Excerpt:.....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 bad been filed in this court in the first instance. 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. banerjee) has clearly held that a refusal to extend the benefit of section 5 of the indian limitation act does not raise any question of jurisdiction and, therefore, even if i were to. looking to its phraseology, which is clearly made operative in the future, it lays down..........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 order vii rule 10 c. p. c. read with section 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.....

Judgment:

M.P. Mehrotra, J.

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 Order XLI Rule 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 Section 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 Section 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.'

3. 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 bv 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 Order XLI Rule 1 C.P.C. It is not disputed before me that in view of Section 27 of the U. P. Agriculturists Relief Act, the provisions of Order XLI Rule 1 C. P. C. stood attracted to an appeal against the judgment of the trial court in the proceedings under Section 12 of the said Act.

4. 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 Order VII Rule 10 C. P. C. read with Section 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 tc 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 Section 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.

5. 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 : [1960]3SCR590 (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 bad 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-section (5) of Section 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 : [1970]1SCR322 (Shankar Ram Chandra v. Krishnaji Dattatraya) in support of this contention.

6. 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.'

7. I have considered these rival contentions. It seems to me that so far as the second contention of the learned counsel for the applicant is concerned, it can be disposed of on a very short ground. The application dated 24th Jan., 1969 praying that the memorandum of appeal presented to this Court should be treated as having been presented to the Court of the District Judge was rejected by separate order which was passed on 29th January 1969 by the District Judge. No revision was preferred against the said order and, therefore, in this revision, it is not open to me to consider the correctness of the said order. However, even if it were open to me to do so, I think that it was not open to the District Judge to treat the memorandum of appeal which was presented to this court as having been presented to the said Court. Such a fiction cannot be taken recourse toby a Court. Moreover, there were long delays involved and it was in the discretion of the District Judge to extend the benefit of Section 5 of the Indian Limitation Act or to refuse to do so. The Supreme Court, in : [1964]3SCR495 (M.L. & B. Corporation v. B. N. Banerjee) has clearly held that a refusal to extend the benefit of Section 5 of the Indian Limitation Act does not raise any question of jurisdiction and, therefore, even if I were to. differ from the District Judge, in his refusal to extend the benefit of Section 5 of the Indian Limitation Act, I have no jurisdiction to interfere and extend the benefit of the said provision in this revision. So far as the first contention is concerned, the settled law has been that a transfer under Section 24, C. P. C. could be made only when the suit, or the appeal or other proceedings were validly instituted in the Court seeking to transfer the same. In other words, if a suit or appeal or other proceedings were instituted in a wrong Court, then the said Court had no jurisdiction suo motu to transfer the same to a Court of competent jurisdiction. This was laid down as far back as in the year 1886 by the Privy Council in 13 Ind App 134 (PC) (Ledgard v. Bull). In : [1965]2SCR800 (Raja Soap Factory v. S. P. Shantharaj), it was laid down as under:

'(7) Section 24 of the Civil P. C. on which counsel for the plaintiffs relied lends no assistance to his argument. Among the powers conferred upon a High Court by Section 24 Code of Civil Procedure, there is enumerated the power to withdraw any suit, appeal or other proceeding in any Court subordinate to it, and to try or dispose of the same: (Section 24(1)(b)(i)). But jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by Section 24(1)(b)(i) arises only if the suit, appeal or proceeding is properly instituted in a Court subordinate to the High Court and the suit, appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate Court of competent jurisdiction, and transfer thereof to the High Court. Power to try and dispose of a proceeding after transfer from a Court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.'

8. It is not necessary to refer to other decisions of various High Courts which have followed the law laid down in the aforesaid Privy Council case. However, a reference may be made to (1882) ILR 4 All 478 (Pachoni Awasthi v. Ilahi Baksh) where a Division Bench laid down that where the Court of institution has no jurisdiction over the suit, a transfer brought to another Court will not cure the initial defect. In AIR 1919 Pat 345 (Bibi Sairah v. Mt. Golab Kaur), a Division Bench laid down that such an order of transfer made in respect of a suit instituted in the wrong Court would not confer jurisdiction on the Court to which it has been transferred. In AIR 1928 Mad 400 (Singara Mudaliar v. M. Govindaswami Chetty, it was laid down that a transfer made by a Court which had no jurisdiction to entertain the suit or appeal or other proceedings, would be void. In view of the aforesaid case law, it seems to me that this Court had no jurisdiction to transfer the First Appeal which had been filed in this Court to the Court of the District Judge, Aligarh. In this view of the matter, the learned counsel's reliance on : [1960]3SCR590 (Satyadhyan Ghosal v. Smt. Deorajin Debi) is of no effect and an order which is completely void and without jurisdiction cannot be res judicata. The learned counsel's contention that his client should not suffer on account of the mistake of the Court is again not tenable. That principle has no application to the facts of the present case. If an order is passed in law, which is illegal or without jurisdiction, then ft cannot be said that effect should be given to such an order because, in law, it is not open to any court to give effect to such a void order or an order without iurisdiction. Moreover, it is always open to the litigant to question the correctness of an order in superior forums. The principle that a litigant should not suffer on account of the mistakes of the Court is applicable to such circumstances, for example, where the Court hears the case on a date which is not fixed for hearing and due to such mistake a party is put to prejudice, but where a special appeal was heard in presence of the counsel after they had made their submission and then if an order is passed which is not sustainable in law. the said principle cannot be invoked. Lastly, coming to the last contention raised by the learned counsel for the applicant, the newly added provision has already been reproduced above. Again, the learned counsel is right in contending that as a procedural provision, it should be deemed to have retrospective effect but retrospective effect does not mean that it should be made applicable to validate orders which were passed long back and which were illegal and without jurisdiction at the time when the same were passed. Section 24(5) will enable a Court to pass orders transferring even pending proceedings. For example, if a proceeding is pending since before the addition of the said provision and it is pending in a wrong Court which has no jurisdiction to entertain the same, this provision will enable the High Court or the District Judge to transfer the said proceedings from a Court without jurisdiction to a Court of competent jurisdiction. When we talk of retrospective operation of a procedural iaw, it means only this that even pending proceedings will bp governed by the changed law of procedure and it will not be open to a party to contend that so far as the pending proceeding are concerned, there is a vested right in the parties to have the same governed by the old procedure which was operative before the amendment of the said procedure. In that sense, procedural amendments are said to stand on a footing different from the other amendments which have the effect of affecting the substantive rights of the litigants. Such latter amendments are treated as prospective but the doctrine of retrospectivity does not extend to mean that if an order has already been passed which had no legal efficacy at the time when it was passed, it will get such legal validation in view of the subsequent amendment of law. Of course, if the amending legislation expressly or by clear implication suggests that even orders which have already been passed in the past, will be affected ex post facto by the amending provision, the Legislature is competent to do so. But as I read the newly added Sub-section (5) of Section 24, C. P. C. I believe it has no such express or implied intendment. looking to its phraseology, which is clearly made operative in the future, it lays down that a suit or proceeding may be transferred under this section. In my opinion, this phraseology is not capable of lending itself to an interpretation that the orders which were passed in the past, which lacked validity at the time when they were so passed, will get validity in the light of this provision. In my opinion, the aforesaid passage extracted from Sri Jagdish Swarup's Legislation and Interpretation has correctly summed up the law bearing on this topic. The learned author of the said book has cited many cases in support of the aforesaid passage and some of them are as follows:

10. Learned counsel for the applicant placed reliance on : [1970]1SCR322 (Shankar Ram Chandra v. Krishnaji Dattatraya). In the said case, it was laid down that when a revision was preferred against an order the latter order stood merged in the revisional order. Thereafter, it was not open to a litigant to seek to re-question the order of the court below (which stood merged in the revisional order) by proceedings under Article 226 or 227 of the Constitution. In my opinion, the said case has no application to the present controversy.

11. I am presently seized of the revision. If I were of the view that the instant revision is not competent in this Court and should have been instituted before some other forum then with the aid of the newly added provision contained in Section 24(5), C. P. C. I can transfer the instant revision to the Court of competent jurisdiction but I cannot hold with the aid of the said newly added provision, that the transfer of the appeal, if any, by the Division Bench which heard the special appeal, to the Court of the District Judge by its judgment dated 6-7-1965 should be deemed to have been validly passed in view of the newly added provision. I think, this interpretation of the newly added provision will not be a correct one.

12. I accordingly dismiss this revision but, in the circumstances of the case, make no orders as to costs.