ALLAHABAD HIGH COURT

                                Oriental Insurance Co. Ltd.

                                              Vs.

                                      Dhanram Singh,

                                 F.A.F.O. No.636 of 1989

                           (N.N. Mithal and G.D. Dubey, JJ.)

                                         04.12.1989

                                       JUDGEMENT

G.D. Dubey, J.

1. When this appeal first came before us, we were tentatively of the opinion that
it would not be maintainable under the provisions of Section 173 of the Motor
Vehicles Act, 1988, since the proceedings arose under the old Motor Vehicles
Act. After hearing the learned counsel for the appellant, however, we disposed
of the matter by our order dated 4th August, 1989 (reported in AIR 1990
Allahabad 30) holding that even an appeal arising out of proceedings under
Section 110-A of the Motor Vehicles Act, 1939 would now be maintainable
under Section 173 of the Motor Vehicles Act, 1988.The appellant has now
moved an application for review of our earlier decision on the ground that while
disposing of the question of maintainability of the appeal under Section 173 of
the new Act, we have wrongly directed that such appeals must also comply with
the conditions as are laid down in the section. It is contended that this aspect of
the matter was also urged on earlier occasion but due to some oversight, this has
not been considered in the light of the submissions made then.Having heard the
learned counsel for the appellant at some length, we do feel that the cases that
were cited earlier and also during the arguments now, the appellant did raise the
question that an appeal under the old Motor Vehicles Act would lie under the
new Act and that such appeal would be subject to the same conditions as were
applicable to it under the repealed Act. We have, therefore, heard the
submissions made by the counsel on that aspect again in the light of various
cases touching upon the point involved herein.
2. The earlier case on which reliance has been placed by the learned counsel for
the appellant is Nagendra Nath Bose v. Mon Mohan Singha Roy, 1 In this case
some of landlords (decree holder) had instituted a suit for rent against the tenant
of a tenure for rent. The suit was decreed for realization of Rs. 1306-15 Annas
and was put in execution. The tenure of the judgment debtor was put up to sale
and one Satish Chandra Singh Chaudhury had purchased the same. Thereupon
the judgment-debtor has applied to get the sale set aside but his case was
dismissed for default. Against that order he preferred an appeal to the District
Judge who dismissed it on the ground that it could not be entertained inasmuch
as the provision of the amended Section 174, Tenancy Act had not been
complied with by making the deposit required by sub-section 5 of that section.
It was held in this case that right of appeal is a substantive right and cannot be
affected by any amendment unless it appears that the legislation desires to do so
either expressly or through necessary intendment.

3. The second case on which reliance has been placed is H. K. Dada (India
Ltd.) v. State of Madhya Pradesh, 2 In this case appellant assessee had
submitted returns to the Sales Tax Officer, Akela. The Sales Officer on
inspection of accounts book was not satisfied about his correctness and was of
opinion that taxable turn over was Rs. 2,00,000/-. The Sales Tax Officer has
submitted the case to the Assistant Commissioner. The Assistant Commissioner
issued a notice and after hearing the assessee passed an order of assessment. As
against this order the assessee preferred an appeal to the Sales Tax
Commissioner Madhya Pradesh under section 22(1), Central Provinces and
Berar Sales Tax Act, 1947. This appeal was not accompanied by a proof of
payment of the tax in respect of which the appeal has been preferred. Ultimately
the authority declined to admit the appeal. The assessee moved Board of
Revenue Madhya Pradesh by a revision application against the order of Sales
Tax Commissioner contending that his appeal was not governed by the
provision of Section 22, sub-section (1) of the Act as amended after institution
of the proceeding but was governed by the proviso to Section 21(2) of the Act
as it stood when the proceedings were started. On these facts the Supreme Court
had observed that the amendment of proviso has placed a substantial restriction
on the assessee's right of appeal. It was held that imposition of such a restriction
by amendment of this section cannot affect the assessee's right of appeal from a
decision in a proceeding which commenced prior to such amendment where
right of appeal was free from such restriction under the section as it stood at the
time of commencement of the proceeding.

4. The third case law on which reliance has been placed is Garikapati Veeraya
v. N. Subbiah Choudhary, 3 In this case suit had been filed before the
Constitution of India had come into force. The valuation was above Rs. 10,000/-
but below Rs. 20,000/-. At that time the appeal was maintainable to Federal
Courts if the valuation of suit was above Rs. 10,000/-. By subsequent changes
in law the Federal Courts had been abolished and the Constitution of India came
into force. The valuation necessary for appeal to Supreme Court was raised to
Rs. 20,000/-. On these facts the majority judgment was that the right of appeal
is not a mere matter of procedure but it is a substantive right. The institution of
suit carries with it by implication, that all rights of appeal then in force are
preserved to the parties thereto till rest of the career of the suit. The observation
of majority are formulated in paragraph 23 of the judgment and reads as under
:-

       (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.
5. This was a very special case in which the provision of Article 132 of the
Constitution of India was interpreted. The Supreme Court had interpreted the
Article 134 (2 of the Act) which provided for the removal of all suits, appeals
and proceedings civil or criminal pending in Federal Court at commencement of
the Constitution to the Supreme Court and invested the Supreme Court with
jurisdiction to hear and determine the same. After discussing a catena of the
cases of various High Courts the Supreme Court had come to the conclusions
that as the Supreme Court had substituted the Federal Court the appeal would
lie to it even the valuation of the appeal was below 20,000/-. The right of appeal
vested in the appellant as on the date of suit was upheld.

6. The last case law relied upon is State of Bombay v. Supreme General Films
Exchange Ltd., 4 In this case the suit was filed prior to 1-4-1954. On this date
the Court-fees Act (Bombay Amendment Act, 1954) had come into force
leaving enhanced Court-fee. Appellant had paid the enhanced Court-fee
according to this amended Act. After termination of the appeal the appellant
had prayed for refund of the Court-fee. It was observed by the Hon'ble Supreme
Court that the enhancement of Court-fee placed a burden and restriction on the
appellant. His right of appeal was to be governed by the unamended provision
and directed the refund of the Court-fee.

7. In all above cases the general proposition is that an amending Act cannot
impair the right of appeal until the amendment provision makes an express
provision or by necessary intendment makes the provision applicable to the
present proceeding.

8. All the case laws except that of AIR 1957 Supreme Court 540 were relating
to the provision where amendment has been made in the section conferring right
of appeal to a suitor. In the present case the old Act has been completely
scrapped from the Statute Book and a new Act has come into force before the
appeal has been filed in this Court. Hence the question arises that whether the
appeal would be governed by the Act which is no longer on the statute book.

9. We have examined in extenso the provisions of Section 217 of the new Act.
However, sub-section (4) of Section 217 needs attention. It reads as under:-
       (4) The mention of particular matters in this section shall not be held to
       prejudice or affect the general application of Section 6 of the General
       Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
10. The above clause has to be read with Section 6 of the General Clause Act.
The relevant portion of the Section 6 of the General Clauses Act reads as
under:-

       "Where this Act, or any (Central Act) or Regulation made after the
       commencement of this Act, repeals any enactment hitherto made or
       hereafter to be made, then, unless a different intention appears, the repeal
       shall not a-
       (a) to (d) ... ... ... ... ... ... ...
       (e) affect any investigation, legal proceeding or remedy in respect of any
       such right, privilege, obligation, liability, penalty, forfeiture or
       punishment as aforesaid and any such investigation, legal proceeding or
       remedy may be instituted, continued or enforced, and any such penalty,
       forfeiture or punishment may be imposed as if the repealing Act or
       Regulation had not been passed."

11-12. Reading of Section 217 of the new Act and Section 6 of the General
Clause Act leaves no iota of doubt that the legal proceeding instituted before
repeal are to be continued or enforced as if the repealing Act had not been
passed at all. It is significant to note that Section 6 of the General Clauses Act
would apply only when a difference of opinion does not appear. We have gone
through the various provisions of the new Act and we do not find that the
Parliament ever intended that all the proceedings which had been initiated prior
to the new enactment would be governed by the new Act and not by the
repealed Act.

It would be of some significance here to take notice of the following
observations made by the Supreme Court in Hoosein Kasam Dada (India) Ltd.
v. State of Madhya Pradesh, (at p. 224)5

       "The fact that the pre-existing right of appeal continues to exist must, in
       its turn, necessarily imply that the old law which created that right of
       appeal must also exist to support the continuation of that right. As the old
       law continues to exist for the purpose of supporting the pre-existing right
       of appeal that old law must govern the exercise and enforcement of that
       right of appeal and there can then be no question of the amended
       provision preventing the exercise of that right."

We have already observed earlier that the right of appeal under the old Act was
a substantive right and have along with it the old law must also govern the
exercise and enforcement of that right of appeal. A citizen cannot be deprived
of his substantive right guaranteed to him unless it is taken away either
expressly or by necessary intendment. Unfortunately we do not find any thing in
the new Act which takes away the right of appeal of a claimant under the old
Act and with it the mode of exercise of that right of appeal. The settled law
appears to be that right of appeal also vests in the person who brings a
proceeding or against whom the proceeding has been brought a further right to
enforce it according to the then existing law which would be deemed to
continue to this limited extent.

13. We had opined that introduction of Section 173 of the new Act was a social
legislation and, therefore, it will apply to the proceedings started before coming
into operation of the new Act. This cannot be a guideline to overthrow the
settled principle of law which is being followed for more than half a century and
even upto this date. Under the old Act there were no requirements of deposit by
the person preferring an appeal in the High Court. The requirement of deposit of
50% of the awarded amount or Rs. 25,000/- whichever is less is certainly a
burden on the appellant. It is a bar to his right of appeal. Such a fetter cannot be
imposed on the appellant in cases arising out of the old Act.

14. We have expressed this opinion but we must for the sake of mention record
that we did not have the advantage of hearing the other side of the story as this
question is being decided at the preliminary stage.

15. It would not be out of place for us to express our appreciation for the candid
manner in which Sri Saran placed the relevant law on the point and assisted us
in arriving at this conclusion.

16. For the foregoing reasons, in our opinion, the application for review
deserves to be allowed and order dated 4th August, 1989 is reviewed to the
extent that the sentence in the penultimate paragraph "and must comply the
conditions such as are laid down in that Section", and the last paragraph should
be deleted and we would substitute the last paragraph as under :

       "We, therefore, hold that an appeal from a proceeding initiated under
       Section 110-A of the Motor Vehicles Act, 1939 would be maintainable
       under Section 173 of Act 59 of 1988 and that the provisions of the old
       Act would continue to apply to all appeals which arise from proceedings
       initiated prior to the date of the enforcement of the said Act."

Orders accordingly.

Review allowed.

Cases Referred.

1. AIR 1931 Cal 100
2. AIR 1953 SC 221
3. AIR 1957 SC 540
4. AIR 1960 SC 980
5. AIR 1953 SC 221