ORDER
Shantanu Kemkar, J.
1. Heard Shri A.D. Deoras, learned Counsel for the appellant and Shri Ravish Agrawal, learned Senior Counsel with Shri Pranay Verma, Counsel for the respondent Nos. 1 and 2 on LA. No. 2579/2003 an application submitted on behalf of respondent Nos. 1 and 2 raising an objection to the maintainability of this Letters Patent Appeal.
This Letters Patent Appeal arises out of the judgment and decree dated 22-8-1989 passed by Single Judge of this Court Bench at Gwalior in Civil First Appeal No. 1/75.
In order to decide LA. No. 2579/2003 we feel it necessary to state brief facts of the case.
1. Plaintiff Shiv Singh had filed a suit for declaration of his title over the suit house and for declaration that the sale deed dated 10-1-1963 executed by defendant No. 2 in favour of defendant No. 1 are not binding upon him and prayed for permanent injunction restraining the defendant Nos.1 and 2 from interfering with his possession.
. 2. The present appellant Hari Chand filed an application in the said suit praying therein that he may be joined either as plaintiff No. 2 or as defendant on the ground that during the pendency of the suit the plaintiff has executed a registered agreement of sale on 18-3-1967 in his favour and since then he is in possession of the suit house. This application submitted by the appellant Hari Chand was rejected by the Trial Court. Against which Harichand had filed a Civil Revision No. 272/68 before this Court, which was decided vide order dated 12-12-1968 in the following terms :–
“Having regard to the facts and circumstances of this case and particularly because the plaintiff himself joined Shri Ram Babu tenant as a defendant in the suit, the applicant should be allowed to intervene. He should be joined as a defendant. It must, however, be observed that the trial of the suit shall be restricted to the questions raised in the plaint and it is not as if the rights of Harishchandra shall be determined in the suit. No fresh issue shall be framed. It may be mentioned that the Court may reconsider whether issue No. 2 should be allowed to remain or should be deleted.”
3. Thereafter the appellant Harichand who was arrayed as defendant No. 6 as per the aforesaid order dated 12-12-1968 filed an application under Order 1 Rule 11 of the Code of Civil Procedure alleging therein that as the plaintiff is not taking any interest in the prosecution of suit, which is detrimental to his interest and that the plaintiff has collided with other defendants, therefore, prayed for his transposition as plaintiff or to permit him to conduct the suit. The Trial Court vide order passed on 1440-1971 partly allowed the application of appellant defendant No. 5 and permitted him to conduct the suit on behalf of the plaintiff, however, his prayer for transposition as plaintiff was rejected. Thus, appellant Harichand defendant No. 6 conducted the suit on behalf of the plaintiff. The suit so conducted by the appellant Harichand was decreed by the Trial Court vide judgment dated 14-9-1974.
4. Dharamwatibai defendant No. 1 challenged the judgment dated 14-9-1974 passed by the Trial Court by filing an Appeal No. 1/1975 before this Court at Gwalior Bench. Dharamwatibai appellant in F. A. No. 1/75 died during the pendency of appeal and the names of Dharampal Singh and Rajendra Siyal were substituted in her place. Shiv Singh the sole plaintiff also died during the pendency of the F.A. No. 1/75 and his name was deleted from the array of respondents. The Single Bench of this Court vide order passed on 22-8-1989 allowed the appeal filed by the defendant No. 1, thereby the plaintiff s suit stood dismissed.
5. Present appellant Harichand, defendant No. 6 and respondent No. 7 in F.A. No. 1/75 who was permitted by the Trial Court to conduct the suit on behalf of the plaintiff has preferred the present L.P. A. challenging the legality of the judgment passed by the First Appellate Court by which the judgment and decree passed in favour of the plaintiff has been set aside.
6. Shri Ravish Agrawal, learned Senior Counsel for the respondent Nos. 1 and 2 has submitted that Harichand was permitted to be joined as defendant vide order dated 12-12-1968 passed in Civil Revision No. 272/68 by this Court with limited rights only, it was made clear vide the said order 12-12-1968 that trial of the suit shall be restricted to the questions raised in the plaint and it is not as if the rights of Harichand shall be determined in the suit. The Trial Court also vide order dated 14-10-1971 permitted the appellant only to conduct the suit on behalf of the plaintiff. In view of the aforesaid restricted rights granted by this Court and also by the Trial Court, the learned Counsel has submitted that Harichand has got no right to file this Letters Patent Appeal. He further submitted that his right to conduct the suit exhausted with the life of the suit and as soon as the suit was decided his right has extinguished. The learned Counsel in support of his submission relied on the decisions reported in 1964 MPLJ 402, (1999) 3 SCC 722 and (2003) 6 SCC 658.
7. Shri A.D. Deoras, learned Counsel for the appellant submitted that the appellant by filing this Letters Patent Appeal is only prosecuting the rights of the plaintiff and is not claiming his own rights bedecided in this appeal. Harichand was defendant in the suit was allowed to conduct the suit on behalf of the plaintiff so he has got right to pursue the remedy of appeal too as appeal is a continuation of suit. In support of his contention he relied upon the judgment of the Apex Court in Garikapati v. Subbiah Choudhary (AIR 1957 SC 540).
8. The Apex Court in Garikapati v. Subbiah Choudhary (supra) has held 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. The right of appeal is not a mere matter of procedure but is a substantive right. 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. The right of appeal is a 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 judgment is pronounced such a 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 filing of the appeal. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., (1993) 3 SCC 722, it has been held that right to appeal is a substantive statutory right and thus has to be regulated in accordance with the law in force at the relevant time. Right to appeal is neither a natural nor inherent right attached to the litigation. In Shyam Sundar and Ors. v. Ram Kumar and Anr., AIR 2001 SC 2472, it has been held that it is no doubt true that in certain context an appeal is continuation of suit and Appellate Court is rehearing the suit, but such wide appellate power has not shown to be exercised to affect the vested right of a pre-emptor. In Shiv Shakti Co-op. Housing Society, Nagpur Vs, Swaraj Developers and Ors., (2003) 6 SCC 659, it has been held that appeal is continuation of proceedings. Right of appeal carries with it a right of rehearing on law and fact including the power to review evidence subject to any statutory limitation.
9. After considering the rival submissions on the preliminary objection and the case law cited by the learned Counsel for both the parties, we find that the objection is not maintainable. The Trial Court vide order dated 14-11-1971 has permitted the appellant defendant to conduct the suit on behalf of the plaintiff. It would be travesty of justice to hold that the permission to conduct the suit extinguished with the decision of the suit. The suit conducted by the appellant defendant on behalf of the plaintiff was decreed in favour of the plaintiff. The defendant Nos. 1 and 2 filed First Appeal before this Court in which the appellant Harichand was respondent. The said first appeal was allowed and the judgment of the Trial Court was set aside. Harichand who was defendant in the suit in the Trial Court and who was permitted to conduct the suit on behalf of the plaintiff has got full right to file this L.P.A. and he can not be estopped from pursuing the further remedy available to the plaintiff.
10. The restrictions imposed by this Court vide order dated 12-12-1968 can not be stretched to the extent that appellant Harichand is not entitled to file L.P.A. to agitate against judgment passed by the First Appellate Court reversing the judgment and decree passed by the Trial Court in the suit conducted by him. Admittedly appellant Harichand is not claiming any rights of his own by filing this appeal but he wants the rights of the plaintiff alone to be adjudicated.
11. In view of this we hold that the appellant Harichand is entitled to file this L.P.A. Even otherwise when the Trial Court had permitted the appellant Harichand to conduct the suit we allow the appellant to file and conduct this appeal subject to restrictions as imposed on him vide order dated 12-12-1968.
12. Accordingly I.A. No. 2579/2003 submitted by respondent Nos. 1 and 2 is dismissed. The Letters Patent Appeal is held to be maintainable.