- (1.) THESE are two appeals by defendants Nos. 1 and 2, Mehtabchand and Bhanwarlal, from the judgment of the District Judge, Jaipur City, dated the 28th of January, 1948 confirming the judgment and decree of the Munsif, East Jaipur City, dated the month of July, 1947, by which the defendants have been restrained from opening doors towards the plaintiff's staircase, and have been further directed to close the doors which have been held to be recently opened by them.
(2.) THE plaintiffs Sah Nanoolal, Sardarmal and Devkumar filed a suit against Daroga Gulabchand in the court of Munsif East, Jaipur on the 30th of January, 1942 with the allegation that the defendant had opened a new doorway in his house leading to the staircase of the plaintiff's house on or about the 21st of January, 1942, and they prayed for an injunction against the defendant for closing the door and for an injunction restraining him from constructing any such doorways in future. On the 7th February, 1942, the plaintiffs filed another suit against the same defendant alleging that the defendant had, after the institution of the first suit, opened two more doorways leading towards the staircase of the plaintiff's house on the 5th of February, 1942. THEy claimed that the new doorways may be closed and the plaintiffs may be allowed Rs. 20/-by way of damages. Both these suits were simultaneously tried by the Munsif. THE defendant pleaded that two of the disputed doors were very bid and the third was constructed by the father of the defendant himself when he purchased this house. THE Munsif decided both the suits by one judgment on the 30th of July, 1942, and decreed the claim of the plaintiffs in so far as it related to closing of the disputed doorways, but dismissed the claim of the plaintiffs for damages. THE District Judge. Jaipur on the 25th of September, 1943 confirmed the decision of the Munsif at d rejected the defendant's appeal. THE defendant went in appeal to the then High Court, Jaipur, which allowed the appeal of the defendant and set aside the decree of the court below on the ground that the defendant was benami purchaser of the property, in which the disputed doorways were constructed, and that it was necessary to implead Bhanwarlal as one of the defendants in this suit, in whose name the title deeds of the property stood. THE case was, therefore,' remained for de novo trial with the direction to add Bhanwarlal as one of the defendants and after trying both the suits simultaneously, decided them on the 10th of July, 1947. THE findings were not different from those that were arrived at previously by him. THE case then went to the court of the District Judge, who, on the 28th of January, 1948, confirmed the decree of the Munsif. THE defendants have now come to this court on the grounds that the decision of the courts below on the question of fact that the disputed doorways are new is erroneous. The first Appellate Court having confirmed the decree of the trial court, no finding of fact can be agitated in a second appeal under the provisions of section 100 of the Jaipur Code of Civ 1 Procedure of 1943. But it has been contended by the appellants that as these suits were instituted at the time the Jaipur Code of Civil Procedure, Samwat 1987, was in force, and whereas under section 608 of that Code issues of fact could be agitated in a second appeal, questions of fact can be agitated and decided in this second appeal inspite of the fact that the Jaipur Code of Civil Procedure, Samwat 1987, (hereafter referred to as the old Jaipur Code of Civil Procedure) has been repealed by the Jaipur Code of Civil Procedure 1943. The grounds of appeal specified in section 100 of the new Jaipur Code of Civil Procedure did not find any place in section 608 of the old code, which runs as follows :- " (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 Chief Court from every decree passed in appeal by any court subordinate to it. (2) An appeal may lie under this section from an appellate decree passed ex parte " Further there is no such provision in the old Code as is provided by section 101 of the new Code. Consequently Under the provisions of section 608 of the old Jaipur Code of Civil Procedure it was competent for the parties to file a second appeal to contest a finding of fact of the first appellate court, but the position has been changed by the new Code of Civil Procedure, under which questions of fact cannot be so agitated in a second appeal. The question, which, therefore, arises, in this case, is whether it is open to the appellate Court in these second appeals to challenge the concurrent findings of fact of both the Courts below, simply because the suits were instituted before the new Code of Civil Procedure came into force. It may be observed that ordinarily by virtue of sec. 6 of the General Clauses Act and in accordance with the general principals of law laid down by the decision of their Lordships of the Privy Council in the Colonial Sugar Refining Company, Limited Vs. Irving (1905 Appeal Cases 369), a right of appeal is more than a matter of procedure, and the alteration of the law of procedure would not retro-act upon it. In I. L. R. 06 Calcutta 512, it has been held by Rankin C. J. that 'a suit and all appeals from the decree made therein are to be regarded as one "legal proceeding" on the principle stated by West J. in Chinto Joshi vs. Krishnaji Narayan (I. L. R. 3 Bom. 214) "that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings connected' by an intrinsic unity". . . . . . Now the reasoning of the Judicial Committee in the Colonial Sugar Refining Company's case is a conclusive authority to show that rights of appeal are not matters of procedure, and that the right to enter the superior court is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior court. If the latter proposition be accepted, I can see no intermediate point at which to resist the conclusion that the right arises at the date of the suit. It does not arise as regards court B alone, when the suit is instituted in court A and as regards court C when the first appeal is lodged before Court B. A "present right of appeal" (of section 154 of the Code of Civil Procedure) is a different matter. The principle must, I think, involve that an admixture of different systems is not to be applied to a single case. It is quite true that the suitor cannot enter Court C without going through Court B, but neither can he enter Court B till Court A has given its decision. The right must be a right to take the matter to Court C in due course of the existing law. " Section 6 of the Jaipur General Glauses Act, 1944, lays down : "where any Act or Regulation made before or after the commence-ment of this act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under 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; It, therefore, becomes evident by a reference to section 6 of the General Clauses Act and to the cases referred to above that in this case the rights as regards the filing of an appeal are concerned would be governed by the Code of Civil Procedure in force at the time of the institution of the suit, but the position has been altered by section 154 of the new Code of Civil Procedure which lays down : "nothing in this Code shall affect any present right of appeal which shall have accrued to any party at its commencement". By section 154 only such rights of appeal under the old Code of Civil Procedure have been preserved as can be regarded present rights of appeal. In 9 Indian Cases 937, the High Court of Madras has held that "the new Code of Civil Procedure does not deprive a litigant of the right of appeal which he had under the old Code even if the right could not be exercised immediately on the introduction of the new Code". Reliance has been placed on the decision in Colonial Sugar Refining Company Limited vs. Irving in this case. Regarding section 154 of the Code of the Civil Procedure it has been observed in this judgment that: "it is argued that the words, "present right of appeal which shall have accrued", nave by necessary intendment taken away the right to appeal if the right was not capable of being immediately exercised at the time of introduction of the Code. We are not inclined to accept this construction, though we confess the matter is by no means free from doubt. We think the words relied on do not mean anything more than that no right of appeal which has become vested in a litigant, to use the language of their Lordships of the Privy Council, shall be affected by the present Code". Contrary view has been held by the High Courts of Calcutta and Lahore and the Court of Judicial Commissioner Sind in 15 Indian Cases 679, 14 Indian Cases 53, 8 Indian Cases 3, 16 Indian Cases 834, 15 Indian Cases 725 and 19 Indian Cases 348. In 15 Indian Cases 725 the decision of the Madras High Court referred to above has been discussed and the case in 56 Calcutta and the provisions of section 6 of the General Clauses Act have also been considered fully. Regarding the Madras case it has been observed: In that case, it was held that where a person has filed an appeal under the old Civil Procedure Code of 1882, which gave him a right of second appeal if the decision when against him, the passing of the new Code of 1908, which did not give a right of second appeal in a similar case, did not take away the appellant's right of second appeal. With reference to the contention that section 154 of the new Code had, by necessary intendment, deprived the appellant of the right of second appeal which had not accrued to him at the commencement of that Code, the learned Judges observed that the words "present right of appeal" as used in the said section did not mean anything more than that no right of appeal which has been vested in a litigant shall be affected by the present Code". "we have given our very best consideration to the arguments of Mr. Sukh Dial and to the reasoning on which decision of the Madras High Court is based, but with all due respect to the learned Judges of that Court, we think that they have not placed a right construction on section 154 of the new Code, and we are not therefore, prepared to follow their ruling. . . . . . . . . . . . "in the above section (Section 6 of the General Clauses Act) the words "unless a different intention appears" are of special importance, and with reference to those words, the question of decision in the present case is whether the intention of the Legislature, as expressed in section 154, read with Order XLIII, rule 1 (u) of the new Civil Procedure Code, was not to take away the right of appeal which the present appellant had under the provisions of section 562 of the old Code, which was in force when the suit was instituted, but which had not actually accrued to him at the time when the new Code came into operation, inasmuch as the order of remand, with reference to which the right of appeal is claimed, was not possessed until after the 1st January, 1909. In our opinion, the words "any present right of appeal "in section 154 of the new Code mean a right of appeal in esse and not in passe, a right of appeal which had actually come into existence and was capable of being exercised by the aggrieved party at the commencement of the new Code by reason of the decree or order appealed from having been passed before the 1st January, 1909. We venture to think that the learned Judges of the Madras High Court have not kept in view the full significance of the word "present' in the phrase "any present right of appeal" contained in the said section, as we are ourselves unable to understand how it could be said without the language of the section being unduly strained, that the appellant before the Madras High Court or the appellant before us could reasonably claim that a present right of appeal had accrued to him at the commencement of the new Code in respect of an order which was not passed by the lower Appellate Court until long after that Code had come into force. Upon the view of the Madras High Court, the word "present" in section 154 is redundant, for it is not disputed by Mr. Sukh Dial that if that word were eliminated from the section, the decision of the said High Court would have been exactly the same as it is now, and it seems to us that the learned Judges would then have expressed themselves with greater certainty as to the correctness of their opinion. They say in their Judgment : "we confess the matter is by no means free from doubt," and we are inclined to think that their doubt was due to the fact that the word "present" in the section in question rather indicated the intention of the legislature only to save a right of appeal which could be exercised in presenti at the commencement of the Code of 1908, and this could only be the case if the order appealed from was passed before January, 1909. " Similar observations regarding the significance of the word "present right of appeal" appearing in section 154 have been made in the judgments of the Calcutta and Lahore High Courts and the Judicial Commissioner's Court, Sind, noted above. Section 6 of the General Clauses Act would have governed the present case if section 154 had not found its place in the new Code of Civil Procedure, because section 6 has been qualified by the words "unless a different intention appears," which only mean that the provisions of section 154 of the new Code of Civil Procedure shall have preference over the provisions of section 6 of the General Clauses Act. The words "present right of appeal" appearing in section 154 obviously cannot include such rights of appeal as have not accrued to the litigants, and as are incapable of being exercised at the time the new Code of Civil Procedure came into force. As observed in the judgment of the Lahore case referred to above the word ''present" would be redundant in section 154 if it is understood to include such vested rights of appeal as are not capable of being exercised at the time the new Code came into force. The position of this case is exactly similar to that of the Lahore case referred to above, and I see no reason; to differ from the views expressed by the learned Judges of the Punjab Chief Court in their judgment of that case. Section 154 of the Code of Civil Procedure has safeguarded only present rights of appeal accrued to any party under the old Code of Civil Procedure at its commencement Only, which by necessary implication only mean that the other vested rights of appeal which are not present rights of appeal, have been taken away by the new Code. In view of section 154 and 101 of the Code of Civil Procedure, the objections raised by the appellants regarding concurrent findings of fact of the lower court cannot be considered in this second appeal. Mr. "bhandari has clearly conceded that except questions of fact he has nothing to urge in this appeal.
(3.) BOTH the appeals therefore, fail and are dismissed with costs. .;