JUDGMENT
T. Ch. Surya Rao, J.
1. On a reference made by one of us (TCSR, J), the matter has come up before us for adjudication.
2. It is expedient to look at the factual matrix at the threshold for brevity and better understanding of the matter. A suit seeking the relief of specific performance of the contract of sale was filed in O.S. No. 28 of 1980 on the file of the II Additional Judge, City Civil Court, Hyderabad. The property which is the subject-matter of the suit was valued at Rs. 45,000/- for the purposes of Court fee and Court jurisdiction. Eventually, the suit ended in dismissal at the culmination of the trial by the judgment dated 31.12.1990. During the pendency of the suit, the A.P. Civil Courts (Amendment) Act 30 of 1989 (for brevity ‘the Act 30/89’) raising the pecuniary jurisdiction of the Courts had been passed and came into effect from 2.12.1989 onwards. Under the said Act, the pecuniary jurisdiction of the District Court/Court of the Chief Judge, City Civil Court, Hyderabad, to entertain an appeal was raised from the existing limit of Rs. 30,000/- to Rs. 1 lakh. In view of the said amendment the unsuccessful plaintiff sought to file the appeal against the judgment and decree in O.S. No. 28 of 1980 before the Court of Chief Judge, City Civil Court, Hyderabad. In the ordinary course, the appeal lies against the judgment and decree passed by the learned n Additional Judge, City Civil Court, Hyderabad, to the High Court but for the amendment to the Civil Courts Act raising the pecuniary jurisdiction of the Chief Judge, City Civil Court. On an objection taken by the office about the maintainability of the appeal before the Court of the Chief Judge, the objection was heard and under the impugned order dated 26.4.1991, in A.S. SR No. 5674 of 1991 the learned Chief Judge held that he had no jurisdiction to entertain the appeal and the appeal ought to have been filed before the High Court inasmuch as the amendment brought to the Civil Courts Act under the Act 30/89 was not retrospective in operation. Assailing the said order, the present CMA No. 1454 of 1991 was filed. Initially the matter had come up before one of us (TCSR, J) for adjudication and eventually it was referred to a Larger Bench having been of the view that the two Division Bench judgments of this Court in Saraswathula Kameswaramma and Anr. v. Radhakrishna and Company, , and K. Hara Gopal v. K. Venkata Ratna Kumar, (DB), need to be reconsidered. That is how the matter has now come up before us for adjudication.
3. Having regard to the above factual matrix the points that arise for our determination are:
(1) Whether the forum to which an appeal can be preferred is a part of the substantive right and is, therefore, a vested right? And
(2) Whether the Act 30 of 1989 is retrospective or prospective in operation?
It is appropriate nay expedient at the threshold to examine the scheme and object of the A.P Civil Courts Act 19 of 1972 (for short ‘the Act 19 of 1972’) before endeavoring to adjudicate the points set forth hereinabove.
4. The Act 19 of 1972 was passed with an intention to consolidate and amend the law relating to the Civil Courts subordinate to the High Court in the State of Andhra Pradesh. Earlier to its advent, the A.P. (Andhra Area) Civil Courts Act, 1873 and A.P. (Telangana Area) Civil Courts Act, 1954 used to be in operation in Andhra and Telangana Areas respectively in the State of Andhra Pradesh. Both these enactments have been repealed under the present Act 19 of 1972 – which extends to the whole of State of Andhra Pradesh. The Act came into operation with effect from 13.10.1972. Inter alia it envisages the establishment and constitution of Courts for the District of Hyderabad and in the Districts other than the District of Hyderabad. Not only that, it further envisages the fixation of territorial and pecuniary jurisdictional limits of the said Courts. The Act is in four parts. Part-I deals with preliminary matters. Under Part-II, the Act envisages the establishment of City Civil Courts; the appointment of Judges to the said Courts; pecuniary jurisdiction of the Judges in original suits and proceedings; distribution of work in the City Civil Courts and the fora for filing appeals in the District of Hyderabad. Similarly, Part-in envisages the establishment of District Courts, Courts of Senior Civil Judges and Junior Civil Judges; appointment of Judges to the said Courts; the territorial and pecuniary jurisdiction of the said Courts; and the fora for filing the appeals against a decree or order passed in a civil suit or proceeding. Part-IV deals with miscellaneous matters like the places for sitting of the Courts, the seal of the Court, vacation to the Courts and appointment of vacation civil Judges and investiture of small cause jurisdiction over the Courts. Having regard to the above scheme and intendment, it is obvious that the Act is purely procedural in nature. It does not ,… confer any right of appeal over the litigant public. It can demonstrably be shown from a perusal of Sections 9 and 17 of the Act 19 of 72 that what is envisaged under the said sections is the forum for preferring appeals but not the right to file the same. Section 9 reads as under:
“P. Forum for appeals:–(1) An appeal shall, when it is allowed by law, lie from any decree or order in a civil suit or proceeding-
(i) of the Chief Judge or the Additional Chief Judge of the City Civil Court, to the High Court;
(ii) of the Senior Civil Judge of the City Civil Court;
(a) to the Court of the Chief Judge, when the amount or value of the subject matter of the suit or proceeding is not more than rupees three lakhs;
(b) to the High Court in other cases; and
(iii) of the Junior Civil Judge of the City Civil Court to the Court of the Chief Judge.
(2) ………………………………..”
Section 17 of the Act reads as under:
“17. Appeals from the decrees and orders of Courts in the district:–(1) An appeal shall, when it is allowed by law, lie from any decree or order in a civil suit or proceeding:–
(i) of the District Court, to the High Court;
(ii) of the Court of Senior Judge:–
(a) to the District Court, when the amount or value of the subject matter of the suit or proceeding is not more than rupees three lakhs;
(b) to the High Court, in other cases; and
(iii) of the Court of Junior Civil Judge, to the District.
(2) The District Judge may, subject to the order of the High Court, transfer for disposal any appeal from the decree or order of a Court of Junior Civil Judge preferred in the District Court, to any Court of Senior Civil Judge within the District.
(3) Where a Court of Senior Civil Judge is established in any district at a place remote from the seat of the District Court, the High Court, may, with the previous sanction of the Government, direct that an appeal from the decree or order of any Court of Junior Civil Judge within the local limits of the jurisdiction of such Court of Senior Civil Judge shall be preferred in the said Court of Senior Civil Judge:
Provided that the District Judge may, from time to time, transfer to his own Court, any appeal so preferred, and dispose it of himself.”
5. A perusal of Section 9 shows that an appeal, when allowed under law, as against the decree or order of any Junior Civil Judge lies to the Chief Judge, City Civil Court and as against the decree or order of the Senior Civil Judge subject to the pecuniary jurisdiction to the Chief Judge, City Civil Court and to the High Court in the District of Hyderabad. As per Section 17 an appeal lies, if provided under law, as against the decree or order of any Junior Civil Judge to the District Court and that of Senior Civil Judge subject to the pecuniary jurisdiction of the suit or proceeding to the District Court or High Court, as the case may be. Pecuniary limits have been prescribed under Sections 9 and 17 to entertain an appeal by the Chief Judge against the judgment and decree of the Additional Judge of the City Civil Court, Hyderabad and by the District Judge against the judgment and decree of the Senior Civil Judge in the districts other than Hyderabad, which limits are susceptible of revision from time to time. The initial pecuniary jurisdiction to entertain an appeal by the Chief Judge, City Civil Court, Hyderabad as prescribed under the Act 19 of 72 at Rs. 15,000/- was raised to Rs. 30,000/- under the Amendment Act 19/84. Again under the Amendment Act 30/89 it was further enhanced to Rs. 1 lakh. Again under the Act 28/2000 it was raised from Rs. l lakh to Rs. 3 lakhs. Under the Amendment Act 29/ 97 the original jurisdiction of the Senior Civil Judges/Additional Judges of the City Civil Court was limited to Rs. 5 lakhs what was earlier an unlimited jurisdiction and over and above the said limit Original jurisdiction was given to the Chief Judge City Civil Court and the District Judges respectively. Thus, the pecuniary jurisdiction of the Courts has been changed from time to time to suit the convenience. The object behind such amendments seems to be the phenomenal escalation in the value of immovable properties, the inflation and the changed value of rupee.
6. The expression “when it is allowed by law” used in Sections 9 and 17 of the Act 19 of 1972 plainly means that if the right of appeal is conferred elsewhere under a Statute other than the Act 19 of 1972 inasmuch as the Act 19 of 1972 has not conferred any such right under any of its provisions. The right of appeal has obviously been conferred on the litigant public under Section 96 of the Code of Civil Procedure against a judgment and decree and under Section 104 of the Code against an order and decretal order passed by the Civil Courts.
7. In this scenario, we need to examine the legal position. The earliest judgment on the point rendered by this Court is in Kotina Papayya v. Samminga Appala Naidu, 1960 (1) An.WR 100. A Division Bench of this Court held thus:
“It is now well settled, ever since the decision in The Colonial Sugar Refining Company, Limited v. living, 1905 A.C. 369, that a party has a vested right to carry his appeal to superior Courts and to take advantage of the law that obtained at the time of the initiation of the original proceeding by him, all the rights that belonged to him at that time being preserved till the rest of the career of the original proceeding, that the right of appeal is not a mere matter of procedure but is a substantive right and that the forum to which he could carry an appeal is a part of the substantive right and is not in any way dissociated from it. The doctrine of the Colonial Sugar Refining Company, Limited v. Irving has been adopted by their Lordships of the Supreme Court in Garikapati Veerayya v. Subbiak Choudhry.”
The Division Bench having regard to the terms of the Madras Civil Courts (Andhra Amendment) Act, 1955 held ultimately that it was retrospective in its application and would apply even to suits, which had been instituted before the Act came into force. The notable feature from the above excerpt is that the right of appeal is not a mere matter of procedure but is a substantive right and that the forum to which one could carry an appeal is a part of the substantive right and is not in any way dissociated from it. However, in Saraswathula Kameswaramma’s case (referred to supra) another Division Bench of this Court distinguished the former judgment in Kotina Papayya’s case (referred to supra). Placing reliance upon the judgment of the Apex Court in Garikapati Veerayya v. N. Subbaiah Choudhary, , the Division Bench was of the view that the amendment to the Civil Courts Act was not retrospective in operation. Ironically reliance has been placed upon the judgment of the Apex Court in Garikapati Veerayya v. N. Subbaiah Choudhary in both the cases, while rendering divergent views. It is apt, therefore, to consider the said judgment rendered by a Constitution Bench of the Apex Court. It was held thus:
“(i) 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 all 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 of the lis commences and although it may be actually exercised when the adverse judgment is pronounced such 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 appeal.
(v) This vested right of appeal can be taken away only by subsequent enactment if it so provides expressly or by necessary intendment and not otherwise.”
That was a case where the suit was instituted on 22.4.1949 in the Sub-Court, which was within the jurisdiction of the Madras High Court by then. The suit was dismissed on 14.11.1950. The plaintiff preferred an appeal before the High Court of Madras. On account of the formation of Andhra State on 1.10.1953, the appeal stood transferred to the High Court of Andhra. On 4.3.1955 the High Court of Andhra allowed the appeal by decreeing the suit. When leave was sought to prefer an appeal to the Apex Court it was refused on the premise that the value of the property was only Rs. 11,400/- and the valuation necessary for preferring an appeal to the Supreme Court had been raised to Rs. 20,000/-. Under Clause 39 of the Letters Patent, 1865 an appeal could be preferred to His Majesty in Council when the sum or matter at issue was of the amount or value not less than Rs. 10,000/-. The requirements to be fulfilled for filing an appeal to His Majesty in Council were also set out in Sections 109 and 110 of the Code of Civil Procedure, 1908. The Government of India Act, 1935 in Section 200 established a Federal Court of India. Section 205 of the said Act conferred appellate jurisdiction on the Federal Court from any judgment, decree or final order of a High Court in British India if the High Court certified that the case involved a substantial question of law as to the interpretation of that Act or any Order in Council made thereunder and prohibited direct appeal. After passing of the Abolition of Privy Council Jurisdiction Act, 1949 the jurisdiction, which vested in His Majesty in Council, stood transferred to the Federal Court. Therefore, on the date of filing of the suit before the Sub-Court, Bapatla the prevailing law was that the parties thereto had a right of appeal to His Majesty in Council when the value of the subject matter of the suit was Rs. 10,000/-. Either of the parties to the suit could have filed an appeal as against the judgment of the High Court to the Federal Court but for the Abolition the Federal Court, after the advent of the Constitution of India and establishment of the Supreme Court of India. Having regard to the above facts, it was the contention of the petitioner therein who sought special leave to appeal before the Apex Court that as on the date of the institution of suit he acquired a vested right of appeal to the Federal Court which has since then been replaced by the Supreme Court. Placing reliance upon the judgment of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving (1905 A.C. 369), the Supreme Court enunciated the above five principles excerpted hereinabove in para 23 of its judgment. It is therefore obvious that as on the date of filing the suit before the Sub-Court Bapatla the parties acquired the right to prefer an appeal from the Sub-Court to the High Court and from the High Court to the Federal Court provided the conditions prescribed were satisfied. The question that arose before the Apex Court was whether that right of appeal had been taken away expressly or by necessary intendment by the Constitution of India. Ultimately, by a majority of 4:1 it was held in para 48 thus:
“the suit having been instituted before the date of Constitution the parties thereto had, from the date of the institution of the suit, a vested right of appeal upon terms and conditions then in force and the judgment sought to be appealed from being a judgment of reversal and the value of the subject-matter being above Rs. 10,000/- the applicant had a vested right of appeal to the Federal Court under the provisions of the old Civil P.C. read with the Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947. Such a vested right of appeal was a matter which did not fall within Article 133 and jurisdiction and powers with respect to such right of appeal was exercisable by the Federal Court immediately before the commencement of the Constitution and consequently the applicant had a right of appeal under Article 135 and the High Court was in error in refusing leave to appeal to the petitioner.”
8. Even in the famous case before the Privy Council in The Colonial Sugar Refining Co. Ltd. v. Irving (referred to supra) the facts show that the Collector of Customs asked the appellants to pay 20,100 pounds excise duty on 6,700 tons of sugar under the provisions of the Excise Tariff Act, 1902. The appellants disputed that claim and brought an action in the Supreme Court, Queensland, against the Collector. As against the judgment of the Supreme Court, a right of appeal was provided to His Majesty in Council. On 4.9.1903 the Supreme Court, Queensland, gave the judgment in favour of the Collector. But in the meantime, Judicial Act, 1903 had been passed and it received the royal assent on 25.8.1903, that is to say, about ten days before the judgment was delivered. As a result, Her Majesty in Council ceased to be a Court of Appeal from the decision of the Supreme Court and appeal would lie from the judgment of the Supreme Court, Queensland to the High Court of Australia. When the Supreme Court, Queensland granted leave to the appellants, the appellants filed an appeal before the Privy Council. The opposite party filed a petition before the Privy Council praying that the appeal might be dismissed. The Privy Council dismissed that petition and observed thus:
“As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It stems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior Tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new Tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.”
Both before the Privy Council and the Apex Court obviously the question involved was as to whether the right to file an appeal is a matter of procedure or a substantial right and that right which was in vogue as on the date of commencement of the lis would continue to available to the litigant public through out the proceedings unless it is otherwise taken way by a Statute either expressly or by necessary implication.
9. It follows from the above that the right of appeal is a substantive right and is not a mere matter of procedure. This right, which exists on and from the date of commencement of the lis, is preserved to the parties till the culmination of the lis until and unless it is taken away by any subsequent enactment providing expressly or by necessary implication.
10. This right of appeal is statutory and, therefore, does not inhere in any one. When conferred by statute it becomes a vested right. Vide Shiv Shakti Co-operative Housing Society v. Swaraj Developers, .
11. It is manifest thus that a right of appeal is quite different and distinct from a right to file an appeal before a particular forum. A marked distinction can be seen thus from the two rights. What had been held by the Apex Court in Garikapati Veerayya ‘s case (referred to supra) was that the right of appeal is a substantive right and is a vested right. It does not say that the forum in which the appeal can be filed is a vested right. The forum as provided under the provisions of the Act 19 of 1972, as discussed hereinabove, is susceptible of change from time to time by raising the pecuniary jurisdiction of the Courts and indeed it has been changed on three occasions under Acts 19/84, 30/89 and 28/2000. This has nothing to do with the right of appeal vested in the parties under the provisions of the Code and in fact neither the provisions of the Act 19 of 1972 nor any amendment to the same can take away the vested right. For the above reasons, we are of the considered view that the judgment of the Apex Court in Garikapati Veerayya’s case has not been properly construed with due respect by the Division Bench of this Court in Saraswathula Kameswaramma’s case. Having been of the view that the right of appeal is a vested right and it cannot be taken away except by means of a subsequent enactment providing expressly or by necessary implication, the Division Bench sought to distinguish the earlier Division Bench judgment of this Court in Kotina Papayya’s case. The Division Bench has not considered the distinction between right of appeal, which is undoubtedly a substantive and vested right, and right to a forum, which is a mere procedural aspect, and the Act 19 of 1972 has not conferred any right of appeal upon a suitor and on the other hand, the said Act seeks to provide various fora for preferring appeals or filing suits.
12. In K. Ham Gopal’s case (referred to supra) a Division Bench of this Court reiterated the principle laid in Saraswathula Kameswaramma’s case. The Division Bench having noticed the judgment of the Apex Court in Kasibai v. Mahadu, , was of the view that the right of appeal to a particular forum is a substantive right and is not lost by alteration in the law. In that view of the matter, it sought to distinguish another judgment of the Apex Court in New India Insurance Co. Ltd. v. Smt. Shanti Misra, . In the former judgment of the Apex Court, it was a case where the suit was filed in the Court of Munsif, Mominabad Taluq, for possession in the erstwhile State of Hyderabad. It was eventually decreed at the culmination of the trial. First Appeal was filed before the Additional Sub- Judge, Mominabad, which reversed the decree of the Trial Court. In the Second Appeal, the High Court of Hyderabad in S.A. No. 544 of 1947 reversed the judgment of the first appellate Court and restored that of the Trial Court. In the meanwhile, the Hyderabad Code of Civil Procedure was repealed by the Code of Civil Procedure, 1908 with effect from 1.4.1951. Under this Code, as per Section 100, Second Appeal lies only on the question of law. Therefore, it was sought to be contended before the Apex Court that the High Court was wrong in disagreeing with the view of the first appellate Court on the question of fact. It may be mentioned here that under Section 602 of Hyderabad Civil Procedure Code Act 31 of 1323 Fasli, Second Appeal lies to the High Court on questions of fact as well as on law unlike Section 100 of the Code of Civil Procedure, 1908. In that context, the Apex Court held that it was true that as a general rule alterations in the law of procedure are retrospective but a right of appeal to a particular forum is a substantive right and is not lost by alteration in the law unless a provision is made expressly in that behalf or by necessary implication. In the process, it came to be held that the right of appeal to a particular forum is substantive right and is not lost by alteration in the law. Having regard to the above facts, it is manifest that the ratio decidendi of the judgment in Kasibai ‘s case was as to whether the right to file second appeal was restricted to the question of law under Section 100 of the Code of Civil Procedure, 1908, or as to whether the right of appeal conferred under Section 602 of Hyderabad Code of Civil Procedure on questions of fact as well as law which was in vogue at the time of commencement of litigation would continue to available to the parties till its culmination notwithstanding the provisions of Section 100 of Code of Civil Procedure, 1908 which obviously came into effect at a subsequent stage during the pendency of the proceedings. Therefore, the question as to whether right to file an appeal before a particular forum is a vested or not, was not germane for consideration in the context. In that view of the matter, the observation of the Apex Court in Kasibai’s case that right of appeal to a particular forum is a substantive right, in our considered view, does not constitute the ratio decidendi of the judgment. We are re-inforced in our above view by a recent Constitution Bench judgment of the Apex Court in Islamic Academy of Education v. State of Karnataka, 2003 AIR SCW 4240. In para 2 of its judgment, the Apex Court held thus:
“The answers to the questions in the majority judgment in Pai’s case, are merely a brief summation of the ratio laid down in the judgment. The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be reac. in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards the observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there in the judgment one cannot find out of the entire ratio decidendi of the judgment.”
13. Coming to the latter judgment of the Apex Court in New India Insurance Co. Ltd.’s case (referred to supra), although it was a case where the jurisdiction of the Civil Court had been taken away and vested in Tribunal constituted under the provisions of the Motor Vehicles Act, the Apex Court was of the view that the change in the law under Sections 110-A and 110-F of the Motor Vehicles Act by taking away the jurisdiction of the Civil Court and vesting the same in the Tribunal constituted under the Act was merely a change of forum i.e., a change of adjectival or procedural law and not of substantive law. Shorn of all other details and notwithstanding the legal principal about the jurisdiction, one thing, which manifests itself from the above dictum of the Apex Court, is that right to a particular forum is a procedural or adjectival law,
14. In Maria Christine v. Maria Zurna, , a two Judge Bench of the Apex Court had to consider as to whether the appeal against the judgment of the Trial Court lies to the Judicial Commissioner’s Court as per the Portugese Civil Procedure Code. According to the facts the suit was filed in Comarco Court at Margao for partition. The learned Trial Judge by his judgment dated 8.3.1968 decreed the suit. An appeal was filed against the said decree before the Judicial Commissioner’s Court at Goa on 6.6.1968. In the meanwhile, by means of the Central Act 30/1965 the provisions of the Code of Civil Procedure were extended to Union Territories of Goa, Daman and Diu under which the corresponding provisions of the Portuguese Civil Procedure Code were repealed. The Legislative Assembly of Goa, Daman and Diu enacted the Goa, Daman and Diu Civil Courts Act, 1965, which came into force on 15.6.1966. Under the provisions of the said Act, a suit which had been instituted before the Comarco Court at Margoa, stood transferred and was continued and decreed by the Senior Civil Judge since the value of the property involved in the suit by then was Rs. 10,000/-, an appeal would lie directly to the High Court. On the question as to whether the appeal should have been filed as per the provisions of Portuguese Civil Procedure Code or before the Judicial Commissioner’s Court as per the Code of Civil Procedure Extension Act, while holding that such a point pertaining to the forum was a matter of procedural law, the Judicial Commissioner’s Court refrained from answering the point. While repelling the contention that the right of appeal has been conferred by the Portuguese Civil Procedure Code, the forum where the appeal could be lodged was also governed by the Portuguese Civil Procedure Code, the Apex Court in para 4 held thus:
“It is no doubt well-settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof. This position has been made clear by clauses (b) and (c) of the proviso to Section 4 of the Central Act XXX of 1965 which substantially correspond to clauses (c) and (e) of Section 6 of General Clauses Act, 1897. This position has also been settled by the decisions of the Privy Council and this Court (vide The Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369) and Garikapati Veerayya v. N. Subbiah Choudhury, but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed Act, will have to be lodged in a forum provided for by the repealing Act.”
15. It is obvious that the Apex Court in the above case considered the judgments of the Privy Council in The Colonial Sugar Refining Co. Ltd.’s case and its earlier Constitution Bench case in Garikapati Veerayya v. N. Subbiah Choudhury and having considered them sought to distinguish between a right of appeal which is a substantial and vested right and right to a forum where such appeal could be filed being undoubtedly a procedural matter. In support of the above conclusion the Apex Court extracted a passage from Salmond’s Jurisprudence (12th Edition) at page 462. It may profitably be extracted hereunder thus:
“Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what Courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the Courts fulfill their functions.”
The judgment of the Apex Court in Maria Christine’s case was not referred to by the Division Bench of this Court in K.Hara Gopals case.
16. In view of the importance of the points involved we have requested Sri V.Bhaskara Reddy the learned Counsel to assist us as Amicus Curiae. Sri Bhaskara Reddy invited our attention to a Constitution Bench judgment of the Apex Court in Lakshmi Narain v. First Additional District Judge, Allahabad, . That was a case where the Suit No. 7 of 1949 was instituted in the Court of the Civil Judge, Mathura, for possession of certain properties on 26.1.1949. It was dismissed on 27.11.1951. The unsuccessful plaintiff preferred a first appeal to the High Court of Judicature at Allahabad in First Appeal No. 37 of 1952. The appeal was pending till 23.04.1952 before the High Court. In the meanwhile U.P. Civil Laws (Reforms and Amendment) Act (U.P. XXIV of 1954). Section 21, Clause (a) of subsection (1) of the said Act was amended by substituting Rs. 10,000/- for Rs. 5,000/-, thus enabling the District Court to entertain first appeals upto a valuation of Rs. 10,000/-. Therefore, the Chief Justice, Allahabad High Court suo motu transferred all the appeals to the Court of District Judge, Allahabad, for disposal according to law including the First Appeal No. 37 of 1952. When the appeal came up for hearing before the District Court, an objection as regards the jurisdiction was taken. That objection having been overruled by the District Court, the High Court of Allahabad was moved.
The appeal too was dismissed and then the mater was carried to the Apex Court. The Apex Court having noticed Section 3(1) of the U.P. Act XXIV of 1954 to the effect that any jurisdiction already exercised and any proceeding instituted or commenced in any Court prior to the commencement of that Act shall, notwithstanding any amendment made in the said Act, continue to be heard and decided by the former forum, held that appeals could not have been transferred by the Chief Justice, High Court of Allahabad in exercise of the power conferred under Section 24 of the Code of Civil Procedure to a Court which is not competent to hear those appeals. It is obvious that the High Court as well as the Apex Court was of the view that U.P. Act XXIV of 1954, which brought the changes in the pecuniary jurisdiction, was not retrospective in operation in view of Section 3(1) of the said Act. In the process at page 492 the Apex Court observed thus:
“We are here not concerned with the question whether in the absence of a saving clause, like the one introduced by Section 3(1) of the Act, it is impossible to hold that the District Courts were competent to hear appeals of the valuation of ten thousand rupees and less in suits decided before the Act came into force, and appeals from which were pending before the High Court.”
Therefore, the Apex Court has not considered the question as to what would have been the position if Section 3(1) of the Act is retrospective in operation which question precisely is the point involved in the instant case. Therefore, the above judgment of the Apex Court renders no assistance to us.
17. Very recently, a Division Bench of this Court of which one of us (Dr. Motilal B. Naik, J) is a party, in Rekha Timber Depot and Ors. v. Dcto, Prakasam District and Ors., 2002 Vol. 35 A.P. Sales Tax Journal Page 167, while reviewing the case law on the point, held that the right to file an appeal is substantive right vested in the party and whereas filing a petition for condonation of delay is procedural in nature.
18. Apropos the second point Sri Vilas v. Afzalpurkar, learned Counsel appearing for the appellant, seeks to contend before us that all amendments made to procedural laws are presumed to be retrospective unless the Amending Acts provide otherwise. To buttress the said contention, the learned Counsel seeks to place reliance upon a Constitution Bench judgment of the Apex Court in Shyam Sunder v. Ram Kumar, . the Apex Court held thus:
“From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of the suit or adjudication of the suit unless such a legislation is retrospective and a Court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of the suit. However, the position in law would be different in the matter, which relate to procedural law but so far as substantive rights of parties are concerned, they remain unaffected by the amendment in the enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by art amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless the amending Act provides otherwise.”
19. In Rajendra Kumar v. Kalyan, the Apex Court held thus:
“The law thus seems to be well settled that no person has, in fact, a vested right in procedural aspect – one has only a right of prosecution or defence in the manner as prescribed by the law for the time being and in the event of any change of procedure by an Act of Parliament one cannot possibly have any right to proceed with the pending proceeding excepting as altered by the new legislation and as such we need not dilate on the issue any further.”
The Apex Court at the end of para 21 quoted with approval the decisions of the House of Lords thus:
“The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.”
Finally, the learned Counsel relies upon yet another judgment of the Apex Court in Gurbachan Singh v. Satpal Singh, , the Apex Court extracted the relevant passage from Halsbury’s Laws of England (4th Edition), Volume 44, Page 570. It is profitable to extract the same hereunder thus:
“The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the Legislature…”
At page 574 of the said volume of Halsbury’s Laws of England it has been stated thus:
“The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.”
20. Apart from the above precedential jurisprudence, the statutory law in the shape of Section 6 of the General Clauses Act, 1897 is germane to be considered in the context and a perusal of the same shows that unless a different intention appears from the Act which repeals the earlier provision, the repeal shall not revive anything not in force; or affect the previous operation of any enactment so repealed; or affect any right or privilege or obligation or liability acquired, accrued or incurred under the repealed Act; or affect any penalty or forfeiture or punishment incurred in respect of any offence so repealed; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and such investigation, legal proceeding, or remedy shall have to be instituted, continued or enforced as if repealing Act has not been passed. It is obvious, therefore, that the amendment will not have any affect as regards the existing rights or pending proceedings unless such an intention has been expressed either expressly or impliedly under the repealing Act.
21. From the above it is obvious that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties unless such legislation is retrospective. However, the position of law would be different when it relates to procedural law, which is presumed to be retrospective unless it is otherwise provided for in the Act.
22. Turning to the Act 19 of 1972, in none of the amendments made to the said Act under Acts 19/84, 30/89 and 28/2000 any express provision has been incorporated making it prospective in operation. Nor it is discernible from the said Amendment Acts that by necessary implication they intend to operate prospectively. From the objects and reasons of the Act it is obvious that pecuniary jurisdiction of the Courts is being raised having due regard to the inflation and appreciation of the prices of the properties and depreciation in the value of the rupee. Undoubtedly the Act 19 of 1972 comes within the realm of adjectival law. It deals only with the procedure but not the substantive rights of the parties. The amendments brought in to the provisions of the said Act under the Amendment Acts, as discussed hereinabove, should be presumed automatically to have retrospective operation as there is nothing in the said Amendment Acts indicating to the contra either expressly or by necessary implication. Therefore, the change in the pecuniary jurisdiction of the District Court from Rs. 30,000/- to Rs. 1 lakh shall have to be construed as retrospective in operation inasmuch as it is procedural in nature and has nothing to do with the right of appeal. Therefore, it cannot legitimately be concluded that Act 30/89 is prospective in operation and has no retrospective operation.
23. For the foregoing reasons, we are of the considered view that the right of appeal is distinct and different from the forum where the appeal has to be filed. While the former is a substantive right and when conferred under a statute becomes a vested right, the latter comes within the realm of adjectival law being procedural aspect and is, therefore, not a vested right. The A.P. Civil Courts (Amendment) Act 30/ 89 under which the pecuniary jurisdiction of the Chief Judge, City Civil Court/District Court has been raised from Rs. 30,000/- to Rs. l lakh operates retrospectively since nothing is discernible from the provisions of the said Act that it operates prospectively. In view of the clear legal position, the two Division Bench judgments of this Court in Saraswathula Kameswaramma’s case and K. Hara Gopal’s case cannot hold the field and the subsequent judgments of this Court in M. Alivelamma v. Saraswathamma, , and D. Ramakrishna Reddy v. A.P. State Co-operative Societies, , cannot also hold the field. We affirm the view taken by this Court in Kotina Papayya’s case that the right to appeal is a substantive right. However, we disapprove the view expressed in the said decision to the extent that the forum to which one could carry an appeal is a part of the substantive right and is not in anyway dissociated from it. The reference is answered accordingly.
24. Before parting with, we shall place on record the assistance rendered by Sri v. Bhaskara Reddy, learned Amicus Curiae with gratitude.
25. For the above reasons, we hold that the appeal sought to be filed before the Chief Judge, City Civil Court, Hyderabad, in A.S. SR No. 5674 of 1991 is maintainable inasmuch as the A.P. Civil Courts (Amendment) Act 30 of 1989 is retrospective in operation. Consequently, the appeal is allowed and the impugned order is hereby set aside. No order as to costs.