Shri Manoharmayum Bimal Sharma and Others vs Secretary, Indian Counsel of Agricultural Research (ICAR) and Another

Homchaudhuri, J.—In this application u/s 115 C.P.C., the petitioner has impugned the order dated 26-6-1993, admitting appeal registered as Civil Appeal No. 3/93, preferred against the judgment and decree dated 7-4-1993 passed by the learned Subordinate Judge-II, Manipur in Original Suit No. 53/ 90. Petitioner''s contention is that the suit was valued at Rs. 5,100/- and that u/s 32 of the Manipur (Courts) Act, 1956 (Act 56 of 1955) at the material time of institution of the suit in the year 1990, appeal from a decree or order of Munsiff and of a Subordinate Judge in any suit value of which did not exceed Rs. 5,000/- lay before the Court of the District Judge and in all other cases to the High Court. The suit being valued at Rs. 5,100/-, appeal against the judgment and decree passed by the learned Subordinate Judge in Original Suit No. 53/90 lies in the High Court and the learned District Judge has no jurisdiction to entertain the appeal. Other contentions of the petitioner are that (1) learned District Judge erred in law in passing the ex-parte order to staying the execution of the Decree and (2) the appeal is bad for non-joinder of necessary parties.

In support of the contention that the value of the suit being Rs. 5,100/ -, the learned District Judge has no jurisdiction to entertain the appeal. The petitioner has submitted that although by Manipur Act 5 of 1992, Section 32 of the Manipur (Courts) Act 1955 has been amended conferring the jurisdiction of the District Judge to entertain appeal against the judgment and decree passed in a suit valued upto Rs. 50,000/-, the amendment having come into force with effect from 16-12-1992 and not being retrospective, the vested right accrued with the institution of the suit to prefer appeal before the High Court against the judgment and decree of the suit has not been taken away by the amendment of Section 32 of the Manipur (Courts) Act. The petitioner has submitted that it is well settled by a catena of decisions of the Supreme Court that right of appeal is not a mere matter of procedure but a substantive right and the right of appeal to enter superior Court accrues to the litigant and exists as on and from the date the lis commences although it may be exercised when the adverse judgment is pronounced at a later date. Apparently by Manipur Act, 5 of 1992, vested right to appeal in respect of a suit instituted in 1990 has not been taken away. In support of the contention the petitioner has placed reliance on the following decisions of the Hon''ble Supreme Court r

(1) Ganpat Rai Hiralal and Another Vs. Aggarwal Chamber of Commerce Ltd.,

(2) Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Others,

(3) Dajisaheb Mane and Others Vs. Shankar Rao Vithal Rao Mane and Another,

(4) Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi and Others,

(5) Garikapatti Veeraya Vs. N. Subbiah Choudhury,

In the case of Messrs. Ganpat Rai Hiralal (supra) the Hon''ble Supreme Court has held that a person could not be deprived of his vested right of appeal by a subsequent change in the law, unless the later enactment provided expressly or by necessary implication for retrospective effect being given.

In the case of Messrs. H. K. Dada (India) Ltd. (supra) the Hon''ble Supreme Court held:

"a right of appeal is not merely a matter of procedure. It is a matter of substantive right. The right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by, the inferior Court."

Similar view has been expressed in the cases of Daji Saheb (supra) as well as Indira Sohanlal (supra).

In the case of Garikapati Veeraya (supra) a Bench of five Judges of the Hon''ble Supreme Court as per majority judgment in paragraph 23 of the judgment held :

"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 ail 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 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 judgments is pronounced such right is to be governed by the law that prevails at the date of the 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, it is so provided expressly or by necessary intendment and not otherwise."

There cannot be any dispute that it has been well settled by the aforesaid decisions of the Supreme Court that right to appeal before superior court/tribunal from the judgment and order passed by inferior court/ tribunal is a vested right of the parties to litigation and such right accrues with the commencement of the lis in the original court/tribunal unless such Tight is taken away by enactment with retrospective effect.

In the instant case right of the parties to approach the superior Court against the judgment and order passed by the Court in which suit was instituted accrued in the year 1990 and that right has not been taken away by the Manipur Act 5 of 1992. The vested right to approach the superior court against the judgment and decree of the original court has been preserved and in fact appeal aginst the judgment and decree has been preferred before the superior court, namely, the Court of the learned District Judge. By Manipur Act 5 of 1992 only the forum to exercise the vested right to appeal has been changed by raising the pecuniary jurisdiction of the appellate court. In my opinion, the right to appeal to superior court which vests to the parties to litigation at the time of commencement of the lis, cannot be stressed or enlarged to include the particular appellate court before which the appeal could be preferred at that time because of pecuniary jurisdiction. The vested right to appeal of the parties to the suit accrued at the time of commencement of the lis is confined to superior court/tribunal only and not to particular court or tribunal. The change of the appellate court because of raising the pecuniary jurisdiction has no way infringed or taken away the right to appeal vested to the parties to the suit at the commencement of the lis. As such, the contention of the petitioner that the learned District Judge has no jurisdiction to entertain the appeal because of the fact that the suit valued at Rs. 5100/- was instituted at the time when the District Judge had the appellate jurisdiction of cases where the value of the suit did not exceed Rs. 5000/-, is not tenable.

As regards the petitioner''s grievances against the ad-interim order of stay, I find that the learned appellate court below has committed no error of jurisdiction in passing the ex parte order staying the execution of the decree. Petitioner may approach the learned District Judge for modification or vacation of the stay order. The question as to whether the appeal is bad for non-joinder of necessary parties or not will be considered by the learned appellate court below when the appeal is heard on merit.

For the reasons stated above, the petition is without merit and is rejected. No costs