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Dhirta Vs. Kesri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Judge
Reported inIIIInd.Cas.484
AppellantDhirta
RespondentKesri
Cases ReferredChowdhri Narsing Das v. Lala Dholan Das
Excerpt:
.....appeal--jurisdiction--suit for custody of wife--valuation of such suits changed during pendency of suit--suits valuation act (vii of 1887), section 9, rules under--value of suits instituted before not affected by these rules--civil procedure code (act xiv of 1882), sections 97 and 99--re-admitted suit--date of institution. - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court...........i or part 11. shall be construed to affect the jurisdiction of any court-(a) with respect to any suit instituted before rules under part 1 applicable to the valuation take effect or part 1.1 has come into force, as the case may be, or,(b) with respect to any appeal arising out of such suit.4. the power to frame rules under part i is given by section 3 of the act to the local government and by section 5(2), under the same part, it is enacted that a rule under that section shall not take effect until the expiration of one month after the rule has been published in the local official gazette. reading the latter section with section 12, it is clear, so far, that a rule for valuation framed under section 3, part i, cannot affect either the jurisdiction of a court or the appeal in any suit.....
Judgment:

Lal Chand, J.

1. The facts are given in full in the order referring the case to a Division Bench for decision. The suit is for custody of wife, and, when instituted on 26th October 1005, was valued at Rs, 510 for the purposes of jurisdiction under the rules then in force. It was dismissed under Section 97, Civil Procedure Code, on 6th December 1905, and was re-admitted on 4th -January 1906. On 19th January 1900 the plain, was returned for amending the names of certain defendants, and the amended plaint was re-filed on 22nd January 1906, valuing the suit for purposes of jurisdiction at Rs. 520.

2. Meanwhile the rule relating to valuation of such suits had been superseded and a new rule fixing the valuation of such suits at Rs. 1,000 for purposes of jurisdiction was issued with the sanction of the Local Government on 4th December 1905.

3. The question raised is, whether under the circumstances, a further appeal is admissible in the case as of right under Section 40, Punjab Courts Act. We feel obliged to hold that the question must be answered in the negative, with reference to the provisions of Section 12 of the Suits Valuation Act and the provisions of the General Clauses Act of 1897, According to Section 12, nothing in Part I or Part 11. shall be construed to affect the jurisdiction of any Court-

(a) with respect to any suit instituted before rules under Part 1 applicable to the valuation take effect or Part 1.1 has come into force, as the case may be, or,

(b) with respect to any appeal arising out of such suit.

4. The power to frame rules under Part I is given by Section 3 of the Act to the Local Government and by Section 5(2), under the same part, it is enacted that a rule under that section shall not take effect until the expiration of one month after the rule has been published in the local official Gazette. Reading the latter section with Section 12, it is clear, so far, that a rule for valuation framed under Section 3, Part I, cannot affect either the jurisdiction of a Court or the appeal in any suit instituted before the rule takes effect under Section 5(2) of the Act.

5. By Section 7 of the Act, Part 1 I came into force on the 1st day of July 1897, and power to frame rules under this part is conferred by Section 9 on the High Court with the previous sanction of the Local Government. The words used in Section 9 are: The High Court may, with the previous sanction of the Local Government, direct that suits of that class shall, for the purposes of the Court Fees Act, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject-matter was of such value as the High Court thinks fit to specify in this behalf'' The rule relating to valuation in suits for custody of wife was framed by this Court, after securing the necessary sanction under Section 9, and Section 12 by its terms is inapplicable to such rules. The section, so far as Part 11 is concerned, merely refers to suits instituted before the part came into force and not to suits instituted before the rule came into force, as is expressly provided in case of rules framed under Part I. Why this distinction was made is not so obvious. But looking to the language used in Section 9 and the obvious intention as deducible from the purview of Section 12, it seems reasonable to hold that the rules framed under Section 9, Part II of the Act, were not intended to have retrospective effect so as to affect jurisdiction with respect to an appeal in a suit instituted before the rule came into force. It is true that, speaking generally, an enactment relating to matters of mere procedure is held to have a retrospective effect and to apply to suits or actions already instituted (Max-well on Interpretation of Statutes, page 339).

6. But apparently this principle is not now recognised by the Indian Legislature under the General Clauses Act (X of 1897) and was not applied by this Court in Chowdhri Narsing Das v. Lala Dholan Das 21 P.R. 1900 F.B. as is apparent from the following extract from the judgment of the Hon'ble Mr. Justice Chatterji, at page 41: The further discussion of the question appears to be concluded by the wording of the New General Clauses Act X of 1897. Clauses (c) and (e) of Section 6 of that Act, and particularly the latter, seem to save the entire procedure applicable under the old law, as it expressly provides that any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the repealing Act or Regulations had not been passed. It would scorn that this section not only saves the rights, liabilities and obligations accrued before the passing of the Act, but also the procedure to give effect to them, and makes it necessary, when a Procedure Act is repealed and a new procedure substituted, to provide how far the new procedure will apply to proceedings pending at the time or to be instituted thereafter, to enforce existing rights and obligations.'

7. The concluding words of Section 6, Act X of 1897, that 'any such investigation, legal proceeding or remedy may be instituted, continued or enforced...as if the repealing Act or Regulations had not been passed,' make it absolutely clear that the procedure laid down by the repealing Act is not at all intended to have retrospective effect as regards suits instituted under the repealed enactment.

8. Act X of 1897 doubtless refers by its terms to legislative enactments and not to rules framed under authority conferred by a legislative enactment. But the provisions of the Act may be referred to for guidance in a matter of a similar nature, and having regard to the scope of the provisions of Section 12 of the Suits Valuation Act and the language of Section 9 of the Act as already quoted, it seems to be clear that the rule in question does not, and was not intended to, apply to suits instituted before the rule itself was issued. If the procedure in suits already instituted is not affected by any enactment passed subsequent to such institutions it would seem to follow as a necessary corollary that such procedure is not to be affected by rules framed or issued after such institutions. The suit in the present case was, no doubt, dismissed for default and re-admitted, and the plaint was returned, for amendment and was amended after the new rule came into force. But the amendment of the plaint does not affect at least the principal defendant Musammat Kesri, and against her the suit was certainly instituted on a date prior to the issue of the new rule. As regards re-admission after dismissal for default it cannot be treated as changing the date of institution of the suit. It was doubtless open to the plaintiff under Section 99, Civil Procedure Code, to bring a fresh suit, but he elected not to do so, and proceeded after re-admission, with the suit as originally instituted. The suit must, therefore, be held as instituted on the date when the plaint was originally filed and not on the date of its re-admission. The terms of Section 99 are: 'The Court shall pass an order to set aside the dismissal and appoint a day for proceeding with the suit.' These terms clearly preclude the suit after re-admission being treated as a fresh suit or as instituted on the date of re-admission. We, therefore, feel constrained to hold that the new rule passed in supersession of the existing rule is inapplicable and that the value of the suit for the purposes of the jurisdiction in this case must be held to be below Rs. 1,000 as set out in the plaint.

9. A further appeal is consequently inadmissible in the case as of right under Section 40 of the Punjab Courts Act.


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