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Raghunath Hanumant Mane Vs. Sadashiv Damodar Datar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 289 of 1950
Judge
Reported inAIR1951Bom270; (1950)52BOMLR871; ILR1951Bom114
ActsBombay Civil Courts (Amendment) Act, 1949 - Sections 6; Bombay Civil Courts Act, 1869 - Sections 26
AppellantRaghunath Hanumant Mane
RespondentSadashiv Damodar Datar
Appellant AdvocateK.G. Datar and ;N.D. Dange, Advs.
Respondent AdvocateK.V. Joshi, Adv.
Excerpt:
.....act (bom.liv of 1949), section 6 - bombay civil courts act (bom. xiv of 1869), section 26--suit filed before amendment of act--decree after amendment--whether appeal governed by unamended act--amendments made by bombay civil courts (amendment) act, whether retrospective.;the amendments made by the bombay civil courts (amendment) act, 1949, are prospective and apply to suits filed after the said amending act came into force.;colonial sugar refining company v. irving (1905) a. c. 869, 372, ratanchand shrichand v. hanmantrao shivbakas (1869) 6 b. h. c. r. (a. c. j.) 166. f.b., and nana aba v. sheku andu (1908) 10 bom. l. r. 330, referred to. - - this preliminary objection is based upon the provisions of bombay act (liv [54] of 1949). the suit was filed on 21-3-1918, and has been..........has been preferred so that there is no pending appeal. the act came into force on 3-1-1950. 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 1949.12. 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 section 6 makes provision for both.....
Judgment:

Gajendragadkar, J.

1. The suit from which this appeal arises was filed by the plaintiff to recover Kg. 5,025.2.3 from the defendant. This claim haa 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 that appeal, a preliminary objection has been takenly the respendent 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 [54] of 1949). The suit was filed on 21-3-1918, and has been decreed on 31-3-1950. Bombay Act (LIV [54] of 1949) came in force on 1-3-1950, and the argument for the respondent is that the decree under appeal is governed by the provisions of the said Act and under Section 26, Bombay Civil Courts Act, as amended by Bombay Act (LIV [64] of 1949) an appeal against a decree like the present would lie to the District Court and not to the High Court.

2. Now, Bombay Act (LIV [S4] of 1949) purports to amend four sections of the Bombay Civil Courts Act, (xiv [14] of 1869). Section 2 of the new Act amends Section 16, 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 orto the High Court according as the amount or value of the subject-matter does not exceed or exceeds five thousands 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 [54] of 1949) purports to amend Section 24, Bombay Civil Courts Act. Under Section 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 B8. 7,500 to Rs. 15,000. Then we have Section 4 of the new Act which purports to amend Section 26, Bombay Civil Courts Act. Before the amendment of Section 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 Section 26 applies an appeal shall lie direct to the High Court against decree passed in any suit by a Civil Judge only where the amount or value of the subject-matter exceeds Bs. 10,000. Section 5 of the new Act amends Section 28A, 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 which the present appeal has been preferred attracts the provisions of Section 6 of the new Act. There are two sub-sections under Section 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 8. 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 II the Act comes into force, though the decrees against which they may be filed were passedbefore the Act came into force. The first class of appeals are dealt with by Sub-section (b) (i), while the latter class is dealt with by Sub-section (b) (ii) It is clear that suits or proceedings or appeals to which the provisions of Section 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 Section 6(a). It is clear that it does not fall under Section 6(b)(i) or Section 6(b)(ii) since the decree against which the present appeal has been filed was passed after the Act came into force.

3. The legal position with regard to the litigants' right to file art appeal is fairly well-settled. The amendments made by the present Act cannot be said to be, merely procedural. It 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 oc 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 Macnaughten in Colonial Sugar Refining Go. v. Irving (1905) A. C. 369 : 74 L. J. P. C. 77:

'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 this 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 6 Bom.C. R.166 under the Bombay Civil Courts Act itself. In Ratanchand Shrichand's case a decree was passed by the Principle Sadar Amin of Dhulia for Rs. 23,000 and odd oa 29th January 1863. 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 wasgranted time to pay court-fees. Before this time expired, the Bombay Civil Courts Act came into operation on 19th March 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 enter tain 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 than 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 introspective, 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 Pull Bench held that the Bombay Civil Courts Act was not retrospective and the appallant 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 Ala, v. Sheku Anlu 10 Bom. L.R. 330 : 32 Bom. 337. This time the amendment in question was made in the provisions of the Mamlatdara' Courts Act. Section 23 which was enacted for the first time in the Mamlatdars' 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 24th February 1906, whereas the new Act came into force on 29th October 1906. This new Act repealed the earlier Act, and as I have mentioned it included Section 23 which allowed revisions against the orders of the Mamlatdara. The suit was dismissed by the Mamlatdar on 26th January 1907, and the plaintiff preferred a re visional application to the Collector thereafter. The Collector, however, refused to entertain the revisional application on the ground that Section 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 Macnaughten which I have already cited and held that it would be a wrong construction of the words of Section 7, General Clauses Act to hold that the Collector had jurisdiction to entertain the revision application because he sail, '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 Section 23 in the new Act.

4. 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 Section 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 Section 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, Section 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 Section 6(a). Now Section 6 in terms provides that the amendments made by the provisions of Sections. 2 to 5 shall not have any effect in respect of and apply to suits falling under Section 6(a). I have already stated that Section 4 amends the provisions of Section 26, Bombay Civil Courts Act. In terms, therefore, in dealing with suits falling under Section 6(a) we must apply Section 26 as unamended. The only manner in which B. 26 can come into operation in respect of suits pending in the trial Court is by providing for the forum of appeals against 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 pro. per forum of this appeal. It has been argued on behalf of the respondent that the effect of Section 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 Section 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 Section 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 restrictive or limited construction of Section 6(a).

5. 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 Section 6 in the amending Act at all. Legislature must be presumed to be aware of the legal position that if provision is made for making such amendments retrospective they would be treated as prospective because theydo not amount to a change merely of procedure but tend to affect the vested rights of theparties 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 Section 6(a); because an appeal is a continuation of the suit, and from this technical point of view Section 6(a)would have covered not only suit 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 Section 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 Clauses. (a) and (b) of Section 6 withthe 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 Section 6 itself that as regards such suits and proceedings when the occasion to apply Section 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-section (a) and Sub-section (b) of Section 6 may perhaps be said to overlap in a technical sense. That, in our opinion, would not justify us in interpreting the provisions of Section 6(a) in the narrow and limited sense as suggested by the respondent because if the 1951 Bom./35 & 36 said construction is accepted, part of Section 6(a) which provides that the unamended Section 26, 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 Section 6(b). It is an appeal with which we are dealing says Mr. Joshi, and if this appeal does not fall either under Sub-section (b) (i) or (b) (ii), it would follow as a necessary consequence that it is outside the provisions of Section 6 and must, therefore be governed by the amended provisions of Section 26, Civil Courts Act. We do not think that this is a proper or logical way to construe Section 6. In our opinion the suit from which the present appeal has arisen falls within the provisions of Section 6(a), and as I have already indicated to such a suit the amended provisions of Section 26, 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 Section 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 Section 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 54 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.

6. 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.

7. On 21-8-1948, the plaintiff-respondent filed against, the defendant-appellant this suit to recover from the latter a sum of Rs. 502S-2-3. On 31-3-1950, the Court of the Second Joint Civil Judge, Senior Division, Poona, passed in favour of the respondent a decree for Bs. 3423-2-8. Thereafter the defendant preferred in this Court the aforesaid appeal which has now come up for hearing and final disposal.

8. The preliminary objection is to be answered by reference to the provisions contained in Bombay Act No. LIV [54] of 1949 which is an Act amending the Bombay Civil Courts Act 1869. This Act amends the 1869 Act in certain particulars, viz., Sections 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.'

9. Section 4 of the Act of 1949 which amendsSection 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.'

10. Section 6 is a saving 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 proceedings 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 order or 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 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.'

11. It is to be noticed that Section 6 has two Clauses (a) and (b). Section 6(a) provides for a pending suit, while Section 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 3-1-1950. 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.

12. 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 Section 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 decreepassed before that date. On the other hand, it is argued that the present case is governed by Section 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.

13. 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. 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. Shehs Andu 10 Bom. L. R. 330 : 32 Bom. 337. This principle is deduced from the leading case of Colonial Sugar Refining Co. v. Irving 1905 A. C. 369 : 74 L. J. P. C. 77. It is a recognised principle of construction that statutes are not to be held to act retrospectively, unless a dear intention to that effect is manifested. To my mind, this intention is not manifested in Section 6 On the contrary, the opening words of Section 6 suggest that the Act was not intended to be retrospective. This will be further clear from the words 'any such suit or proceeding small 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 Section 6(a) and, therefore, an appeal lies to this Court. Consequently, the preliminary objection must be overruled the appeal should be heard on its merits.


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