Tulsi Das vs Smt. Mooii Devi

Bhagwati Prasad, J.—The present revision petition arises out of the decision of the trial Court dated 9-11-1995 whereby an application filed by the petitioner was dismissed by the trial Court.

Learned counsel pressed before the trial Court that in view of Rule 19 of the Rajasthan Civil Court Ordinance (hereinafter called ''the Ordinance''), this case is not liable to be tried by the court of Civil Judge (Junior Division). The trial Court held that in view of a Division Bench decision of this Court the case has been transferred by the District Judge while exercising powers u/s 24 C.P.C. Learned counsel for the petitioner urges that the decision of the Division Bench requires reconsideration for the following reasons :

If Section 19 is held to be retrospective, the cases pending before District Judge of the valuation exceeding Rs. 10,000/- and upto Rs. 25,000/- would go to the Munsif and those exceeding Rs. 25,000/- and upto Rs. 50,000/- would go to Civil Judge, whereby the forum of first/second appeal would be changed from Single Bench/Division Bench of High Court to District Judge/Single Bench. Further the scope of second appeal would be curtailed as in the former case Letters Patent Appeal lies on fact and law both as that is rehearing by the Division Bench u/s 96 C.P.C. whereas in the later case that would lie only on substantial question of law u/s 100 C.P.C. That way the substantive right of appeal would be altered whereas the right of appeal remains Intact as that existed at the time of institution of lis, unless the same is altered by express statutory provision or by necessary intendment of the statute as has been held by the Apex Court in Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Others, and Jose Da Costa and Another Vs. Bascora Sadasiva Sinai Narcornim and Others,

The change in forum of appeal from High Court to that of District Judge has also been held to be permissible only as aforesaid in Doongarmal and Another Vs. Roopsingh and Others, while applying amended Section 21 of the Rajasthan High Court Ordinance.

There is no express provision applying Section 19 on the pending suits. On the contrary through Section 6-A of the Amending Act 1992, the amendments made in Section 21 regarding appeals, have been made applicable to the suits or proceedings pending on 12-8-1992 also. This is pertinent to note that Section 6-A was not there in the amending Ordinance but was new insertion in the Amending Act. While inserting Section 6-A to apply amended Section 21 to the pending suits/proceedings, if the legislature wanted to apply other amended provisions or amended Section 19 also, nothing prevented the legislature to enact such provision. Omission is intentional and as such there is no scope for thinking of any contrary intention of the legislation.

In AIR 1972 1935 (SC) it has been held that omission to provide limitation under Sections 68 and 75 of the ESI Act and on the other hand providing limitation for claim of payment of any benefit under the regulations, shows clearly the Intention that on the ground of limitation. In the former case, the right was not to be fettered and such rule prescribing limitation was held to be ultra vires. The proposition applies to the omission in the present case.

(1995) 2 RLW 482 has not even tangentially considered above aspects and on the contrary the absence of saving clause has been considered with an approach not permissible qua the substantive law. In Bhanwar Lal Vs. Moti Lal and Others, that aspect did not arise as in that case, transfer was from Civil Judge to Munsif and even an iota of right of appeal did not alter, as such 1971 RLW 166 had no application.

I have considered the submissions made by the learned counsel for the petitioner at Bar. The Hon''ble Supreme Court has considered the competence of a Bench making a reference in a case of Coir Board Ernakulam Kerala State and Another Vs. Indira Devi P.S. and Others, and has held as under:--

The judgment delivered by seven learned Judges of this court in Bangalore Water Supply case does not, in our opinion, require any reconsideration on a reference being made by a two-Judge Bench of this Court, which is bound by the judgment of the larger Bench."

In view of the opinion expressed by the Hon''ble Supreme Court, it is obvious that disagreement with the Division Bench can only be expressed by a Division Bench and hence a Division Bench alone is competent to refer the matter to the larger bench. Sitting singly this Court is bound by the decision of the Division Bench and, there fore, no case for making a reference to a larger bench is made out.

There is no force in this revision petition and the same is dismissed.