- (1.) THIS revision is directed against the dismissal of an appeal by the court below upholding the preliminary objection which was raised by the respondents that there was no validly presented memorandum of appeal before the said court as required by O. XLI R. 1, C.P. C.
(2.) THE brief facts are these. THE predecessor of the plaintiff-respondents filed an application under Section 12 of the U. P. Agriculturists Relief Act, 1934 for the redemption of a usufructuary mortgage. This application was filed against Murari Lal who was the original defendant-applicant in this revision. He died during the pendency of the revision and his legal representatives were brought on record. THE trial court decreed the aforesaid suit initiated by the applicant under S. 12 of the U. P. Agriculturists Relief Act and an appeal was taken out by the defendant-appellant, Murari Lal, to this Court and the same was registered as First Appeal No. 55 of 1945 on 8th Jan., 1945. This appeal was heard by a learned single Judge who allowed the same by his order dated 4th Jan., 1961. A special appeal was filed against the judgment of the learned single Judge and the Division Bench by its judgment dated 6th July, 1965 allowed the same and set aside the judgment of the learned single Judge. It was held that the first appeal which had been filed in this Court by the defendant-appellant was not maintainable as the appeal against the trial court' s judgment and decree under S. 12 of the U. P. Agriculturists Relief Act lay to the court of the District Judge. THE operative part of the Division Bench' s judgment was as follows:- " We, therefore, direct that the record of this case should be sent to the District Judge, Aligarh who shall hear this appeal after giving sufficient notice to the parties. In the circumstances of this case, we direct the parties to bear their own costs of this Court." After the said judgment of the Division Bench, the office of this Court sent back the record of the original suit to the court of the District Judge, Aligarh in Oct., 1965. However, no copy of the judgment passed in the aforesaid special appeal was sent to the Court of the District Judge and so in the normal course, the record of the original suit was consigned to the Record Room. It was only on 21st Feb., 1968 that the application was made on behalf of Murari Lal, the defendant-appellant, in the said Court in which he stated the aforesaid facts and also filed a copy of the order of the Division Bench in the special appeal dated 6th July, 1965. Murari Lal prayed that in view of the said order an early date might be fixed for hearing of the above appeal. On the said application, the District Judge, Aligarh made a request to the office of this Court to send the record of the first appeal No. 55 of 1945 and also a copy of the judgment dated 6th July, 1965 passed by the Division Bench in the said special appeal. The office of this Court complied with the said request and when the aforesaid record had been received by the office of the District Judge, Aligarh, notice was issued to the respondents in the appeal and a date of hearing was fixed in the appeal. On behalf of the respondents, a preliminary objection was raised before the District Judge that as there was no validly presented memorandum of appeal, before his Court, therefore, there was no competent appeal and on this ground, the appeal was liable to be dismissed and there was no necessity to go into the merits of the case. The District Judge upheld the said objection and as stated above, dismissed the appeal as not maintainable on the ground that no memorandum of appeal had been presented in his Court under O. XLI R. 1 C.P.C. It is not disputed before me that in view of Sec. 27 of the U. P. Agriculturists Relief Act, the provisions of O. XLI R. 1 C. P. C. stood attracted to an appeal against the judgment of the trial court in the proceedings under S. 12 of the said Act. The District Judge upheld the preliminary objection raised on behalf of the respondents briefly on the ground that as this Court itself had held that no appeal lay in this Court but the same should have been filed in the Court of the District Judge, the memorandum of appeal presented in this Court could not be deemed to have been presented to the Court of the District Judge. He further held that this Court had no power to transfer an appeal which had been wrongly presented to it. The District Judge was of the view that if a memorandum of appeal was wrongly presented to an appellate court, then the said Court could return the memorandum of appeal to the appellant for presentation to the proper Court under O. VII R. 10 C. P. C. read with S. 107(2) C. P. C. but it had no power or jurisdiction to transfer an appeal which it had no jurisdiction to entertain to a Court of competent jurisdiction. It may further be stated that the appellant moved an application before the District Judge praying that the memorandum presented in the High Court and which had been received back by the District Judge, should be deemed to be presented in his Court and the delay should be condoned under Sec. 5 of the Indian Limitation Act. The District Judge, by his separate order dated 29th Jan., 1969 rejected the said application. The District Judge has observed in his judgment that while he rejected the prayer of the appellant to treat the memorandum of appeal presented in this Court as having been presented in his Court, he gave the appellant an opportunity to withdraw the appeal and present a fresh memorandum of appeal in his Court and then apply for condoning the delay under S. 5 of the Indian Limitation Act but the appellant did not avail of that option. Lastly, the District Judge held that the Division Bench in the aforesaid special appeal had not directed him to hear the very appeal which had been presented in this Court and there was no such binding direction in the said special appeal.
(3.) SRI G. P. Bhargava, learned counsel for the applicants in this revision, has raised the following contentions before me. The judgment of the Division Bench in the aforesaid special appeal was binding between the parties and on the court below and in this connection reliance was placed on AIR 1960 SC 941 (Satyadhyan Ghosal v. Smt. Deorajin Debi). The learned counsel said that even if the said judgment was wrong, still, it was not for the District Judge to seek to question the same or not to carry out the direction contained in the said judgment; that in the circumstances of the case, the District Judge was wrong in not allowing the application dated 24th Jan. 1969 and that the said application should have been allowed and the benefit of Section 5 of the Indian Limitation Act should have been extended to the appellant. He further submitted that in a situation like this, even if some mistake was committed by this Court in directly transferring the appeal to the Court of the District Judge, the appellant should not be made to suffer on the ground of the said mistake. The learned counsel also contended that the District Judge was wrong in holding that there was no direction in the judgment of the special appeal directing him to hear the appeal which had been filed in this Court in the first instance. The said interpretation by the District Judge of the Division Bench' s judgment was incorrect. Reliance was placed on the newly added provision contained in sub-sec. (5) of S. 24 C.P.C. which lays down as under: " 24 (5). A suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it." The learned counsel invoked the aid of AIR 1970 SC 1 (Shankar Ram Chandra v. Krishnaji Dattatraya) in support of this contention. Sri R. P. Rai, learned counsel for the plaintiffs-opposite parties, supported the judgment of the court below on the grounds contained in it. He further contended that so far as the newly added provision is concerned, it cannot be interpreted to mean that the orders which were passed in the past and which were not validly passed would get validation ex post facto on the basis of this newly added provision. In this connection, he placed reliance on a passage from Sri Jagdish Swarup' s Legislation and Interpretation 2nd Edition 1974 page 486 para. 2) which runs as follows: " Although the law is that the amended law relating to procedure operates retrospectively but it is a very misunderstood branch of the law. It is, therefore, to emphasize that it only means that pending cases although instituted under the old Act but still pending are governed by the new procedure under the amended law. It never means that the part of the old procedure already applied and concluded before the amendment came into force becomes bad or can be reopened under the new procedure after the amendment. The amendment of the procedural law will apply from and after the date when the amendment came into force and is retrospective only in the sense that even pending cases will be governed for future stage of the procedure by the amended procedure under the amended law. But this doctrine of retrospective operation does not mean that whatever procedure was correctly adopted and concluded under the old law will be re-opened for the purpose of applying the new law of procedure. That will be not merely making it retrospective but going a step further to make ex post facto the procedure, legal when applied and concluded, illegal by subsequent law. No court will permit such a consequence unless, of course, the statute expressly or by compelling implication says so." The learned counsel also relied on the following cases: (1) 1967 All WR (HC) 660 (FB) (Ram Baksh v. Board of Revenue): (2) AIR 1966 All 234 (Indraj Singh v. Smt. Savitri Kunwar); (3) AIR 1961 Cal 560 (FB) (Ajit Kumar Palit v. State);