Mookerjee, J.:— This is a reference under sec. 98 of the Civil Procedure Code of 1908, and the point of law upon which the learned Judges who heard the case in the first instance have differed has been formulated in the following terms;—

“Whether the special rule of limitation extended to under-raiyats in Eastern Bengal by the amendment in 1908 of the third Article in the third Schedule to the Bengal Tenancy Act, 1885, applies to all suits of the kind there indicated instituted after the commencement of the amending Act without regard to when the cause of action arose.”

Mr. Justice Carnduff was of opinion that the question ought to be answered in the affirmative, while Mr. Justice Chatterjea was of opinion that the question ought to be answered in the negative. To determine the question in controversy it is necessary to explain how the point arises for decision.

The third Article of the third Schedule of the Bengal Tenancy Act, 1885, provides that a suit to recover possession of land claimed by the Plaintiff as an occupancy raiyat shall be instituted within two years from the date of dispossession. Sec. 184, sub-sec. 1 of the Bengal Tenancy Act provides that a suit of this description, instituted after the period of limitation so prescribed, shall be dismissed, although limitation has not been pleaded. Sec. 185, sub-sec. 2 of the Bengal Tenancy Act further makes applicable to such a suit the provisions of sec. 28 of the Indian Limitation Act, whereby at the determination of the period limited to any person for instituting a suit for possession of any property, the right to such property is declared to be extinguished. In the case of Bhagaban Chandra Sha v. Joggeswar Ghosh(27), which was decided on the 25th August, 1898, it was ruled by this Court that the third Article of the third Schedule of the Bengal Tenancy Act was in terms applicable only to suits by occupancy raiyats and did not govern suits by under-raiyats. It was held in substance that, in so far as under-raiyats were concerned, a suit for possession was governed by Article 142 of the second Schedule of the Indian Limitation Act, which requires that a suit for possession of immoveable property, when the Plaintiff while in possession of the property has been dispossessed must be brought within twelve years of the date of dispossession. In the case now before the Court, the Plaintiffs who are under-raiyats were dispossessed in 1898, and they were consequently entitled to institute a suit for recovery of possession within 1910. The present action was commenced on the 25th August, 1908; primâ facie, therefore, the suit is not barred by limitation. But on the 10th June, 1908, the third Article of the third Schedule of the Bengal Tenancy Act, 1885, was amended by sec. 61, cl. (3) of the Eastern Bengal and Assam Tenancy Amendment Act, 1908. The effect of this amendment was to substitute the words “a raiyat or an under-raiyat” for the words “an occupancy raiyat” in the third Article. To put the matter briefly, on the 10th June, 1908, the Legislature enacted that a suit to recover possession of the land claimed by the Plaintiff as an under-raiyat must be instituted within two years from the date of dispossession. The consequence was that the general rule of law as embodied in Article 142 of the second Schedule of the Indian Limitation Act was repealed by implication to the extent that it ceased to be applicable to suits for recovery of possession of land by under-raiyats. The Plaintiffs-Appellants contend that the new rule of limitation applicable to under-raiyats as embodied in sec. 61, cl. 3 of the Eastern Bengal and Assam Tenancy Amendment Act, 1908, is not applicable to causes of action which arose before the commencement of the Act. The Defendants-Respondents contend that the new rule of limitation applies to all suits instituted after the commencement of the Act independently of the date when the cause of action arose. The question appears to have been elaborately argued before the learned Judges who heard the appeal in the first instance, and reference was made to a large number of judicial decisions which are analysed and examined in their recorded opinions. The matter has been reargued before me with great care on both sides, but my attention has not been drawn to any judicial decision which is conclusive upon the precise question raised; it is necessary, therefore, to examine the matter as one of principle.

It is well-settled, as observed by Mr. Justice Willes in Phillips v. Eyre(28), that retrospective laws are primâ facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated, ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law. The maxim is familiar to every student of jurisprudence, nova constitutio futuris formam imponere debet, non prceteritis. A new law ought to be prospective, not retrospective, in its operation. Accordingly, the Court will not ascribe retrospective force to new laws affecting rights, unless by express words or necessary implication, it appears that such was the intention of the Legislature. A luminous exposition of this fundamental doctrine will be found in the judgment of Kent, C.J, in Dish v. Van Kleeck(29). The learned Chief Justice pointed out that the maxim of Papinian, nemo potest mutare concilium suum in alterivs injuriam (Digest, 50, 17, 75) was familiar to Roman jurists and had been accepted as a fundamental principle of English law by Bracton, Coke and Bacon. A similar exposition will be found in the judgment of Mr. Justice Story in Society for the Propagation of the Gospel v. Wheeler(30). It must consequently be now deemed indisputably settled that every statute which takes away or impairs a vested right acquired under existing laws or creates a new obligation or imposes a new duty, or attaches a new disability, in respect of transactions or considerations already passed, must be deemed retrospective in its operation. Re Pulborough School Board(31). It is also firmly settled that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require that construction, and this involves the subordinate rule that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary; Lauri v. Renad(32), Read v. Read(33), Re Norman(34), Allhusen v. Brooking(35). As Baron Parke observed in Moon v. Durden, followed in Pitambardass v. Thackoorsidas, the rule that enactments in a statute are generally to be construed to be prospective and intended to regulate the future conduct of persons, is deeply founded in good sense and strict justice and has been acted upon in many cases, amongst which may be mentioned, Edmunds v. Lawley(36), Moore v. Phillips(37), Midland Railway Company v. Pyne(38), Marsh v. Higgins(39), Chippel v. Purday(40), Hitchcock v. Way(41), Padon v. Bartlee(42), Young v. Hughes(43), Barton Union v. Liverpool Overseers(44), Hough v. Windus(45), Turnbull v. Potman(46). This principle is so well recognised that it has been repeatedly laid down that in the absence of clear words to that effect a statute will not be construed as taking away a vested right of action acquired before it was passed. Larpent v. Biblby(47), Waugh v. Middleton (48), Williams v. Smith(49), Jackson v. Wooley(50), Right v. Gieentoid(51), Knight v. Lee(52), Smithies v. National Association of Plasterers(53).

In the application of the principle that the Court will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the Legislature, the question frequently arises whether the statute does in fact take away a vested right. From this point of view, we have to bear in mind the well-settled doctrine that no suitor has a vested interest in the course of procedure or a right to Complain, if during his litigation the procedure is changed, provided that no injustice be done. Costa Rica v. Erlanger, Turnbull v. Forman.

Hence, as observed by Lord Blackburn in Gardner v. Lucas, alterations in the form of procedure are always retrospective, unless there be some good reason to the contrary as in Pinhorn v. Souster(54). This principle has been repeatedly recognised and applied, Colonial Sugar Refining Company v. Irvine(55), A.G v. Sillen(56), Wright v. Hale, Kimbray v. Draper(57), Curtis v. Stovin(58), The Yudun, King v. Chundra Dhatma. On this principle, statutes of limitation have been construed as affecting existing claims where an interval of time was allowed for their enforcement, Pordo v. Bingham(59), Cornill v. Hudson R. v. Leeds Railway Co.(60). The case last mentioned follows the authority of Towler v. Chatterton, which was commented upon by Baron Rolfe in Moon v. Durden and by Mr. Justice Cress-well in Marsh v. Higgins.

We thus start with two fundamental principles in view. In the first place, no statute shall be construed so as to have a retrospective operation, unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication; West v. Gwynne(61), Smith v. Callander(62), Young v. Adams(63); and even in construing a section, which is to a certain extent retrospective, the maxim must be borne in mind as applicable whenever the line is reached at which the words of the section cease to be plain. Main v. Stark(64), Reynolds v. A.G Nova Scotia(65). In the second place, the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the Courts, even where the alteration which the statute makes has been disadvantageous to one of the parties. Wright v. Hale, The Yudun, Cornhill v. Hudson, Pardo v. Bingham. But the new procedure would be presumably inapplicable where its application would prejudice rights established under the old. Ex parte Phoenix Bessemer Co.(66). We shall now proceed to examine which of these two principles is applicable to the case before us.

In the present case, the Eastern Bengal and Assam Tenancy Amendment Act of 1908 became law on the 10th June, 1908 and came into operation on that very date. It is contended on the one hand that the Legislature could never have intended the new provision of limitation to apply to causes of action which had accrued before the new statute became law, because the effect would be to extinguish forthwith all causes of action in existence and enforceable in a Court of justice at the time when the statute came into operation. It is argued on the other hand that the language of the statute is explicit and covers all causes of action whether antecedent or subsequent to the commencement of the statute. To determine which of these contentions is well-founded, we must remember that the statute as amended provides that the suit to recover possession of land claimed by the Plaintiff as an under-raiyat must be brought within two years from the date of dispossession. To hold that this amended provision applies to suits in respect of dispossession which has taken place more than two years before the enactment of the new law, is to maintain the position that the Legislature intended the litigant to accomplish what is impossible in the nature of things for him to do, in other words, to prescribe that his rights are forthwith extinguished without previous notice and without opportunity afforded to him to escape the operation of the new law. To put the matter briefly, if this view is to be supported, we must hold that the Legislature acted in a most unreasonable manner, i.e, that the Legislature intended to penalise all under-raiyats who had been dispossessed by their landlords more than two years before the commencement of the new statute, merely because they had waited to enforce their rights in a Court of Justice within the period of limitation allowed at that time by the Legislature. There is, in my opinion, considerable force in the contention that the Legislature may be deemed to act as a body of reasonable men and that the presumption is that they did not intend to inflict needless and unjustifiable hardship upon a large body of innocent litigants. As Lord Campbell, C.J, observed in Cornill v. Hudson, the proper way to construe an Act of Parliament is to try and find out the intention of the Legislature; if there is any room for doubt, we must assume that the Legislature did not intend to give the statute a retrospective operation, where such retrospective operation upon pre-existing causes of action would result in hardship to the litigant. In my opinion, the cardinal and fundamental point in the case before me is that the Eastern Bengal and Assam Tenancy Amendment Act of 1908 came into operation the very moment it became law: consequently, if it were taken to affect pre-existing causes of action, the effect would be absolutely to bar at once all actions where the cause of action had accrued more than the limited time before the statute was passed. In a case of this description, the statute of limitation ceases to be a statute of mere procedure and operates to the destruction of existing and enforcible rights. This point of view is well illustrated by a remarkable judgment of the Supreme Court of the United States in the case of Sohu v. Waterson(67). In that case, the Plaintiff, a citizen of Ohio, commenced an action in August 1870 against the Defendant, a citizen of Kansas, to recover the amount of a judgment-debt under a judgment obtained by him in 1854. The Defendant pleaded the Statute of Limitation passed in 1859, more than four years after the judgment had been obtained which provided that all actions founded on judgments were to be commenced within two years next after the cause or right of action had accrued and not after. The Plaintiff contended that this statute could not apply to causes of action which had accrued more than two years before its passage, because such literal interpretation would cut them off and defeat them altogether. Mr. Justice Bradley who delivered the unanimous opinion of the nine Judges of the Supreme Court of the United States held that the statute could not be so interpretated as to affect and destroy forthwith pre-existing causes of action. The learned Judge referred at the outset to the principle enunciated in Untied States v. Heth(68), namely, that “words in a statute ought not to have a retrospective operation, unless they are so clear, strong and imperative that no other meaning can be annexed to them or unless the intention of the Legislature cannot otherwise be satisfied,” and in Harvey v. Tylet(69), namely, “That all statutes are to be considered prospective, unless the language is expressed to the contrary or there is a necessary implication to that effect”. The learned Judge then went on to make the following observations: “A statute of limitation may undoubtedly have effect upon actions which have already accrued as well as upon actions which accrue after its passage. Whether it does so or not will depend upon the language of the Act and the apparent intent of the Legislature to be gathered therefrom. When a statute declares generally that no action or no action of a certain class shall be brought except within a certain limited time after it shall have accrued, the language of the statute would make it apply to past actions as well as to those arising in future. But if an action accrued more than the limited time before the statute was passed, a literal interpretation of the statute would have the effect of absolutely barring such action at once. It would be presumed that such was not the intention of the Legislature. Such an intent would be unconstitutional. To avoid such a result and to give the statute a construction that will enable it to stand, Courts have given it a prospective operation”. Upon a review of the decisions of the American Courts, as Mr. Justice Bradley points our, it appears that in cases of this description, the Courts have adopted one or other of three different modes of interpretation, viz., first, to make the statute apply only to causes of action arising after its passage; secondly, to apply the statute to such existing causes of action only as have already run out a portion of the statutory time but which still have a reasonable time left for prosecution before the statutory time expires, the Court to determine what is reasonable time for this purpose; and, thirdly, to apply the new period of limitation to all suits instituted after the commencement of the statute, the period to run from the date when the statute came into operation. It is plain that the language of the statute must determine the particular cannon of construction applicable to the case before the Court. The first of these rules was adopted in Murray v. Gibson(70), and the third in Ross v. Duval(71), Lewis v. Lewis(72) and Soku v. Waterson. Where the statute uses the expression “cause of action” and fixes the period of limitation with reference thereto, the problem, in the words of Chief Justice Taney in Lewis v. Lewis, may be deemed to be “from what time is the limitation to be calculated” and the answer may well be given in the language of that learned Judge “the time must commence when the cause of action is first subjected to the operation of the statute” by which the period for the enforcement of such cause of action has been prescribed. But whatever controversy there may be as to the particular mode of interpretation to be adopted, there is a singular uniformity of judicial opinion that statutes coming into operation immediately they become law and declaring generally that an action must be brought within a limited time after accruing will not be construed retrospectively so as to bar causes of action which accrued more than the limited time before the statute was passed [Friedman v. McGowan(73), Browning v. Browning(74)]. On the other hand where a new statute of limitation reduces the time previously allowed for commencement of the suit, but does not come into operation forthwith and allows a reasonable time for the enforcement of existing causes of action, the Court will not hesitate to hold that the statute may affect causes of action already accrued in the same manner as those accruing after its passage [Terry v. Anderson(75), Kosh Konon v. Burton(76), Vance v. Vance(77), In re Brown(78)]. The distinction to which I have adverted and which is so emphatically brought out and developed in the decisions of the Supreme Court of the United States has been indicated from time to time in judicial decisions both in England and India. Amongst decisons in England, may be mentioned Gilmour v. Skuter, Towler v. Chatterton, Doe v. Page, Queen v. Leeds and Bradford Railway Co.(79), Comill v. Hudson, Wright v. Hale, Ring v. Chundra Dharma. Amongst decisions in Indian cases, may be mentioned Delhi and London Bank v. Orchard. In re Ratansi Kalainji, Sitaram v. Kbanderao, Rukmaboye v. Luloobhoy, Khusalbai v. Kabhai. It is suggested, however, that this distinction was not recognised in two cases under the Bengal Tenancy Act, viz., Sraswati v. Haritarun and Ramdkan v. Ramkumar. In my opinion, the cases mentioned are clearly distinguishable. The Bengal Tenancy Act, as is well-known, came into operation many months after it had become law, and the question of the applicability of rules of limitation contained in the statute stands on an obviously different footing. But it is urged that the two cases mentioned do not at all advert to the fundamental distinction I have explained. The obvious answer is that it was not necessary to do so; at any rate, the mere fact that reference is not made in those cases to the principle now in controversy does not show that the principle itself is not well-founded on reason and good sense. In this connection, we cannot afford to forget that, as Lord Mansfield said in Fishes v. Prince(80), the reason and spirit of cases make law, not the letter of particular precedents; and as Lord Halsbury said in Quinn v. Leatham(81), every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there, must be deemed governed and qualified by the particular facts of that case. These observations apply equally to the cases of Reg. v. Dorabji and Chajmal v. Jagadamba. I further desire emphatically to repudiate the suggestion that the Court is in any way bound by isolated dicta in English cases not directly in point; the crucial test to be applied is, are these dicta consistent with the principles of justice, equity and good conscience. Here it is useful to bear in mind the weighty observations of one of the foremost jurists of the present generation, viz., that “blind following of English precedents according to the letter can only have the effect of reducing the estimation of the Common Law by intelligent Indians to the level of its more technical and less fruitful portions and making those portions appear if possible more inscrutable to Indian than they do to English lay suitors.” (Sir Frederick Pollock on the Genesis of the Common Law, page 92). No doubt, we find it frequently asserted in judicial decisions that a statute of limitation embodies merely a rule of procedure but this statement is only generally and not universally true. The essence of the matter is that when a new statute of limitation which shortens the period for institution of suits and comes into force the moment it becomes law, is sought to be made retrospectively applicable to causes of action which have accrued earlier than the length of time prescribed, it ceases to be a statute of mere procedure and serves to destroy pre-existing and enforceable rights. Under circumstances like these, the Court, when invited to hold that the new statute has retroactive operation, will struggle against the acceptance of such an interpretation, unless there is the clearest indication that the Legislature intended to destroy existing rights without notice and thus to penalise innocent litigants. There is no force in the suggestion that such litigants may be expected to watch the proceedings of legislative assemblies and take steps in advance for self-protection lest the Legislature should pass a new law and take away existing rights. No doubt, “all men are presumed cognisant of the law,” but knowledge of the law is imputed to every person, only because, as Lord Ellen-borough observed in Bilbie v. Lumby(82), there is no saying to what extent the excuse of ignorance might be carried if the presumption were not applied. No authority, however, has been shown to me in support of the position that persons are not only presumed to know the law, but are also expected at their peril to anticipate the possible action of legislative assemblies.

After the most anxious consideration of the arguments which have been addressed to me, I have arrived at the conclusion that the special rule of limitation extended to under-raiyats in Eastern Bengal by the amendment in 1908 of the third Article in the third Schedule of the Bengal Tenancy Act, 1885, does not apply to suits instituted after the commencement of the amending Act in respect of causes of action which arose before the amending Act came into force, and I agree with Mr. Justice Chatterjea that sec. 61, cl. 3 of the Eastern Bengal and Assam Tenancy Amendment Act of 1908 has no retrospective operation.

Let the case be returned to the Division Bench for disposal.

[On the 14th March, 1913, the case was taken up for disposal by Carnduff and N.R Chatteijea, JJ., and the following order was passed by their Lordships:—

The only other question raised in the appeal is whether there was an abandonment of the holding by the Plaintiffs and how far the Plaintiffs, who were minors, are bound by it. But the learned District Judge found that the Plaintiffs were dispossessed by their landlord in colusion with the other Respondents. The question of special limitation under the Bengal Tenancy Act can only arise and was raised on the finding that there was dispossession, and we discussed the question of limitation on that footing. The Plaintiffs having been dispossessed, the question of abandonment does not arise, and in fact the finding as to dispossession negatives the case of abandonment.

The suit not being barred by the special limitation provided by the Bengal Tenancy Act, and having been instituted within 12 years of the dispossession, the Plaintiffs are entitled to a decree for possession. The decree of the lower Appellate Court is accordingly set aside and that of the Court of first instance restored.

Each party will bear his own costs of this Court and of the lower Appellate Court. In the result the Appellants will be allowed their costs in the Court of first instance].

Appeal allowed.