Kotina Papayya And Others v. Samminga Appalanaidu And Others

Chandra Reddy, C.J..:-

(1) This reference raises an interesting though a difficult question as to the interpretation of the madras civil courts (andhra amendment) act, 1955 (i of r956) , hereinafter referred to as the act, which raised the monetary jurisdiction of the subordinate appellate courts. The controversy is whether this enactment which came into force on 1st april, 1956, has a retrospective effect so as to affect the right of appeal to the high court arising out of pending suits.

(2) The reference has been made by the district judge, visakhapatnam, on an objection raised by the respondents in some of the appeals as to the competency of that court to entertain appeals whose value is more than rs. 5,000 and less than rs. 7,500 arising out of suits instituted prior to the passing of this act. This statute though passed by the legislature of the andhra state in 1955, received the assent of the president on 4th january, 1956. By and under the terms of the enactment, the state government was empowered to appoint the day for the coming into force of the provisions of the amended enactment. The act was published in the andhra gazette on12th january, 1956. Pursuant to the powers conferred by section 1 (2) of the act, the state government issued a notification after consulting the high court on 7th march, 1956, specifying the amount or value of the subject - matter of the suit as not more than rs. 7,500 for the purpose of appeals to the district court from the decrees and orders of the subordinate judges and district munsifs, and also fixing 1st april, 1956, as the date on which the provisions of this act would come into force.

(3) The present act which amended the madras civil courts act, 1873 (central act iii of 1873) substituted in section 13 of the civil courts act the words ' ten thousand' for the words 'five thousand. ' the result of the amendment would be whereas hitherto an appeal would lie to the high court if the valuation was rs. 5,000, after the amendment act the appeal will have to be filed only in the district court if the valuation does not exceed rs. 10,000. Undeniably, all the suits which have given rise to this reference were instituted long before the passing of this act. That being the position, would it be within the competence of the district court to take cognizance of appeals whose value exceeds rs. 5,000 and is below rs. 7,500 ? the answer to this depends upon whether this enactment is retrospective or only prospective.

(4) It is now well - settled, ever since the decision in the colonial sugar refining company, limited v. Irving, l. R. 1905 a. C. 369, that a party has a vested right to carry his appeal to superior courts and to take advantage of the law that obtained at the time of the initiation of the original proceeding by him, all the rights that belonged to him at that time being preserved till the rest of the career of the original proceeding, that the right of appeal is not a mere matter of procedure but is a substantive right and that the forum to which he could carry an appeal is a part of the substantive right and is not in any way dissociated from it. The doctrine of the colonial sugar refining company, limited v. Irving, has been adopted by their lordships of the supreme court in garikapati veerayya v. Subbiah choudhry, (1957) s. C. J. 439 : (1957) 2 m. L. J. (s. C.) 1 : (1957) 2 an. W. R. (s. C.) 1.

(5) In view of the pronouncement of the supreme court, it is unnecessary to refer to the earlier decisions of the various courts in india except to mention a judgment of five judges of the madras high court in vasudeva samiar alias vasudeva pillai, in re. , (1928) 56 m. L. J. 369: i. L. R. 52 mad. 361 (f. B.). Which established the same proposition, following the decision in the colonial sugar refining company, limited v. Irving. But the privy council as also the supreme court have recognised an exception to this rule, namely, that this vested right could be taken away by a subsequent enactment if it so provides expressly or by necessary implication.

(6) Therefore, we have to look to the terms of the enactment and the attendant circumstances to see whether expressly or by necessary intendment the result sought is achieved. There is no language in the enactment which makes this act retrospective. We have next to see whether such an intention could be inferred from any provision of the act and other circumstances. At the outset, it must be mentioned that there is no provision in the act to the effect that it would not affect pending proceedings or appeals to be filed against judgment in suits instituted prior to the coming into force of this enactment. We must also take into consideration the fact that section i (2) of the act lays down that the act would not come into force forthwith on receiving the assent of the president but that it would come into force on the date to be notified by the state government. The fact that the state government notified on 7th march, 1956, that the act would come into operation only from 1st april, 1956, is an indication that it was intended that the act should be retrospective. In this context, the following rule of law contained in maxwell's interpretation of statutes (tenth edition) at page 223 is helpful:

"but some stress is also to be laid on the circumstance that the act did not come into operation until eight months after its passing, for the concession of this interval seemed to show that the hardship in question has been in the contemplation of the legislature and had been thus provided for"

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(7) The principle enunciated in the following passage in craies statute law, 5th edition, at page 363, accords with this :

"a postponement clause in an act has been sometimes said to be an indication against the presumption that a retrospective intent is not to be inferred."

the dictum of pollock, c. B. , in wright v. Hale, (1860) 30 l. J. Ex. 40, is also instructive in this context :

"i think that where an act of parliament alters the proceedings which are to obtain in the administration of justice, and does not specially say that it shall not apply to any action already brought but merely causing the operation to pause for a certain time, and giving an opportunity for parties to retire from suits, it applies to actions already brought."

(8) The madras high court had to consider the same question in parthasarathi naidu, in re. , (1957) 2 m. L. J. 251 their lordships rajamannar, - c. J. And panchapakesa ayyar, j. , who dealt with the madras civil courts (amendment) act (xvii of 1956) and which is similar in terms to the statute in question, expressed the opinion that act xvii of 1956 was retrospective and would govern suits filed before the act came into force. We express our respectful assent to the view taken by the learned judges in that case. The statement of objects and reasons also leads us to the same conclusion. It reveals an anxiety on the part of the legislature to relieve the congestion in the high court which gives an indication to the intention of the legislature that the legislation should have retrospective operation. It is in the following terms :

"the high court arrears committee constituted by the government of india under the chairmanship of sri justice s. R. Das, to suggest ways and means to reduce the accumulation of arrears in high courts suggested, among others, the enhancement of the appellate jurisdiction of district judges upto rs. 10,000. This will have the effect of reducing the heavy file of first appeals in the high court to a large extent. The government of india have accepted this recommendation and suggested that this may be implemented by the state government by amending the civil courts act suitably so as to enhance the appellate jurisdiction of the district judges upto rs. 10,000 with a provision to fix the same at such lower limit as the state government may, by notification, determine in consultation with the high court. Further, this will give an opportunity to the district judges to assess the judicial work of the subordinate judges, which has become impracticable after the commencement of the madras civil and village courts (amendment) act, 1951 (madras act xvi of 1951). The bill seeks to give effect to the above suggestion."

(9) For all these reasons, we hold that the madras civil courts (andhra amendment) act, 1955 (i of 1956) is retrospective in its application and would apply even to suits which had been instituted before the act came into force. The reference is answered accordingly. Answered accordingly.