Sadar Ali and Others Vs. Doliluddin Ostagar, and In Re: Vasudeva Samiar alias Vasudeva .
In the said case, the Constitution Bench has culled out the principles in para 23 which reads as follows:–
“23. From the decisions cited, above the following principles clearly emerge:
(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 care 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 of 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.”
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 CPC 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 Article 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 C.P.C. (Amendment) Act, 1999 has abolished the appeal against the judgment of Single Judge of the 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 He” 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” con-jointly, 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 CPC 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.
