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Om Prakash and anr. Vs. Moti Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 714 of 1952
Judge
Reported inAIR1958All409
ActsProvincial Small Cause Courts Act, 1887 - Sections 25; Uttar Pradesh Provincial Small Cause Courts (Amendment) Act, 1957; Code of Civil Procedure (CPC) , 1908 - Sections 115; Uttar Pradesh General Clauses Act, 1904 - Sections 6; General Clauses Act, 1897 - Sections 6
AppellantOm Prakash and anr.
RespondentMoti Lal and ors.
Appellant AdvocateJ. Swarup and ;H. Swarup, Advs.
Respondent AdvocateS.N. Misra, Adv.
Excerpt:
civil - revision - section 25 of provincial small cause courts act, 1887 - revision application filed in the high court under section 25 of the provincial small cause courts act, 1887 prior to the amendment - high court retains its jurisdiction to hear applications. (ii) application for revision - section 25 of provincial small cause courts act, 1887 - high court may call records to see the 'thing duly done. - - 'privilege' is defined in wharton's law lexicon as 'an exceptional right or advantage',and i am unable to see that section 25 of the repealed act confers a special advantage on anyone. 7. nova constitutio, futuris formam impo-nere debet, non praeteritis -a new state of the law ought to affect the future, not the past -is a well known maxim of law the foundation of which, as..........that decision turned on the interpretation placed by the learned judges on section 6 of the u. p. general clauses act which, in their opinion, containedthe whole law on the subject. that section so far as relevant provides that '6. where any uttar pradesh act repeals any enactment hereto made or thereafter to be made, then, unless a different intention appears, to repeal shall not (b) affect ...... anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed; or (e) affect any remedy, or any investigation or legal proceeding commenced before the repealing act shall have come into operation in respect of any such right, privilege, obligation, liability .... as aforesaid.' the court.....
Judgment:

FACTS

This was an application in revision filed under Section 25 of the Provincial Small Cause Courts Act. The order sought to be revised was passed by the Small Cause Court Judge on 27-3-52 in a suit instituted in his Court on 16-10-51. The application was filed in the High Court on 14-7-52. The High Court admitted the application on 15-12-52, called for the record and ordered notice to issue to the other party.

At the hearing of the application by Hon'ble Srivastava J., a preliminary objection was raised and it was pointed out that Section 25 of the Provincial Small Cause Courts Act having been amended by U. P. Act 17 of 1957, the High Court was no longer possessed of any power to entertain the application in revision or to dispose it of.

In support of this contention reliance was placed on a decision of a Single Judge of the High Court dated 18th November 1957 in Damodar Das v. Raghubir Saran, Civil Revn. No. 789 of 1950 (All). Reference was made in that decision to an earlier decision of a Division Bench dated 1st of November 1957 in New Singhal Dal Mill v. Finn Sheo Prasad Jainti Prasad, Civil Revn. No. 867 of 1957 : AIR1958All404 .

It was urged that in view of Section 25 of the Provincial Small Cause Courts Act as amended by U. P. Act 17 of 1957, the High Court must after 4-6-1957 return all applications pending before it for presentation to the Court of the District Judge. That was the order passed in Damodar Das v. Raghubir Saran, Civil Revn. No. 789 of 1950 (All) (B). In the earlier case of the New Singhal Dal Mill v. Firm Sheo Prasad Jainti Prasad, Civil Revn. No. 867 of 1957: : AIR1958All404 , the application in revision had been filed after 4th of June, 1957 and the question how the applications filed before that date should be dealt with in view of the amendment of the section did not arise for decision. Certain observations were however made by the Division Bench which decided that case and those observations were utilised by the Single Judge who decided the later case in support of his view.

As the question was of considerable importance and the decision on it was likely to affect a large number of litigants in the State, Srivastava J. thought that the case should be put up before Hon'ble the Chief Justice so that a larger Bench may be constituted to consider the question: 'In what way are applications in revision filed in this Court under Section 25 of the Provincial Small Cause Courts Act prior to 4th of June, 1957 affected by the substitution of a new Section 25 for that section by the U. P. Act 17 of 1957?'

O.H. Mootham, C.J.

1. The question which has been referred to this Court is :

'In what way are applications in revision filed in this Court under Section 25 of the Provincial Small Cause Courts Act prior to 4th June, 1957, affected by the substitution of a new Section 25 for that section by the U. P. Act 17 of 1957?'

2. Section 25 of the Provincial Small Cause Courts Act, prior to its amendment in 1957 by the U. P. Act 17 of that year -- the Provincial Small Cause Courts (U. P. Amendment) Act, 1957, -- provided that

'25. The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit.'

By the Amending Act which came into force on 4th June, 1957, the jurisdiction conferred on the High Court was transferred to the District Courts, the existing Section 25 being replaced by a new section which reads thus :

'25. The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as he thinks fit.'

In New Singhal Dal Mill v. Firm Sheo Prasad Jainti Prasad, Civil Revn. No. 867 of 1957 : AIR1958All404 , this Court has held that as a consequence of the amendment it had no jurisdiction to entertain any application for the revision of the decree or order of a Court of Small Causes filed after the date on which the amending Act came into force. That decision turned on the interpretation placed by the learned Judges on Section 6 of the U. P. General Clauses Act which, in their opinion, containedthe whole law on the subject. That section so far as relevant provides that

'6. Where any Uttar Pradesh Act repeals any enactment hereto made or thereafter to be made, then, unless a different intention appears, to repeal shall not

(b) affect ...... anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed; or

(e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability .... as aforesaid.'

The Court held that Section 25 of the Small Cause Courts Act conferred no right or privilege on any person within the meaning of Section 6 of the General Clauses Act, and that accordingly that section will not operate to save the revisional jurisdiction of this Court in the case of application presented to it on or after 4th June, 1957. The question of the effect of the Amending Act on the Court's jurisdiction in respect of applications in revision which had been filed but which had not been disposed of before that date arose in Damodar Das v. Raghubir Saran, Civil Revn. No. 7.89 of 1950, D/- 18-11-1957 (All) (B).

In that case Desai J., held that in view of the decision in New Singhal Dal Mill case (A), the Court had no jurisdiction and directed that the application be returned to the applicant for presentation to the District Judge. The correctness of that decision was doubted by Srivastava J., in the case which has given rise to the present reference.

3. In this Court Sri Jagdish Sarup for the applicant has argued, first, that an application in revision stands on exactly the same footing as an appeal, and that both are vested rights which can be taken away only by express enactment or necessary intendment, and secondly, an the alternative, that this Court's jurisdiction is preserved so far as applications in revision filed before the amending Act came into force by Section 6 of the U. P. General Clauses Act. In support of his first submission learned counsel relied on a sentence in the judgment of the Privy Counsel in Nagendra Nath Dev v. Suresh Chandra Dey, 59 Ind App 283 . In delivering the judgment of their Lordships Sir Dinshah Mulla said, at page 287 (of Ind App): (at p. 167 of AIR):

'There is no definition of 'appeal' in the Code of Civil Procedure but their Lordships have no doubt that any application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court is an appeal within the ordinary acceptation of the term.'

The Board in that case had to consider the meaning and effect of Article 182 (2) of Schedule 1 of the Indian Limitation Act, 1908, which provides inter alia that the period of limitation for an application for the execution of a decree or order 'where there has been an appeal' is to run from the date of the final decree of order of the appellate Court.

Their Lordships were therefore considering the effect of a final order passed in an appeal or on an application in revision upon the period of limitation for the execution of a decree; they were not then considering the nature of an appeal or of an application in revision, and I do not think that the case is an authority for the proposition advanced by learned counsel.

4. With regard to the second argument, I am, with respect, in agreement with the view expressed in New Singhal Dal Mill (A), that Section 25 of the Small Cause Courts Act confers no right or privilege on any person and that neither Clause (c) nor Clause (e) of Section 6 of the U. P. General Clauses Act is attracted. Section 25 of the former Act confers a power on the Court to send for the record and pass such orders thereon as it thinks fit, and although in a popular sense an aggrieved litigant may have a right to approach the Court with the request that it should exercise its revisional powers, that right cannot possibly, in my judgment amount to a 'right accrued' within the meaning of Section 25.

Everyone has in one sense the right to do a thing which the law does not forbid, but the right referred to in Section 6 of the General Clauses Act must be a right which has accrued under a repealed Act. 'Privilege' is defined in Wharton's Law Lexicon as 'an exceptional right or advantage', and I am unable to see that Section 25 of the repealed Act confers a special advantage on anyone.

And if no right or privilege accrues or is acquired under a repealed Act then it appears to me to be clear that neither Clause (c) nor Clause (e) (which refers to any remedy, investigation or legal proceeding commenced under the repealed Act in respect, inter alia, of any such right or privilege) can have any application. Nor do I think that the position is altered by the fact that the Court may have admitted an application in revision and directed the issue of notice to the opposite party; for that is an act done by the Court itself and cannot amount (in my view) to the conferment under the repealed Act of a right or privilege on the applicant.

5. Clause (b) of Section 6 of the General Clauses Act stands on a somewhat different footing. It provides that the repeal of an Act shall not, unless a different intention appears, 'affect. .... .anything duly done' under the repealed Act.

6. Now in the case of applications in revision which were filed in this Court before 4th June, 1952 (other than those which havebeen finally disposed with which we are not concerned) the Court either has as yet made no order or has called for the record and directed the issue of notice requiring the opposite party to appear before the Court and answer the application. The act of calling for the record is something done under the repealed section and so also in my opinion is the issuing of notice.

No provision, it is true, is to be found in the repealed section with regard to the issue of notice but the Court obviously cannot make an order which may prejudicially affect the opposite party without doing so. The Court has called for the records of these cases for the sole purpose of enabling it to determine whether it shall exercise its revisional powers, and in my opinion there is considerable force in the argument that if the Court is now no longer able to exercise such powers in respect of these cases a 'thing duly done', namely the calling for the records, is affected within the meaning of Clause (b) of Section 6, because the i purpose of the action is wholly frustrated. I prefer, however, to base my judgment on another and, I think, wider ground.

7. Nova constitutio, futuris formam impo-nere debet, non praeteritis -- a new state of the law ought to affect the future, not the past -- is a well known maxim of law the foundation of which, as pointed out in Pinhorn v. Sonster, (1852) 8 Ex 138 at p. 142 (D), is that it cannot be supposed that the Legislature meant to do injustice. The maxim is the foundation of the rule that a statute will not be presumed to have retrospective effect, but it embodies, in my opinion, a principle of more general application.

Now, for some reason which is not easy to imagine the Legislature in the present case has made no provision in the amending Act (as it could very easily have done) to avoid the doubts which have arisen as to whether the High Court should continue to possess jurisdiction to hear applications in revision filed before the amending Act came into force and were pending at that time. The amount in dispute in cases which come before a Court of Small Causes is usually small and the litigant in those Courts is usually poor.

It seems to me to be an act of injustice to require such litigants who have at a time when it was the settled practice to do so filed applications in revision in this Court, engaged counsel and paid the process fees for the issue of notice, to commence proceedings over again in another Court; and unless I am compelled to do so I cannot think that such was the intention of the Legislature.

In the case of all such applications as were pending on the date on which the amending Act came into force it was (save in the case of applications filed shortly before that date) the delay of the Court, and no fault of the litigant, that deprived the latter of judgment before the amending Act became law.

I do not think that the Legislature intended the amending Act to involve unnecessary hardship and I am not satisfied that I am obliged to hold the contrary. I would answer the question propounded by saying that this Court retains jurisdiction to hear applications in revision filed in this Court under Section 25 of the Provincial Small Cause Courts Act prior to 4th June, 1957, in all cases in which prior to that date the Court had directed the records to be called for.

V. Bhargava, J.

8. I entirely agree with my Lord the Chief Justice but I would like to add that I would prefer to base my decision for arriving at the same conclusion on the provisions contained in Clause (b) of Section 6 of the U. P. General Clauses Act. Section 25 of the Provincial Small Cause Courts Act, as it stood before the amendment, empowered the High Court to do two acts : The High Court could call for the case and thereafter could pass such order with respect thereto as it thought fit.

The act of calling for the record in this case was undoubtedly something duly donee by this Court under Section 25 of the Small Cause Courts Act mentioned above and, consequently, the amending Act, which repeals the provision empowering the High Court (to call for a case and pass orders on it, cannot affect the act of the High Court in calling for the case. If that order of the High Court is unaffected, it implies that the High Court continues to have jurisdiction to pass further orders in the case.

If the jurisdiction to pass further orders in the case were to cease, the result would be that the order calling for the record would become ineffective and would have to be vacated by the Court. It appears to me that the consequence of the applicability of the provisions of Section 6 (b) of the U. P. General Clauses Act, therefore, is that the High Court having; validly called for the record and its order not being affected by the subsequent Act, it continues to have jurisdiction to pass further orders in pursuance of that valid Act and, consequently, to pass such order with respect to the case as it may think fit.

9. There are some statutes under which only rights, privileges, obligations or liabilities are acquired or accrued or are incurred but which contain no provision for any remedy or legal proceeding in respect of any right, privilege, etc. In such a case, the amendment or repeal leaves the right, privilege, obligation or liability already acquired, accrued or incurred unaffected by virtue of Clause (c) of Section 6 of the U. P. General Clauses Act. Then there are statutes in which there is, in addition, the provision for seeking a remedy or for starting investigation or legal proceeding in respect of the right, privilege, etc.

If such a statute is amended or repealed, the right, privilege, etc. remains unaffected under Clause (c) of Section 6 of the U. P. General: Clauses Act, whereas the remedy, investigation or legal proceeding already commenced before the repealing or amending Act comes into forceremains unaffected under Clause (e) of Section 6 of the U. P. General Clauses Act. Then there are statutes which deal only with the remedy, investigation or legal proceeding in respect of a right, privilege etc. but the right, privilege etc. is acquired, accrues or is incurred under some other statute or under common law.

It would appear to be anomalous that, in a case where both the accrual of the right as well as the remedy or legal proceeding are provided in the same statute, both should remain unaffected as a result of the amending or repealing Act; whereas, in a case where the right has accrued under a statute which is not amended or repealed at all but the remedy or legal proceeding is under the statute which is amended or repealed, the remedy or legal proceeding should be affected by the amending or repealing Act.

It appears to me that, in such a case, Clause (b) of Section 6 of the U. P. General Clauses Act applies and preserves the continuity of the remedy or legal proceeding already commenced as being something duly done or suffered under the amended or repealed Act. Clause (b) of Section 6 of the U. F. General Clauses Act should, therefore, be interpreted as covering anything duly done not only by parties litigating or claiming the right but also anything duly done by the Court before which the remedy or legal proceeding is commenced.

In the case before us, a legal proceeding had commenced in this Court when the record of the case was called for under Section 25 of the Small Cause Courts Act, which Act only deals with the remedy or legal proceeding in respect of certain rights. Once the Court had taken cognizance and had commenced the proceedings, they remain unaffected as a result of Clause (b) of Section 6 of the U. P. General Clauses Act, even though the amending Act takes away that jurisdiction in respect of any, remedy or legal proceeding commenced subsequent to its enforcement.

This interpretation of Clause (b) of Section 6 of the U. P. General Clauses Act thus also embodies in it and gives effect to the principle that, if a litigant has moved an application in revision in this Court, engaged a counsel and paid the process fee for issue of the notice so that proceedings have commenced, he is not put to the hardship of being deprived of the judgment of this Court for no fault of his in case the decision in the revision is delayed by the Court. I, consequently, agree in the answer proposed by my Lord the Chief Justice.

M.L. Chaturvedi, J.

10. I agree with the judgment of V. Bhargava Judge.


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