Raghunath Hanmant Mane v. Sadashiv Damodar Datar

Gajendragadkar, J.:—

The suit from which this appeal arises was filed by the plaintiff to recover Rs. 5,025-2-3 from the defendant. This claim has been substantially decreed by the learned Civil Judge, Senior Division, Poona, and the defendant challenges this decree in the present appeal. At the hearing of this appeal a preliminary objection has been taken by the respondent that the appeal against the decree in suit does not lie to this Court and should have been filed in the District Court at Poona. This preliminary objection is based upon the provisions of Bombay Act LIV of 1949. The suit was filed on August 21, 1948, and has been decreed on March 31, 1950. Bombay Act LIV of 1949 came in force on January 3, 1950, and the argument for the respondent is that the decree under appeal is governed by the provisions of the said Act and under s. 26 of the Bombay Civil Courts Act as amended by Bombay Act LIV of 1949 an appeal against a decree like the present would lie to the District Court and not to the High Court.

Now, Bombay Act LIV of 1949 purports to amend four sections of the Bombay Civil Courts Act, XIV of 1869. Section 2 of the new Act amends s. 16 of the Bombay Civil Courts Act. This latter section deals with the original jurisdiction of Assistant Judges and it provides that the District Judge may refer to any Assistant Judge subordinate to him original suits “of which the subject-matter does not amount to ten thousand rupees in amount or value”. In respect of decrees or orders passed in such suits the said section further provided that the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject-matter does not exceed or exceeds five thousand rupees. Now, as a result of the amendment made we have to read the words “fifteen thousand rupees” instead of “ten thousand rupees”, and “ten thousand rupees” instead of “five thousand rupees”. Section 3 of Act LIV of 1949 purports to amend s. 24 of the Bombay Civil Courts Act. Under s. 24 as it originally stood the jurisdiction of the Civil Judges, Junior Division, extended to Rs. 5,000, subject to an increase up to Rs. 7,500 in the cases mentioned by the proviso to the said section. By the amendment the initial limit of Rs. 5,000 in regard to Civil Judges, Junior Division, is now raised to Rs. 10,000 and the limit within which this amount can be extended is raised from Rs. 7,500 to Rs. 15,000. Then we have s. 4 of the new Act which purports to amend s. 26 of the Bombay Civil Courts Act. Before the amendment of s. 26 the position was that in all suits decided by a Civil Judge of which the amount or value of the subject-matter exceeded Rs. 5,000 the appeal from his decision lay direct to the High Court. As a result of the amendment the amount of Rs. 5,000 mentioned in this section is now raised to Rs. 10,000. The result is that in all cases to which the amended s. 26 applies an appeal shall lie direct to the High Court against a decree passed in any suit by a Civil Judge only where the amount or value of the subject-matter exceeds Rs. 10,000. Section 5 of the new Act amends s. 28A of the Bombay Civil Courts Act. The said amendment is made on similar lines. The last section in the new Act provides that the amendments made in the Bombay Civil Courts Act by the present Act by the provisions of ss. 2 to 5 shall not have any effect in respect of and apply to certain suits and proceedings and certain appeals, and the main question which we have to consider in deciding the preliminary objection is whether the decree against the present appeal has been preferred attracts the provisions of s. 6 of the new Act. There are two sub-sections under s. 6. section 6(a) refers to “suits or proceedings of a civil nature, wherein the subject-matter exceeds in amount or value five thousand rupees but not ten thousand rupees, pending in any Court on the date on which this Act comes into force”. This sub-section further provides that “any such suit or proceeding shall be continued and disposed of as if this Act had not been passed”. Sub-section (b) of s. 6 deals with appeals and in doing so it classifies the appeals into those which have been filed already before the Act came into force and those which may be filed after the Act comes into force, though the decrees against which they may be filed were passed before the Act came into force. The first class of appeals are dealt with by sub-s. (b)(i), while the latter class is dealt with by sub-s. (b)(ii). It is clear that suits or proceedings or appeals to which the provisions of s. 6 apply have to be continued and disposed of as if this Act has not been passed. Thus the question which the preliminary objection raises is whether the present appeal attracts the provisions of s. 6(a). It is clear that it does not fall under s. 6(b)(i) or s. 6(b)(ii) since the decree against which the present appeal has been filed was passed after the Act came into force.

The legal position with regard to the litigants' right to file an appeal is fairly well-settled. The amendments made by the present Act cannot be said to be merely procedural. If they had been merely procedural, they would obviously have been retrospective. But in so far as one of these amendments changes the forum of appeal in some cases it cannot be said that this change is a mere matter of procedure. It clearly touches a right which was in existence at the time when the Act was passed, and this right to file an appeal in a higher forum has been always regarded as an important right vesting in the litigants at the time when the suits or proceedings are instituted. There is no doubt that when the present suit was instituted the parties to the suit had a right to come to this Court in appeal against the decree that may ultimately be passed in the suit. If this right which had vested in the parties at the time when the suit was instituted is intended to be taken away by the present amending Act, such intention must appear clearly and unambiguously in the provisions of the Act. As observed by Lord Macnaghten in Colonial Sugar Refining Company v. Irving, (p. 372):

“To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.”

It is somewhat remarkable that a similar question was raised before this Court in Ratanchand Shrichand v. Hanmantrav Shivbakas under the Bombay Civil Courts Act itself. In Ratanchand Shrichand's case a decree was passed by the Principal Sardar Amin of Dhulia for Rs. 23,000 and odd on January 29, 1869. Against the said decree the defendant applied to the District Court for leave to file an appeal in forma pauperis. The leave applied for was rejected, but the appellant was granted time to pay court-fees. Before this time expired the Bombay Civil Courts Act came into operation on March 19, 1869. Thereupon the learned District Judge directed the appellant to file his appeal in the High Court, because he held that under the provisions of the Bombay Civil Courts Act he had no jurisdiction to entertain an appeal against a decree for an amount exceeding Rs. 5,000. Pursuant to this direction the defendant filed a petition of appeal in this Court and this Court had then to consider whether the provisions of the Bombay Civil Courts Act were retrospective. In fact, if the provisions of the Civil Courts Act had been held to be retrospective, the appeal would have been treated as properly filed in the High Court. On the other hand, if the said provisions were not retrospective, the forum for the appeal was the District Court. The question was referred to a full bench and the full bench held that the Bombay Civil Courts Act was not retrospective and the appellant was, therefore, directed to take back his appeal to the District Court. A similar point arose again before Jenkins C.J and Bachelor J. in Nana Aba v. Sheku Andu. This time the amendment in question was made in the provisions of the Mamlatdar's Court Act. Section 23 which was enacted for the first time in the Mamlatdar's Courts Act of 1906 provided for a revisional application to the Collector against the decision of the Mamlatdar. The suit in question had been commenced on February 24, 1906, whereas the new Act came into force on October 29, 1906. This new Act repealed the earlier Act, and as I have mentioned it included s. 23 which allowed revisions against the orders of the Mamlatdars. The suit was dismissed by the Mamlatdar on January 26, 1907, and the plaintiff preferred a revisional application to the Collector thereafter. The Collector, however, refused to entertain the revisional application on the ground that s. 23 was not retrospective. This view of the Collector was upheld by this Court. In dealing with this question Jenkins C.J referred to the observations of Lord Macnaghten which I have already cited and held that it would be a wrong construction of the words of s. 7 of the General Clauses Act to hold that the Collector had jurisdiction to entertain the revision application because he said, “so to hold would be to affect a legal proceeding in respect of a right which had accrued under the old Act”. When the suit was filed in the Mamlatdar's Court the parties to the suit had no right to challenge the decision of the Mamlatdar by a revisional application and neither of them could claim that right by reason of the subsequent enactment of s. 23 in the new Act.

It would thus be clear that in dealing with the preliminary objection raised before us in the present appeal we must bear in mind that the parties to the present suit had a right to come to this Court in appeal against the decree that would be passed in this suit. There is no doubt that Legislature can take away that right if they deem it proper to do so. But the right must be taken away expressly or by necessary implication. It must appear manifest on reading the provisions of the amending act that there was no doubt whatever that Legislature intended by the amending Act to take away the parties' right in the matter of appeal. Now, reading s. 6 in the light of these principles it does not appear to us that the amendments made by the present Act affect the appellant's right to come to this Court in appeal in the present case. Broadly speaking s. 6 of the present act seems to divide suits and proceedings into two classes: Those that are pending at the stage of trial in the Court of first instance where no decrees are passed or orders made, and the rest. As regards this latter class of suits and proceedings s. 6 deals separately with cases where appeals have been already preferred and cases where appeals have yet to be preferred. But in both these classes decrees have been passed before the Act came into force. It is obvious that we are dealing with a case falling under s. 6(a). Now, s. 6 in terms provides that the amendments made by the provisions of ss. 2 to 5 shall not have any effect in respect of and apply to suits falling under s. 6(a). I have already stated that s. 4 amends the provisions of s. 26 of the Bombay Civil Courts Act. In terms, therefore, in dealing with suits falling under s. 6(a) we must apply s. 26 as unamended. The only manner in which s. 26 can come into operation in respect of suits pending in the trial Court is by providing for the forum of appeals against the decrees that may be passed in such suits, and the Legislature has clearly stated that the section which will apply to pending suits like the present would be the original section and not the amended one. If this be the true position, there can be no doubt that the appeal filed by the defendant in this Court is competent and the District Court would, in fact, not be, the proper forum of this appeal. It has been argued on behalf of the respondent that the effect of s. 6(a) is merely to leave the said suits or proceedings for final disposal in the Courts where they are pending. It is emphasised that the latter part of s. 6(a) provides that “any such suit or proceeding shall be continued and disposed of as if this Act had not been passed”, and the argument is that the object of s. 6(a) is very limited and that is to allow the disposal of suits in the trial Court as though the amending Act had not been passed. In other words, when the suit is disposed of in the trial Court the amending Act would apply and the appeal would, therefore, have to be filed in the District Court. We do not think we would be justified in adopting this resrictive or limited construction of s. 6(a).

There is another aspect of the argument in support of the preliminary objection. It may be urged that if the Legislature did want the amending Act to be retrospective it was hardly necessary to enact s. 6 in the amending Act at all. Legislature must be presumed to be aware of the legal position that if no provision is made for making such amendments retrospective they would be treated as prospective because they do not amount to a change merely of procedure but tend to affect the vested rights of the parties to take their appeals before a higher forum. Besides, if the Legislature wanted to make it clear that the amending Act does not apply to all pending suits and proceedings, it would have been enough to enact s. 6(a); because, an appeal is a continuation of the suit, and from this technical point of view s. 6(a) would have covered not only suits and proceedings at the stage of trial but also appeals arising therefrom. It must be conceded that there is some force in this contention. But we have to take s. 6 as it stands and find out the intention of the Legislature on a fair and reasonable construction of this section. It seems to us that Legislature has deliberately adopted the somewhat artificial classification of pending suits and proceedings in cls. (a) and (b) of s. 6 with the object of avoiding any doubt or confusion. Section 6(a) no doubt deals with suits and proceedings pending at the stage of trial in the Court of first instance; but it is made clear by the first part of s. 6 itself that as regards such suits and proceedings when the occasion to apply s. 26 arises, the said section must be applied in its original form and not as amended. Section 6(b) proceeds to deal with suits or proceedings in which decrees have been passed before the amending Act comes into force and it says that the amending Act will not apply to appeals against such decrees whether the said appeals have been filed before the Act came into force or after the Act came into force. It may be that in adopting this method of classification sub-s. (a) and sub-s. (b) of s. 6 may perhaps be said to overlap in a technical sense. That, in our opinion, would not justify us in interpreting the provisions of s. 6(a) in the narrow and limited sense as suggested by the respondent, because if the said construction is accepted, part of s. 6(a) which provides that the unamended s. 26 of the Civil Courts Act will apply to pending suits will be rendered meaningless and nugatory. The respondent has asked us to hold that the present case is indirectly governed by s. 6(b). It is an appeal with which we are dealing, says Mr. Joshi, and if this appeal does not fall either under sub-s. (b)(i) or (b)(ii), it would follow as a necessary consequence that it is outside the provisions of s. 6 and must, therefore, be governed by the amended provisions of s. 26 of the Civil Courts Act. We do not think that this is a proper or logical way to construe s. 6. In our opinion the suit from which the present appeal has arisen falls within the provisions of s. 6(a), and as I have already indicated, to such a suit the amended provisions of s. 26 of the Civil Courts Act are clearly not intended to be applied. After all, it cannot be overlooked that the parties to the present suit had a vested right to come to this Court in appeal against the decree that would be passed in the suit and unless we are satisfied that s. 6 clearly and unambiguously shows the intention of the Legislature to take away this vested right, we would not be justified in giving the amendments made by this Act retrospective effect. On reading s. 6 as a whole we are not at all satisfied that Legislature intended to make the present Act retrospective so as to affect pending suits like the present. The result is, in our opinion the amendments made by Act LIV of 1949 are prospective and apply to suits filed after the said amending Act came into force. We must, therefore, reject the preliminary objection and hold that the appeal filed by the defendant in this Court is competent.

Dixit, J.:—I agree.

On behalf of the respondent a preliminary objection is raised which is that this Court has no jurisdiction to entertain the appeal. The facts necessary to understand the objection are these.

On August 21, 1948, the plaintiff-respondent filed against the defendant-appellant this suit to recover from the latter a sum of Rs. 5,025-2-3. On March 31, 1950, the Court of the Second Joint Civil Judge, Senior Division, Poona, passed in favour of the respondent a decree for Rs. 3,423-2-3. Thereafter, the defendant preferred in this Court the aforesaid appeal which has now come up for hearing and final disposal.

The preliminary objection is to be answered by reference to the provisions contained in Bombay Act No. LIV of 1949 which is an Act amending the Bombay Civil Courts Act, 1869. This Act amends the 1869 Act in certain particulars, viz. ss. 16, 24, 26 and 28A. Section 26, as it stood before its amendment, ran as follows:

“In all suits decided by a Civil Judge of which the amount or value of the subject-matter exceeds five thousand rupees, the appeal from his decision shall be direct to the High Court.”

Section 4 of the Act of 1949 which amends s. 26 runs as follows:

“In section 26 of the said Act, for the words ‘five thousand rupees’ the words “ten thousand rupees” shall be substituted.”

Section 6 is a savings section and its terms are as follows:

“The amendments made in the said Act by the provisions of sections 2 to 5 (both inclusive) of this Act shall not have any effect in respect of and apply to—

(a) any suit or proceedings of a civil nature, wherein the subject-matter exceeds in amount or value five thousand rupees but not ten thousand rupees, pending in any Court on the date on which this Act comes into force. Any such suit or proceeding shall be continued and disposed of as if this Act had not been passed; and

(b)(i) any appeal which is filed from an original or appellate decree or order passed in any suit or proceeding wherein the subject-matter is of the amount or value specified in clause (a) and which is pending in any Court on the date on which this Act comes into force,

(b)(ii) any appeal which may hereafter be filed from such decree or order passed before the date on which this Act comes into force.

Any such appeal shall be continued or filed and disposed of as if this Act had not been passed.”

It is to be noticed that s. 6 has two cls. (a) and (b). Section 6(a) provides for a pending suit, while s. 6(b)(i) provides for a pending appeal. Section 6(b)(ii) provides for a case where no appeal has been preferred but a decree has been passed before the date on which the Act came into force. That is a case in which there is no pending suit since the suit has terminated in a decree and no appeal has been preferred so that there is no pending appeal. The Act came into force on January 3, 1950. A suit pending at this date shall be continued and disposed of as if the Act had not been passed. So that the Act is clearly not retrospective to that extent. A pending appeal and an appeal which may be filed after the date when the Act comes into force in respect of a decree passed before that date shall be continued or filed and disposed of as if the Act had not been passed. So that appeals which fall within the two categories are unaffected by the Act of 1949.

The present case does not fall within these two categories. In this case the suit was pending when the Act came into force and the decree was passed subsequently to that date. It is urged that s. 6 makes provision for both suits and appeals, so that by implication the intention is that this appeal which is filed from a decree passed after the date when the Act came into force is not saved, the only saving being in favour of an appeal filed from a decree passed before that date. On the other hand, it is urged that the present case is governed by s. 6(a) which provides for a pending suit or proceeding of a civil nature, and an appeal is but a continuation of a suit and so an appeal will lie to the High Court.

Now, every Act affecting vested rights is prospective and not retrospective. It is, however, open to the Legislature to make it retrospective and this it can do by a clear intention or by necessary implication. Here the unsuccessful party would have, but for the 1949 Act, a right of appeal to the High Court and the question is whether the amending Act has taken away the right. Now, it is well settled that to disturb an existing right of appeal is not a mere alteration of procedure: see Nana Aba v. Sheku Andu. This principle is deduced from the leading case of Colonial Sugar Refining Company v. Irving. It is recognised principle of construction that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested. To my mind, this intention is not manifested in s. 6. On the contrary, the opening words of s. 6 suggest that the Act was not intended to be retrospective. This will be further clear from the words “any such suit or proceeding shall be continued and disposed of as if this Act had not been passed”. Accordingly, I am of the opinion that this appeal which is but a continuation of a suit pending at the date when this Act came into force falls within s. 6(a) and, therefore, an appeal lies to this Court. Consequently, the preliminary objection must be overruled and the appeal should be heard on its merits.

Preliminary objection overruled.

J.G.R