Anil Kumar v. Shammy (2002 (3) KLT 852): A Critique

(By P. Chandrasekhar, Advocate, Ernakulam)

In Anil Kumar v. Shammy (2002 (3) KLT 852) it has been held that normally in a successful prosecution under S.138 of the Negotiable Instruments Act, 1881, a direction under S.357 of the Code of Criminal Procedure, 1973, should follow. A general direction has also been issued in that decision that if there are sufficient and compelling reasons, the Court must specify such reasons in the judgment and then only chose not to invoke the powers under S.357 of the Cr.P.C. All subordinate courts were directed to comply the said direction zealously. The Court also imposed jail sentence in default of payment of compensation.

S.357 of Cr.P.C. empowers Criminal Courts which imposes a sentence of fine or a sentence of which fine is a part, order the whole or any part of the fine recovered to be applied in the payment of compensation for any loss or injury caused by the offence, when compensation in the opinion of the Court, recoverable by such person in a civil court. The said Section also stipulates that when a court imposes a sentence of which fine does not form part, the court may when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the Act for which the accused person has been so sentenced.

Interpreting S.357 of Cr.P.C, Supreme Court, in Sarawan Singh v. State of Punjab (AIR 1978 SC 1529) held as follows:

"In awarding compensation it is necessary for the court to decide whether the case is a fit one in which compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the accused to pay a compensation has to be determined. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation for, imposing a default sentence for non-payment of fine would not achieve the object. If the accused is in a position to pay the compensation to the injured or his dependents to which they are entitled to, there could be no reason for the court not directing such compensation. When a person, who caused injury due to negligence or is made vicariously liable is bound to pay compensation it is only appropriate to direct payment by the accused who is guilty of causing an injury with the necessary Mens Rea to pay compensation for the person who has suffered injury."

In the said decision Supreme Court also cautioned subordinate courts as follows:

"In awarding compensation as cautioned by this Court in a decision reported in (1977) 3 SCR 132: (AIR 1977 SC 1323) the Court should not first consider what compensation ought to be awarded to the heirs of the deceased and then impose a fine which is higher than the compensation. It is the duty of the court to take into account the nature of the crime, the injury suffered, the justness of the claim for compensation, the capacity of the accused to pay and other relevant circumstances in fixing the amount of fine or compensation."

Whether to award compensation and the quantum thereof will, therefore, depend on the facts and circumstances of each case. The intention of S.357 of Cr.P.C. is for settling the claim for once for all by doing away the need for a further claim in a civil court and to avoid needless worry and expenses to both sides. The proceedings under S.357 of Cr.P.C. is, therefore, of civil nature. As pointed out by the Supreme Court in the decision referred above, the purpose will not be served by imposing a default jail sentence for non payment. As held in Rajendran v. Jose (2001 (3 JKIT 431) compensation is recoverable as if it is a fine. S.431 of Cr.P.C. provides for recovery of fine. The two ways are (a) issue a warrant for the levy of the amount by attachment and sale of ^any movable property belonging to the offender, and (b) issue warrant to the Collector of the District authorising him to realize the amount as arrears of land revenue from the movable Or immovable property, or both, of the defaulter.

Sarawan Singh's ease and Rajendran's case, do not appear to have been brought to the notice of the court while rendering Anil Kumar's case. It is respectfully submitted that Anil Kumar's case requires reconsideration.

Death Sentence : The Need for a Rethinking

(By John. S. Ralph, Advocate, Cochin)

Dhananjoy Chaterjee was hanged on the 14th of August 2004. For violating the womanhood and committing murder on a minor girl. In this 2lst century; in this country on the eve of its 57th Independence day! After fourteen years in the condemned cell. And on the birthday of the hanged! Are we not shocked ?

The debate over the punishment of awarding the death sentence is a long standing one all over the world. But the debate should be to the manner in which the delinquents should be treated if found guilty of serious offences.

The sentence of death is necessarily a deterrent one. It cannot reform the delinquent. The fear of death sentence cannot also prevent an offender from committing an offence by making him “fear about the punishment” since hard core criminals are least bothered about the resultant punishment. One cannot even think that Nathuram Godse or Kehar Sing were having a hope that they will be spared from the gallows. The statistics which shows that the number of murderers in many countries has come down after the abolishment of the death sentence in those countries is totally irrelevant and illogical. One cannot find that the culprits lost interest in killing since the State is not interested in hanging them. Relying on statistics on matters like this is the most unskilled way of studying things in a socio-political situation. The statistics will show that 66% of the Prime Ministers from the Nehru family were murdered by the terrorists. The finding based on this statistics to the effect that electing a Prime Minister from the Nehru Family will result in a terrorist attack on him or she will be totally absurd. So let us forget about what the statistical results shows. The crimes in each society differ from one another. Serial rapists and murderers are very common in developed countries like America. But even with our great population we can point out only a few Ripper Ramachandrans or Raman Raghavans.

The social status, poverty, prestige, false prestige, political views and a large number of sociological factors are there behind the crimes. The neurological/ psychological reasons stand on a different footing. The ‘making of a criminal by the society’ is multi faceted. Another category of criminals are there who commits murders for monetary gains. We are bothered for the moment only about the manner in which the resultant punishment should be carried out. It is proved that in many cases, the delinquents had never shown any repentance for their acts. A historical incident can be gathered from the case of Bhagath Singh who has been treated as a martyr of our struggle for freedom. Recently the Sikhs have announced that they are elevating Bhindranvala as a Martyr. Had Bhindranvala faced a trial and condemned to death, he would not have shown any repentance for his acts which he considered to be were for his people believing or following a common God or a common cause. Are these persons criminals? and should they deserve the sentence of death? What will be the result of letting persons like them at large after a decade term in penitentiary? A person does not become dangerous to the society and liable to be judicially murdered because he killed a certain person or persons. The motive behind the same has to be deciphered. If there is a likelihood of them committing like crimes, shouldn't they deserve capital punishment? If so are we wrong in treating Bhagath Singh a Martyr? Can we pardon the killing only because the victim was a foreigner? Was the murdered not our master? And was it not against our principles of non violence through which we attained the goal? So what punishment Bhagath Singh deserves?

Take the example of a murder which originated from a family feud and resulted in sweeping the entire victim family as is common in many North Indian States. There is no likelihood of the offender repeating the crime since he attained his goal. He may not be interested in even killing an insect. In such a case can we say that he had done a rarest of the rarest act of brutality and thus deserves capital punishment? He is not a potential danger any more and if so should the society eliminate him who had done an act for his self preservation. In our country, the death sentence is being awarded to persons found guilty of murder, which means the result of his act was the loss of life. India has witnessed those corporate/economic crimes which claimed more lives than any other massacres as in the case of Bhopal Gas Tragedy. Another form of white collar crime, which is a threat to a citizen is the police atrocities like in the Rajan case. Was any one found guilty and sentenced to a term in prison? It is under these circumstances the necessity of the capital punishment be evaluated. More than 80 countries have abolished death sentence and it is being carried out in many developed countries including India. But it has to be reconsidered in this age of 'genetic rectification". Every crime is justified when looked at the root cause through genetic orders or disorders. If that can be rectified or cured, the delinquent can be brought back to the society as a potentially good citizen. Even a criminal who commits murder for money can be rectified and rehabilitated with some jobs after his term in the galley. If till then he cannot be matured to a person useful to the society, he can be kept in prison for a term without parole. The same is being practiced in many countries through counselling and medication. India is considered to have one of the best medical faculties in the world. Then why are we not trying it ? The so called "hardened criminals" who are dangerous to the society" are more psychic patients than deliberate murderers . A large number of innocent persons were executed in the mid 20^lh century due to political reasons. The public conscience was shocked and the same resulted in the amendment of our law relating to death sentence. Formerly the sentence of death was the rule and life imprisonment was the exception.

The sentence of death is one which cannot be revoked. The relevancy of advanced science plays a corrective role here. The use of advanced science in detecting crimes and collecting evidence is increasing day by day. The interest shown by the courts and investigating agencies in advanced science should also be extended to the treatment of the criminals rather than hanging them as hard core criminals. The words of Justice Krishna Iyer is worth mentioning here. “A potentially good person successfully processed into a hardent delinquent, thanks to the penal illiteracy of the prison system; the court must restore the man”. Let the life be there till it is taken back by its giver and let the gibbets be a part of our history, the history of non violence.

C.P.C. Mutilated

(By V.K. Sathyavan Nair, Kottayam)

"The more you study, the Civil Procedure Code", wrote M.C. Chagla, C.J. (as he then was), "more you realise what an admirable piece of legislation it is". (Foreword to Sonavala's Treatise on the Law of Execution Proceedings). Nevertheless changes are inevitable in order to simplify the legal machinery and make it more adapted to the needs of changing times. The appalling back-log of cases resulting in uncontrollable docket crisis is a precipitous area which threatens the credibility of the system itself. Expedition and cost to the community and the litigant are important factors which should be taken into consideration in modifying the Code. Every effort should be made to simplify and rationalise the system while evolving and formulating new rules governing the process of litigation.

Fair, Cheap and Expeditious trial?

Despite all these, the recent changes brought by Act 46 of 1999 and Act 22 of 2002 which have come into force on 1.7.2002 may lead to chaos and confusion in the conduct of affairs in the course of judicial proceeding. It may even defeat the very object of the legislation, namely, ensuring a fair, cheap and expeditious trial of civil suits and proceedings. The amendments, in effect, further complicate the procedure and delay the dispensation of justice.

Service of Summons:Let me point out some instances of infirmities in the changes. The necessity for serving a summons is based on the maxim 'audi alterum partem' and the only object of service is to give notice to the party so that he might be aware of and be able to resist the suit if he wishes so. The normal mode of service is personal service and in addition to that summons can be sent by post. The service of summons may be made in the following methods under the amended provisions.

(a) Registerd post acknowledgment due

(b) Speed post

(c) Courier Services approved by the court

(d) Any other means provided by the rules made by the High Court.

Now under the new R.9A of O. V the Court may in addition to the service of summons by court under R.9, permit plaintiff to effect personal service of summons. The wording of sub-r. 4 of R.9 of O. V is quite unintelligible and especially the words' by such mode of service of summons as is referred to in sub-r.(3) (except by registered post acknowledgment due), the provisions of R.21 shall not apply' make confused reading. R.21 provides for service of summons when defendant resides within the jurisdiction of another court. Summons may be sent from one court to another court. Does sub-r. (4) means that in the case of summons sent by registered post acknowledgment due provisions of R.21 shall apply? Such an interpretation will lead to meaningless results. To avoid delay, the best but simple method would have been to allow service of summons by registered post in all cases in the first instance itself.

In this context it may be remembered that High Court of Kerala introduced sub-r.(3) of R.9 of O. V by an amendment conferring a power on the court to send the first summons by registered post. It was a welcomed change. But in 1979 KLT 866 the High Court held that R.9(3) is inconsistent with R.19A inserted by Amendment Act 104 of 1976 and so it stands repealed. As R.19A has been omitted now reintroduction of R.9(3) as amended earlier by Kerala High Court can be considered. It would expedite and simplify the procedure regarding service of summons.

Trial by Commissioner

Reading of new R.(4) together with existing R.(5) of O. XVIII, at the first blush, may lead to the interpretation that recording of evidence by Commissioner is not permitted in appealable cases. R.(4) of O. XVIII as it stood before the amendment by CPC Amendment Act 22 of 2002 reads: 'The evidence of the witness in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the Judge'. Now that rule is changed and a new method is introduced. In every case, the examination-in-chief of a witness shall be given by affidavit and cross-examination and re-examination shall be taken either by the court or by the Commissioner appointed by it. The new R.(4) is a general rule and it do not distinguish between appealable and non-appealable cases. Earlier rules 5 and 8 have been amended by CPC Amendment Act 104 of 1976 with a view to making clear that in a case in which appeal is allowed, the evidence should be taken down in writing by the Judge or in his presence and under his personal superintendence by any other person, or may be dictated by the Judge directly on a typewriter or may be mechanically recorded; as for example, by a tape recorder. But suitable modifications have not been made in Rr.(5) and (8) in the light of new R.(4) and that might have been the reason for the confusion in deciding whether new R.4 is applicable to every case, whether appealable or not. Moreover new R.4A of O.XXVI provides for recording of statements on Commission notwithstanding O.XVIII (see R. 19 of O. XVIII).

In many cases, the efficacy and purpose of examination of parties and witnesses in the presence of the Judge will be defeated if the evidence is recorded by the Commissioner. It denies the court to watch the witnesses and note their demeanour. There is no doubt that it is an additional burden on the litigant.

Filing appeals before trial courts?

The rationale behind the amendment of R.9 of O. XLI is not at all discernible. The memorandum of appeal shall be entertained by the court which passed the decree. But the rule is silent as to what shall be done after registration of the appeal. R.13 which provided for giving notice to court where decree appealed from is also omitted. The provision for transmission of papers to appellate court has also been omitted. The reason for the changes may be to avoid delay in transmitting records to the appellate court. But the new rule empowering the trial court to entertain the appeal is preposterous and counter productive. It complicates the procedure and causes more delay than filing the appeal before the Appellate Court. It may result in great hardship and financial burden to the litigant. No doubt it is an unwarranted amendment.

Ill-drawn, ill-arranged and incomplete:

I have only referred to some important amendments - There are new provisions which make interesting reading 'In every plaint, facts shall be proved by affidavit' reads amended S.26(2). It s a good example of bad syntax. Can filing of frivolous and vexatious suits be checked by insisting an affidavit in support of plaint? R. 15(4) of O. VI says that affidavit shall be filed in support of pleadings so that it is applicable in the case of written statements also. The amendment serves no purpose except that it adds to the burden of the litigant unnecessarily.

Sub-r. (l)of R.11 of O.XLI reads: 'The appellate court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal'. The existing R.11(i) confers power on the appellate court to dismiss appeal without sending notice to lower court. After omitting certain words the present session was inserted without adverting to the object of the rule and proper construction of sentence.

The time limits prescribed by the amendments are unrealistic and may result in miscarriage of justice. To find out whether any amended provision is applicable to pending proceedings or not a minute scrutiny of the lengthy clauses dealing with repeals and saving is unavoidable. Whitely Stokes, the author of 'The Anglo Indian Codes' commented about the Code of 1859 as 'ill-drawn, ill-arranged and incomplete'. The same can be said of the recent CPC amendments also. The changes have mutilated the 'admirable piece .of legislation'.

It is hoped that the short comings and infirmities will be taken into consideration while exercising powers under S.122 of CPC to amend the rules in the First Schedule in the light of the recent changes.

Critique to Madhavan V. Narayandas - 2002(3) KLT 493

(By G. Krishna Kumar, Advocate, Ernakulam)

This Article is intended only to share my thought on the decision rendered by the Hon'ble High Court in Madhavan v. Narayandas, 2002 (3) KLT 493 by which it was held that the High Court will have to invoke the Revisional powers under S.115 of CPC only subject to the mandate of the amended proviso and further held that Revision will not lie against an order except if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings in which such order is passed.

With utmost respect to the learned single Judge it is pointed out that the Learned single Judge has not considered that the proviso to 115 is not newly added and mere deletion of the Proviso (b) to S.115 the High Court's jurisdiction will not affect in revision to interfere with non final orders which if allowed to stand would even if occasion to failure of justice or cause irreparable injury to a party.

The questions discussed herein are (1) Whether the High Court's hands are tied due to the new amendment to interfere with non-final Order even if it causes failure of justice or cause irreparable injury to a party?

(2) Whether the Proviso in a Section can be interpreted so as to defeat the Section itself?

Point No. 1:

The Hon'ble High Court in Para 10 of the judgment held that "The Legislature did not, chose to delete the existing proviso and introduce a fresh proviso. It must be assumed that compelling reasons were there to report to this exercise." But in fact the Proviso (a) and (b) to the section were not in the Code and it was added by Act 104 of 1976. As per amendment the Legislature deleted the Proviso (b) and Proviso (a) was not newly introduced and it was in existence since 1976 Amendment.

Revisional powers of High Court are visitatorial and supervisory in nature. If any court below passed an illegal order the High Court can correct such order by exercising the Revisional powers and High Court cannot shirk its duties in exercising Revisional jurisdiction by saying that only final orders stricto senso will be revisable. Latin maxim 'Actus curie Neminem Gravabit' which says that an act of a court shall prejudice none. By applying this principle, the Honourable High Court of Kerala in Gopala Vijayan v. Raveendran (1999 (2) KLT 47) held that "inherent powers of the court can be exercised where a party is injured by the Act of court and further held that the court is justified in the interest of justice to invoke inherent powers under S.151.

The Apex Court in a landmark decision Jang Singh v. Brij Lai (AIR 1966 SC 1631) speaking through His Lordship Justice Hidayathulla held that "there is no higher principle for the guidance of the court than that one that no act of court should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by mistake of the court he should be restored to the position he would have occupied but for that mistake.

Laws are means and end is justice and ultimate function of judiciary is to render justice to the parties in a lis. A statute is to be interpreted as a whole. Interpretation of isolated section will cause miscarriage of justice. S.115 of CPC is to be interpreted after absorbing the logic and purpose for which it was introduced. Here one has to follow golden rule of interpretation.

S.151 of the Code saves inherent powers of the Court. It is a non obstante Clause which has over riding effect. So if an order is illegal and if it not revisable due to the bar under Proviso to S.115 the court can invoke inherent powers to meet the end of justice. In view of notwithstanding clause in 151 r/w. S.115, the High Court has the power to revise an illegal order even if it is hit by the proviso to S.115.

It is well settled principle that procedures are handmade to justice and court cannot deny justice clinging on technicalities. The Apex Court in Lilly Thomas v. Union of India (2000) 6 SCC 224) held that "Justice is a virtue which transcends all barriers and rules, procedures or technicalities of Law, cannot be stand in the way of administration of justice" and further held that the law should bend before justice. If the High Court finds that the order passed by the court below has caused gross injustice to a party in a lis, the High Court has ample power to interfere. Contrary approach in giving prominence to law and rules instead of dispensation of justice is like "tying the horse behind the cart."

Point No. 2:

Whether proviso in a section can defeat the language and purpose of the main Section?

Proviso is an exception to the main rule. Normal function of a proviso is to except something out of the enactment or to qualify something out of the enactment or to qualify something enacted therein. But the proviso would be within the power of enactment. Lord Watson in West Darby Union v. Metropolitan Life Assurance Co. (1987) AC 647 P 652 (H.L.) held that "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it, you cannot derive these provisions by implication from a proviso."

The Apex Court in Dwaraka Prasad v. Dwarakadas (AIR) 1975 SC 1758) held that "When on a fair construction the principal provision is clear, a proviso cannot expand or limit it. In A.N. Seligal v. Rajaram Sheoran (AIR 1991 SC 1406 at 1414) the Hon'ble Supreme Court held that "Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within it express terms".

In a landmark decision Macbeth v. Ashly (1874) 2 SC and DIV. 352 (HL) -cited in page 168 of Principles of Statutory Interpretation by - Justice Singh) House of Lords held that proviso is normally in the nature of qualification or exception and therefore it does not wholly nullify the enactment. Exceptions cannot be allowed to swallow up the general Rule. This aspect considered by the Hon'ble Supreme Court in Raghuthilakathirtha Swami (Sree) v. State of Mysore (AIR 1966 SC 172) and in Director of Education (Secretary) v. Pushpendra Kumar (AIR 1998 SC 7230) and held that "A provision in the nature of an exception cannot be construed as to subsume the main provisions and thereby nullify the right conferred by the main provision."

The Privy Council in Madras and Southern Maharastra Railway Co. Ltd. v. Beyevenda Municipality (AIR 1944 PC 71 at 72 & 73) held that "whereas in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly fall within its express terms."

The Division Bench of the High Court of Kerala in Madhayan v. Excise Inspector (2000 (1) KLT 311 Para. 10) dealing with the proviso to S.36 of Abkari Act held that "requirement under the proviso is clearly linked with the procedure to be followed while considering search and that in terms of the Code. Category of persons to be called upon to attend and witness the search is indicated in the proviso and they have really nothing to do with mandatory or directory nature of provision."

The language in the S.115 of CPC is very clear and unambiguous which prescribes under which circumstances revision will lie to High Court. As the language is clear the proviso cannot defeat the main section. In view of the principle laid down in the above decisions, it can very well say that the proviso has no overriding effect over S.115 and hence the proviso as it exists now after new amendment does not negative or dilute the power conferred on the High Court under S.115 of CPC to the extend of completely taking back the powers conferred under the main section.

So in my humble view, fortified by the decision cited above, the decision in Madhava v. Narayandas require reconsideration.

KESAVA PILLAI - 2004 (1) KLT 55(F.B.) IS IT GOOD LAW?

(By G. Krishna Kumrn, Advcvate, Ernakulam)

This Article is intended to analyze the decision rendered by tiie Hon'ble High Court in Kesava Pillai v. State of Kerala (2004 (1) KLT 55 (F.B.)) wherein it was held that, in view of the newly introduced S. 100 (A) of C.P.C (Amendment Act 22 of 2002), appeal against the decision of single Judge under S.5 (2) of Kerala High Court Act, will not lie after 1.7.2002, and the AFA preferred was dismissed, eventhough it arose in a suit which was instituted prior to 1.7.02. The Full Bench in the above decision held that "No litigant can have a substantive tight for a further appeal after 1.7.2002 on the ground that proceedings from which the appeal arose were instituted prior to 1.7:2002."

The decisions of the Apex Court and various authorities whereby the Principles of Statutory Interpretation are now well settled, do not appear to have been brought to the notice of the Full Bench which rendered the decision in Kesava Pillai's case,

Eventhough an appeal is in the realm of procedure, it is not a procedure in itself. An appeal is a right of entering a Superior Court and invoking its aid and interposition to redress an error of the court below. According to His Lordship Justice Hidayathuliah1 "Though procedure does surround an appeal, the central idea is a right." Right of appeal is a right vested in the suitor at time of institution of the original proceeding. Any change in the law relating to appeals, after institution of the original proceeding, which adversely touches this vested right is presumed not to be retrospective and will not affect the rights of the parties. For example, if original proceedings are initiated prior to the C.P.C. Amendment Act 2002, unless otherwise it is specifically mentioned that S. 100 (A) is equally applicable to the proceedings initiated before the amendment Act came into force S. 100 (A) is not applicable to proceedings initiated prior to 1.7.2002.

According to Maxwell2 "When the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such right". Similar question arose before the Privy Council3 wherein it was held that "provisions which touch aright in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment ornecessary intendment". The Hon'ble Supreme Court considered this aspect in a 4landmark case. In that case the suit was instituted on 22.4.49 before the Sub court. The suit was valued at Rs.11,400/. The trial court dismissed the suit. On 4.3.55 the Andhra High Court accepted the appeal and allowed the same. The High Court refused to grant leave to appeal to Supreme Court for the reason that the suit was valued only at Rs.11,400/, without considering the point that as per S.3 of the Govt. of India Act 1935 the appellant had the right to appeal to the Federal Court which was replaced by Supreme Court. Finally it was held that the suit, out of which the application arose, having been instituted prior to the date of coming into force of the Indian 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 of reversal being in a suit of value above Rs.10,000/, the applicant had a vested right of appeal to the Federal Court under the provision so fold C.P.C. r/w Government of India Act 1935 and the Federal Court (Enlargement of Jurisdiction)Act 1947. It was held in paragraph 24 of the said decision "in the case before us the suit was instituted on 22.4.49 and as per principles established by the decisions referred to above the right of appeal vested in the parties thereto at that date and (sic) is to be governed by the law as it prevailed on the date, that is to say, on that date the parties acquired the right, if unsuccessful, to go up in appeal from the Sub-court to the High Court and from the High Court to the Federal Court". It was further held in the same judgment that right to 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; 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 filing of appeal." It was further held that the vested right of appeal can be taken away only by a subsequent enactment providing therefore expressly or by necessary intendment, and not otherwise.

A question regarding the applicability of new enactment to a pending proceeding arose before the Kings Bench Division5. As per S. 146(1) of the Law of Property Act 1925, a landlord served a notice to repair, on a tenant and subsequently started proceedings claiming possessionon the ground of want of repair. During the pendency, the Leasehold Property (Repairs) Act 1938 came into effect. According to this new Act, after the service of a counter notice by the tenant, the landlord could proceed to enforce the forfeiture clause of the lease only with the leave of the court, which may be granted only in the circumstances specified in the Act. The Court of Appeal held that the new Act did not have a retrospective operation and it would not affectthe rights which the landlord acquired by proceeding under the Law of Property Act6. In yet another decision by Supreme Court held that a change in law restricting grounds of appeal will not apply to the suit instituted earlier.

In a recent decision7, the Apex Court considered the question: Does a right of appeal accrue to a claimant under the M.V. Act 1939 on the institution of the claim petition in the M. A.C.T., notwithstanding its repeal by the M.V. Act 1988? Answering the question, it was held: "Unless the new Act expressly or by necessary implication makes the provisions applicable retrospectively, right of appeal will crystalise on the appellant on institution of application in Tribunal of first instance". Finally it was held that appellant's right to appeal is governed by the old Act eventhough the new Act came into force. Similar question arose Before the Division Bench of the High Court under S. 13 (1) of Kerala Civil Court Amendment Act8 In that decision it was held that eventhough the Amendment Act came into force on 27.3.1996, the right of appeal vested on the litigants who were parties in the original proceedings initiated prior to the date on which the ne w Act came into force (i .e. on 27.3.1996), the law relating to appeal will be governed by the then law.

In the light of above discussion, let us examine whether the right to prefer AFA u/S. 5(2) of the Kerala High Court Act, conferred on the litigants who are parties to the original proceedings initiated prior to the CPC Amendment Act, is taken away with retrospective effect by the newly ' introduced S. 100(A). S.100(A) of C.P.C is as follows:

"S.100(A). No further appeal in certain cases. Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."

The language employed by the Legislature in S.100(A) is clear and unambiguous. There is no express or implied indication that the provision is equally applicable to original proceedings initiated prior to 1.7.2002. To preserve the right of appeal, vested at the time of institution of original proceedings, saving clause is not necessary. Contra to take away such right, there should be express or implied indication that the provision shall have retrospective effect and will be applicable to pending matters as appeal is vested right.

In my humble view, the decision of the Full Bench in Kesava Pillai v. State of Kerala (2004 (1) KLT 55) requires reconsideration, as certain crucial aspects, as indicated above have escaped notice of the Full Bench.

___________________________________________________________________

Foot Note:

1. Radhakrishnav. Sridhar AIR 1950 Nag. 177 P. 184 F.B.

2. Maxwell, Interpretation of Statutes, 11thEdn. P. 212.

3. Tata Iron and Steel Co. Ltd, v. Chief Revenue Authority AIR 1923 P.C. 148.

4. Garikapati v. Subbaiah Choudharee AIR 1957 SC 540.

5. National Real Estate & Finance Co. Ltd. v. Hassan (1939) 2 KB 61.

6. Kasibai v. Mahadu AIR 1965 SC 703.

7. Ramesh Singh v. Chintha Devi (1996) 3 SCC 142.

8. Kunnappadi Kalyani v. Lekhraj 1996 (2) KLT 106.