L.P.A. No.1 of 2004,F. A. No.1572 of 2003

16th April, 2004

Petitioner Counsel: A. V. ANTURKAR
Respondent Counsel: S. G. PAGE,S. R. PAGE

Cases Cited:
Shri. Chandreshwar Bhuthanath Devasthan of Paroda Vs. Subiraj Prabhakar Naik, 2003 Vol. 105(2) BLR 915 [Para 1]
Garikapati Veeraya Vs. N. Subbiah Choudhry, AIR 1957 SC 540 [Para 11]
Jose Da Costa Vs. Bascora Sadashiva Sinai Narcornin, AIR 1975 SC 1843 [Para 12]
Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, 2003(1) ALL MR 391 (S.C.)=AIR 2003 SC 189 [Para 14]
Shiv Kirpal Singh Vs. V. V. Giri, AIR 1970 SC 2097 [Para 18]
Shyam Sunder Vs. Ram Kumar, AIR 2001 SC 2472 [Para 21]
Kanai Lal Sur Vs. Paramnidhi Sadhukhan, AIR 1957 SC 907 [Para 23]
Gurudevdatta VKSSS Maryadit Vs. State of Maharashtra, AIR 2001 SC 1980 [Para 24]
Laxminarayan Vs. Shivlal Gujar, AIR 2003 MP 49 [Para 31]
UCO Bank Vs. Roopa Ram, AIR 2003 Raj. 222 [Para 33]
Bhenoy G. Dembla and anr. Vs. M/s Prem Kutir P. Ltd., 2003(4) ALL MR 575=2003(4) Mh.L.J. 883 [Para 36]

JUDGMENT

R. M. LODHA, J.:- The Division Bench presided over by Hon'ble the Chief Justice by order dated January 15, 2004 passed in the present Letters Patent Appeal observed that the decision of the Division Bench of this Court (Goa Bench) in Shri. Chandreshwar Bhuthanath Devasthan of Paroda Vs. Subiraj Prabhakar Naik and ors., 2003 Vol. 105(2) BLR 915 deserves reconsideration.

2. The present Letters Patent Appeal presented on January, 6, 2004 is directed against the order dated December 18, 2003 passed by the learned Single Judge summarily dismissing the First Appeal arising out of the suit for possession filed on September 9, 1992.

3. In Chandreshwar Bhuthanath the Division Bench of this Court (Goa Bench) held that section 100-A as substituted by the Code of Civil Procedure (Amendment) Act, 2002 shall have retrospective effect and summarised its reasoning thus:

"46. We are summarising our reasonings as follows for our conclusion that the aforesaid Civil Procedure Code (Amendment) Act, 2002, pertaining to section 100-A will have retrospective effect:

(a) Substantive vested right of Appeal against an order of a Single Judge of the High Court in appeal against an original or appellate decree or order has been destroyed by the above amendment.

(b) In section 16 of the above Amendment Act, 2002, only three types of matters have been saved, whereas the amendment dealt with thirteen types of matters.

(c) Section 97, clause 2(n) of the Civil Procedure Code Amendment Act, 1978 expressly saved admitted and pending Letters Patent Appeals, but in the Amendment Act, 2002 such a saving has not been provided at all.

(d) Code of Civil Procedure (Amendment) Act, 1999 in section 32, clause 2(g) only Letters Patent Appeals arising out of a decision of Single Judge pertaining to an order arising out of Article 226 or 227 of the Constitution of India have been saved and consciously the Parliament has omitted the other categories of pending admitted Letters Patent Appeals, from such saving.

(e) The logic of doing away with such a right of Letters Patent Appeal appears to be that when a Single Judge of the High Court considers the entire matter in an appeal jurisdiction, hence there is no further need of an intra-Court appeal."

4. When the present Letters Patent Appeal came up for admission before the Division Bench presided over by Hon'ble the Chief Justice, it was submitted that the decision in Chandreshwar Bhuthanath requires reconsideration. The Bench in its order dated 15th January, 2004 observed thus:

"6. The learned counsel, however, submitted that the decision in Chandreshwar Bhuthanath requires reconsideration by a Larger Bench. The counsel submitted that some of the decisions which ought to have been considered, were not cited. Other decisions though referred to, have not been considered, appreciated and ratio applied in their proper perspective.

7. In this connection, attention of the Court was invited to a leading decision of the Supreme Court in Garikapati Veeraya Vs. Subbiah Choudhry and ors., AIR 1957 SC 540. No doubt, the decision has been noted by the Division Bench in Chandreshwar Bhuthanath. It is also true that the relevant principles laid down by Their Lordships of the Supreme Court in Garikapati in para 23 of the reported judgment have been quoted in para 15 by the Division Bench in Chandreshwar Bhuthanath. The counsel, however, submitted that principle No.(iii) in Garikapati would apply to the case on hand. The said principle reads thus;

"The institution of the suit carries with it the implication that all rights of appeal then inforce are preserved to the parties thereto till the rest of the career of the suit." (emphasis supplied)

It is no doubt, true that in principle No.(v), the Supreme Court stated;

"This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."

8. The Division Bench, keeping in view the provisions of section 16 of the Amendment Act, 2002 which provides for repeal and savings proceeded to consider the matter and observed that what was saved was the matters referred to in sub-section (2) of section 16 of the Amendment Act. Indisputedly, the said section did not deal with section 100-A of the Code. The Bench also noted that a similar provision was found in section 97 of the Code of Civil Procedure (Amendment) Act, 1976, wherein a specific provision was made that the appeals which had been admitted would be saved. Since there was no such provision in the Amendment Act of 2002, the right to file an appeal or to get it decided after admission of the appeal was not saved and accordingly the appeal was held not maintainable.

9. In Garikapati, the Supreme Court has held that the institution of the suit carries with it, by necessary implication all rights of appeal then in force and they are preserved to the parties till the rest of the career of the suit coupled with the fact that section 6 of the General Clauses Act,1897 declares that where the said Act or any Central Act repeals any enactment, unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. Since the right to appeal accrues in favour of a party on the date when the suit was instituted and the same is saved without prejudice to generality of the provisions in section 6 of the General Clauses Act, in our opinion, the ratio laid down by the Division Bench (Goa Bench) in Chandreshwar Bhuthanath deserves re-consideration by a Larger Bench."

5. This is how the present Full Bench has been constituted and the Letters Patent Appeal placed before us.

6. The question before us is : whether section 100-A as substituted by section 4 of the Code of Civil Procedure (Amendment) Act, 2002 shall have retrospective effect or is prospective in operation with effect from 1st July, 2002.

7. The delay in finality of the decision in civil suits has been a matter of concern for quite some time. The multiple tier of appeals resulting in the delay in finality of the decision caught the attention of the Parliament and by the Code of Civil Procedure (Amendment) Act, 1976 section 100-A was introduced in the Civil Procedure Code, 1908 (for short 'the Code') whereby further appeal in certain cases namely against the decision of the Single Judge in second appeal were barred. Thus, by introduction of section 100-A in the Code with effect from February, 1, 1977, the recourse to Letters Patent Appeal (further appeal) against the decision of the Single Judge in second appeal was taken away. However there continued to be delay in finality of the decision in some matters as still further appeal lay against the judgment of the Single Judge exercising the first appellate jurisdiction. The Malimath Committee inter-alia examined the issue of further appeal against the Judgment of the Single Judge exercising the first appellate jurisdiction and suggested that Section 100-A of the Code as introducted by the Amendment Act of 1976 be suitably amended so as to bar further appeal against the judgment of the Single Judge exercising the first appellate jurisdiction. That led the Parliament in enacting the Code of Civil Procedure (Amendment) Act, 1999 whereby the Code was sought to be amended. Inter alia the Amendment Act, 1999 provided for substitution of section 100-A of the Code by the following section 100-A:

"100-A. No further appeal in certain cases. - Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, -

(a) where any appeal from an original or appellate decree or order is heard and decided,

(b) where any writ, direction or order is issued or made on an application under Article 226 or Article 227 of the Constitution,

by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge."

8. Few provisions of the Amendment Act, 1999 created controversy and the said Amendment Act could not come into force immediately but in the meanwhile the Code of Civil Procedure (Amendment) Act, 2002 was enacted. Inter alia by section 4 of the Amendment Act, 2002, section 100-A of the Code (as substituted by section 10 of the Amendment Act, 1999), was substituted thus:

"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."

9. Section 16 of the Amendment Act, 2002 provides for repeal and savings and it reads thus -

"16. Repeal and savings.- (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897,-

(a) the provisions of section 102 of the principal Act as substituted by section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of section 5; and every such appeal shall be disposed of as if section 5 had not come into force;

(b) the provisions of rules 5,15,17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act;

(c) the provision of rule 1 of Order XX of the First Schedule as amended by section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of section 13 of this Act."

10. The Amendment Act, 2002 was brought into force on 1st July, 2002 vide notification No.S.O. 604 (E) dated 6th July, 2002. It is interesting to note that the Amendment Act, 1999 was also brought into force on 1st July, 2002 vide notification No.S.O. 603(E) dated 6th June, 2002.

11. In Garikapati Veeraya Vs. N. Subbiah Choudhry and ors., AIR 1957 SC 540, the Constitution Bench of the Supreme Court held that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. The right of 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 and 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 its decision or at the date of the filing of the appeal. The right of appeal, thus, is not a mere right of procedure but is a substantive right. This vested right of appeal can be taken away only by a subsequent enactment, if it so provided expressly or by necessary intendment and not otherwise. The Constitution Bench of the Supreme Court culled out the following principles :

"(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of 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 and 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 its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."

12. In the case of Jose Da Costa and anr. Vs. Bascora Sadashiva Sinai Narcornin and ors., AIR 1975 SC 1843, the Supreme Court considered Garikapati Veeraya and held thus :

"28. Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well-established principles. The first is that "while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment" (see Delhi Cloth and General Mills Co. Ltd. Vs. Income-tax, 54 Ind App. 421 = AIR 1927 PC 242). The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule, viz. (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the Court to which appeal lay at the commencement of the suit stands abolished (see Garikapatti Veeraya Vs. N. Subbiah Choudhary, 1957 SCR 488 = AIR 1957 SC 540) and Colonial Sugar Refining Co. Ltd. Vs. Irving, 1905 AC 369)"

13. The Supreme Court has crystallised the legal position, thus, that right of appeal is a vested right and that a vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and by no other way.

14. While dealing with the constitutional validity of section 100-A as substituted by the Amendment Act, 2002, the Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, AIR 2003 SC 189 : [2003(1) ALL MR 391 (S.C.)] observed thus-

"13. Mr. Vaidyanathan drew our attention to section 100-A which deals with intra-Court appeals. This section reads as follows:

"100-A. No further appeal in certain cases. Notwithstanding anything contained in any Letters Patent for any High Court or in any other 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 or a High Court, no further appeal shall lie from the judgment and decree of such single Judge."

14. It was submitted by Mr. Vaidyanathan that where the original decree is reversed by a single Judge of the High Court, there should be a provision for filing a Letters Patent Appeal.

15. Section 100-A deals with two types of cases which are decided by a single Judge. One is where the single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated. Where, however, an appeal is filed before the High Court against the decree of a trial Court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a single Judge or by a Division Bench, the question of there being an intra-Court appeal does not arise. It is only in cases where the value is not substantial that the rules of the High Court may provide for the regular first appeal to be heard by a single Judge. In such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily. We do not find that any prejudice would be caused to the litigants by not providing for intra Court appeal, even where the value involved is large. In such a case, the High Court by Rules, can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be found with the amended provision section 100-A."

15. Letters Patent Appeal is a substantive right is not in dispute. Merely because Letters Patent Appeal is intra court appeal, it does not cease to be substantive right or for that matter a vested right. The question before us is, does section 100-A of the Code as substituted by the Amendment Act, 2002 affect and restrict the right of further appeal from the Judgment of the Single Judge exercising the first appellate jurisdiction arising out of the suit filed prior to 1st July, 2002.

16. In Chandreshwar Bhuthanath, the Division Bench of this Court (Goa Bench) held that new section 100-A which was brought into force on 1st July, 2002 will have retrospective effect. The Division Bench held that the Parliament by substituting section 100-A by the Amendment Act, 2002 has destroyed the substantive right of appeal by way of Letters Patent Appeal pertaining to original or appellate decree or order passed by the Single Judge in appeal by the High Court. In the words of the Division Bench in Chandreshwar Bhuthanath, the amendment in no uncertain terms seeks to destroy such a substantive right of Letters Patent Appeal before a Division Bench in the matters spelt out therein. The Division Bench referred to section 16, sub-section (2) and observed that the Parliament has made it expressly clear that only three categories pertaining to section 102, Rules 5,15,17 and 18 of Order VI and Rule 1 of Order XX of the Code are saved as contemplated under section 6 of General Clauses Act, 1897 and for the other 10 amended provisions (that includes 100-A), there are no such savings. The Division Bench then referred to clause (2)(n) of section 97 of the Amendment Act, 1976 and clause (2)(g) of section 32 of the Amendment Act, 1999 and compared the said provisions with sub-section (2) of section 16 of Amendment Act, 2002 and held that in the Amendment Act, 2002, the Parliament chose to protect only three categories as set out in clauses (a), (b) and (c). The Division Bench, thus, concluded that the intendment of the Legislature by introducing section 100-A by the Amendment Act, 2002 is to destroy right of further appeal and not to save.

17. The expression "without prejudice to the generality of provisions of....." has come up for consideration before the Supreme Court.

18. In the case of Shiv Kirpal Singh and ors. Vs. V. V. Giri and ors., AIR 1970 SC 2097, the Constitution Bench of the Supreme Court held thus -

"That this is very wide is indicated by the opening sentence of sub-section (2), i.e.. "without prejudice to the generality of the provisions of sub-section (1)." It is well settled that when this expression is used anything contained in the provisions following this expression is not intended to cut down the generality of the meaning of the preceding provision. This was so held by the Privy Council in King-Emperior Vs. Sibnath Banerji. 1945 FCR 195 = (AIR 1945 PC 156)."

19. When sub-section (2) of section 16 provides that notwithstanding that the provisions in Amendment Act, 2002 have come into force or repeal under sub-section (1) has taken effect and the expression without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897, is followed by the particular clauses (a), (b) and (c), it is indicated that applicability of the generality of the provisions of section 6 of the General Clauses Act, 1897 is not cut down. The legal position is that when the general provisions are followed by certain particular provisions and when it is stated that the particular provisions are without prejudice to the general provisions, the particular provisions do not cut down the generality of the meaning of the preceding general provisions. Clauses (a), (b) and (c) of sub-section (2) of section 16 which are certain particular provisions and preceded by the expression, "without prejudice to the generality of provisions of section 6 of the General Clauses Act, 1897", obviously, the said clauses (a), (b) and (c) of sub-section (2) of section 16 do not cut down the applicability of section 6 of the General Clauses Act. The words, "without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897" occurring in sub-section (2) of section 16 preserve the applicability of section 6 though followed by particular provisions like clauses (a), (b) and (c).

20. The reasoning of the Division Bench in Chandreshwar Bhuthanath that in section 16 of the Amendment Act, 2002 only three types of matters as set out in clauses (a), (b) and (c) have been saved, is not correct and wrongly construes the expression, "without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897" preceding the said clauses. However that is not the end of the matter. The real question is : whether section 100-A substituted by the Amendment Act, 2002 exhibits necessary intendment to take away the vested right of further appeal from the judgment, decree or order of the Single Judge in the first appellate jurisdiction arising out of the suit filed prior to 1st July, 2002 and whether the use of expression "without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897" in section 16(2) could save vested right of appeal if the reading of new section 100-A does not so allow.

21. In Shyam Sunder and ors. Vs. Ram Kumar and anr., AIR 2001 SC 2472, the Supreme Court held thus -

"29. From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation such legislation does not effect the substantive rights of the parties on the date of suit or adjudication of suit unless such a legislation is retrospective and a Court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned they remain unaffected by the amendment in the enactment. We are, therefore, of the view that, where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary but an amending Act which affects the procedure is presumed to be retrospective, unless amending Act provides otherwise."

22. Whenever the question of retrospectivity of the enactment affecting the substantive right arises, the golden rule that there is presumption against the retrospective operation of a statute and that the statute is not to be construed to have a greater retrospective operation than its language requires has to be kept in mind.

23. The process of application of the enacted law has crystallised certain rules of construction. In Kanai Lal Sur Vs. Paramnidhi Sadhukhan, AIR 1957 SC 907, it was said that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. The Court must first endeavour to know what the words mean.

24. The Supreme Court in Gurudevdatta VKSSS Maryadit and ors. Vs. State of Maharashtra and ors., AIR 2001 SC 1980 emphasised that the words of a statute must be understood in the natural and ordinary sense and construed according to their grammatical meaning unless such construction leads to absurdity. The words employed in the statute must be given their ordinary meaning in the context (reading the statute) as a whole. Where the language of a statute is clear, plain and unambiguous and admits of only construction the same should be adopted.

25. It goes without saying that the grammatical meaning of the words is always safe guide in the matters of construction of the enacted law.

26. The reference to few fundamental rules of construction as noticed above is for the purpose of finding answer to the questions whether the right of Letters Patent Appeal from the judgment, decree or order of the Single Judge in the first appellate jurisdiction is retrospectively obliterated in view of new section 100-A of the Code substituted by the Amendment Act, 2002 or whether the new section 100-A is only prospective and the right of such appeal vested in the parties in respect of the suits filed prior to 1st July, 2002 is preserved or whether the new section 100-A has only limited retrospectivity.

27. The expressions "Notwithstanding", "is heard and decided" and, "no further appeal shall lie" in the new section 100-A of the Code substituted by the Amendment Act, 2002, are of vital importance and significance. What is the plain meaning of these expressions in the context they have been used? What does the grammatical meaning of these expressions convey? What were the circumstances under which the new section 100-A was brought? What is the object of section 100-A and nature of right affected? We shall advert to these aspects.

28. The non-obstante clause with which the new section begins indicates that irrespective of the right of appeal provided in Letters Patent or any other law, the provision contained therein shall override such provisions. In other words what it provides is that in spite of provision of appeal made in Letters Patent or any other law, the enactment made in section 100-A shall have full operation. The learned author Justice G. P. Singh in his monumental work 'Principles of Statutory Interpretation' makes the statement of law that ordinarily, there is a close approximation between the non-obstante clause and the enacting part of the section and the non-obstante clause may throw some light as to the scope and ambit of the enacting part in case of its ambiguity but when the enacting part is clear its scope cannot be cut down or enlarged by resort to non- obstante clause.

29. Keeping the aforesaid legal position in mind, we shall consider what is the scope of enacting part of section 100-A of the Code brought into force on 1st July, 2002. Plainly it says that no further appeal shall lie where any appeal from original decree is heard and decided by the Single Judge of the High Court. The appeal is continuation of suit and the legal pursuit of a remedy, suit, appeal or second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. When the Legislature employed the expression where any appeal from a original decree or order is heard and decided by a Single Judge of High Court, no further appeal shall lie from a judgment and decree of such a Single Judge, the Legislature expressed its intention in clear and unequivocal terms that no further appeal shall lie from the judgment and decree of a Single Judge in first appeal given on or after coming into force of the amended provision i.e., 1st July, 2002. The carefully chosen words "is heard and decided" refer to present time and a close study thereof shows that tense is simple present. The tense of a verb shows the time of an action or event. It is also the state of an action referred to. The word, 'is' in contradistinction to 'has been' is key to the clear intendment of the Legislature that further appeal is barred from the decision of the Single Judge given in appeal from original decree or order which is heard and decided on and after the new section 100-A of the Code has come into force and not the appeal which has been heard and decided before that date. The expression 'no further appeal shall lie' is the simple future tense and in its form it indicates the action that has yet to take place. Put it differently, it refers to the appeal covered by section 100-A to be not amenable to the further appellate jurisdiction after said provision has come into force. When the two expressions, 'is heard and decided and no further appeal shall lie' are read together, as they should be, the express intendment is that no further appeal arising out of an appeal from the original decree or order heard and decided by the Single Judge on and after the new section 100-A has been brought into force shall lie. To that extent the vested right of the parties to the suit instituted prior to coming into force of new section 100-A of the Code can be said to have been taken away. As the enacting part of section 100-A is clear and unambiguous, its scope cannot be enlarged by resort to non-obstante clause and bring within its ambit in its entirety taking away the scope of adjudication of the pending Letters Patent Appeals. So also section 6 of General Clauses Act, which is applicable as the expression 'without prejudice to the generality of the provisions of section 6 of the General Clauses Act' is used in section 16(2) of the Amendment Act, 2002, does not entirely save the vested right of the appeal in the parties to the suit instituted prior to 1st July, 2002 on the face of clear intention expressed in the new section 100-A of the Code. That would be doing violence to the plain language of new section 100-A substituted by Amending Act, 2002. After all close attention must be paid to the language of statutory provision for determining its scope and the language used is the most important factor to be taken into account.

30. The words 'is heard and decided'- the use of simple present tense - do not draw upon appeal heard and decided in past. These words apply to the appeal heard and decided on and after the operation of new section 100-A. It is true that it cannot be stated as an inflexible rule that use of present tense or present perfect tense is decisive of the matter but the grammatical meaning of the words is always safe guide in the matters of construction of the enacted law. The intendment of the Legislature ultimately is to be gathered from the language used, the object indicated, the nature of rights affected and the circumstances under which the enactment is brought. By Civil Procedure Code (Amendment) Act, 1976, section 100-A was introduced in the Code and as a result thereof Letters Patent Appeal against the decision of Single Judge in second appeal was barred. Now by the amended section 100-A by the Civil Procedure Code (Amendment) Act, 2002, Letters Patent Appeal against the decision of Single Judge in first appeal (or by whatever name called) is barred. The Legislature was, of course, concerned about the delay in finality of the decision in civil suits. In other words, the Legislature was concerned with pending Letters Patent Appeal arising out of the decision of the Single Judge in the first appellate jurisdiction as well as such appeals that were to be preferred subsequently. If the Legislature intended to take away vested right of appeal acquired by the parties to the suit at the time lis commenced in its entirety, it would have said so in express words but that was not done. The total retrospective operation of the new section 100-A is not manifested by express words or necessary implication. The express intendment of the Legislature as seen from the plain language employed in new section 100-A is of limited retrospectivity i.e. it takes away right of Letters Patent Appeal from the date of operation of the said enactment in respect of the suits filed before that date where the decision of the Single Judge in the High Court in the first appeal is rendered on and after the date such amendment is brought into force.

31. The question whether section 100-A as amended by Amendment Act, 2002 is prospective or retrospective came up for consideration before the Full Bench of Madhya Pradesh High Court in the case of Laxminarayan Vs. Shivlal Gujar and ors., AIR 2003 MP 49. The Full Bench observed thus -

"41. Keeping in view the aforesaid principles of interpretations, now we shall proceed to discuss what exactly is postulated under section 100-A of the Code. The sub-section (2) of section 1 of the Amending Act stipulates that the amending provisions shall come into force on such dates as the Central Government may by notification in the Official Gazette appoint and different dates may be appointed in respect of different provisions of the Act. This provision is to be read contextually regard being had to the language employed therein. Section 100-A of the Code employs the words that 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 from such single Judge. The words which are of immense signification in this provision are 'is heard and decided'. These words are used absolutely in praesenti. That apart the words 'no further appeal shall lie' are also to be conjointly read with 'is heard and decided'.

42. As has been held in the cases referred to above, the words have to be understood in their context having purposive reference to the totality of surrounding features and the true and express meaning decipherable from the import of the text. The use of the term 'is heard and decided' cannot be expanded to cover the vista that the appeals which arise from the suit instituted before 1-7-2002 are protected. Simultaneously its horizon cannot be cramped and limited to imply and connote that the appeals which have been filed prior to the cut-off date also would be reigned by the said provision. In that case the term 'no further appeal shall lie' used in the provision would lose its intrinsic etymological kernel. To say that the aforesaid provision does not impair or erode the right of appeal vested in a suitor in respect of a suit instituted prior to 1-7-2002, would be reading the provision without giving the true and actual meaning to the term 'is heard and decided'. That would tantamount to, to put it euphemistically, making the provision achromatic. In this context we may profitably refer to the three Judge Bench decision rendered in the case of R. Rajagopal Reddy (dead) by LRs. Vs. Padmini Chandrashekharan (dead) by LRs., AIR 1996 SC 238. In the aforesaid decision their Lordships were considering the operational sphere of Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988) and posed the question whether pending proceeding at various stages in the hierarchy can get encompassed by the sweep of section 4(1) of the said Act and such suit would be liable to be dismissed as laid down by that section. After referring to the report of the Law Commission, taking note of the preamble of the Act, considering section 3 which is the heart of the said Act and further referring to the decision rendered in the case of Re Athlumney, (1898)2 QB 547 and Garikapati, AIR 1957 SC 540 (Supra) and the observations made in the book on Principles of Statutory Interpretation, 5th Edition, by Justice G. P. Singh, at page 351 their Lordships in paragraphs 19 and 20 held as under:

"19. No exception can be taken to the aforesaid observation of learned author which in our view can certainly be pressed in service for judging whether the impugned section is declaratory in nature or not. Accordingly it must be held that section 4 or for the matter the Act as a whole is not a piece of declaratory or curative legislation. It creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transaction and for whom new liabilities are created by the Act.

20. Qua reason No.4, we may refer to our discussion earlier that the words 'no suit shall lie' as found in section 4(1) and 'no defence based on rights in respect of property shall be allowed' as found in section 4(2) have limited scope and operation and consequently this consideration also cannot have any effect on the conclusion which can be reached in this case. As to reason No.5, it is observed that even though the suit may include appeal and further appeals in the hierarchy, at different stages of the litigation. Section 4(1) and 4(2) cannot be made applicable to these subsequent stages as already seen by us earlier. Otherwise, they would cut across the very scheme of the Act................"

45. Another facet is required to be kept in mind. The purpose of Legislature was to curtail the second appeals in the third Court. The Legislature in its wisdom constricted the right of appeal to a singular one. To do so the Legislature used the words differently in the said section. If it desired to annul the pending appeals it could have used the words 'has been'. It could have expressly stated so. There is nothing in the statute book to exposit a clear or necessary intendment that the provision has to be made totally retrospective taking away the rights of hearing of appeals preferred before the cut-off date. The Legislature never intended to make the said provision applicable to the pending appeals. The use of words in the section does not clearly so convey. When a provision has been expressly so worded there is no justification to stretch it either backward or forward. Such stretching, in our considered opinion, is unnecessary and unwarranted. The reasoning that when the pending appeals have not been saved under section 16 of the Amending Act is totally inconsequential because of non-saving of the same does not by necessary corollary nullify the right of hearing of the pending appeals preferred before the date stipulated in the statute book. Thus, we are of the considered opinion, that no appeal which is covered within the ambit and sweep of the language used under section 100-A of the Code would lie after 1-7-2002. It is prospective to that extent and, if we allow ourselves to say so, it has limited retrospectivity by which the vested rights on a suitor to a suit filed prior to 1-7-2002 is not saved but the fate of pending appeals before the cutoff date remains unaffected.

46. Consequently we conclude and hold that the law laid down in the case of Sachish Chandra Jain (supra) that substitution of section 100-A of the Code affects the Letters Patent Appeals which have been preferred prior to 1-7-2002 and are pending for adjudication and hence, not maintainable, does not correctly state the law and we reiterate that pending appeals preferred prior to the cut-off date would be heard on merits having remained unaffected by substitution of section 100-A of the Code."

32. The Full Bench of Madhya Pradesh High Court thus, held that no appeal which is covered within the ambit and sweep of the language used under section 100-A of the Code would lie after 1st July, 2002. It is prospective to that extent and it has limited retrospectivity by which the vested rights on a suitor to a suit filed prior to 1st July, 2002 is not saved but the fate of pending appeals before cut-off date remains unaffected. This is in consonance with what we have discussed above and we find ourselves in agreement with the view of Full Bench of Madhya Pradesh High Court.

33. In the case of UCO Bank and anr. Vs. Roopa Ram and etc., AIR 2003 Raj. 222, the Division Bench of Rajasthan High Court considered the effect of section 100-A substituted amended by Code of Civil Procedure (Amendment) Act, 2002. The Division Bench of the Rajasthan High Court held thus -

"10. Thus, it clearly emerges that right of appeal is a substantive right. The vested right of appeal can be taken away only by a subsequent enactment, if so provides expressly or by necessary intendment and not otherwise. Thus, while examining the retrospectivity, it is advisable to know the object behind introducing of provision in the statute. Justice Malimath Committee examined the issue of further appeal against the judgment of the Single Judge exercising the first appellate jurisdiction. Committee recommended for suitable amendment of section 100-A of the Code of Civil Procedure with a view to provide that further appeal in this regard shall not lie. The Committee also recommended for suitable enactment by Parliament for abolition of appeal to Division Bench against the decision and order rendered by the Single Judge of the High Court in a proceeding under Articles 226 or 227 of the Constitution of India. However, by Amendment Act of 2002, appeals to Division Bench under Articles 226 and 227 of the Constitution of India have been restored, section 10 of the Civil Procedure Code (Amendment) Act, 1999 has abolished the appeal against the judgment of Single Judge of High Court in all cases. The net result of Amendment Acts of 1999 and 2002 is that where an appeal from original or appellate decree where order is heard and decided by Single Judge of the High Court, no further appeal shall lie to Division Bench of High Court. In the amending Act, the words "no further appeal shall lie" is of great significance. It clearly means that no further appeal shall be entertained in respect of appeal filed after the cut off date. Looking to the object of introducing the provision, any other interpretation would be anathema to the provision, Reading the words "heard and decided" and the words "no further appeal shall lie" conjointly, clearly indicates that vested right of appeal has been taken away by the Legislature from the cut off date i.e. 1-7-2002. It is in consonance with the intention of the Legislature to curtail the second appeal in the third Court. The Legislature in its wisdom has considered the right of appeal to a singular one. Thus, the Legislature has expressly stated that no further appeal shall lie after the appeal has been heard and decided against the judgment and decree of original Court. Thus, we are of the view that the substitution of section 100-A of the Code of Civil Procedure does not permit the Division Bench to entertain special appeal against the judgment and decree of the learned Single Judge rendered in first appeal after the cut off date i.e. 1-7-2002."

34. The Rajasthan High Court has also held that the substitution of section 100-A of the Code of Civil Procedure does not permit the Division Bench to entertain special appeal against the judgment and decree of the learned Single judge rendered in first appeal after the cut off date i.e. 1-7-2002.

35. In the case of Gandla Pannalal Bhulaxmi Vs. Managing Director, APSRTC and anr., the Full Bench of Andhra Pradesh High Court considered the question, whether the right of appeal available under the Letters Patent Act is taken away by section 100-A of the Code in respect of the matters arising under the special enactments or other instruments having the force of law. The Full Bench of the Andhra Pradesh High Court held that the newly incorporated section 100-A of the Code in clear and specific terms prohibits further appeal against the decree and judgment or order of the learned Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Full Bench further held that the Letters Patent which provides for further appeal to a Division Bench remains in tact but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law-be it against an original or appellate decree or order heard and decided by a Single Judge.

36. Our attention was drawn to a Division Bench Judgment of this Court in the case of Bhenoy G. Dembla and anr. Vs. M/s Prem Kutir P. Ltd., 2003(4) Mh.L.J. 883. In Bhenoy G. Dembla, the appeal was preferred against an order passed by the Company Judge allowing an appeal under section 10-F of the Companies Act, 1956 against an order of the Company Law Board. The maintainability of Letters Patent Appeal against the order of the Company Judge was questioned by relying upon the amended section 100-A of the Code having been brought into force with effect from 1st July, 2002. The Division Bench held thus -

"8. The object of the provisions of section 100-A, as amended, is to reduce the delay in litigation. One of the reasons for delay is perceived by the Parliament as the hierarchy of appeals and it is envisaged that a sense of finality would be imparted to adjudication by a reduction in the number of appeals. Section 100-A came into force with effect from 1st July, 2002, section 100-A, it must be noted, uses the words "where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court". The use of the word "is" would make it abundantly clear that what the legislature intended was that no further appeal should be maintainable where any appeal from an original or appellate decree or order is heard and decided after 1st July, 2002 by a Single Judge of a High Court. Therefore, the necessary intendment of section 100-A is that even if a suit or other proceeding has been instituted in a Court of competent jurisdiction prior to 1st July, 2002, the exercise of the appellate remedy against a decision of a Single Judge rendered after that date must necessarily be brought in conformity with the amended provisions of section 100-A. In other words, where the appeal from an original or appellate decree is decided by a Single Judge of a High Court after 1st July, 2002, no further appeal would be maintainable. To hold otherwise would run contrary to the plain intendment as well the object and underlying purpose of section 100-A. Undoubtedly, the general principle of law is that an appeal is a matter not of procedure but of substantive right. However, the right to file an appeal which accrues on the institution of a lis can be taken away either by express words or by necessary intendment. There can be no gain - saying the fact that in introducing the amended provisions of section 100A, the legislature was concerned as much with the existing backlog of cases as the accretion to the backlog that would accrue by the institution of fresh cases after the amended provisions were brought into force. Consequently, it would be unreasonable to attribute to the legislature the intendment that while seeking to bring into effect a provision which was intended to cure the delays of litigation, the legislature would have intended to exempt from its purview all cases which had been filed prior to the date on which the amendment was brought into force. Therefore, the necessary intendment of section 100-A is that its provisions will apply even if a suit was instituted prior to 1st July, 2002 so long as the judgment and order of a learned Single Judge of the High Court in appeal against an original or appellate decree has been rendered on and after the date on which the amendment was brought into force.

12. The principle of law which emerges is that unless a special statute expressly confers and recognizes a right of appeal before the Division Bench against the judgment and order of a single judge of the High Court in the exercise of the appellate jurisdiction, no such appeal would lie upon the enforcement of the amended provisions of section 100-A against a judgment of the Single Judge rendered on and from 1st July, 2002. In other words, where the decision of the Single Judge in the exercise of the appellate jurisdiction, against an original or appellate decree is rendered on and after 1st July, 2002 no further appeal, would lie unless the special statute in question expressly recognizes a further right of appeal to the Division Bench.

16. Before concluding the judgment, we must advert to the judgment of a Division Bench of this Court in Shri. Chandreshwar Bhuthanath Devastan of Paroda Vs. Subiraj Prabhakar Naik, 2003 Vol. 105(2) BLR 915. The Division Bench has held there that the amended provisions of section 100-A would apply also to appeals which have been filed and were admitted before 1st July, 2002 and are pending for final disposal and that even such appeals would be rendered as not being maintainable. We have reservations about the correctness of the view expressed by the Division Bench. However, we are informed that a reference has been made to a Full Bench in the course of which the Court will decide upon the correctness of the view expressed by the Division Bench. This issue does not arise in the present case since the judgment of the learned single Judge was rendered on 14th February, 2003 which was after the date on which the amended provisions were brought into force. We do not express any final opinion on the wider issue of the position of appeals which were admitted prior to 1st July, 2002, beyond what we have already said, since the matter is awaiting determination before the Full Bench."

37. We clarify that we are not concerned with the question whether section 100-A of the Code as substituted by the Amendment Act, 2002 is applicable to the appeal before the Division Bench against the Judgment and order of a Single Judge of the High Court in exercise of appellate jurisdiction under special statute and to that extent we do not express any opinion about the Full Bench decision of Andhra Pradesh High Court and the Division Bench decision of this Court in Bhenoy G. Dembla. However, insofar as the view has been taken in Bhenoy G. Dembla that the necessary intendment of section 100-A is that its provision will apply even if a suit was instituted prior to 1st July, 2002 so long as the judgment and order of a learned Single Judge of the High Court in appeal against an original decree or order has been rendered on and after the date on which the amendment was brought into force is correct.

38. The view of the Division Bench in Chandreshwar Bhuthanath that new section 100-A of the Code brought into force on 1st July, 2002 is retrospective completely and shall apply to Letters Patent Appeals which have been filed, admitted and pending is not the correct view and that judgment does not lay down the law correctly.

39. We have already discussed that section 100-A substituted by Amendment Act of 2002 has a limited retrospectivity inasmuch as appeal from an original decree or order heard and decided by a Single Judge on or after 1st July, 2002 and the judgment and decree passed therein shall not be amenable to Letters Patent Appellate Jurisdiction. However, where Letters Patent Appeal has already been preferred from the judgment and decree of the Single Judge in any appeal from an original decree or order prior to 1st July, 2002, such appeal is saved and shall be considered in accordance with the then existing law.

40. We have not discussed the bar to the recourse to Letters Patent Appeal against the decision of the Single Judge in second appeal as it is not necessary and the said bar was brought into force by Amendment Act, 1976 and not a new bar under amended section 100-A.

41. The result of the foregoing discussion may here be shortly summarised :

i) Section 100-A in the Civil Procedure Code, 1908 substituted by section 4 of the Code of Civil Procedure (Amendment) Act, 2002 takes away the right of Letters Patent Appeal on and from 1st July, 2002 in respect of the suit filed before that date where the judgment or order of the learned Single Judge of the High Court in appeal against an original decree or order from such suit is rendered on and after 1st July, 2002 i.e., the date on which the amendment is brought into force. Put it briefly, no Letters Patent Appeal shall lie from the judgment, decree or order of a Single Judge in the first appeal (or by whatever name called) given on or after coming into force of the new section 100-A i.e. 1st July, 2002.

ii) The provisions of section 100-A in the Code of Civil Procedure, 1908 substituted by section 4 of the Code of Civil Procedure (Amendment) Act, 2002 shall not apply to the judgment and order of the Single Judge of the High Court in appeal against an original decree or order rendered before 1st July, 2002 and the Letters Patent Appeal preferred against such judgment or order on or after 1st July, 2002.

iii) In relation to the suit instituted prior to 1st July, 2002 and the judgment or order of the Single Judge of the High Court in appeal against an original decree or order rendered before 1st July, 2002, the pending Letters Patent Appeal as on 1st July, 2002 preferred against such judgment and order of the Single Judge shall remain unaffected by section 100-A of the Code of Civil Procedure, 1908 as substituted by section 4 of the Code of Civil Procedure (Amendment) Act, 2002.

iv) In other words, section 100-A as substituted by Code of Civil Procedure (Amendment) Act, 2002 has a limited retrospectivity as indicated in clause (i) above and to that extent vested right of the parties to the suit filed prior to 1st July, 2002 is extinguished. The fate of Letters Patent Appeal arising out of any appeal from an original decree or order heard and decided by a Single Judge prior to 1st July, 2002 remains unaffected by the new section 100-A of the Code.

42. Let the papers of this Letters Patent Appeal be placed before the Division Bench for appropriate order.

Order accordingly.