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Mrs. Shantabai Mathurdas Thakkar Vs. the Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Civil Revision Application Nos. 373 and 1182 of 1960
Judge
Reported in(1961)63BOMLR667
AppellantMrs. Shantabai Mathurdas Thakkar
RespondentThe Municipal Corporation
DispositionAppeal Allowed
Excerpt:
bombay court-fees act (bom. xxxvi of 1959), sections 49, 5(1), 36, 40, 46 -- court-fees act (vii of 1870)--suit instituted before coming into operation of act of 1959--appeal in suit filed after coming into operation of act--computation of claim in appeal and rates of court-fees on memorandum of appeal whether in accordance with act of 1959. ;under section 49 of the bombay court-fees act, 1959, in a suit instituted before the coming into operation of the act, the computation of the claim involved in the suit will be in accordance with the provisions of the repealed court-fees act, 1870, throughout all stages of the suit including the final appeal, while the rates of court-fees chargeable on a memorandum of appeal filed in the suit after the coming into operation of the act of 1959, will.....v.s. desai, j.1. these are two revision applications under section 5(2) of the bombay court-fees act, 1959, against the orders passed by the taxing officer relating to the. computation of the claims and the amounts of court-fees payable in respect of the claims in the two appeals to which the said orders relate.2. the civil revision application no. 373 of 1960 relates to the first appeal stamp no. 10709 of 1959, the memorandum of which appeal was filed by the appellant on august 29, 1959. the suit out of which the said appeal arises was filed by the appellant on october 17, 1957, and the said suit was decided against her by the trial court on june 17, 1959. the suit was for declarations that the two orders referred to in the plaint were illegal, void and of no effect and the plaintiff,.....
Judgment:

V.S. Desai, J.

1. These are two revision applications under Section 5(2) of the Bombay Court-fees Act, 1959, against the orders passed by the Taxing Officer relating to the. computation of the claims and the amounts of court-fees payable in respect of the claims in the two appeals to which the said orders relate.

2. The Civil Revision Application No. 373 of 1960 relates to the First Appeal Stamp No. 10709 of 1959, the memorandum of which appeal was filed by the appellant on August 29, 1959. The suit out of which the said appeal arises was filed by the appellant on October 17, 1957, and the said suit was decided against her by the trial Court on June 17, 1959. The suit was for declarations that the two orders referred to in the plaint were illegal, void and of no effect and the plaintiff, therefore, continued to be in the service of the defendants and was entitled to all the benefits and emoluments including salary and allowance attached to the post held by the plaintiff including the occupation of the free quarters and also for a consequential injunction restraining the defendants from ejecting the plaintiff from the quarters occupied by her. The plaintiff had also further claimed an amount of Rs. 1,670 as arrears of her salary, allowances, etc. upto the date of the suit. At the date when the suit was filed, the Court-fees Act of 1870 was in force and the reliefs prayed for by the plaintiff in the suit had been computed and the court-fee payable in respect of the said reliefs had been paid by the plaintiff in accordance with the said Act. Thus the two declarations, which the plaintiff had prayed for in the suit, had been valued by her at Rs. 110 each and the other reliefs were valued at Rs. 100. The amount of arrears and allowances was valued at the figure claimed, namely, Rs. 1,670 and court-fees was paid on these valuations of the claim. The total ad valorem fee, which the plaintiff thus paid was Rs. 168.75nP. In the memorandum of the appeal, which the plaintiff filed in this Court, she valued the claim in the same manner as in the lower Court and offered to pay the same amount of court-fees. At the date when the memorandum of appeal was filed, the Court-fees Act of 1870 had been repealed by the Bombay Court-fees Act of 1959, which had come into force on August 1, 1959. The new Act prescribed a different provision for the computation of the claim and also prescribed a different rate of court-fee. According to the office, the claim in appeal and the payment of the court-fees on the same were required to be made in accordance with the new Act and it, therefore, raised an objection as to the computation of the claim made by the appellant and the court-fee which was offered by her. The dispute, therefore, was referred to the Taxing Officer. The Taxing Officer upheld the office objection and directed the appellant to compute the claim in appeal according to the provisions of the new Act and pay court-fee on the said computed claim according to the rates prescribed under the new Act. In view of the provisions of the new Act, the claim for the declarations and consequential reliefs had to be valued at a figure of Rs. 2,160 and the court-fee payable on the said valuation, according to the provisions of the new Act, was half the ad valorem fee and was thus Rs. 87.75nP. The ad valorem fee on the claim of Rs. 1,670 according to the rates prescribed under the new Act was Rs. 143.75 nP. The total court-fee, therefore, payable on the memorandum of appeal, according to the new Act, was Rs. 231.25 nP., which was Rs. 62.50 nP. more than what was paid by the plaintiff in the trial Court according to the old Act and which she had offered to pay in the appeal. Aggrieved by the decision of the Taxing Officer the plaintiff appellant has filed the present revision application.

3. It is contended by the petitioner that on the date on which she filed her suit, she got the right to continue the suit upto the final court of appeal. That right of appeal was a substantive and vested right, which was vested in her on the date on which the suit was filed and that right could not be taken away and could not be impaired or imperilled, nor could it be made more onerous or more stringent by any subsequent legislation except by express words or necessary intendment. The new Act, according to the petitioner, contains no such express words or necessary intendment. The right of appeal of the plaintiff, therefore, must be governed by the law relating to the computation of the claim and the payment of the court-fees, which was in operation when the suit was filed. She was, therefore, entitled to compute the claim in the appeal and pay court-fee according to the Court-fees Act of 1870.

4. Now, it is well settled that the right of appeal is not a procedural right but a substantive right, which is vested in the litigant when the suit is filed. As observed by their Lordships of the Supreme Court in H. K. Dada (India) Ltd. v. State of M. P. : 1983(13)ELT1277(SC) :.This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by, the inferior Court. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.

The same principle is again re-affirmed in the case of Garikapati v. Subbiah Choudhary : [1957]1SCR488 , where it is observed:

The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigants and exists as on and from the date the lis commences and although it may be actually 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 proceedings and not by the law 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.

In reference under Section 5, Court-fees Act (1954) 57 Bom. L.R. 180, our Court took the view that Article 17(vii) of the second Schedule of the Court-fees Act, 1870, which levied enhanced court-fee in suits for partition of joint family property had no retrospective effect and hence where a suit for partition of joint family property was filed before the enactment of Article 17(vii) of the Court-fees Act, but an appeal was filed after the date of its enactment, the memorandum of appeal or the application for the cross-objections was not liable to enhanced court-fees. This decision was based on the ground that the right of appeal was a substantive right, which was vested in the litigant on the date when he filed the suit and which could not be taken away unless the Legislature has expressly stated or intended to do so. It was also held that it was not merely that a right of appeal could not be taken away by a procedural enactment which was not made expressly retrospective, but the right could not be impaired or imperilled nor could new conditions be attached to the filing of the appeal nor could a condition already existing be made more onerous or more stringent. It was also observed in the said case that it made no difference in principle whether the right of appeal was taken away or impaired by the very law which conferred the right of appeal or by a different law. The said decision was followed in Sawaldas Madhavdas v. Arati Cotton Mills (1954) 57 Bom. L.R. 394, where it was held that the amendment of the Court-fees Act on April 1, 1954, by which the court-fees leviable on suits filed in the Bombay High Court was enhanced on ad valorem basis instead of fixed fees leviable under the unamended Act was not retrospective and did not, therefore, apply to appeals from suits filed before the said amendment. The decision in the last mentioned case has been confirmed by the Supreme Court in State of Bombay v. Supreme General Film : [1960]3SCR640 . and the decision in the earlier Bombay case, namely, Reference under Section 5 of the Court Fees Act has also been referred to in the said case and in the case of Garikapati v. Subbiah Choudhary, to which we have already referred. In view of these decisions, there can be no doubt whatever that unless the new Court-fees Act has either expressly or by necessary intendment taken away or affected the petitioners' right to continue the appeals under the law relating to court-fees, which governed the said right at the date when the suit was filed, the said law must continue to govern the right of appeal. In order to see how far the said right is affected by the new Act, either by express words or by necessary intendment we must look to the provisions of the new Act.

5. Before proceeding to consider the relevant provisions of the new Act, however, it will be desirable to notice certain well-known principles relating to repeal of the existing law and repeal followed by legislation on the same subject. The consequences following on the repeal are stated in Section 6 of the General Clauses Act where the enactment is a Central enactment and Section 7 of the Bombay General Clauses Act, where the enactment is of the State. As observed by the Supreme Court in State of Punjab v. Mohar Singh A.I.R [1955] S.C. 84 :.Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.

The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot, therefore, subscribe to the broad proposition that S. 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section.

In Indira Sohanlal v. Custodian, E. P. : [1955]2SCR1117 it is observed:

It cannot be stated as a broad proposition that S. 6, General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law.

Thus where the repealing section of the fresh enactment which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self-contained and indicative of the intention to exclude the application of S. 6, of the General Clauses Act.

6. Under the Court-fees Act of 1870 documents chargeable to court-fees were specified in the first two schedules of the Act and the rates of court-fees payable on the said documents were also stated in the said Schedules. These rates were either on ad valorem basis or in fixed sums. Chapter III of the Act contained provisions for computing the claims and reducing them to money value where the court-fee was required to be paid on an ad valorem basis. Section 6 of the Act made it obligatory on a suitor, who wished to commence a Us in a civil Court and continue it upto the final appeal as provided under the law to conform to the conditions as to the computation of the value of his claim and the payment of the court-fees as prescribed by providing that his plaint or memorandum of appeal shall not he filed, exhibited or recorded in any Court of justice unless there has been paid a fee of an amount not less than that indicated by either of the two Schedules, as the proper fee for such document. The Act, no doubt, imposed conditions on a suitor, who wanted to bring his cause in a civil Court, and threw on him a burden, which he had to discharge in order to be able to have his cause litigated in the civil Court. But on satisfying these conditions and discharging the burden, he had a right to litigate his cause upto the final stage of appeal. Thus a person, who filed a suit, was entitled to have the claim in his suit computed under the provisions of the Act of 1870 and on the payment of the court-fees on the claim so computed at the rates prescribed in the said Act, he was entitled to have his suit carried on through all its stages not only in the Court of the first instance but on the same computation of the claim and the payment of the same amount of court fees again even in the appeal from the decision or decree of the inferior Court to the superior Court. The Bombay Court-fees Act of 1959 which repealed the Court-fees Act of 1870 follows the same scheme as the repealed Act. In this Act also the documents chargeable to court-fees are specified in the first two Schedules of the Act and the rates of court-fees, which are payable on the said documents, are also stated therein. These rates as in the old Act are either on ad valorem basis or on fixed sums. Chapter III of the new Act also makes provision for the computation of the claims in suits and reducing them to money value, where court-fee is to be paid on an ad valorem basis and like Section 6 of the old Act, Section 5 of the new Act makes it obligatory on a suitor to get his claim computed in the manner provided in the new Act and to pay the required court-fee on the same. The provisions for the computation of the claim, however, are different from those contained in the old Act and the rates prescribed are also different. It is undisputed that as a result of the alteration in the provisions relating to the computation of the claim and as. a result of different rates prescribed in the new Act, the conditions imposed on the suitors in the present two cases, at any rate, are made more onerous and the burden thrown on them is increased. As we have already seen, the rights of suitors to continue appeals from the suits instituted by them were vested rights, which were vested in them on the date on which the suits filed by them were instituted and these vested rights were not to be affected by any subsequent alteration in the law, which made the conditions, which existed when the said rights vested in them, more onerous or imperilled the said rights by throwing a larger burden on them unless the subsequent enactment either expressly or by necessary intendment affected the said rights. Since the new Act has this effect, it is necessary to see whether there is anything in the Act, which either expressly or by necessary intendment affects the suitors' rights to have the claims computed according to the provisions of the old Act or to pay the court-fees according to the rates prescribed in the old Act.

7. Section 5(1) of the new Act is as follows:

No document of any of the kinds specified as chargeable in the first or second schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there has been paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.

The learned Government Pleader has argued that the provision of this section by itself is sufficient to make the intention of the Legislature clear that the court-fee to be paid on any document, which is to be filed, exhibited or recorded in any Court of Justice after the coining into operation of this provision must be as indicated in either of the two schedules annexed to the new Act. This provision throws a statutory obligation upon the Officer of the Court not to admit a memorandum of appeal unless the proper court-fee as indicated in the two schedules to the new Act has been paid 011 the said memorandum of appeal. The provision, therefore, has a retrospective effect. The argument is untenable and really begs the question. If the new Act were to apply, no doubt, what the learned Government Pleader says would be right, but the whole question is whether the new Act applies or not. A mere repeal of the old Act and the mere enactment of a new provision do not affect the vested rights, which still continue to be governed under the old Act. A similar argument was advanced before this Court in the ease of Reference under Section 5 of the Court Fees Act relying on the language of Section 6 of the old Act. In that case by an amendment of art.. 17(vii) in the 2nd schedule, the fee prescribed to be paid in certain suits was enhanced. It was argued that by reason of Section 6 of the Act, which was identical in language, the court-fee to be paid was the enhanced court-fee because the Officer to whom the memorandum of appeal was presented was under a statutory obligation not to admit the memorandum of appeal unless the fee as indicated in the second schedule was paid. The argument was negatived and it was observed that it begged the question, It was pointed out that what the officer had to determine was what was the proper fee to be paid and if the proper fee was to be paid under the old law and not under the new law, that was the fee that he had to charge. In rejecting a similar argument on the construction, and interpretation of Section 22(1) of the C. P. & Berar Sales Tax Act as amended the Supreme Court observed in H. K. Dada (India) Ltd. v. State of M. P., that it overlooked the fact of the existence of the old law for the purpose of supporting the pre-existing vested right and really amounted to begging the question. There is nothing in Section 5 of the new Act which either by express words or necessary intendment destroys or affects the pre-existing right of appeal. As observed by the Supreme Court (p. 224):.The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right.

The argument of the learned Government Pleader that the provision of Section 5 of the new Act has a retrospective effect cannot be accepted. Section 5 occurs in Chapter III of the Act, which deals with the computation of fees. The other provisions in this Chapter, which deal with the computation of claims and their reduction to money value need not be considered in great detail and it would be only sufficient to mention that these provisions when applied to the cases before us enhance the computed value of the claims and thus make the suitors liable to pay a larger court-fee. There is, however, nothing in these provisions to indicate that they are intended to affect the pre-existing vested rights.

8. The next material section is Section 36, which occurs in Chapter VI, which deals with the mode of levying fees. Section 36 is in these words:

All fees shall be charged and collected under this Act at the rate in force on the date on which the document chargeable to court-fee is or was presented.

The learned Government Pleader has argued that the provision of this section by specifying that the incidence of the charge of court-fee will be 011 the date on which the document is presented, has clearly indicated that the law as to court-fees, which will be applicable, will be the law existing at the date of the presentation of the document and not the old law.

9. In the first place we must point out that while the Court-fees Act provides for the computation of the claim and the rate of court-fees, which will be chargeable on the computed claim, this section only refers to the rates to be charged on the date of the presentation of the document and does not refer to the computation of the claim. Assuming, therefore, that the language of this section is capable of being construed as affecting the vested rights under the old Act, the said rights under this provision will be only affected so far as the rates charged are concerned and not so far as the computation of the claim. We do not, however, think that the provision of this section by itself is sufficient to indicate a necessary intention to affect the vested rights even in the matter of the rates charged. The reference to the date of the presentation of the document, undoubtedly, avails the learned Government Pleader to raise the argument, which he has raised. The said reference, however, to the date is capable of being explained by referring to two other sections, which occur in the said Chapter. The first of these is Section 40, which provides for eases where the document does not bear a proper stamp when it is originally received, used or filed in Court through mistake or inadvertence. In such cases the proper stamp may be ordered to be paid subsequently and on such subsequent payment it will be regarded as valid as if it had been properly stamped in the first instance. The additional stamp to he affixed in such eases- will have to be determined under Section 36 with reference to the time when the document was originally received, used or filed. That is why it can be said that Section 36 makes a reference to the date of the presentation of the document. The other section is Section 46, which empowers the State Government from time to time to reduce or remit in the whole or in any part of the territories under its administration all or any of the fees mentioned in the first and second schedules to this Act annexed. The reference to the date of presentation in the present case may be also for the purpose of indicating that such reduction or remission will be with reference to the date of presentation of the document. It does not, therefore, appear to us that the section shows a necessary intendment to affect the vested rights as contended by the learned Government Pleader.

10. We then come to the section most material in this connection. That is Section 49, which deals with the repeal of the previous Act and the effect thereof. Section 49 is in the following terms:

(1) On the commencement of this Act, the laws specified in column 3 of Schedule IV hereto annexed shall be repealed in the manner and to the extent specified in column 4 thereof:

Provided that such repeal shall not affect the previous operation of any of the laws so repealed and anything done or any action taken (including any appointment, notification, order, rule, form, application, reference, notice, report or certificate made or issued) under any such law shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act and shall continue to be in force accordingly, unless and until Superseded by anything done or any action taken tinder this Act:Provided further that all the fees shall be charged and collected under this Act at the rate in force on the date on which the document chargeable to court-fees is or was presented.

The main part of the section, as will be seen, repeals the laws specified in column 3 of Schedule IV. Amongst these laws is the Court-fees Act of 1870 and it is repealed to the whole extent, in so far as it relates to entries 3 and 66 of List II and entry 47 of List III in the Seventh Schedule to the Constitution of India. Then there are two provisos to the section, which provide for the effect of the repeal. Now, the first of these provisos provides for the operation of the previous law in part and in negative terms and also for the operation of the new Act in the other part in positive terms. Therefore, as observed by their Lordships of the Supreme Court in Indira Sohanlal v. Custodian of E. P., the provision of this proviso may be taken to be self-contained and indicative of the intention to exclude the application of Section 6 of the General Clauses Act. In gathering, therefore, the effect of the repeal on the pre-existing rights, we will have to be guided by the provisos. We will have to bear in mind that the line of enquiry in gathering that effect will still have to be, as observed in State of Punjab v. Mohar Singh, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them.

11. Now, the first proviso saves the previous operation of the Court-fees Act of 1870. The learned Government Pleader has argued that the saving of the previous operation of the repealed law clearly means the previous operation ' of the repealed law in respect of anything done or any action taken. In other words, according to the learned Government Pleader what this means is that what is saved is the previous application of the Court-fees Act to such documents as have been already filed, received or used in any Court of law before the said previous law was repealed by the present Act. By this provision is not meant, according to the learned Government Pleader, the saving of the application of the said repealed law to any documents, which will have to be filed, received or used hereafter because that would not mean the previous operation of the repealed Act but the future' operation of the previous repealed law. According to the learned Government Pleader, therefore, the saving having been confined merely to the previous operation of the repealed law in the sense in which he has explained the term, the application of the repealed Court-fees Act to documents like the memoranda of appeals to be filed after the coming into operation of the present Act is not saved. The proviso, therefore, has the effect of destroying the pre-existing vested rights to this extent.

12. It is contended, on the other hand, by the petitioners that the previous operation of the repealed Act has brought into existence the vested rights of the petitioners to continue the lis through all its stages on the satisfaction of the conditions as laid down in the repealed Act and since the previous operation of the repealed Act is saved under the proviso, the vested rights of the petitioners under the previous Act are not affected. The argument of the petitioners is that the previous Act operated on the Us as soon as the lis was commenced by the suit in the Court of the first instance. The operation of the Court-Fees Act on this lis when it was commenced was not confined to the Court of first instance only but to the lis through all its stages upto the final appeal. The result of the operation of the Act on the lis brought into existence the vested rights of the suitors, which were firstly to have their claim in the lis computed under the Court-fees Act then in force and secondly their right to continue the lis through all its stages on the payment of such court-fees as were prescribed by that Act. In our opinion, the saving of the previous operation of the repealed law must necessarily mean the saving of such vested rights as have been brought into existence by the said previous operation of the repealed law, in the absence of any further provision indicating that the exercise of such vested rights is expressly or by necessary intendment taken away. The learned Government Pleader argues that it must be necessarily implied that such exercise of the rights is taken away because if it were not to be so implied the proviso would have contained language similar to that employed in Section 7 of the General Clauses Act namely that the repeal was not to affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment. We are not impressed by this argument of the learned Government Pleader, because, as we have already pointed out, in the matter of affecting the vested rights, the line of enquiry has to be how far are the rights destroyed and not how far they are saved and if the expression used in the matter of saving of the rights is wide enough not to affect the vested rights, an implication to affect such rights cannot be intended by the absence of a negative provision to that effect. It seems to us, therefore, that unless there is anything further in the said proviso or in the second proviso to indicate that the consequences of the previous operation of the repealed law are in any way curtailed, restricted or taken away, the language used in the first part of the proviso would save the vested rights brought into existence by the previous operation of the repealed law. We find, however, when we go to the second proviso that there is such curtailment of the pre-existing rights intended by the Legislature. The second proviso states:

All fees shall be charged and collected under this Act at the rate in force at the date on which the document chargeable to court-fees is or was presented.

As we have already pointed out earlier, the previous operation of the law brought into existence two rights: (1) to have the claim computed in the manner provided under the old Act and (2) to have the cause litigated on the payment of fees at such rates as were prescribed under the old Act. By the provisions enacted in Section 40 what the Legislature has intended is that the previous operation of the repealed law is saved except that the previous repealed law shall not be applied so far as the rates of court-fees are concerned: which rates will have hereafter to be paid under the new Act and not under the old. Incidentally, we may point out that the existence of the second proviso also indicates that the construction, which we have put on the expression as to the saving of the operation of the previous law, is correct, because if that was not the correct construction and the correct construction was as contended for by the learned Government Pleader, the second proviso would have been unnecessary and redundant. The meaning and effect of the two provisos, therefore, is that in suits instituted before the coming into operation of the new Act, the computation of the claim involved in the suit will be in accordance with the provisions of the repealed Act throughout all stages of the suit including the final appeal, while the rates of court-fees which will be chargeable on the documents which will be filed, used or received in any Court of law, after the coming into operation of this new Act will be according to the rates as specified in the new Act and not in accordance with the rates prescribed in the old Act.

13. The learned advocate appearing for the petitioners has invited our attention to a decision of the High Court of Gujarat in M/s. Ramanlal & Co. v. Kirchand Sunder & Co. (1960) Civil Revision Application No. 676 of 1960, decided by Shelat J., at the Gujarat High Court, on October 3, 1960. The view taken by the learned Judge in that; case is that the saving enacted in the first proviso saved the vested rights of the litigants to continue the lis through all its stages upto the final appeal under the old Act and that the second proviso had no effect of either curtailing or taking away to any extent the rights saved under the first proviso and was inserted only by way of ex majore cautela. According to the learned Judge if the second proviso was to be construed as restricting or curtailing the rights saved under the first proviso, it would bring about an inconsistency between the two provisos and the Legislature could not have intended after having saved rights under the first proviso to have taken away those rights under the second. With great respect to the learned Judge, we are not in agreement with the view taken by him. In our opinion there is no inconsistency between the two provisos and giving the second proviso its due and proper effect as indicated by its language would not result in giving by one hand and taking away by the other. We do not also think it is possible to regard the second proviso as being inserted by way of ex majore cautela as suggested by the learned Judge.

14. In the view that we are taking in Civil Revision Application No. 373 of 1960, the order passed by the learned Taxing Officer will have to be varied. The petitioner in the said Civil Revision Application will be entitled to compute his claim under the old Act in the manner in which he had done in the suit filed by him. In other words, he will be entitled to have the claims for declarations and injunction computed as he had done in the suit and in the memorandum of appeal. He will, however, have to pay the court-fees on the said computed claim as also on the other money claim of Rs. 1,670 at the rates specified in the new Act. We, accordingly, set aside the order, which the learned Taxing Officer has passed and direct him to value the claims in appeal and assess the court-fees payable on the same as indicated by us.

15. In Civil Revision Application No. 1182 of 1960, which relates to second appeal No, 420 of 1960, the dispute relates only to the computation of the claim. The suit was for partition and possession of a share in the property and was instituted before the present enactment came into operation. Even the first appeal from the decree passed in the said suit was filed prior to the coming into operation of the new Act. In the second appeal, which the petitioner had filed, he had computed the claim in appeal under the provisions of the old Act. He had, however, offered to pay the court-fees on the said computed claim according to the rates prescribed in the new Act, The objection of the office was that the claim in appeal also had to be valued under the new Act and that objection was upheld by the Taxing Officer when the dispute was referred to him under Section 5(2) of the Court-fees Act.

16. In the view that we have taken, the computation as made by the petitioner was the correct computation and the court-fee as offered by him on the said computation was also the correct court-fee to be charged. The decision of the Taxing Officer, therefore, in this case is erroneous and must be set aside.

17. We, accordingly, allow the Civil Revision Application No. 1182 of 1960 and direct the Taxing Officer to accept the computation made by the petitioner and the fees paid by him.

18. There will be no order as to costs in both the revision applications.


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