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C.P. Bannerjee Vs. B.S. Irani - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 3049 of 1947
Judge
Reported inAIR1949Bom182; (1949)51BOMLR122
AppellantC.P. Bannerjee
RespondentB.S. Irani
Excerpt:
presidency small cause courts act (xv of 1882), section 21-presidency small cause courts (bombay amendment) act (bom. xliv of 1948)-suits already filed in bombay high court-high court to determine such suits-letters patent, clause 12-bombay high court letters patent amendment act (bom. xli of 1948)-bombay city civil court act (bom. xl of 1948).;suits triable by the presidency small cause court, the claims in which exceed rs. 1,000 but are under rs. 2,000 in value, which, under the option given by section 21 of the presidency small cause courts act, 1882, before its amendment by the presidency small cause courts (bombay amendment) act, 1948, have already been filed in the high court of bombay, continue to be triable by the high court, even after the amendment of section 21 by the act of.....bhagwati, j.1. in this matter i had delivered a judgment on october 6, 1948, but, after i did so, my attention was drawn to the fact that the bombay legislature had simultaneously with the enactment of bombay act xliv of 1948 also enacted bombay act xli of 1948 called the bombay high court letters patent amendment act, 1948. this necessitated a further 'argument and in the result i quashed the judgment which i had dictated on october 6, 1948, and put down the matter for further argument. the matter has been thereafter fully argued before me by mr. palkhiwalla appearing for the plaintiff, mr. m.m. desai appearing for the defendant and by mr. b.j. divan whom i appointed to argue the matter before me per amicus curiae.2. the question that falls to be determined by me in this matter is.....
Judgment:

Bhagwati, J.

1. In this matter I had delivered a judgment on October 6, 1948, but, after I did so, my attention was drawn to the fact that the Bombay Legislature had simultaneously with the enactment of Bombay Act XLIV of 1948 also enacted Bombay Act XLI of 1948 called the Bombay High Court Letters Patent Amendment Act, 1948. This necessitated a further 'argument and in the result I quashed the judgment which I had dictated on October 6, 1948, and put down the matter for further argument. The matter has been thereafter fully argued before me by Mr. Palkhiwalla appearing for the plaintiff, Mr. M.M. Desai appearing for the defendant and by Mr. B.J. Divan whom I appointed to argue the matter before me per amicus curiae.

2. The question that falls to be determined by me in this matter is whether this Court has jurisdiction to further try and determine the suit, having entertained it at a time when according to the law as it then stood it had jurisdiction to entertain the same.

3. The plaintiff filed this suit against the defendant on September 12, 1947, to recover a sum of Rs. 1,000 with interest thereon at 6 per cent, per annum from December 20, 1945, or February 13, 1946, as the case may be until judgment, costs and interest on judgment at 4 per cent, per annum till payment. The suit was thus for the recovery of a sum over Rs. 1,000 and below Rs. 2,000. Under Section 21 of the Presidency Small Cause Courts Act as it then stood the plaintiff had the election to institute this suit in the High Court, the amount or the value of the subject-matter thereof exceeding Rs. 1,000, even though under Section 18 of the Act the Small Causes Court would have jurisdiction to try this suit, the amount or value of the subject-matter not having exceeded Rs. 2,000. The plaintiff filed this suit in the High Court in pursuance of this election which was given to him under Section 21 of the Act and the suit was thus rightly received by the High Court and the High Court would in the ordinary course have had jurisdiction to try and dispose of the same, subject of course to the provisions contained in Section 22 of the Presidency Small Causes Courts Act as it then stood, which provided that in case of suits cognizable by the Small Cause Court to which Section 21 applied no costs would be allowed to the plaintiff if the plaintiff obtained a decree for any amount or value of less than Rs. 300, and that the defendant would be entitled to his costs as between attorney and client if the plaintiff did not obtain any decree therein.

4. In about May 1948 the Bombay Legislature enacted several enactments which were contemplated to deprive the High Court of jurisdiction to try suits cognizable by the Small Cause Court as well as the Bombay City Civil Court which was then about to be established. The Legislature intended to deprive the High Court of this jurisdiction to receive, try and determine suits between Rs. 1,000 and Rs. 2,000 which could be instituted by the plaintiff at his election in the High Court acting under the provisions of Section 21 of the Presidency Small Cause Courts Act. The Legislature also intended to deprive the High Court of the jurisdiction to receive, try and determine suits not exceeding Rs. 10,000 in value and arising in Greater Bombay which were intended by it to be cognizable by the Bombay City Civil Court when was about to be established. With this end in view the Bombay Legislature enacted Bombay Act XL of 1948 called the Bombay City Civil Court Act, 1948, which established an additional civil Court for the Greater Bombay, constituted the Bombay City Civil Court, invested it with jurisdiction to try and dispose of all suits of a civil nature not exceeding Rs. 10,000 in value and arising within Greater Bombay, except certain suits or proceedings therein mentioned, provided that the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Civil Court and further provided for transfer of suits pending in the High Court in which issues had not been settled or evidence recorded on or before the date of the coming into force of that Act to the City Court to be heard and disposed of by the City Court as if the same had been originally instituted in that Court. The Bombay Legislature also simultaneously enacted Bombay Act XLI of 1948 called the Bombay High Court Letters Patent Amendment Act, 1948, by Section 3 whereof an amendment was made in Clause 12 of the Letters Patent of the High Court in the last sentence thereof, which as amended read as under :

Except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay, or the Bombay City Civil Court.

The suits which were cognizable by the Bombay City Civil Court were prescribed in the Bombay Act XL of 1948. So far as suits falling within the jurisdiction of the Small Cause Court at Bombay were concerned, the Bombay Legislature enacted Bombay Act XLIV of 1948 called the Presidency Small Cause Courts (Bombay Amendment) Act, 1948, and by Section 2 thereof the election which was given to the plaintiff to institute in the High Court suits whereof the amount or value of the Subject-matter exceeded Rs. 1.000 was deleted and with regard to certain suits of the nature prescribed in Section 21 of the Presidency Small Cause Courts Act also the jurisdiction of the Bombay City Civil Court was substituted for that of the High Court and the election given to the plaintiff to file such suits in the High Court was substituted by the election given to him to file such suits in the Bombay City Civil Court. The result of this enactment thus was that the original jurisdiction which had been invested in -the High Court under Clause 12 of the Letters Patent to receive, try and determine suits whereof the amount or value of the subject-matter exceeded Rs. 1,000, though at the election of the plaintiff, was taken away from the High Court.

5. All these Acts, Bombay Act XL of 1948, Bombay Act XLI of 1948 and Bombay Act XLIV of 1948 along with others came into operation some time in August 1948 and thus arose the question as to whether, even though this Court rightly received or entertained this suit which was for an amount exceeding Rs. 1,000 at the date when the same was instituted, it had further jurisdiction to try and determine the same.

6. Strictly speaking, I am only concerned with the provisions of Bombay Act XLI of 1948 and it would only be necessary fop me to look to the provisions of that Act and determine the question which has arisen before me. In so far, however, as the enactments which were from time to time and particularly at this time in May 1948 enacted by the Bombay Legislature were so enacted with a view to cheapen the costs to the litigant and to protect him from the burden of costs of litigation in the High Court, I have thought it necessary to have the matter argued in extenso, having regard to the provisions which were enacted by the Legislature in the various enactments enacted by it with this end in view. The first of such enactments which would fall to be considered by me is the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, being Bombay Act LVII of 1947, and the other enactments will be those which were enacted in May 1948, viz. Bombay Act XL of 1948, Bombay Act XLI of 1948 and Bombay Act XLIV of 1948. I shall base my decision on a general survey of the provisions of these various pieces of legislation enacted by the Bombay Legislature in order to have a comprehensive survey of what may be styled as the intendment of the Legislature in enacting these various pieces of legislation, so that it may not be possible to argue elsewhere that whatever decision was arrived at was arrived at by me being oblivious to what was legitimately intended by the Legislature while putting these enactments on the Statute Book.

7. What was really intended by the enactment of Bombay Act XLIV of 1948 was to take away the jurisdiction of the High Court in respect of suits whereof the amount or value of the subject-matter exceeded Rs. 1,000 and to invest the same in the Small Causes Court, thus depriving the plaintiff of the election which had been given to him under Section 21 of the Presidency Small Cause Courts Act, which election it was conceived was such as when exercised would put the defendant to the unnecessary burden of incurring heavy costs in defending the litigation in the High Court. With that end in view Section 21 of the Presidency Small Cause Courts Act was amended as provided in Bombay Act XLIV of 1948, and a suitable amendment was also made in Section 22 of the Presidency Small Cause Courts Act providing for special award of costs when the plaintiff sued in the High Court or in the Bombay City Civil Court in every ease cognizable by the Small Cause Court. While enacting this Act XLIV of 1948, however, the Legislature either purposely or inadvertently omitted to enact in this particular Act provisions of the type which it had already enacted in Bombay Act LVII of 1947 and Bombay Act XL of 1948, to which I will refer immediately hereafter.

8. Bombay Act LVII of 1947 was an Act to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. At the date when this Act was passed there were various suits between landlords and tenants pending in the High Court. The Legislature under Section 28 of the Act laid down the jurisdiction of Courts and enacted that notwithstanding anything contained in any law and notwithstanding that, by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction; in Greater Bombay, the Court of Small Causes, Bombay, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of Part 2 applied and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions, and no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. Having thus enacted the jurisdiction for the Small Cause Court in Greater Bombay in behalf of such suits and proceedings, the Legislature proceeded by Section 50 of that Act to enact that all suits and proceedings other than execution proceedings and appeals between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II applied etc. and which were pending in any Court shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under that Act. This was a provision clearly contemplated and enacted by the Legislature with a view that all suits and proceedings which were pending in the High Court so far as Greater Bombay is concerned and which were rightly entertained there to fore by the High Court shall be transferred to the Small Cause Court which under Section 28 of the Act had been enacted as the proper venue for the trial of such suits. No doubt at this time Clause 12 of the Letters Patent had not been amended by the Bombay Legislature as it was done later and it may be urged that this enactment of the provision of Section 50 of the Act was made by the Legislature with a view to transfer the suits which were already rightly instituted and pending before the High Court to the Small Cause Court as that was considered by the Legislature in the interests of the defendants to be the proper venue where the defendants would in any event not be saddled with the heavy costs of litigation which would be bound to be incurred if the litigation proceeded to its natural conclusion in the High Court.

9. When one, however, comes to the enactments which were simultaneously enacted by the Bombay Legislature in May 1948, one finds that when the Bombay Legislature came to enact Bombay Act XL of 1948 establishing the Bombay City Civil Court, and had on the anvil also simultaneously with it the enactment of Bombay Act XLI of 1948 which sought to amend Clause 12 of the Letters Patent in the appropriate manner, the Legislature enacted a similar provision for transfer of the suits which were pending in the High Court to the Bombay City Civil Court. After having laid down the jurisdiction of the Bombay City Civil Court in Section 3 of the Bombay Act XL of 1948, and having also laid down in Section 12 thereof that the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court, the Legislature proceeded to enact Section 18 of the Act which in express terms provided for the transfer of suits and proceedings cognizable by the City Court and pending in the High Court in which issues had not been settled or evidence not recorded on or before the date of the coming into force of the Act to the City Civil Court. This was a provision which was enacted by the Legislature in spite of the fact that simultaneously with it there was on the anvil the Bombay Act XLI of 1948, which was amending Clause 12 of the Letters Patent by providing that the High Court shall not have original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay or the Bombay City Civil Court. The amendment in terms which I have set out above shows not only that at this particular moment of time the Legislature had in contemplation the Bombay City Civil Court Act i.e. Bombay Act XL of 1948, but it had also got in contemplation the Presidency Small Cause Courts (Bombay Amendment) Act, 1948, which was Bombay Act XLIV of 1948. The terms of the amendment of Clause 12 of the Letters Patent can only be justified if one has regard to this fact which is patent on the face of the record that all these three Acts, Bombay Act XL of 1948, Bombay Act XLI of 1948 and Bombay Act XLIV of 1948, were simultaneously conceived and put on the Statute Book. Even though the amendment of Clause 12 of the Letters Patent in terms deprived the High Court of the jurisdiction to receive, try and determine suits falling within the jurisdiction of the Small Cause Court at Bombay or the Bombay City Civil Court, when the Legislature came to enact the Bombay City Civil Court Act 1948 it provided under Section 18 thereof for the transfer of suits and proceedings cognizable by the City Civil Court and pending in the High Court in which issues had not been settled or evidence had not been recorded on or before the date of the coming into force of that Act to the City Civil Court. When the Legislature, however, came to enact Bombay Act XLIV of 1948 which had the effect of depriving the High Court of jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay, it, as I have observed before, either purposely or inadvertently failed to make a similar provision providing for a transfer of suits falling within the jurisdiction of the Small Cause Court at Bombay and which were pending in the High Court to the Small Cause Court. One would have naturally expected that as there was enacted Section 50 in the Bombay Act LVII of 1947 and as there was enacted Section 18 in Bombay Act XL of 1948, the Bombay Legislature would have thought it necessary or expedient also to enact a similar provision in Bombay Act XLIV of 1948 providing for such a transfer. But for reasons which it is not possible for me to divine the Legislature did not do so, and that is the reason why this question has fallen to be determined by me.

10. The legislative history and the background which I have already given is sufficient to indicate that if the Legislature really intended that suits which were cognizable by the Small Cause Court and which had been already filed in the High Court in the exercise of the election which had been given to the plaintiffs in that behalf by Section 21 of the Presidency Small Cause Court Act as it then stood should be transferred from the High Court where they had been rightly instituted to the Small Cause Court which was then considered by the Legislature to be the proper venue for the trial of such suits, the Legislature would have enacted a provision in this behalf, and in the absence of any such provision I am prima facie driven to the conclusion that the Legislature either purposely or inadvertently, and for the conclusion which I have arrived at it makes not the slightest difference what it was that was responsible for this omission in Bombay Act XLIV of 1948, omitted to make such a provision in Bombay Act XLIV of 1948. It may be that the number of such suits which might have been filed by the plaintiffs in the exercise of the election given to them in this behalf by Section 21 of the Presidency Small Cause Courts Act as it then stood was not considered to be such as to require the benevolent Intervention of the Legislature by way of providing for such a transfer from the High Court to the Small Cause Court. It may as well be that such a provision was omitted to be made by the Legislature through sheer inadvertence possibly in the hurry with which the legislation was rushed through in the Legislature at this time, which hurry is manifest by the number of Acts which it was thought fit to see through this particular Session of the Legislature. Be that as it may, the fact remains that the Court has only got to construe the enactment as it stands, even though the intention of the Legislature was as benevolent as I have described above, and if the attention of the Legislature had been drawn to this particular omission, I dare say it would have supplied it without the slightest hesitation in that behalf. What I have got to do here is to construe the enactment as it stands and not to supply any lacuna or defect in the legislation even though the construction which I put upon this piece of Legislation may in certain events be such as to negative the very benevolent intention of the Legislature with which it was actuated in putting these various enactments on the Statute Book. This omission is glaring in view of the fact that similar provisions were in fact made by the Legislature itself in Bombay Act LVII of 1947 and Bombay Act XL of 1948, and I cannot conceive any draftsman having these various pieces of legislation before him to have omitted to incorporate in Bombay Act XLIV of 1948 a provision of this type unless it was with purpose, or, I should not very easily say so but I am constrained to say so, due to inadvertence on his behalf.

11. This is sufficient to dispose of the question, but I would like to fortify ray conclusion which I have thus arrived at on a comparison of the various pieces of legislation hereinbefore referred to, by reference to the general principles of the construction of statutes. The Bombay Act XLI of 1948 which amended the Letters Patent was enacted in May 1948 and came into operation towards the middle of August 1948, Normally it would not have a retrospective operation. It has been laid down as a fundamental rule of the English law, which we have been following here, that no statute shall be construed 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. (See Maxwell on the Interpretation of Statutes, 9th Edn., p. 221). There is no doubt that so far as the statutes are concerned, a distinction is broadly made between procedural statutes and statutes which affect the substantive rights of the parties. There is no vested right which a subject has in regard to procedure. But with regard to the jurisdiction of the Court in which he has a right to institute proceedings a subject can have a vested right. That this is so is amply borne out by authorities and I shall only content myself with quoting one of them, which is an authority of the Federal Court, a judgment of Varadachariar J. reported in Venugopala v. Krishnaswami and the passage at p. 27, col. 1, thereof :

It will be noticed that in that case the Judiciary Act was passed during the pendency of the action in the Court of first instance and their Lordships' decision recognized that, from the date of the initiation of the action, the suitor had a right of appeal to a superior tribunal according to the state of the law as it stood at the time of the commencement of the proceeding. This necessarily involves the recognition of an equally valuable right that the proceedings should in due course be tried and disposed of by the tribunal before which it had been commenced. This principle that a statute should not be so interpreted as to take away an action which has been well commenced has been affirmed in various cases in differing circumstances. In(1850) 9 C.B. 551 it was observed by Wilde C.J. that it must have been well known to both branches of the Legislature that strong and distinct words would be necessary to defeat a vested right to continue an action which has been well commenced, (c. f. (1870) 1 Ch. D. 48) and see also 27 Mad. 538 and 32 Mad. 140.

These observations of the Federal Court are enough to show that where an action has been rightly instituted in a Court which had jurisdiction to entertain it, it would require strong and distinct words to defeat such vested right which has accrued to the litigant. Do I find in the enactmant of Bombay Act XLI of 1948 any words which would go to show that the right to continue an action which has been actually commenced has been taken away from the litigant who had at the date of the institution of the suit conferred upon him by Section 21 of the Presidency Small Cause Courts Act as it then stood an election to institute that suit in the High Court I fail to find any such words. There is not only that there are no strong and distinct words in that behalf, but I do not find also in the provisions of Bombay Act XLI of 1948 anything which would induce me to say that that was the result intended by the Legislature by necessary intendment because that necessary intendment has got to be found by me from the words of the statute itself which the Legislature thought fit to put on the statute book. On the contrary if any regard be had to legislative background and the history which I have before referred to, it tends to one conclusion and one conclusion only that in the case of what may be compendiously described as Rent Suits the Legislature provided for the transfer of such suits from the High Court to the Small Cause Court, that in the case of suits or proceedings which are cognizable by the City Civil Court the Legislature also provided for a transfer of such suits or proceedings except in certain excepted cases from the High Court to the City Civil Court, whereas in the case of the suits which were falling within the jurisdiction of the Small Cause Court at Bombay by the deletion of the provisions for election contained in Section 21 of the Presidency Small Cause Courts Act as it then stood, no such provision was made by the Legislature for the transfer of those suits from the High Court to the Small Cause Court. I feel therefore fortified by these general principles which have been laid down by the authorities in the conclusion which I have arrived at that the omission in that behalf, which was either purposeful or due to inadvertence has the result of continuing the jurisdiction of this Court in the matter of the trial and determination of these suits which have been rightly received by this Court.

12. There is a further argument which also I will advert to in this connection and it is that under Clause 12 of the Letters Patent the jurisdiction which has been given to this Court is to receive, try and determine suits of the particular description therein mentioned. The jurisdiction of the Court is to receive, try and determine those suits. The first condition is that the suit should be received or entertained or looking at it from the point of view of the plaintiff, the plaintiff should be entitled to institute the suit in the Court. Merely receiving or entertaining of the suit is not the jurisdiction of the Court. That is merely opening the doors of the Court to the litigant so that he can walk in and have his suit accepted or received or entertained by the Court which act, however, is only for the purpose of trying and determining the suit and for nothing else, The trial and determination of the suit, even though they are important aspects of the exercise of the jurisdiction of the Court, have, however, got to be exercised by the Court only after the Court receives or entertains the suit at the instance of the plaintiff. Without any such reception or entertainment of the suit there cannot be any trial or determination thereof. Once the suit is received or entertained by the Court, it is received or entertained for the purpose of trial and determination of the issues which are involved in that suit. No doubt the procedure which is laid down in the Civil Procedure Code-and elsewhere may determine in what manner or mode the cause shall after being received or entertained be tried and determined by the Court, but the jurisdiction is exercised in the first instance by the Court by receiving or entertaining the suit. Cases are not wanting in this Court where the Court has refused to entertain suits or said that it has no jurisdiction to do so. Instances are to be found where the cause of action howsoever described may not fall within the four corners of Clause 12 of the Letters Patent and the Court has refused to exercise that jurisdiction. They have also refused to give leave under various circumstances which have commended themselves to the Court. All this goes to show that the reception or institution of the suit or the entertainment of the suit is an essential condition of the exercise of the jurisdiction by the Court and I cannot conceive of any jurisdiction exercised by the Court in respect of any suits which can be taken as divorced from the reception or entertainment of the suit and can only be considered in regard to the trial and determination of the issues involved in the suit filed before it at the instance of the plaintiff. I am therefore of the opinion that the words 'receive, try and determine' should not be read disjunctively as argued by Mr. B.J. Divan but should be read conjunctively. Once the suit is received or entertained, the Court has jurisdiction to try and determine the same in spite of 'whatever has happened subsequently. The enactment of Bombay Act XLI of 1948 no doubt took away the jurisdiction of this Court to receive, try and determine suits which fell within the jurisdiction of the Small Cause Court. That, however, had not the effect of taking away the jurisdiction of this Court to try and determine the suits which had been already validly received or entertained by it prior to the enactment of that Act. A vested right had accrued to the plaintiff in that behalf to have the suit tried and determined by this Court. That was not taken away by express words or necessary intendment as I have stated before, and in the absence of any such conclusion to which I may be driven, the only conclusion which I can come to is that this Court, having once received or entertained the suit validly in accordance with the provisions of the law as it then stood' has continued to have jurisdiction to try and determine the suit, such jurisdiction not having been taken away by express words or by necessary intendment.

13. In view of the conclusion which I have arrived at above, I think it is absolutely unnecessary for me to go into the question whether the Small Cause Court is a Court which is subordinate to the High Court and whether I should on my own motion transfer the suit to the Small Cause Court which no doubt is competent to try or dispose of the same. I decline to go into that question and would say nothing more on that point.

14. The result, therefore, will be that the issue as to whether this Court has jurisdiction to further try and determine this suit will be answered in the affirmative. The costs of both the parties of the trial of this issue before me will be costs in the cause.


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