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Taramoni Dasi v. Kalidasi Majhi And Others

Calcutta High Court

Dec 3, 1976

Judgment

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Court Opinion Summary — N.C. Mukherji, J. (Rule under Section 115 CPC)

Factual and Procedural Background

This Rule was issued under Section 115 of the Civil Procedure Code directed against Order No. 18 dated 25th May 1974 passed by the Additional District Judge, 4th Court, Alipore, in Title Appeal No. 530 of 1973. By that order the learned Additional District Judge held the appeal maintainable in his court and directed the appellant to pay deficit court-fees; the appellant challenged that order before the High Court.

Substantively, the dispute concerns a suit over a 13-decimal parcel of land with a pucca building. The property originally belonged in equal shares to Ambika Charan Pramanik (deceased) and Gurupada Pramanik. Ambika's widow (defendant No. 1) allegedly inherited an 8-anna share and later sold that share (by kobala) to plaintiffs Nos. 2–4; subsequent partition and possession matters followed. The defendant No. 1 previously obtained a decree setting aside the kobala in Title Suit No. 48 of 1950 (affirmed up to the High Court), leading to an order of joint possession with Gurupada. During pendency of proceedings, plaintiffs built and possessed a residential pucca building on the land; various execution and objection proceedings ensued, including Title Execution Case No. 37 of 1958 and F.M.A. 55 of 1960. Gurupada transferred his 8-anna interest in 1959 to the present plaintiff No. 1 (Kalidasi), who later was declared to have that share in Title Suit No. 33 of 1960.

In the present suit the plaintiffs sought confirmation of possession, declaration of title and permanent injunction; for court-fees they valued the suit under Section 7(iv)(c) of the Court-Fees Act at Rs. 12,000. The trial court decreed the suit in favour of the plaintiffs and confirmed possession (with restraints on the defendants pending final partition). Defendant No. 1 (the present appellant) filed an appeal on 16 June 1973, which was valued for court-fees at Rs. 160 based on valuation by the Pleader Commissioner. Respondents objected that, because plaintiffs had valued the suit at Rs. 12,000 and the appellant sought to set aside the whole decree, the appeal should be valued at Rs. 12,000 for court-fees.

The appellant also contended that the appeal was wrongly presented to the District Judge (Additional District Judge) because the suit was instituted before an amendment to the Bengal, Agra and Assam Civil Courts Act that raised the pecuniary jurisdiction of the District Judge from Rs. 10,000 to Rs. 15,000; the appellant argued the amendment was not retrospective and therefore the proper forum remained the High Court.

Legal Issues Presented

Whether the forum for hearing the appeal is determined by the law in force at the date of institution of the suit (so that the appeal should have been presented to the High Court) or by the law in force at the time of filing the appeal (which would make the appeal maintainable before the District Judge).
Whether the amendment to the Bengal, Agra and Assam Civil Courts Act (raising the pecuniary jurisdiction of the District Judge) has retrospective effect such as to change the forum of appeal for suits instituted before the amendment.
Whether the learned Additional District Judge was correct in directing the appellant to pay ad valorem court-fees on the basis of Rs. 12,000 (the value at which the plaintiffs had valued the suit) rather than accepting the court-fees paid by the appellant based on the Pleader Commissioner's valuation of Rs. 160 and the relief claimed in the memorandum of appeal.

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

The amendment raising the pecuniary jurisdiction of the District Judge is not retrospective and does not change the forum for appeals arising out of suits instituted before the amendment; the vested right to appeal to a particular forum vested on institution of the suit.
The Vesting principle: the right of appeal is substantive and vested at the date of institution of the suit and can be taken away by subsequent legislation only if such legislation expressly or by necessary intendment removes that right.
The court below erred in directing payment of deficit court-fees based on Rs. 12,000 because the appellant disclaimed interest in the structure and claimed only an undivided half-share in the 13 decimals valued by the Pleader Commissioner at Rs. 160; the memorandum of appeal should be stamped according to the value of the subject-matter in dispute in the appeal (i.e., the relief claimed in the memorandum).
Cited authorities in support of these contentions included: Colonial Sugar Refining Co. Ltd. v. Irving (1905 AC 369), Ram Singha v. Shankar Dayal (AIR 1928 All 437, Full Bench), Garikapati Veeraya v. N. Subbiah Choudhry & Others (AIR 1957 SC 540), Behari Lal v. Keshri Nandan (AIR 1970 All 201, Full Bench), and Nemi Chand v. The Edward Mills Co. Ltd. (AIR 1953 SC 28).

Respondents' Arguments (as described)

The respondents objected to the valuation used in the memorandum of appeal: because the plaintiffs had valued the original suit at Rs. 12,000 under Section 7(iv)(c) of the Court-Fees Act and since the appellant sought to set aside the entire decree, the appeal must be valued at Rs. 12,000 for the purpose of court-fees.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
1905 AC 369 — Colonial Sugar Refining Co. Ltd. v. Irving	Supports the proposition that an appeal is a continuance of the original proceeding and that a new Act should not affect the right to continue that proceeding unless it expressly so provides.	Relied upon by the appellant and treated by the court as authority for the general principle that the forum of appeal is governed by the law in force when the suit was instituted, unless the statute clearly provides otherwise.
AIR 1928 All 437 (Full Bench) — Ram Singha v. Shankar Dayal	Expressly held: "An appeal is a mere continuance of the original proceeding ... the right to continue that proceeding cannot be affected by a new Act, unless it expressly says so."	Used to support the view that the right of appeal vests at institution of the suit and is not altered by later statutes save where clearly intended by the legislature.
AIR 1957 SC 540 — Garikapati Veeraya v. N. Subbiah Choudhry & Others	Five-judge decision holding that suit, appeal and subsequent proceedings are steps in one legal proceeding; the right of appeal is substantive and vested from the date the lis commences and is governed by the law prevailing at the date of institution of the suit unless a later enactment expressly or by necessary intendment takes it away.	Applied as a leading authority to affirm that the forum for appeal in the present case is to be determined by the law in force when the suit was instituted; the court found no express or necessary intendment in the amendment to take away the vested right.
AIR 1970 All 201 (Full Bench) — Behari Lal v. Keshri Nandan	Held that the Legislature can give retrospective effect to amendments to change the forum (i.e., take away vested rights) where the language of the amending statute clearly demonstrates such intention.	Cited to acknowledge the proposition that a legislature can change vested rights by clear enactment; the court examined the amendment statute here and found no comparable clear provision, so Behari Lal did not operate to uphold the District Judge's jurisdiction in this case.
AIR 1953 SC 28 — Nemi Chand v. The Edward Mills Co. Ltd.	Held that a memorandum of appeal must be stamped according to the value of the subject-matter in dispute in the appeal; the relief claimed in the memorandum of appeal determines the value for the purpose of court-fees.	Applied to conclude that the court-fee paid by the appellant (based on the relief claimed in the appeal and the Pleader Commissioner's valuation of Rs. 160) was sufficient; this supported setting aside the lower court's direction to pay ad valorem fees based on Rs. 12,000.

Court's Reasoning and Analysis

The court proceeded in two related strands: (A) forum/retrospectivity and (B) court-fees valuation.

A. Forum and Retrospectivity

The court surveyed the authorities cited by the appellant and identified the governing principle: the right of appeal vests when the lis (suit) commences and the forum of appeal is determined by the law prevailing on the date of institution of the suit, unless a later statute clearly takes away that vested right.
The court examined the provisions of the Bengal, Agra and Assam Civil Courts (Amendment) Act (which raised the pecuniary jurisdiction of the District Judge) and specifically looked for any provision that would take away vested rights of appeal either expressly or by necessary intendment.
Finding no provision in the Amendment Act that removed vested rights of appeal, the court concluded the Amendment did not have the retrospective effect necessary to change the forum for appeals arising out of suits instituted before the amendment.
Consequently, the appeal in Title Appeal No. 530 of 1973 was wrongly presented before the learned Additional District Judge; the proper forum was the High Court under the law as it stood on the date of the institution of the original suit.
Because the learned Additional District Judge lacked jurisdiction to entertain the appeal, his order directing payment of deficit court-fees was erroneous; the correct procedural step would have been to return the memorandum of appeal to the appellant's advocate for presentation to the proper court.

B. Court-Fees Valuation

The court recognized the distinction between valuation for jurisdictional purposes and valuation for payment of court-fees — they may differ and depend on the claim actually made by a party.
Relying on Nemi Chand v. The Edward Mills Co. Ltd., the court accepted the principle that the memorandum of appeal must be stamped according to the value of the subject-matter in dispute in the appeal; the relief claimed in the memorandum determines the value for court-fees.
On the facts the appellant disclaimed interest in the structure and claimed relief limited to the undivided half share in the 13 decimals (valued by the Pleader Commissioner at Rs. 160). Considering the relief claimed in the appeal, the court held the court-fee paid by the appellant was sufficient.

Holding and Implications

Core Ruling: ORDER NO. 18 IS SET ASIDE.

Resulting orders and immediate consequences:

The rule issued under Section 115 CPC is made absolute and the order passed by the learned Additional District Judge on 25th May 1974 (Order No. 18) is set aside.
The learned Additional District Judge is directed to return the Memorandum of Appeal to the learned Advocate for presentation of the same to the proper court (i.e., the forum determined by law as it existed on the date of institution of the suit).
The court held that the court-fee paid by the appellant (based on the relief claimed and the Pleader Commissioner's valuation of Rs. 160) was sufficient and the lower court was wrong to require payment based on the plaintiffs' Rs. 12,000 valuation.
The records are to go down immediately.

Broader implications: The court applied and reiterated existing principles concerning the vesting of the right of appeal and the circumstances in which a legislative amendment may alter that right; it did not announce a novel legal principle beyond applying cited authorities to the statutory text and facts. The effect is remedial and procedural in this dispute (return of memorandum, setting aside of the impugned order) rather than the creation of a new precedent by the court in this opinion.

Disposition: Application allowed; rule made absolute.

(N.C. Mukherji, J.; concurrence by B.C. Ray, J.)

Show all summary ...

N.C Mukherji, J.:— This Rule was issued on an application under Section 115 of the CPC and is directed against Order No. 18 dated 25th May, 1974 passed by Sri A.N Mitra, Additional District Judge, 4th Court, Alipore, in Title Appeal No. 530 of 1973. By the above order the learned Additional District Judge held that the appeal was maintainable in his court and directed the appellant to pay the deficit court-fees. Being aggrieved, the appellant has come up before us.

2. The facts of the case may briefly be stated as follows:—

The opposite parties 2 to 4 brought a suit. The plaint case is that the suit property comprising 13 decimals of land with pucca building thereon belonged to Ambika Charan Pramanik, now deceased, the husband of the defendant No. 1 and Gurupada Pramanik in equal shares. Ambika died leaving behind the defendant No. 1 as his widow who inherited 8 annas share and continued to possess the some in ejmali with Gurupada Pramanik who owned the remaining eight annas share. The defendant No. 1 thereafter by a kobala sold her above share in respect of the suit land and other properties to the plaintiffs Nos. 2 to 4 who thereafter on amicable partition with Gurupada began to possess the property separately. The defendant No. 1 filed Title Suit No. 48 of 1950 for setting aside the above kobala and got a decree. The decision was affirmed upto this Hon'ble Court. On the basis thereof the present defendant No. 1 obtained an order of joint possession with Gurupada Pramanik. During the pendency of the aforesaid suit the plaintiff No. 2, since deceased, with the permission of the said Gurupada raised a residential pucca building on the suit land and the plaintiffs had been residing in such building and possessing land thereunder. The present defendant No. 1 by way of execution got possession of the property except the present suit land measuring 13 decimals. The plaintiffs being in possession of the above building, the defendant No. 1 did not get any possession in respect of such building The plaintiffs Nos. 2, 3 and 4 filed objection in Title Execution Case No. 37 of 1958 for obtaining possession in respect of the suit land. as a result of which the defendant No. 1 did not get possession. Against such decision the defendant No. 1 filed F.M.A 55 of 1960 in which it was decided that the defendant No. 1 would be entitled to get back possession of the above 13 decimals of land on removal of the structures. On 22nd of July, 1959 Gurupada transferred his 8 annas interest in favour of the plaintiff No. 1 Kalidasi, who was not a party to the above suit brought by the defendant No. 1. The defendant No. 1 Taramani filed Title Suit No. 33 of 1960 for partition and in such suit the present plaintiff No. 1 was declared to have 8 annas share on the strength of the deed of gift. The above order of delivery of possession an the removal of structures is highly prejudicial to the plaintiffs, and as such the plaintiff has filed the present suit for confirmation of possession in respect of the suit property upon declaration of title and for permanent injunction. For the purpose of jurisdiction and court-fees the plaintiffs valued the suit under Section 7 (iv)(c) of the Court-Fees Act at Rs. 12,000. The learned court below decreed the suit on declaring the eight annas share of the plaintiff No. 1 in the suit land and confirming her joint possession therein and restraining the defendants from disturbing the plaintiffs' possession of the disputed property in any way till the final partition of the disputed property between the plaintiff No. 1 and the defendant No. 1 by metes and bounds either amicably or by the decree of a competent court. Against such judgment and decree an appeal was filed by the defendant No. 1. The appeal was filed on 16th of June, 1973 and the appeal was valued for the purpose of court-fees at Rs. 160 on the basis of the valuation made by the Pleader Commissioner. An objection was taken by the respondents Nos. 1 to 4 that since the plaintiffs have valued the suit under Section 7 (iv)(c) of the Court-Fees Act at Rs. 12,000 and as the appellant wants to have the entire decree set aside, the instant appeal has to be valued at Rs. 12.000 for the purpose of court-fees.

3. Though the appeal was filed before the District Judge, it was urged on behalf of the appellant that the appeal was wrongly filed before the District Judge and the appeal ought to have been filed before the High Court as the suit out of which the present appeal arises was instituted long before the Amendment of the Bengal, Agra and Assam Civil Courts Act. By such amendment the pecuniary jurisdiction of the District Judge to entertain an appeal was raised from Rs. 10,000 to Rs. 15,000 It was urged on behalf of the appellant that this amendment will not determine the forum in respect of the appeals arising out of suit instituted before the commencement of the amendment. It was contended that the amendment had no retrospective effect and as such the vested right of preferring an appeal in a particular forum could not be taken away. The same argument has been advanced before us most ably by Mr. Ganguly, learned Advocate for the petitioner. In support of his contention he cites before us several decisions including 1905 AC 369 (Colonial Sugar Refining Co. Ltd. v. Irving). Mr. Ganguly next refers to a Full Bench desion of the Allahabad High Court reported in AIR 1928 All 437 (FB) (Ram Singha v. Shankar Dayal). In this case their Lordships relying on the Privy Council decision referred to above laid down:

“An appeal is a mere continuance of the original proceeding initiated by the filing of the plaint, and the right to continue that proceeding cannot be affected by a new Act, unless it expressly says so”.

4. In this case a suit was filed for arrears of rent for less than Rs. 200 in the Court of the Assistant Collector when the old Agra Tenancy Act was in force. Before it could be decided, the new Act came into force on the 7th of September, 1926. The suit was decreed on 23rd of December, 1926. It was held

“That the right to appeal to the Court of the District Judge was governed by the law prevailing at the date of the institution of the suit and not by the law that prevailed at the date of its decision, or at the date of the filing of the appeal.”

5. The next case referred to by Mr. Ganguly has been reported in AIR 1957 SC 540 (Garikapati Veeraya v. N. Subbiah Choudhry & Others). This is a decision of 5 Judges and 4 of the Judges held.

“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. The right of appeal is not a mere matter of procedure but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. 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 the lis commences and although it may actually be 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 low that prevails at the date of its decision or at the date of the filing of the appeal. 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.”

6. We have gone through the provisions of Bengal, Agra and Assam Civil Courts (Amendment) Act and we do not find that there is any provision by which the vested right of appeal has been taken away either expressly or by necessary intendment.

7. The last case referred to by Mr. Ganguly is another Full Bench decision of the Allahabad High Court reported in AIR 1970 All 201 (FB) (Behari Lal v. Keshri Nandan). In this case their Lordships found as follows:

“On examining the language of Cl. (a) of sub-section (1) of Section 21 of the Civil Courts Act and sub-section (1-A) of Section 21 of the Civil Courts Act (as inserted by the U.P Civil Laws Amendment Act) it becomes clear that the Legislature was anxious to give retrospective effect to the amended Section 21 of the Civil Courts Act. The amendment is effective even as regards a suit instituted before the commencement of the U. Laws Amendment Act.” Their Lordships further held

“It is true that litigants have got vested right of appeal the moment a suit is instituted, But it is open to the appropriate Legislature to take away such vested right.”

8. Thus it is clear that the legal position is that a right of appeal is vested in the parties as soon as a suit is instituted and the forum of appeal would be determined with regard to law as existing on the date of the commencement of the suit. The Legislature can take away such vested right by way of amendment and it such vested right is taken away then the forum will be changed and the forum will be determined according to the provisions of the Amendment Act. As has already been stated there is no provision in the Amendment Act which has in any way taken away the vested right of appeal, and that being so, we fully agree with Mr. Ganguly that in the present case the forum would be determined with reference to the law as it existed on the date of the commencement of the suit and that being so, the appeal was wrongly presented before the learned District Judge and the same ought to have been presented before this Court. This being the legal position, we further find that as the learned Additional District Judge had no jurisdiction to entertain the appeal he was wrong in directing the appellant to pay deficit court-fees. The proper order which the learned Additional District Judge could have passed was to return the Memorandum of Appeal to the learned Advocate for the appellant for presentation of the same to the proper court.

9. With regard to the payment of court-fees Mr. Ganguly submits that the learned court below was wrong to hold that the appellant was required to pay ad valorem court-fees at Rs. 12,000. As the suit was valued at Rs. 12,000 the appeal was also valued at Rs. 12,000 for the purpose of jurisdiction. There is no doubt that the valuation of an appeal for the purpose of jurisdiction and the valuation of the same for the purpose of payment of court-fees may be different. The payment of court-fees depends on the claim as made by a party.

10. It is contended by Mr. Ganguly that the appellant having disclaimed any interest in the structure, the court below misdirected itself in taking the value of the structure for the determination of court-fees. In this connection it is further submitted that the relief which the appellant claimed was only in respect of undivided one-half share of 13 decimals of land which was valued by the Pleader Commissioner at Rs. 160 and as such the appellant paid court-fees on the said amount. In support of his contention that the court-fee was properly paid Mr. Ganguly refers to a decision reported in AIR 1953 SC 28 (Nemi Chand v. The Edward Mills Co. Ltd.). It has been held in this case

“A memorandum of appeal as provided in Article 1 of Schedule 1, Court-Fees Act, has to be stamped according to the value of the subject-matter in dispute in appeal: in order words, the relief claimed in the memorandum of appeal determines the value of the appeal for the purpose of court-fees.”

11. Considering the facts and circumstances of the case and the relief claimed in the appeal we agree with Mr. Ganguly that the court-fee paid on the appeal is sufficient.

12. In the result, the application succeeds and the rule is made absolute. The Order No. 18 passed by the learned Additional District Judge on 25th May, 1974 is set aside. The learned Additional District Judge is directed to return the Memorandum of Appeal to the learned Advocate for presentation of the same to the proper court. Let the records go down immediately.

13. B.C Ray, J.:— I agree.

14. Application allowed.