NARAYANDAS NANDKISHORE Vs. JAGAN NATH AND ORS.
HIGH COURT OF MADHYA PRADESH
Jagan Nath And Ors.
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Abdul Hakim Khan, J. -
(1.)THIS second appeal arises out of a suit for preemption brought by Naraindas, the Plaintiff -Appellant (hereinafter referred to as the pre -emptor) against Jagannath, Defendant -Respondent (hereinafter referred to as the purchaser) under a sale deed dated 18th September 1984. The purchaser opposed the claim, his main ground being, that before the purchase he had secured the consent of the preemptor and that in consequence the preemptor lost his right to preempt.
(2.)BOTH the lower Courts have found against the preemptor, holding that prior to the sale, the purchaser had obtained the consent of the pre -emptor and as such he cannot bring this suit now. The learned Counsel for the Appellant has urged before us that the judgments of the lower Courts are wrong both in law as well as on facts. The learned Counsel for the Respondent has preferred a preliminary objection that we cannot hear the case on facts as it is contrary to Section 100 Code of Civil Procedure, this being a second appeal. We have heard full arguments of both the sides and we proceed to decide the preliminary objection first.
(3.)THE Code of Civil Procedure (Indian Union) came into force in the State of Madhya Bharat from 22nd December 1949. Before that we had Majmooa Zabta Dewani, Gwalior, of Bam vat 1966, according to which civil cases were decided. Section 525 of the Gawalior Zabta Dewani allowed questions of facts as well as law to be agitated in a second appeal, provided the value of the suit in the Court of first instance was over Rs. 600. The valuation of this suit in the trial Court was Rs. 1800. This procedure continued right up to 22nd December 1949 and it goes without saying that after it ceased to be the law, its provisions would not apply to appeals in the future. Bat what about the pending appeals i.e. appeals that have been filed before the new Code of Civil Procedure came into force?
It is admitted on all hands that according to Section 100, Code of Civil Procedure, a second appeal would lie on a point of law only and that no question of fact can be raided in it. It is a well -established principle of law (reference to which has been made in 2 Madhya Bharat Law Reporter (231) that no statute, unless it be a statute dealing with procedure only, should be construed to have a retrospective effect, unless the statute either expressly or impliedly so provides. It has been authoritatively settled that the right of appeal is not a mere matter of procedure, but is a vested right. In the judgment referred to above brother Dixit has noted a number of rulings on the point and notable among them is the Colonial Sugar Refining Co. Ltd. y. Irving, 1905 A.C. 869 :, 74 L.J. P.C. 77). This is a decision of the Privy Council and is a conclusive authority, which sets all controversy at rest. It is now a generally accepted view that a right of appeal is not a matter of procedure and that the right to enter the superior Court of appeal is deemed to arise to a litigant before any decision is given by the inferior Court. In other words, the right to appeal is regarded as a substantive right, which remains unaffected by any change in the procedure.
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