TMI Blog2016 (12) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 2 - SUPREME Court ) wherein held that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them, it can safely be held that the impugned order passed by the Additional District Judge, Gurgaon, is illegal.Consequently, the present writ petition is hereby allowed and the impugned order dated 14.12.2015 passed by the Additional District Judge, Gurgaon, is set aside. - CWP No. 2066 of 2016 - - - Dated:- 30-11-2016 - Hon'ble Mr. Justice Rakesh Kumar Jain Mr. Jafar Aalam, Advocate, and Ms. Ramandeep Kaur, Advocate, for Mr. Sumeet Goel, Advocate, for the petitioner Mr. Vikas Suri, Advocate, for the respondent JUDGMENT Rakesh Kumar Jain, J. This petition is directed against the order dated 14.12.2015, dismissing an application filed under Section 47 (Part II) of the Arbitration and Conciliation Act, 1996 (hereinaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the Amended Ordinance-2015 was promulgated and an amendment was brought in the Explanation to Section 47 of the Act as per which jurisdiction has been conferred upon the High Court instead of the principal Civil Court of the District. It is submitted that the change in the forum does not affect the pending actions unless it is clearly intended and has relied upon a decision of the Supreme Court rendered in the case of Commissioner of Income Tax, Orissa vs. Dhadi Sahu, 1994 Supp (1) Supreme Court Cases 257 and has further submitted that the decision of the Supreme Court in Sudhir G. Angur's case (supra) is not applicable to the facts of the present case. Respondent No.2 was proceeded against ex-parte on 31.05.2015 but assistance is provided by counsel for respondent No.3 who has submitted that the remedy available guaranteed to the petitioner under the Act can be changed by amendment and has, thus, supported the impugned order. I have heard learned counsel for the parties and examined the available record with their able assistance. In order to appreciate the rival contentions, it would be appropriate to refer to Section 47 of the Act and the amendment in Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the foreign arbitration award was changed from the principal Civil Court of original jurisdiction to the High Court. Counsel for the petitioner has relied solely upon the decision of the Supreme Court in Dhadi Sahu's case (supra). In order to find out whether this judgment would be of any help or not to the petitioner, it would be relevant to refer to its facts. In the said case, the respondent Dhadi Sahu was the assessee on whom the penalty was imposed under Section 271(1)(c) read with Section 274(2) of the Income Tax Act, 1961 (hereinafter referred to as the IT Act ), for the assessment year 1968-69 and 1969-70. On 28.02.1970, i.e. on the date of the assessment orders, Section 274(2) of the IT Act provided that if the minimum penalty imposable exceeds a sum of ₹ 1,000/-, the Income Tax Officer shall refer the case to the Inspecting Assistant Commissioner, who shall, for the purpose, have all the powers conferred under that chapter for the imposition of penalty. When the matter was pending with the Inspecting Assistant Commissioner, Section 274(2) of the IT Act was amended w.e.f. 01.04.1971 by the Taxation Laws (Amendment) Act, 1970 (hereinafter referred to as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. It was found that in the case in hand, the minimum penalty imposable exceeded ₹ 1,000/- but the amount of income in respect of which the particulars were concealed did not exceed ₹ 25,000/- and the order of the Inspecting Assistant Commissioner was passed on February 15, 1973 i.e. after the coming into force of the amending Act which amended Section 274 (2) of the Act. In this background, the Supreme Court has made the following observations:- 18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them. It was further observed that it is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed could only have been raised in an enquiry under Section 17 and could have only been dealt with by an order under Section 18 of the Mysore Act by the Muzrai Officer and by virtue of Section 40 of the Mysore Act, the suit was barred. In this background, the Supreme Court held as under:- 10. Even otherwise leave to file the suit was granted after hearing the parties. Once leave was granted, the question of rejecting the plaint under Order 7 Rule 11 did not arise. An application for rejection of the plaint should have been made prior to the leave having been granted or at the time when the appellants opposed grant of leave. Having lost in their opposition to the grant of leave it was not open to the appellants to then apply for rejection of the plaint under Order 7 Rule 11 CPC. The learned Court below, however, referred only to para 11 of this judgment in order to dismiss the execution application filed by the petitioner, though the said observations are not applicable to the facts and circumstances of the present case. Thus, in view of the decision of the Supreme Court in Dhadi Sahu's case (supra), it can safely be held that the impugned order passed by the Add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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