Shah Vardhilal Amritlal v. Bhuralal And Another Opponents.

ORDER

1. The original plaintiff has preferred this Revision Application against the j6dgment and order of the learned District Judge, Banaskantha, dt. 2nd Nov. 1982. whereby he allowed the appeal and dismissed. the plaintiffs suit. The facts leading to this Revision Application, briefly stated, are as under : -

2. The plaintiff instituted a Civil Suit No. 29 of 1972 in the Court of the learned Civil Judge (Junior Division), Deodar, to recover a sum of Rs. 2,000/- with interest and costs. The aggregate amount claimed in the suit was Rs. 2540/- inclusive of interest up to the date of the institution of the suit. That suit was decreed by the learned trial Judge against which the defendants preferred an appeal to the District Court, Banaskantha. That Appeal No. 56 of 1974 was heard by the learned Assistant Judge, Banaskantha at Palanpur, who by his judgment and order dt. 20th Oct. 1976 dismissed the appeal and confirmed the decree of the trial Court. Against that decision the defendants preferred a Second Appeal No. 157 of 1977 in this Court on 21st Mar. 1977. That Second Appeal was called on for hearing before N. H. Bhatt, J., who allowed the Second Appeal by his judgment and order dt. 25th Mar. 1982,. set aside the order passed by the lower appellate Court and directed that the appeal be heard afresh in the light of the observations made in the judgment and in accordance with law, While disposing of the Second Appeal certain observations came to be made in regard to two documents, Exhibits 31 and 34, as it was felt that they had been materially tampered with by the plaintiff and could not be relied upon. In view of this finding it was ordered that the matter should go back to the lower appellate Court for re-assessment of evidence without taking into consideration the said two documents, Exhibits 31 and 34. In other words, the direction given to the lower appellate Court was that while re-assessing the evidence on record, the lower appellate Court should totally ignore from consideration Exhibits 31 and 34. Accordingly, the matter went back to the lower appellate Court and the learned District Judge heard the appeal afresh and disposed it of by the impugned order of 2nd Nov. 1982. Ignoring the two documents, Exhibits 31 and 34, the learned District Judge came to the conclusion that there was no independent evidence supporting the entries made in the account books of the plaintiff and the evidence of the plaintiff in this behalf could not be relied upon implicitly. In that view that he took, he allowed the appeal and dismissed the plaintiffs suit. The plaintiff has, therefore, approached this Court in revision.

3. At the hearing of this Revision Application Mr. Zaveri, the learned advocate for the, plaintiff, raised a preliminary contention, namely, that the order passed by N. H. Bhatt, J., in Second Appeal was a nullity inasmuch as no Second Appeal lay against the order of the learned District Judge in appeal as the suit was in the nature of a Small Cause Suit since the amount of the original suit did not exceed Rs. 3,000/- S. 102 of the Civil P.C. reads as under: -

"102. No Second Appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees."

The words "three thousand rupees" were substituted for the words "one thousand rupees" by the Code of Civil Procedure (Amendment) Act, 1976, (hereinafter called 'the Amendment Act.According to S. 97(3) of the Amendment Act, save as otherwise provided in sub-see. (2) thereof, the provisions of the Civil P.C. as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted was filed had been acquired or had accrued before such commencement. S. 97(2) does not refer to S. 102 of the Code and, therefore, it was argued by Mr. Zaveri that by virtue of S. 97(3) 'of the Amendment Act, the provision of S. 102 as amended would apply to pending proceedings including an appeal and, therefore, the Second Appeal No. 157 of 1977 which came to be disposed of on 25th Mar. 1982 was not competent. The decree passed by the High Court in pursuance of its judgment in the aforesaid Second Appeal was, therefore, clearly without jurisdiction and a nullity and all consequential, proceedings on remand would also be of no avail, argued the learned counsel for the petitioner.

4. In order to appreciate the contention raised by Mr. Zaveri, it would be advantageous to bear in mind the legislative changes. A Bill to amend the Code of Civil Procedure called 'The Code of Civil Procedure (Amendment) Act, 1974 was introduced in the Lok Sabha on 8th April 1974. The Bill was referred to a Joint Committee of both Houses of Parliament in May 1974. The Joint Committee submitted its report on Ist April 1976 suggesting certain changes whereupon the Amendment Act came to be introduced. The Lok Sabha considered the same on 11/12th Aug. 1976 and passed the same with certain amendments which included the incorporation of sub-section (3) to S. 97 of the Amendment Act to clarify that the provisions of the Amendment Act except those set out in sub-section (2) would apply to pending proceedings also. It may here be mentioned that in the Amendment Act, 1974, S. 101 dealt with repeal and savings and it did not contain any provision similar to sub-section (3) of S. 97. So also the Amendment Act 1976 as originally introduced did not contain sub-section (3) to S. 97 but the same was, inserted when the Bill was considered by the Lok Sabha and was later approved with the amendment by the Rajya Sabha on 23rd Aug, 1976. By sub-section (1) of S. 96 of the Amendment Act it came to be provided that all amendments in the Code made by the State Legislature or a High Court before the commencement of the said Act which are not consistent with the provisions of the Code as amended shall stand repealed. Sub-section (2) of S. 97 saves pending matters from the application of the amendments effected by the Amendment Act to the extent enumerated in the various clauses set out thereunder. Sub-section (3) of section 97 makes the amendments, except those catalogued in sub-sec (2) applicable to every suit, proceeding, appeal or application pending at, the commencement of the said Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit or proceeding, appeal or application was instituted or filed, had been acquired or had accrued before such commencement. Thus the amendments made in the Civil P.C. by the Amendment Act except those set out in Sub-section (2) of S. 97, apply to pending proceedings including appeal as well as proceedings instituted or filed after the commencement of the said enactment regardless of the fact that the right or cause of action in pursuance whereof the appeal is filed was acquired or had accrued-before such commencement. This was precisely to overcome the argument that ordinarily an amendment of this type cannot take away a vested right coming into being at the institution of the suit as expressed in a catena of decisions including the decision of this Court in Chhabildas v. Luhar Kohan, AIR 1967 Guj 7. By the insertion of S. 97(3) in the Amendment Act, the Parliament made its intention clear that it desired that the amendments made in the Code, save and except those catalogued in sub-section (2) thereof, shall affect even pending proceedings, including appeals. In pursuance of the provision contained in sub-section (2) S. 1 of the Amendment Act, the amendments were made effective from Ist Feb. 1977. The amended S. 102 reproduced earlier clearly provides that no Second Appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter thereof does not exceed Rs. 3,000/-. The suit must, therefore, be of the nature cognizable by a Court of Small Causes, the value or subject matter whereof does not exceed Rs. 3,000/- to attract the provision of S. 102 of the Code. It is the nature of the suit that is decisive, no matter whether it is tried by the Court having jurisdiction as a regular suit. The key words are any st it of the nature cognizable by Courts of Small Causes which clearly mean that the suit must be one of which the Court of Small Causes could take cognizance; it does not matter that it ultimately came to be tried as a regular suit and not in accordance with the procedure laid down for the disposal of such Small Cause suits. Merely because the suit was tried in the ordinary manner as a regular, suit, it will not cease to be a suit of the nature cognizable by the Courts of Small Causes, for what is important is the nature of the suit and not the procedure employed for the disposal thereof. (See Digambar 'Mandir v. ValubaL 63 Bom LR 58 at P. 61 : (AIR 1961 Bom. 221 at P. 223). There is no dispute before me that the suit in question being a money suit for a surn not exceeding Rs. 3,0001- would be cognizable by a Court of Small Causes.

5. S. 102 as amended by the Amendment Act bars a Second Appeal arising from a suit of the nature cognizable by Courts of Small Causes when the value or subject, matter of the suit does not exceed Rs. 3,000/-. It is conceded before me that the suit from which the Second Appeal arose answers the description mentioned in S. 102 of the Code. Since the provision of S. 102 is made applicable by S. 97(3) of the Amendment Act to pending proceedings including appeals, it follows that the Second Appeal No. 157 of 1977 filed against the judgment and decree of the learned Assistant Judge in Appeal No. 56 of 1974 dt. 20th Oct. 1976 was not competent. It was, however, urged by Mr. Mehta that no objection was taken to the maintainability of the appeal before N. H. Bhatt, J., who disposed it of on 25th, Mar. 1982. Mr. Zaveri fairly conceded that when the Second Appeal was heard and disposed of by this Court, he had omitted to raise an objection based on S. 102 of the Code to the maintainability of the appeal but argued, and in my opinion rightly, on the basis of the decision in Jeranchod v. Dakore Temple Committee, 27 Bom LR 872 at P. 876 : (AIR 1925 PC 155) that it was settled law that parties could not by acquiescence or consent confer jurisdiction on a Court which otherwise lacked it. In cases of inherent lack of jurisdiction even consent given by a party cannot confer jurisdiction. Therefore merely because Mr. Zaveri did not raise any objection as to jurisdiction or competence at the hearing of the Second Appeal, it cannot confer jurisdiction which the High Court lackeed by virtue of S. 102 of the Code as amended by the Amendment Act.

6. A party to a litigation has no inherent right of appeal unless such a right is conferred by statute. A right conferred by statute can also be taken away retrospectively by the Legislature. S. 102 as it stood before the amendment did confer a right of Second Appeal on the plaintiff as the suit as originally instituted being of a sum. exceeding Rs. 1,000/did not fall within the mischief of that provision. However, after the amendment of S. 102 and the substitution of the words 'three thousand rupees' in place of the words 'one thousand rupees, a Second Appeal in a suit of the nature cognizable by Courts of Small Causes, the value or subject matter whereof does not exceed Rs. 3,000/- is barred. Ordinarily, by virtue of S. 6 of the General Clauses Act, 1897, where any Central Act repeals any existing enactment, such repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or affect any right, privilege, obligation or liability acquired, accrued or incurred tinder the repeated enactment unless a different intention appears. That different intention is made manifest by the Parliament by the insertion ,of sub-section (3) to S. 97 of the Amendment Act. As pointed out earlier, under S. 101 of the Amendment Act, 1974, as well as under S. 97 of the Amendment Act, 1976, there was no provision similar to sub-section (3) of S. 97 subsequently inserted by the Parliament when the Amendment Act, 1 976 was taken up for consideration. The Parliament, therefore, deliberately introduced sub-section (3) to S. 97 in the Amendment Act in order to give retrospective effect to the amendments made in the Code by the said Act, except those catalogued in the various clauses of subsection (2) of S. 97 thereof. Therefore, in order to overcome the argument. that rights and causes of action vested prior to effect being given to the amendments introduced in the Code by the Amendment Act, 1976, would ordinarily be saved, the Parliament ,introduced sub-section (3) to S. 97 to make its intention clear that it desired the amendments to take effect retrospectively except those specifically saved by Sub-section (2) of S. 97. In this view that I take, S. 6 of the General ,Clauses Act can have no effect because a different intention clearly appears on a plain reading of sub-section (3) of S. 97 of the Amendment Act. There can, therefore, be no doubt that a Second Appeal could not lie against the decision of the learned Assistant Judge in Appeal No. 56 of 1974 rendered on 20th Oct 1976 as the suit was of the nature cognizable by a Court of Small Causes for recovery of a sum not exceeding Rs. 3,000/ "The omission on the part of Mr. Zaveri to point out that by virtue of the amended S. 102 of the Code the High Court was not competent to entertain and decide the Second Appeal cannot come to the rescue of the opponents defendants. No amount of consent, much less omission to raise an objection, can confer jurisdiction on a Court where no jurisdiction exists. Lack of inherent jurisdiction cannot be cured by acquiescence, consent or omission to raise an objection as to jurisdiction.

7. The decision in Bahrein Petroleum Co. Ltd. v. P. J. Pappu, AIR 1966 SC 634 which was pressed into service by Mr. Mehta can have no application to the facts of the present case, That decision turned on the language of S. 21 of the Code which in no uncertain terms provides that no objection as to the place of suing.shall be allowed by any appellate or revisional court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where the issues are settled at or before such settlement and unless there has been a consequent failure of justice. It is, therefore, clear that the language of the section itself rules out an objection as to jurisdiction based on the place of suing unless it is raised in the Court of first instance at the earliest point of time and in any case before the issues are settled and further unless there has been a consequent failure of justice. Such cases are not cases of lack of inherent jurisdiction and, therefore, if the objection is not taken in the Court of first instance at the earliest point of time and in any case before the issues Are settled and if there has been no consequent failure of justice, the appellate or revisional Court will not entertain such an argument. I am, therefore, of the opinion that the decision on which Mr. Mehta places considerable reliance has no application since the present case is one where the High Court lacked inherent jurisdiction while entertaining the Second Appeal in question.

8. Strong reliance was placed by Mr. Mehta on the decision of a Division Bench of the Bombay High. Court in Dayaram, v. Govardhandas, (1904) ILR 28 Born 458 in support of his contention that having regard to the conduct of the plaintiff in not raising an objection at the hearing of the Second Appeal and subsequently at the hearing of the First Appeal on remand this Court should decline to set at naught the judgment in Second Appeal and consequently the impugned judgment of the learned District Judge on remand. In that case a decree was passed against certain defendants including the appellant on the basis whereof attachment of certain property was made. Dayaram, the appellant, applied to raise the attachment as the representative of a religious trust on the plea that the property was in his possession as a trustee only. He set up no personal right but merely claimed to represent the trust and hence the case was governed by S. 278 and the subsequent, provisions of the Code of Civil Procedure, 1882. The trial Court decided in favour of the appellant, on, appeal the District Court reversed the decision and hence a Second Appeal was carried to the High Court. The High Court came to the conclusion that the Second Appeal was not maintainable because the appeal before the lower appellate Court was itself not maintainable. The High Court, therefore, allowed the Second Appeal to be treated as an application under S. 622 of the said Code and proceeded to decide whether it ought to set aside the order of the learned District Judge. The High Court came to the conclusion that the order of the learned District Judge was without jurisdiction but since the present appellant took no such objection before the District Court it declined to interfere in the extraordinary jurisdiction conferred by S. 622 of the Code because it felt that if it were now to set aside the order of the District Court, it would place the respondent in the position of being obliged to bring a suit to establish his right to the property in dispute and since the period of limitation had elapsed and there was no guarantee that it would be condoned (if provisions as to condonation apply) the suit would be dismissed as time barred. To avoid such a result the Court declined to interfere because it felt that it must choose the lesser of the two evils. It will, therefore, appear from the above facts that the decision not to interfere under the extraordinary jurisdiction conferred by S. 622 of the Code of 1882 had to be taken because of the compulsion of the situation. This Court is not faced with a similar compulsion because it can always accept the plea of Mr. Mehta that in the event the Court comes to the conclusion that the decision in Second Appeal is a nullity, he may be permitted to convert the Second Appeal into a Civil Revision Application which lay against the judgment of the learned Assistant Judge in appeal.

9. The result of the above discussion is that by virtue of S. 97(3) of the Amendment Act, S. 102 of the Code applied to pending proceedings also and therefore had retrospective operation. The High Court, therefore, did not have jurisdiction to entertain Second Appeal No. 157 of 1977 disposed of by N. H. Bhatt, J. by his judgment and order dt. 25th Mar. 1982. A decision of a Court lacking inherent jurisdiction is, it is well-settled, a nullity and I need not dilate on that point. The decision of the High Court in Second Appeal was, therefore, a nullity and consequently the decision of the District Court on remand in Appeal No. 56 of 1974 must also fall.

10. In the result the impugned order and decree passed by the learned District Judge in Appeal No. 56 of 1976 on 2nd Nov. 1982 must, therefore, be set aside. The decision rendered by this Court in Second Appeal No. 157 of 1977 being a nullity, the Second Appeal would ordinarily be liable to be dismissed for want of jurisdiction in view of S. 102 of the Code as amended by the Amendment Act, 1976, but in view of the request made by.Mr. Mehta that the Second Appeal may be permitted to be converted in to a revision application, I accede to that request and direct. that Second Appeal No. 157 of 1977 shall be revived, ignoring the judgment of N. H. Bhatt, J.,dt. 25th Mar. 1982 which in my view is a nullity and the same will be converted into a Revision Application and disposed of in accordance with law. While disposing of the said Revision Application the Court will take into consideration the developments referred to earlier and pass an appropriate order as to costs. The rule is made absolute accordingly with no order as to costs in the present application.

11. Rule made absolute.