K. Subba Rao, C.J:— I agree.

Viswanatha Sastri, J.:— I too agree.

Bhimasankaram, J.:— The question propounded for determination by this Full Bench relates to the amount of proper court-fee payable on a memorandum of second appeal. The plaintiffs are the appellants in the second appeal. They filed O.S No. 240 of 1952 on the file of the District Munsif's Court, Nellore, for recovery of possession of the plaint schedule properties consisting of five items. On the plaint, they paid a court-fee of Rs. 164-15-0 ad valorem on the market value of the said items. The suit was decreed and the defendant, who preferred an appeal to the Sub Court, Nellore, paid the same court-fee. The lower appellate Court reversed the decree of the trial court and dismissed the suit on 9th August 1954. Pending that appeal, on 12th April 1954, the Government of Andhra issued a notification by its G.O No. 367 under sections 2 and 3 of the Suits Valuation Act, 1887 (Central Act VII of 1887) making rules for the determination of the value of land for purposes of jurisdiction in suits for possession of land mentioned in paragraph (v) of section 7 of the Court Fees Act, 1870 (Central Act VII of 1870). Rule 2 thereof provided for the valuation of different kinds of land, such as ryotwari land, inam land and other kinds of land situate in different kinds of estates as defined in the Madras Estates Land Act and house sites. This notification was superseded by G.O No. 961 dated 8th September 1954, whereby in exercise of their powers under section 3 of the Suits Valuation Act, 1887, the Government provided that for rule 2 in the prior notification (i.e in G.O No. 367) the following rule shall be substituted:

“In suits for possession of land, the value of the land for purposes of jurisdiction shall be half the market value of the land;

Provided that it shall be open to the State Government, from time to time to fix by notification in the Andhra Gazette such higher or lower percentage of the market value, as they may deem fit; and different percentages may be fixed for different classes of lands, having regard to the nature of the land and the area in which it is situated.”

2. This is followed by an Explanation not material for the present purpose.

3. The present second appeal was presented on 30th November 1954 by the plaintiffs with the following memo of valuation of the subject-matter of the appeal.

Value of the second appeal for jurisdiction is the same as that of the trial Court; Viz., Rs. 1,700/- made up of Rs. 1,400/- being the market value of the ‘A’ Schedule properties plus Rs. 300/- claimed as past profits as per para 6 of the plaint. Value of the second appeal for court-fees in regard to possession under Sec. 7(v) of the Court-fees Act, is half the market value, viz., Rs. 700/- Past profits claimed. … … … 300/- 1,000/-

4. On that valuation, a court-fee of Rs. 112-7-0 was paid on the basis that the later G.O (G.O No. 961) applied to the memorandum of appeal. The office objected to this valuation and, in doing so, placed reliance upon the ruling in Seshadri v. Province of Madras 1954 1 M.L.J 206.. It insisted upon the appellants paying the same court-fee as they had paid upon the plaint. My Lord the Chief Justice sitting as a puisne Judge of the Madras High Court along with Ramaswami, J. held in the last mentioned decision that an appellant need only pay on the memorandum of appeal the same court-fee as that he had paid on the plaint despite the fact that between the date of the institution of the suit and the presentation of the memorandum of appeal a higher amount was fixed by the appropriate authority as the proper Court-fee leviable on the memorandum of appeal. The matter now under reference was posted in the first instance before the Taxing Judge, Umamaheswaramw, J. who was of the opinion that this ruling conflicted with an earlier Bench ruling of the Madras High Court in In re Punya Nahako which had ruled that in regard to the amount of Court-fee payable on a review application coming under Art. 5 of the first schedule to the Court-fees Act, the Court-fee payable thereon will be “the Court-fee payable as if, on the date when the review application was put in, the applicant was filing a plaint or memorandum of appeal for the same relief.” In accordance therefore with the practice that obtained in the Madras High Court and which is to obtain in this High Court also as laid down by the Full Bench decision in Subbarayudu v. State 1955 A.L.T Crl. 53 F.B., the learned Judge directed that this matter should go before a Bench in the first instance, though strictly speaking in accordance with the observations of Subba Rao, J. as he then was in Dr. K.C Nambiar v. State of Madras A.I.R 1953 Mad. 351. he might have referred it to a Full Bench himself. The matter then came before the learned Chief Justice and Satyanarayana Raju, J. who referred the following question to a Full Bench.

“Whether Rule 2 substituted by G.O Ms. No. 961 (Law Courts-1) dated 8th September 1954 in the place of Rule 2 of the rules framed by the Government of Andhra in G.O No. 367, Law dated 12th April, 1954 applies to an appeal arising out of a suit filed prior to the enactment of that Rule?”

5. It will be convenient in the first instance to set out the appropriate provisions of the Suits Valuation Act and the Court-fees Act so far as they are material for the determination of the question thus formulated. Section 3 of the Suits Valuation Act enacts:

Section 3(1):

The State Government may make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court-fees Act, 1870, Section 7, paragraphs v and vi and paragraph x, clause (d).

Section 3(2):

The rules may determine the value of any class of land, or of any interest in land, in the whole or any part of a local area and may prescribe different value for different places within the same local area.

6. This Section is in Part 1 of the Act. Section 12 which is in part III of the Act runs thus:

“Nothing in Part I or Part II shall be construed to affect the jurisdiction of the Court—

(a) with respect to any suit instituted before rules under Part I applicable to the valuation of the suit take effect, or part II has come into force, as the case may be, or

(b) with respect to any appeal arising out of any such suit.

7. Section 7(v) of the Court-fees Act so far as it is relevant for the present purpose, provides as follows:

“The amount of fee payable under this Act in the suits next hereinafter mentioned…… shall be computed as follows:—

(v) In suits for the possession of land, houses and gardens—according to the value of the subject matter; and such value shall be deemed to be—

(some modes of statutory valuation are given which are followed by a proviso to this effect).

Provided that if rules are framed under section 3 of the Suits Valuation Act, 1887, for determining the value of land for the purposes of jurisdiction, the value so determined shall be deemed to be the value of the land for the purposes of this paragraph.”

8. It is also necessary to refer to the material portion of Sectoin 6 of the Court-fees Act which is as follows:—

“……no document of any of the kinds specified……annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.”

9. Art. I in schedule I to the Act relates to the amount of fee payable ad valorem on a

“Plaint * * * or memorandum of appeal presented to any civil * * court * *”

10. Column 3 thereof provides for a graduated scale of fee payable on the value of the plaint or memorandum of appeal referred to in column 1 according as the amount or value of the subject-matter in dispute does or does not exceed the sums specified in column 2. Now, it is to be noted that section 7 speaks only of the amount of court fee payable in suits, while section 6 prohibits the filing, accepting or recording of “a document of any of the kinds specified as chargeable in the first……………… schedule to the Act, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.” Now, the question to be decided is, having regard to the above provisions, what is the proper fee chargeable under Art. I schedule 1 on the present memorandum of appeal? How is the amount or value of the subject-matter in dispute in this memorandum of appeal to be ascertained? Is it to be ascertained with reference to the rules of valuation which were in force at the time of the presentation of the plaint, or, in accordance with the rules as they stood amended by the time of the presentation of the memorandum of second appeal. In In re Punya Nahako Odgers and Wallace, JJ. were concerned with the proper amount of court-fee leviable on an application for review of a judgment in an appeal pronounced before an amendment of the Court-fees Act enhanced the amount of court-fee payable on plaints or memoranda of appeals in such cases. Wallace, J. who wrote the leading judgment, propounded the question for determination in these terms:

“The first question is whether the rate of fee to be levied is under the old Act or under the amended Act. Under schedule r articles 4 and 5, the Court-fee for application for review of judgment is either the whole or half of “the fee leviable on the plaint or memorandum of appeal,” and the decision turns on the interpretation of that phrase. It may be construed in at least four different ways:”

(1) as the fee actually levied on the plaint or memorandum of appeal when admitted,

(2) as the proper fee to be levied on the plaint or memorandum of appeal at the time of presentation thereof,

(3) as the fee which would have been properly levied on the plaint or memorandum of appeal if that had been put in at the time of the presentation of the application for review, and

(4) as the proper fee to be levied if the applicant for review were then putting in a plaint or memorandum of appeal for the same relief.”

11. The learned Judge preferred the fourth of the above constructions to the other three. It seems to me that the proper way of construing it is “as the fee actually levied or leviable on the plaint or memorandum of appeal at the time of the presentation thereof.”

12. This view is in consonance with the interpretation put upon the language of the same Articles in a similar case by their Lordships Mookerjee and Cuming, JJ. in Nandi Ram v. Jogendra Chandra Dutta. There, Mookerjee, J. who delivered the Judgment of the Bench observed as follows:

“The Assistant Government Pleader has invited us on behalf of the Secretary of State for India in Council to read into the third column of articles 4 and 5 the following expression: “If the plaint or memorandum of appeal were presented when the application for review is made.” There are two obvious objections to the proposed construction; namely, first, it requires us to read into the articles words which are not to be found there; and, secondly, the fiction that is invoked is absolutely contradictory to the actual facts, because an application for review of judgment cannot be concurrent with a plaint or memorandum of appeal which must of necessity precede the judgment to be reviewed.

The petitioner, on the other hand, urges that the Court Fees Act itself contains a provision which specifies when the fee is leviable on the plaint or memorandum of appeal and he invites our attention to section 6 which is in the following terms:

13. The learned Judge, after quoting section 6, proceeds to say:

“This shows conclusively that the requisite court-fee is leviable when the plaint or memorandum is filed. This is corroborated by the provisions of Order VII of the Code of Civil Procedure, 1908. Rule 1 requires that the plaint shall, in addition to other particulars, contain a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees. Rule 11 ordains that the claim shall be rejected, when written upon paper insufficiently stamped, if the plaintiff has failed supply the requisite stamp paper within a time to be fixed by the Court.

The Assistant Government Pleader urges that if the expression ‘leviable’ refers to the time of presentation of the plaint or memorandum of appeal, the legislature might as well have replaced it by the word ‘Levied’. This argument is fallacious and overlooks the fact that what is leviable might not have been levied, (as in the case of a suit filed in forma pauperis.)

“It is plain that if the legislature had, in articles 4 and 5, used the expression ‘levied’ instead of ‘leviable’, the result would have been that if by mistake a smaller amount than what is leviable on the plaint or memorandum of appeal, has been levied, the applicant for review will be entitled to the continued benefit of the mistake. Conversely, if the amount levied is in excess of what is leviable, the petitioner will be prejudiced, though he may be entitled to a refund of the sum paid in excess. Lakshmi Narain v. Choudhuri Kirtibas, Re Prasunna. There is thus ample reason why the legislature should have used the term ‘leviable’ and not ‘levied’. The use of the term ‘leviable’ does not, in our opinion, justify the inference that the legislature intended to introduce a fiction into the law, namely, an imaginary representation of the plaint or memorandum of appeal at the time when the application for review is filed.”

“The substance of the matter is that for the purpose of ascertainment of the court-fee payable on the application for review, the application relates back to the plaint or memorandum of appeal, as the case may be, the amount is levied in a fixed proportion, independent of the scope of the application for review. To put the matter differently, as soon as a suit has been instituted, the amount of court-fee payable on a possible application for review of the prospective judgment in the suit becomes fixed.”

The amount must be calculated on the basis of the fee leviable (which, in the normal course of events is the fee actually levied) on the plaint or memorandum of appeal according to the law in force when the plaint or memorandum is filed in court.”

14. Dealing with the contention of the Government that an amended statute which came into operation after the memorandum of appeal was filed and before the application for review was lodged applied to the review application, the learned Judge held that “the applicant could not be called upon to pay court-fee on the basis of the fee which would be payable on the plaint or the memorandum of appeal if it were to be filed on the date of the application for review.” In reaching the conclusion as to the basis on which the amount must be calculated, the learned Judge referred to the decisions in Anon and Re Manohar v. Tambegar I.L.R 4 Bom. 26. the former of the Madras High Court and latter of the Bombay High Court, as pointing to an opposite conclusion. The decision in Anon which the learned Judges who decided In re Punya Nahako5 purported to follow does not, to my mind, appear to be directly in point so far as the specific question that fell to be decided in the later case is concerned. There, the question was “whether the Court-fee payable on an application for review of judgment is to be calculated upon the amount originally at issue in the plaint or appeal memorandum, or upon the amount at issue in the application for review of judgment”. The majority of the Court expressed the view that although the words of the schedule may seem in some measure to favour an opposite construction, the stamp fee must be calculated on the amount which would be obtained if the review were granted, and not necessarily on the whole value of the suit. They proceeded to say:

“The leading principle of the Act is that the amount of the stamp fee is to be calculated on the relief sought, and when a man seeks to obtain by a review more than the court has already given him, the excess is the relief which he seeks by his petition/The words in Articles 4 and 5 of schedule I are ‘the fee leviable on the plaint or memorandum of appeal’ and they must be taken to mean the fee which would be leviable on the plaint or memorandum of appeal if there were a fresh plaint or memorandum of appeal seeking the additional relief which the petition of review seeks.”

15. It is to be noted that there was no question in this case of retrospective operation of the Court-fees Act as amended. In In re Manohar v. Tambekar, a single Judge of the Bombay High Court decided that:

“When a plaint or memorandum of appeal comprises a number of claims, and a portion only of such claims has been allowed by the judgment, the party seeking a review should be required to stamp his application with a fee sufficient to cover the amount of the claims in regard to which he wishes the court to review its judgment.”

16. The reasoning of the decision is stated thus:

“Section 17 provides that when a suit embraces two or more subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects, would be liable under the Act. A plaint, therefore, or memorandum of appeal, which embraces two or more distinct subjects, is treated, for the purposes of the stamp revenue, as a collection of distinct plaints or memoranda of appeal and treating it in this manner I think that the words “the plaint or memorandum of appeal” in article 5 may be construed as meaning not necessarily the plaint or memorandum of appeal, formed by the combination of the several subjects comprised in it, but the plaint or memorandum of appeal which would have been presented in respect to the particular subject, in regard to which the review is sought, if the suit has embraced that subject and no other. In the present case, the plaint and the memorandum of appeal embraced several distinct subjects ……… In case of doubt, a fiscal regulation should be construed in favour of the subject.”

17. Here again, there was no question of the retrospective operation of an amendment of the law relating to Court-fees. Notwithstanding that while the learned Judges who decided Punya Nahako In re called in aid the above two decisions in support of their interpretation, Mookerjee, J. thought they pointed in a direction opposite to that which he pursued, it seems to me that there is no necessary inconsistency between the views of Mookerjee, J. and those of the learned Judges of the Madras and the Bombay High Courts in the two rulings cited above. The fact is not to be overlooked that the report in 7 Madras High Court Rulings App. 1 is not a report of the ipsissima verba of the learned Judges but is only a summary of their opinion and if considered in the light of the reasoning adopted in In re Manohar v. Tambekar it might be read as construing Articles 4 and 5 in harmony with the intention of S. 17 of the Act. I am not prepared to agree with the views of Mookerjee, J. in so far as he implies that the proper fee for such an application is the fee leviable on the plaint or the memorandum of appeal, whether the review affects the whole or part of the decree. On this point, there is a divergence of views between the Several High Courts. The High Court of Oudh in Ram Asray v. Rameshwar Prasad and the High Court of Nagpur in Ibrahim Ali v. Ahsan Hussain followed the view held by the Calcutta High Court in preference to that of the Madras and the Bombay High Courts. But, it is to be observed that all these cases turned on the meaning of the word ‘leviable’ in Arts. 4 and 5 of Schedule I to the Court Fees Act. The cases in 50 Madras 488 (Punya Nahako In re) and that in Nandi Ram v. Jogindra Chandra Dutta considered, it is true, the retrospective effect of a court-fee provision also but their view as to it was coloured by what the Judges who decided them thought was the meaning of that word. But neither had to deal with the problem presented to us by the instant case. Much more in point to the present discussion, however, it seems to me is the Full Bench decision in Daivanayaka Reddiar v. Renukambal Ammal. It is true that this case also actually depended only on the construction of section 13 of the Madras Civil Courts Act. Indeed, the learned Judges in that case were dealing with the effect on jurisdictional value of a change in the value for purposes of court-fee, (when both were statutorily made identical) when the change was brought about after a suit had commenced; while in the case now before us, we are called upon to pronounce on the effect on the value for court-fee of a notification under the Suits Valuation Act. What happened in that case was that between the date of the suit and that of appeal, section 7(2) of the Court-fees Act (VII of 1870) was amended by the Madras Court-fees Amendment Act (V of 1922) as follows:—

“In suits for maintenance and annuities or other sums payable periodically - according to the value of the subject-matter of the suit; and such value shall be determined to be, in suits for maintenance, the amount claimed to be payable for one year and in other suits to be ten times the amount claimed to be payable for one year.”

18. The plaintiff, a widow, claimed maintenance at a particular rate and valued her claim in the plaint at ten times the amount payable for one year, under Section 7 cl. 2 of the Court Fees Act. She also claimed past maintenance and a house to reside in. The total value of the claim according to her was Rs. 14,600/-. The Subordinate Judge gave her a decree for maintenance at Rs. 60/- a month. He also decreed that she should be given possession of a house for her residence during her life. The defendants thereupon preferred an appeal to the High Court valuing the relief for maintenance under the Court-Fees Amendment Act. The total value of the Appeal together with the past maintenance and the value of the house came to Rs. 2,633-5-4. It was contended that though the suit was valued at more than Rs. 5000/- under the law in force at the time of the filing of the plaint, yet, the value of the subject-matter of the suit according to the amended Court-fees Act at the time the appeal was presented being less than Rs. 3,000/- an appeal lay only to the District Court and not to the High Court. After referring to the decision in Colonial Sugar Refining Company v. Irving the learned Judges held that the amended Court-fees Act which came into force after the suit was filed would not deprive the plaintiff of a right to appeal to the High Court which he had when he filed the suit. Then they proceeded to say:

“The answer to the question before us may also be put upon another ground and that is that the forum of appeal from a Subordinate Judge's Court depends on the value of the subject-matter of the suit. Presumably, the value of the subject-matter of the suit is its value at the time of filing. Such value has to be set forth in the plaint and court-fees paid accordingly. It is, however, contended that the value varies according to the particular enactment in force at the time; and that, although it may have a particular value when it is filed, the value of the suit can be changed if the law in respect of valuation is altered. This contention was distinctly negatived so long ago as 1874 in Muthuswami Pillai v. Muthu Chidambara Chetty where it was held that it is the money value of the original suit that fixes the jurisdiction throughout the subsequent litigation in its several stages. If this is so, the value of the subject-matter of the suit is the same throughout and it cannot be altered after the decree has been passed simply by an alteration in a fiscal enactment.”

19. This decision, though it does not refer to section 12 of the Suits Valuation Act above quoted, is in consonance with the policy underlying that section. We might have had a direct authority on the point now in controversy if the learned Judges had also been called upon to determine the court-fee chargeable, on the memorandum of appeal before them. But unfortunately, the problem was not posed to them. This decision was, however, relied on by the advocate for the appellant in In re Ghosh Beevi in support of the contention that “the value of a suit (for court-fee purposes) as fixed according to the law then in force when the suit was instituted continues to apply to an appeal and a second appeal therefrom in spite of alterations subsequently made” (as to the mode of valuation). But that argument was rejected by Krishnaswamy Ayyangar, J. on the ground that “the Full Bench had not to consider the effect of a fiscal enactment in so far as fiscal purposes are concerned” and that the ruling did not touch the question of court-fee. He gave no reason, however, in support of his view that such an amendment would affect even the memoranda of appeal arising out of the suits instituted before it came into force. This decision was referred to in Seshadri v. Province of Madras but it was stated therein that it was not entitled to weight for want of positive grounds for decision. The appellant in Seshadri's case instituted C.S No. 541 of 1949 on the Original Side of the Madras High Court and paid a court-fee of Rs. 935/- on the plaint which was the proper fee payable. The suit was dismissed by the learned Judge sitting on the Original Side on 25-3-1952. During the pendency of the suit, Rule 1 of Order 2 of the High Court Fees Rules, 1933 was amended so as to provide that the Registrar shall apply to certain documents which included a memorandum of appeal the law for the time being in force relating to court-fee etc., (i.e, the Court Fees Act) in the manner and to the extent that it is applicable to similar documents filed in original proceedings in a District Court and in appeals from decrees and orders of a District-Court. This rule came into force on the 27th June 1950. The appellant presented his memorandum of appeal on the 20th August 1952 paying the same amount of court-fee thereon that he had paid on the plaint. The office, however, required a court-fee of Rs. 2,332-7-0 to be paid on the memorandum on the basis of the amended rule. The plaintiff-appellant successfully contended before the learned Judges that the lesser court-fee was sufficient. Dealing with the point as to retrospective operation of the amendment, Subba Rao, J. (as he then was) observed as follows.

“It is then contended that in any view the amended rule could not affect the right of the plaintiff to prefer an appeal against the decree of the learned Judge sitting on the Original Side as the rule is not expressly or by necessary implication given retrospective operation. It cannot be disputed that an appeal is a continuation of the proceedings in the Court of the first instance — see Muthia Chettiar v. Ramaswami Chettiar. It is also settled law that a right of appeal is not merely a matter of procedure but is a matter of substanitve right. The case in Hossein Kasamdada (India) Ltd. v. The State of Madhya Pradesh is rather instructive.”

20. After adverting to the decision in Hossein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh, which I shall presently discuss, and after quoting the language of the amendment, Subba Rao, J. proceeded to say:

“This amendment does not give it retrospective operation. Nor can we infer retro spectivity by necessary implication. Full meaning can be given to the amendment if it is confined to cases where the suit was filed after the amendment came into force. But can it be said that the amendment is such that it places substantial restriction on the plaintiff's right of appeal? Under the rules as they stood at the time when the suit was filed, the Court-fee payable was only Rs. 935/-. Under the amended rule the court-fee is Rs. 2,832-7-0, i.e, about three times the original rate. This sudden increase in the burden could not have been anticipated by the plaintiff. Had he known that he would be asked to pay such heavy court-fee for preferring an appeal, it is problematical whether he would have filed the suit at all. At the time he filed the suit he must have been under the impression that with the payment of an additional Court-fee of Rs. 935/- he could pursue the suit to its appellate stage. The right of appeal that vested in him at the time when he instituted the suit was certainly and seriously curtailed by the unexpected heavy burden thrown on the appellant. It is a well-established principle that an Act or rule imposing burden has always to be construered strictly. On a fair construction of the language used in the rule, we cannot hold that the amendment is retrospective in operation. The Court-fee prescribed there by cannot apply to the appeal preferred by the plaintiff.

The Government Pleader relied upon a decision of Krishnaswamy Ayyangar, J. in Ghosh Beevi, In re. The learned Judge held that the notification increasing the court-fee was applicable to an appeal preferred after it came in to force though the suit was instituted prior to the amendment. A perusal of the judgment shows that the learned Judge only distinguished the cases cited before him but did not give any acceptable reasons why in his view Court-fee payable according to the amendment should be paid. The only reason given by the learned Judge is a statement of fact, namely:

“The notification having taken effect on 1st November 1943, I can see no reason why it should be held inapplicable to an appeal preferred after it came into force.”

“The learned Judge has not considered the point, viz., when the amendment was not expressly or by necessary implication made retrospective in operation, whether it would apply to an appeal even though it has placed a substantive restriction on the appellant's right of appeal. We therefore regret our inability to follow the judgment.”

21. Strictly speaking, it is true that there is really no direct conflict between the decision in In re Punya Nahako and that in Ghosh Beevi, In re.. The one, as already shown, construed the word ‘leviable’ in an article of Sch. I to the Court-fees Act while the other pointedly and solely dealt with the retrospective operation of a particular notification as regards Court-fee. But it is fairly obvious that the reasoning in the one militates against that in the other and it is therefore desirable that the matter is placed beyond doubt.

22. Now, it is common ground in the argument before us that the general effect of the notification of the Government of Andhra in G.O No. 961 is considerably to enhance the amount of Court-fee payable in a number of cases, though it has the effect of reducing the amount of Court-fee payable in a few cases such as the one before us. In the first place, it must be observed that the notification, in accordance with the terms of section 7(v), deals only with the valuation of suits as such. It does not even mention appeals. A memorandum of appeal relating to this class of suits is chargeable with Court-fee only by the combined effect of Section 6 and Art. 1 of the Court-fees Act. Art. 1 refers to “a plaint or memorandum of appeal”. It seems to me reasonable to hold that if the valuation of the suit is once fixed for jurisdictional purposes, then, under the proviso to Section 7(v) it is fixed for purposes of Court-fee also. When the legislature makes the valuation identical both for jurisdictional as well as Court-fee purposes, no interpretation, in my judgment, should be put upon a notification like the one in question which would result in such identification being in abeyance so to say for some time at least, so far as appeals are concerned. Because, if the construction suggested on behalf of the appellants is right, while the value of the appeal for jurisdictional purposes remains unaltered (as the Full Bench decided in the 50 Mad. case) it would be different for Court-fee purposes, while the proviso to S. 7(5) says both values should be the same. It is doubtless true, as has been observed by Lord Blackburn in Gardner v. Lucas that “alterations in the form of procedure are always retrospective unless there is some good reason or other why they should not be.” But, as observed in the judgment of the Madras High Court in Muthia Chettiar v. Ramaswami Chettiar “some matters coming within the law of procedure must be defcided by the law as it stands at the time when the suit was instituted, while with regard to other matters a change in the law subsequent to the institution of the suit will modify the procedure which the Court should adopt.”

23. As Craies points out in his ‘Statute Law’ (5th edition) at page 371, if a statute deals merely with the procedure in an action and does not affect the rights of the parties, “it will be held to apply prima facie to all actions, pending as well as future.” This statement is followed by a paragraph entitled “Right of appeal not affected as being a matter of existing right” in which the well known passage of Lord Macnaghten in the case of Colonial Sugar Refining Co. v. Irving is cited. Reference may now be made to the decision of the Supreme Court in Hossein Kasam Dada v. The State of Madhya Pradesh. The question to be decided in that case was as regards the maintainability of an appeal to the Sales Tax Commissioner, Madhya Pradesh, under section 22(1) of the Central Provinces and Berar Sales-tax Act, 1947. Between the date of the institution of the assessment proceedings and the date of the filing of the appeal from the assessment, the said section was amended so as to require proof of the payment of the tax in respect of which the appeal had been preferred, as a condition precedent to the maintainability of the appeal. Before the amendment, it was enough if the appellant satisfied the Commissioner that he had paid the tax admittedly due. The Nagpur High Court was of the view that the Income-tax authorities rightly rejected the appeal as in their opinion, the amended provision applied to the case. In upholding the contention of the appellant before them, their Lordships of the Supreme Court made the following observations:

“That the amendment has placed a substantial restriction on the assessee's right of appeal cannot be disputed, for the amended section requires the payment of the entire assessed amount as a condition precedent to the admission of its appeal. The question is whether the imposition of such a restriction by amendment of the section can affect the assessee's right of appeal from a decision in proceedings which commenced prior to such amendment and which right of appeal was free from such restriction under the section as it stood at the time of the commencement of the proceedings. The question was answered in the negative by the Judicial Committee in Colonial Sugar Refining Co., Ltd. v. Irving”

24. They then discussed the facts of the Privy Council decision and after referring to a number of Indian decisions based on that ruling summed up the position in the following words:

“It was there regarded as settled that the right of appeal was not a mere matter of procedure but was a vested right which inhered in a party from the commencement of the action in the Court of first instance and such right could not be taken away except by an express provision or by necessary implication.”

25. They also declared that the right of appeal is not merely a matter of procedure but one of substantial right. They repelled the contention that the mere imposition of an onerous condition does not prevent the exercise of the right of appeal in these words:

“There can be no doubt that the new requirement ‘touches’ the substantive right of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in the procedure. Inded, the new requirement cannot be said merely to regulate the exercise of the appellant's pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure.”

26. It is clear that this reasoning hits not merely the total denial of a vested right of appeal but also any substantial or serious interference with its exercise. Having regard to the general effect of the notification now in question which is as stated above to increase the court-fee payable in a large majority of cases, the result of holding that the notification is retroactive would be to cripple or disable many would-be appellants in the pursuit of the right of appeal which vested in them when their suits were instituted.

27. My answer therefore to the question referred to us is in the negative.

T.A.B

28. Reference answered.