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Case Number

180 of 1977

Attorney(S)

V.P.Mohankumar
P.C.Balakrishna Menon
K.P.Sreekumar

Judges

Mr. Justice P. Subramonian Poti
Mr. Justice K.K. Narendran

Acts

provisions of s 6 of the general clauses act. 1897, (a) (m) the provisions of s. 100 of the principal act,
s. 100 of the code of civil procedure by the code of civil procedure (amendment) act 1976, S. 100
provisions of s. 6 of the general clauses act, 1897.
S. 6 of the general clauses act 1897
S. 97 (3) of the amendment act of 1976
clause (d) of sub - section (1) of s. 100
1977 sub - section (d) of s. 100 (1)
act of 1976 s. 100 of the code
s. 4 of kerala act 13 of 1957.
act in sub - section (1) of s 97
clause (m) of sub section (2).
sub - section (2) of s. 97,

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The case was referred by the learned single judge, Namboodiripad J., to a division bench when it came up for admission. The referral arose because it was argued before the single judge that Section 100 of the Code of Civil Procedure (CPC), as it stood prior to the 1976 amendment, should govern the admission of second appeals that arose from suits instituted before the amendment came into force. Counsel (Sri Balakrishna Menon) urged that if the matter had been considered for admission before 1-2-1977 (the date the amendment took effect) the appeal would have been admitted; only the change in law raised the question whether a "substantial question of law" arose. The division bench therefore first examined whether the pre-amendment provision of s.100 should apply to the appeal before the court, and if not, whether the appeal should be admitted under the amended provision.

Legal Issues Presented

Whether Section 100 of the Code of Civil Procedure as it stood prior to 1-2-1977 applies to the appeal in question (i.e., whether the pre-amendment right to bring a second appeal survives the 1976 amendment).
Whether Section 6 of the General Clauses Act, 1897 operates to save the right of appeal under the pre-amendment s.100 in suits instituted before 1-2-1977.
How to interpret Section 97(2)(m) and Section 97(3) of the 1976 amendment with respect to (a) appeals admitted before commencement of the amendment, (b) appeals filed before but not admitted before commencement, and (c) appeals filed after commencement.

Arguments of the Parties

Appellant's Arguments

Counsel (Sri Balakrishna Menon) submitted that if the appeal had been considered for admission before 1-2-1977 (the date the amendment came into force) the Court would have admitted it — implying that the pre-amendment s.100 should apply.
It was argued that Section 6 of the General Clauses Act, 1897 saves accrued or vested rights and therefore the pre-amendment sub‑section (d) of Section 100(1) (inserted earlier by Kerala Act 13 of 1957) must be taken into account for suits instituted prior to 1-2-1977; if the case falls within that sub‑section the second appeal should be entertained.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Garikapati v. Subbiah Choudhry (AIR 1957 SC 540)	Authority for the proposition that the right of appeal is a vested right and repeal of a procedural statute does not, unless contrary intention appears, take away vested rights.	Relied upon as part of a series of Supreme Court decisions establishing that a right of appeal is vested and survives repeal unless a contrary intention is shown.
State of Bombay v. M/s S. G. Films Exchange (AIR 1960 SC 980)	Support for the general principle that procedural rights of appeal are vested and preserved on repeal unless the repealing statute indicates otherwise.	Used to reinforce the proposition that the repeal does not operate retrospectively to take away vested appeal rights without express or implied intention.
Jose Da Costa v. Bascora (AIR 1975 SC 1843)	Further authority affirming that the right of appeal is vested and must be treated as such when statutes are amended or repealed.	Invoked to show consistent Supreme Court authority for the principle that vested appellate rights are not ousted by a subsequent procedural amendment unless the new statute clearly intends that result.

Court's Reasoning and Analysis

The court's analysis proceeded in stages, grounded on the text of the amendment and the saving provisions:

The court first recited the pre-amendment text of s.100 CPC (including clause (d) inserted by Kerala Act 13 of 1957) and observed that the 1976 amendment repealed prior state-level insertions unless consistent with the principal act as amended. As a consequence, sub-section (d) of s.100(1) would be automatically repealed by the amendment unless saved.
The court then reviewed Section 6 of the General Clauses Act, 1897 which ordinarily saves rights, privileges and remedies accrued or incurred under a repealed enactment (the text of s.6 was set out in full). It acknowledged the general principle that a right of appeal is a vested right — a position supported by the cited Supreme Court decisions — and that repeal will not take away vested appellate rights unless a contrary intention appears.
Attention was focused on Section 97 of the 1976 amendment. Section 97(3) was quoted and interpreted: it provides that, save as otherwise provided in s.97(2), the provisions of the principal act as amended apply to suits, proceedings and appeals pending at commencement, notwithstanding that the right or cause of action had accrued before commencement. The court read s.97(3) as an unambiguous expression of a contrary intention to displace pre-amendment substantive or vested procedural rights, except as saved by s.97(2).
The court examined s.97(2), particularly clause (m), which provides that the substituted s.100 (by s.37 of the amendment) shall not apply to appeals from appellate decrees or orders which had been admitted before the commencement of s.37 after hearing under Order XLI Rule 11; every such admitted appeal shall be dealt with as if s.37 had not come into force. The court limited the operation of this saving to appeals already admitted before the commencement of s.37.
The court rejected a broader construction that would read the phrase "without prejudice to the generality of the provisions of s.6 of the General Clauses Act, 1897" as preserving all pre-amendment rights for suits instituted prior to the amendment. The court reasoned that such a reading would nullify s.97(3) and render clause (m) of s.97(2) otiose. In short, giving s.6 an expansive saving effect that preserved every right would defeat the specific scheme and intent of the amendment legislation.
On this textual and purposive basis, the court concluded that the only appeals protected to be dealt with as if s.37 had not come into force are those that had already been admitted before commencement of s.37. Appeals that had not been admitted (even if filed earlier) and appeals filed after the commencement are to be governed by the amended s.100.
Applying that conclusion to the appeal before it, the court found that the appellant could not legitimately contend that a substantial question of law arose under the pre-amendment provision; accordingly, the appeal could not be admitted under the standards of the pre-amendment s.100 and therefore had to be dismissed.

Holding and Implications

Final Holding: The appeal is DISMISSED.

Direct consequences and implications as derived from the opinion:

Only second appeals that had been admitted before the commencement of s.37 (the substituted s.100) of the 1976 amendment are to be dealt with as if the amendment had not come into force; such admitted appeals are governed by the pre-amendment s.100 provisions (including sub-section (d) where previously applicable).
Appeals that were not admitted (even though filed before 1-2-1977) and appeals filed after 1-2-1977 are governed by the amended s.100, and the pre-amendment provisions do not apply to them.
The appellant in this matter could not demonstrate a substantial question of law under the pre-amendment scheme and therefore had no entitlement to admission of the second appeal; the appeal was dismissed.
No broader precedent or novel rule beyond this statutory interpretation was announced by the opinion; the decision applies the amendment's saving and non-saving provisions to the procedural posture of appeals (admitted versus not admitted) and resolves the present appeal accordingly.

End of summary.

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Sainuddin v. Pokkunhi

1. Our learned brother namboodiripad j. Referred this case to a division bench, When it came up before him for admission. Evidently this was because it was urged before the learned judge that notwithstanding the amendment to s. 100 of the code of civil procedure by the code of civil procedure (amendment) act 1976, S. 100 as it stood prior to the amendment must apply in the matter of admission of second appeals arising from suits filed before the date of coming into force of the amendment act, 1976. The learned judge felt the question important enough to be heard by a division bench. Counsel sri. Balakrishna menon urged before us that had the case been one which had come up for admission prior to 1 - 2 - 1977 the date on which the amendment act came into force, This court would have admitted the appeal and it is only because of the change in the law that the question whether a substantial question of law arises for decision is posed. Therefore, We will first consider whether the plea that to the appeal before us s. 100 as it stood prior to 1 - 2 - 1977 should apply is well - founded.

2. Prior to amendment effected to the code by the amendment act of 1976 s. 100 of the code of civil procedure which was in force in kerala read thus:

"100. Second appeal - (1) save where otherwise expressly provided in the body of this code or by any other law for the time being in force, An appeal shall lie to the high court from every decree passed in appeal by any court subordinate to a high court, On any of the following grounds, Namely: -

(a) the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this code or by any other law for the time being is force, Which may possibly have produced error or defect in the decision of the case upon the merits.

(d) the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the court of instance on such question.

(2) an appeal may lie under this section from an appellate decree passed ex parte. "

clause (d) of sub - section (1) of s. 100 was inserted by s. 4 of kerala act 13 of 1957. The amendment act in sub - section (1) of s 97 repeals all amendments made and all provisions inserted in the principal act by any state legislature or a high court of a state before the commencement of the amendment act, Except in so far as such amendment or provision was consistent with the provisions of the principal act as amended by the amendment act. Thus automatically sub - s (d) of s. 100 (1) stands repealed. Notwithstanding this, According to counsel S. 6 of the general clauses act 1897 saves the right of appeal to this court under circumstances contemplated in s. 100 (1) of the code of civil procedure as it stood prior to 1 - 2 - 1977 in other words, By operation of s. 6 of the general clauses act, In adjudging the right of appeal arising from a suit instituted prior to 1 - 2 - 1977 sub - section (d) of s. 100 (1) also must be taken note of. It the case fell within that sub - section the second appeal should be entertained.

3. S. 6 of the general clauses act 1897 runs thus:

"6. Whether this act, Or any central act or regulation made after the commencement of this act, Repeals any enactment hitherto made or hereafter to be made, Then, Unless a different intention appears, The repeal shall not -

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, Privilege, Obligation or liability acquired, Accrued or incurred under any enactment so repealed; or

(d) affect any penalty, Forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, Legal proceeding or remedy in respect of any such right, Privilege, Obligation, Liability, Penalty, Forfeiture or punishment as aforesaid; and any such investigation, Legal proceeding or remedy may be instituted, Continued or enforced, And any such penalty, Forfeiture or punishment may be imposed as if the repealing act or regulation had not been passed. "

4. That the right of appeal is a vested right is a question well - settled. Such right of appeal may be found in the provisions of law relating to procedure but nevertheless it would be a vested right. If a law relating to procedure which confers a right of appeal is repeated unless the contrary intention appears the repeal shall not take away the vested rights, Such as, The right of appeal available to the party under the law repealed that this is the position has been held by the supreme court in a series of decisions, Vide garikapati v. Subbiah choudhry (air. 1957 sc. 540), State of bombay v. M/s. S. G. Films exchange (air. 1960 sc 980) and jose da costa v. Bascora (air. 1975 sc. 1843). If the new statute does not take away the right of appeal, But impairs it by imposing onerous conditions on the right of exercise of that appeal, Then again that would not be operative retrospectively unless the statute expressly or by implication indicates this. The question for examination in every case of repeal of an existing statute or existing provisions of the statute in this context would be whether any vested right is sought to be affected by the repealing statute and it is whether there is intention in the repealing statute to keep alive the rights under the earlier

statute.

5. S. 97 (3) of the amendment act of 1976 may be relevant in this context. That sub - section reads:

"97. (3) save as otherwise provided in sub - section (2). The provisions of the principal act, 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, Or cause of action, In pursuance of which such suit, Proceeding, Appeal or application is instituted or filed, Had been acquired or had accrued before such commencement."

this sub - section categorically provides that the principal act as amended in 1976 applies to every suit, Proceeding, Appeal or application pending at the commencement of the act as well as those instituted or filed after the commencement. That is so notwithstanding the fact that the right, Or cause of action pursuant to which such suit, Proceeding, Appeal or application is instituted or filed has been acquired or accrued before the commencement of the act. The contrary intention not to keep alive the substantive or vested right under the code of civil procedure as in force prior to 1 - 2 - 1977 is in unambiguous terms expressed in this sub - section. But there is a saving provision. The sub - section starts with the words 'save as otherwise provided in sub - section (2). ". Therefore except in so tar as provision is made in sub - section (2) of s. 97, No vested right under the code of civil procedure prior to its amendment survives the amendment. Necessarily therefore an examination on the scopes of sub - section (2) of s. 97 is called for. Sub - section (2) runs thus:

"97. (2) notwithstanding that the provisions of this act have come into force or the repeal under sub - section (1) has taken effect, And without prejudice to the generality of the provisions of s 6 of the general clauses act. 1897,

(m) the provisions of s. 100 of the principal act, As substituted by s. 37 of this act, Shall not apply to or affect any appeal from an appellate decree or order which had been admitted, Before the commencement of the said s. 37, After hearing under r. 11 of order xli, And every such admitted appeal shall be dealt with as if the said s 37 had not come into force;"

we are concerned only with clause (m) for the purpose of this case and that is why that clause alone is extracted here by reason of sub - section (3) the position would be that even second appeals admitted by this court and pending disposal would have to be disposed of in the light of the provisions of the code of civil procedure as amended. In other words, Even an appeal already admitted by this court would have to be disposed of in accordance with the amended law. Such a result is avoided by providing for exemption in the case of second appeals filed in this court and admitted before the commencement of s. 97, Namely, 1 - 2 - 1977. In all those cases s. 100 (1) (d) would apply. The appeal would have to be disposed of as if there was no amendment by the amendment act. The question before us is whether appeals not yet filed on the date of the amendment act but filed later would also receive the same treatment. There is also the question whether appeals filed before 1 - 2 - 1977 but not admitted would also come within the exception evidently on the terms of clause (m). Reliance is placed upon the words "without prejudice to the generality of the provisions of s. 6 of the general clauses act, 1897. This provision in the general clauses act, No doubt, Keeps alive the rights accrued to a party and normally the right to file an appeal from the proceedings arises to a person on the date of institution of the proceedings. But s. 6 of the general clauses act itself mentions 'unless contrary intention appears'. The contrary intention is indicated in sub - section (3) as well as in clause (m) of sub section (2). The limit to which the right survives is provided for in clause (m) and to read the words "without prejudice to the generality of the provisions of s. 6 of the general clauses act, 1897" as one enabling a construction that all rights under the act as unamended would still survive in respect of suits instituted prior to the commencement of the act would be to nullify sub - section (3) and also to render the specific provision in clause (m) otiose and irrelevant. In other words, Such a construction would annihilate sub - section (3). Sub section (2) would appear then not as exception but as general rule and that would go contra to sub - section (3). Therefore the words "without prejudice to the generality of the provisions of s. 6 of the general clauses act, 1897" do not lend to the construction that all rights under the code before amendment survive, Notwithstanding the amendment.

6. The result is that while second appeals already admitted would have to be disposed of in accordance with the law prior to the amendment which came into force on 1 - 2 - 1977, Appeals which have not been so admitted though filed earlier and appeals filed after 1 - 2 - 1977 would be governed by the provisions of s. 100 as amended.

if that be the case, The appellant cannot contenders that there is a case for admission there is no substantial question of law arising for decision. Hence the appeal is dismissed. Dismissed.

Sainuddin v. Pokkunhi

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sainuddin v. Pokkunhi

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