Legal Heirs of late Shri JAGDISHCHANDRA BHULABHAI PATEL v. CHHIMNIBEN KESHAVBHAI PATEL

the case of the original-plaintiffs that even if the property was considered to be the individual property of Shri Keshavlal Kanjibhai, in that case also as legal heirs of late Shri Keshavlal Kanjibhai, the plaintiffs were entitled to protect their rights and the defendants were not in any relation with the plaintiffs and hence they have no right to disturb the possession of the plaintiffs. However, the defendants were acting in collution and wanted to disturb the possession of the plaintiffs and to protect their possession, the plaintiffs have filed the above suit against the defendants for declaration and injunction.

2.(cid:9)In the said suit, the plaintiffs moved an application Exh. 5 against the defendants seeking temporary injunction against them. Application Exh. 14 was preferred by the defendant No.1 against the plaintiffs. Application Exh. 24 was preferred by the plaintiffs against the defendant No.4 and application Exh. 39 was preferred by the defendant No.4 against the plaintiffs. The learned trial Judge has rejected the application Exh. 5 refusing to grant interim relief against the defendants No. 1 to 3. The ld. trial Judge has also rejected the application Exh. 24 refusing to grant injunction against the defendant No.4. The ld. trial Judge has also rejected the application Exh. 14 preferred by the defendant No.1 against the plaintiffs. However, the ld. trial Judge has granted the application Exh. 39 preferred by the defendant No.4 against the plaintiffs and the plaintiffs were directed not to interfere with or not to take away any possession without due process of law till the final disposal of the suit. The defendant No.4 was also directed not to transfer the said property to others pending the disposal of the suit so as to avoid multiplicity of the proceedings. The ld. trial Judge, vide his order dated 25.2.1992 had therefore disposed of the applications Exh. 5 and 14, and 24 & 39.

3.(cid:9)Being aggrieved by the said order, original-plaintiffs have filed Civil Misc. Appeal No. 58 of 1992 before the Court of ld. District Judge at Surat, who vide his order dated 1st December 2001 allowed the said appeal and set aside the order passed below Exh. 5, Exh. 24 and Exh. 39 by the ld. 3rd Joint civil Judge (SD), Surat in Regular Civil Suit No. 906 of 1991. The learned District Judge has also quashed and set aside the order passed by the ld. trial Judge in an application below Exh. 39 filed by the defendant No.4. By virtue of that order, the interim injunction prayed for in applications Exh. 5 and 24 by the plaintiffs in the above suit was granted and the same was ordered to remain in operation till the final disposal of the suit. The defendants No. 1 to 4 were restrained from entering or trespassing into the disputed property till the final disposal of the suit. It is this order, which is under challenge in the present CRA filed by the original-defendant No.4 in the Regular Civil Suit No. 906 of 1991.

4.(cid:9)This CRA was admitted and Rule was issued by this Court on 21.3.2002 and the interim relief granted by the lower court was ordered to be continued till further orders. The said interim relief was continued till

1.10.2002. However, it was vacated on that day, but on the basis of the statement made on behalf of the respondents' ld. advocate, the said interim relief continued till this date.

5.(cid:9)Before this Court could take up the matter for hearing of the Rule, a preliminary objection was raised on behalf of Mrs. KA Mehta, ld. advocate appearing for the respondents No. 1 to 5 that the present Revision Application is not maintainable in view of the amendment made in Section 115 of the Code of Civil Procedure. The impugned order is passed by the ld. District Judge in an appeal against the interim order passed by the ld. trial Judge and as per the Proviso to Section 115 of the Code of Civil Procedure, this Court, while exercising its revisional jurisdiction shall not vary or reverse any order made or deciding the issue, in the course of the suit or other proceeding except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. She has further submitted that the impugned order is passed in the course of the suit and even if the order is made in favour of the petitioner or even if the present revision application is allowed in favour of the petitioner, the suit which is pending before the trial court, i.e., Regular Civil Suit No. 906 of 1991 would not have been finally disposed of as the prayer made in the suit is with regard to the declaration and injunction and the applications Exh. 5, 24 and 39 are seeking merely interim orders so, in any case, the suit remains pending even if the impugned order is reversed.

5.(cid:9)In support of her contention, Mrs. KA Mehta further submitted that this court in its judgment dated

24.7.2002 in the case of Parakramsinh Vikramsinh Jadeja vs. Yogi Corporation, 2002(3) GLR 2040, had an occasion to examine a Revision Application in the light of the amended provisions of Section 115(1) and its Proviso of the Civil Procedure Code and effect of repeal and savings provisions contained in Section 32 of the Code of Civil Procedure (Amendment) Act, 1999. Mrs. KA Mehta has further submitted that the amended provisions are equally applicable to the pending revisions in view of the decision of this Court in the case of Gulbhai K. Achara vs. Natraj Theatre (CRA No. 1258 of 2001) decided on

13.9.2002. She has, therefore, submitted that in view of the provisions contained in Section 115 of the CPC and in view of these two decisions of this Court, the present CRA is not maintainable and the same is therefore required to be rejected.

6.(cid:9)However, on the other hand, Mr. DD Vyas, ld. Senior Advocate along with Mr. Utpal Panchal, ld. advocate for the petitioner submits that in the aforesaid two decisions, certain points were not either urged or were not considered by the Court and binding decisions of Hon'ble Supreme Court were either not cited or not considered by the court and he therefore requested to permit him to address the court on the issue regarding maintainability of the revision petition. Mr.Vyas has submitted that 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 by him when any order adverse to him is pronounced. Such right is to be governed by the law prevailing on the date of institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. He has further submitted that the institution of the suit carries with it all rights of appeal than in force and are preserved to the parties thereto till the rest of the career of the suit. Such vested right of appeal can be taken away only by subsequent enactment,if it so provide expressly or by necessary implication and not otherwise. He has, therefore, submitted that in the present case, the suit was instituted in the year 1991 and hence the right of appeal was vested in the parties thereto on that date and was to be governed by the law as it provided on that date, that is to say, on that date the parties acquired their rights, if unsuccessful to go up in appeal from the subordinate court to the High Court and from the High Court to the Supreme Court. The amended provision of Sec. 115 does not take away this vested right of the petitioner as there is no express provision nor there is any necessary implication suggesting that such right is taken away by the Legislature. In support of his contention, he has relied on the decision of the Hon'ble Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Choudhry and other - AIR 1957 SC 540. This decision has not been considered by this Court while delivering the judgment in the case of Parakramsinh Vikramsinh Jadeja vs. Yogi Corporation, (Supra).

7.(cid:9)Mr. Vyas has further submitted that though the aforesaid decision is in respect of appeals to be filed against the orders passed by the courts below, the same is equally applicable to the revisions too and for that purpose he relied on the decision of the Hon'ble Supreme Court in the case of Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat - AIR 1970 SC Page 1, wherein it is held that "The right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. When the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider, and larger sense."

8.(cid:9)Mr. Vyas has further relied on the decision of this Court in the case of Sursangji Ambaram & Ors.v. State of Gujarat & Anr., - (2002) 43(2) GLR Page 1462, wherein it is held that a revisional jurisdiction of the Deputy Collector under Sections 74 and 76-A (retrospectively) of the Tenancy Act, both of which are basically and fundamentally the appellate jurisdiction of the Collector over the decision of the Mamlatdar and Agricultural Lands Tribunal. The Gujarat Revenue Tribunal was, therefore, right in coming to the conclusion that once the order dated 4.4.1995 of the Deputy Collector in revision under Sec. 76A of the Act (modifying the Mamlatdar's order of 1960) was set aside by the Tribunal, (albeit by the consent of parties) on

28.2.2000, it was not open to the Collector or Deputy Collector to entertain the appeal and exercise the powers of appeal under Sec. 74 of the Act against the same order of the Mamlatdar and A.L.T. passed in 1960."

9.(cid:9)The second limb of the argument of Mr. Vyas is that Section 32(2) of the Code of Civil Procedure (Amendment) Act, 1999 makes it abundantly clear that notwithstanding the provisions of this Act have come into force or repealed under sub-section (1) has taken effect, the same is without prejudice to the generality of the provisions of Section 6 of General Clauses Act, 1897. The provision of Section 115 of the Principal Act, as amended by Section 12 of this Act, shall not apply to or affect any proceeding for revision which may result into taking away of any vested right already accrued. Mr. Vyas has, therefore, submitted that the repeal and savings provisions contained in Section 32 of the Amendment Act of 1999 should be construed in the light of the provisions conained in Section 6 of the General Clauses Act. He has, therefore, submitted that the Amending Act would not affect any right which is already accrued and acquired under the old provisions and it would also not affect any legal proceeding or remedy in respect of any such right which is already accrued at the time when the suit was instituted. He has further submitted that as per the provisions contained in Section 6(1)(c) and (e) of the General Clauses Act, the right which is already accrued cannot be taken away and even if it is sought to be taken away, the same can be done by the express provision or by necessary implication. There is neither any express provision nor any necessary implication in Section 32(2)(i) of the Amending Act of 1999 as it merely contains what is saved but what is not saved does not necessarily lead to a presumption that the right which is already accrued is taken away by the said provision. He has further submitted that while interpreting the said clause (i) of Section 32(2) of the said Act, it is difficult to presume that there is a different intention of the Legislature to take away the right which is already accrued or to put it differently the said provision is intended to be made applicable to the pending revisions also. Mr. Vyas has further submitted that if on the basis of sub-clause (i) of Section 32(2) of the Amending Act, 1999 it is held that the said sub-clause is applicable to the pending revisions also it would destroy the very fabric of the provisions contained in Section 6 of the General Clauses Act. Lastly, he has submitted that if any statute impairs the vested right of the litigant some reasonable restrictions should always be imposed and while interpreting the provisions affecting the vested right of the litigant, the interpretation should be made in such a way that it would not affect the vested right of the litigant. On the basis of these submissions, Mr.Vyas has vehemently submitted that the earlier two decisions of this Court have not taken into consideration these aspects of the matter and hence this Court should either entertain the revision on merits or in the alternative, this matter should be referred to a Division Bench.

10.(cid:9)Here at this stage, it is necessary to take note of the fact that Mr. Yatin Soni, ld. advocate has appeared as an intervener in the matter and submitted that this Court is having an exclusive jurisdiction so far as the orders passed by the authorities below and simply because a different nomenclature of revision is given to a particular proceeding and despite gross injustice is done to the petitioner as a result of material irregularity or illegality committed by the courts below, this Court should not shut its eyes by holding that the revision is not maintainable in view of the amended provisions. He has further submitted that once the matter is admitted prior to 1st July 2002 and it is pending for final disposal, the party should not be relegated to avail of any other alternative remedy. In support of this proposition, he has relied on the decision of this Court in the case of Mahendrakumar Veerabhai Makwana v. State of Gujarat and Another - 1991 (1) GLH Page 1; and L. Hirday Narain v. Income-Tax Officer, Bareilly, (1970) 78 ITR 26 (SC).

11.(cid:9)On the other hand, Mrs. KA Mehta, ld. advocate for the respondent and Ms. Kalpana Brahmbhatt, ld. advocate appearing as an intervener have strongly submitted that all these points were taken into consideration by this Court in its earlier two judgments and since the issue is concluded there is no necessity to take any different view in the matter. As far as the accrual of right from the date of the institution of the suit is concerned, this Court has observed in Parakramsinh Vikramsinh Jadeja's case (Supra) that it has also been contended that the right of the party would be crystalised on the date of the filing of the suit as per the laws as it may stand on the date of the institution of the suit. It is further observed that at the same time, it is also true that if any procedural law is amended then the amendment can take effect even retrospectively also and an amendment can be made applicable to the pending provisions by express provisions or by necessary implication. When a law is enacted, ordinarily, it would apply prospectively but by making appropriate provision the amendment can be made applicable retrospectively to the pending proceeding also by making express provision or by making necessary implication. This Court has further held that the intention of the Parliament goes to suggest that the Amending Act of 1999 will apply to the appeals, which may have been filed before 1.7.2002 but which have been pending for admission as on 1.7.2002. This provision clearly negatives the argument that a right of party to appeal, as it stood on the date of institution of the suit, will continue to be with such a party even after the Amending Act 1999, has been brought into operation.

12.(cid:9)It is further submitted that the points raised by Mr. Vyas in the present Revision Application were also considered by the Bombay High Court in its recent judgment in the case of Rajabhau, S/o. Mahadeorao Rahate vs. Dinkar, S/o Shantaram Ingole, 2002(3) Maharashtra Law Journal, 921, wherein it is held that the provisions of Section 115 of the Code of Civil Procedure, 1908 as amended by the Code of Civil Procedure (Amendment) Act of 1999 with effect from 1.7.2002 are applicable from that date to all proceedings pending in the High Court under Section 115 of the Civil Procedure Code and all revision applications were pending as on 1.7.2002 or filed thereafter have to be dealt with strictly in accordance with the provisions of Section 115 with effect from 1st July 2002. No Revision Application against an interlocutory order will be entertainable even if the order is made prior to 1st July 2002 as moving the High Court under Section 115 is not a right. While arriving at this conclusion, the Bombay High Court has relied on the decisions of Hon'ble Supreme Court reported in AIR