at the time of the appeal and what refrains to be done is to hear and dispose off the appeal.

The above Advocate for the defendant contends that the finding of the Trial Court on acts as to the payment is the only sound conclusion that can be drawn on the record and that the first Appellate Court in rejecting those conclusions has merely acted on certain surmises in suppression of actual testimony. There are four witnesses for the defendant. The defendant himself went into the box and he was not given cross-examined in some of the material respects. There is no reason why the three other witnesses should also be discredited. The plaintiff has gone into the witness-box, but if he wanted an effective rebuttal of the defendant''s evidence, he should have produced Sakkhram to enable the defendant to cross-examine him. Sakkaram had received the cotton and I see nothing improbable or extra-ordinary in the story told by the defendant. Payments are made in the villages usually in this manner by handing over of agricultural produce. The mere fact of inability to produce the receipt when there is a positive explanation of that fact that it was lost during the turbulent conditions prevalent in those villages, does not give rise to any presumption of fact against the defendant. I think that the first appellate Court should not interfere in the findings of the Trial Court on the record as it stood. Even generally the findings of the Trial Court are entitled to consideration.

There is only one other point to be dealt with, that Sakkaram was not the Agent of the plaintiff. There is sufficient evidence to show that he (son of the plaintiff) actually received this cotton at the rate of Rs. 125/- per khandy. After a perusal of para 2 of the written statement of the defendant and the plaintiff''s reply to that paragraph, the fact that Sakkaram received this cotton without authority or on some other account does not arise in this case, because the plaintiff denies taking of the cotton by his son in toto and the authority of the son or the payment having been made in some other account was not even alleged in the alternative. I allow this appeal with costs of this appeal and set aside the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court.