1. This judgment will dispose of two appeals which have been brought by the Small Town Committee, Budhlada, against Firm Bhuria Mal-Parmeshwari Das in the one case and Swami Ram in the other, in both of which the point in controversy is the same.
2. In 1934 sanction was obtained by Firm Bhuria Mal-Parmeshri Das and by Sawani Ram for the building of 'chabutras' over a public drain in a public street. This sanction was subject to a condition that no structure above the 'chabutras' would be constructed and there would be no permanent interference with the public street, whatever that may mean. In December 1934 a report was made to the Small Town Committee that 'chhappars' had been constructed both by Firm Bhuria MakParmeshri Das and by Sawani Ram. In March 1935 there was a resolution to the effect that either the 'chhappars' should be removed or these persons should pay penalties. I am informed that penalties were paid though counsel for the Com-mittee does not accept this position. Before 1941 notices Were given to Firm Bhuria Mal-Parmeshri Das and to Sawani Ram to pay fees under Section 41(1)(e), Punjab Small Towns Act, the former being called upon to pay Rs. 26/- and the latter Rs. 45/-. In the same year a suit was brought for restraining the Committee from levying these fees. It appears that this suit was by and on behalf of a large number of persons. It was alleged that the levy was illegal on the ground that there was no proper sanction of the Commissioner as required under Section 41(2) of the Act. This matter came up to the High Court, and in the High Court, Bhandari J. upheld the decree of the lower Court, as a result of which the suit was decreed, and the finding was that there was no previous sanction but the sanction had been obtained later. This was Second Appeal No. 760 of 1943 (Lah.)
3. Fresh resolutions were passed and fresh notices were given. One resolution dated 18th July 1945 was in the following terms : 'Lala Milkhi Ram should get Bhuria Mal-Parmeshri Das to deposit Rs. 26/- as yearly rent and should then report.' As the money was not deposited another resolution was passed that twenty-one days' notice be given to Firm Bhuria Mal-Parmeshri Das for getting the 'chhappar' which had been constructed by them to be demolished. On 2nd October 1945 a notice was given calling upon the Firm Bhuria Mal-Parmeshri Das to demolish the 'chhappar' and as this was not done, on 2nd November 1945 a sixhours' notice was given. Similar resolutions were passed and notices given to Sawani Ram with this difference that the amount demanded from him was Rs. 45/-.
4. On 12th December 1946 two suits werefiled against the Small Town Committee. Budhlada, one by Firm Bhuria Mal-Parmeshri Das and the other by Sawani Ram for declaration and injunction to the effect that the Small Town Committee was not entitled to levy a fee for the building of the 'chhappars', the allegation being that the notices were illegal and 'ultra vires'. The Small Town Committee pleaded that the notices were proper and that the resolutions had been passed after proper sanction of the Commissioner had been received. The parties went to trial and one of the main issues which was raised was:
Whether the resolution of the defendant imposing a fee or rent for the construction of the 'chabutra' and 'chhappar' is illegal and void?
Although the form of this issue shows that the onus to prove the illegality of the resolutions and the notices was on the plaintiffs the case was tried as if it was for the defendant Committee to prove the legality of the resolutions and the notices. Reliance was placed on Section 41 (1)(e) of the Act. The trial Court held:
'There is nothing to show that such an approval has been obtained. The former suit between the parties regarding the imposition of a similar levy was decreed by the High Court and the imposition and demand were held invalid for want of approval of the Commissioner. There is no evidence to show that such an approval has been obtained now.'
5. The Committee took an appeal to the Senior Subordinate Judge who in a somewhat unsatisfactory judgment upheld the findings of the learned Subordinate Judge. No objection Was taken in the grounds of appeal or in the arguments that the onus was on the defendant rather than on the plaintiffs. In these circumstances the learned Senior Subordinate Judge held that as there was no sanction proved in support of the resolution of 1945 the Committee could not legally levy the tax. Two second appeals have been brought to this Court in both these cases.
6. By way of preliminary objection Mr. Faqir Chand Mital submitted that the appeals are not maintainable by this Court because after the appeals were filed the area of Budh-lada became a part and parcel of the territory of PEPSU and therefore the appeals cannot be heard by this Court. He has referred to Section 8 of the Provinces and States (Absorption of Enclaves) Order, 1950, which is as follows:
'8. All laws in force in an enclave immediately before the appointed day shall, as from that day, cease to be in force in that enclave, and all laws in force in the absorbing unit shall, as from that day, extend to, and be in force in that enclave :
Provided that anything done or any action taken under the laws in force in the enclave before the appointed day shall be deemed to have been done or taken under the corresponding law extended to, and in force in, that enclave as from the appointed day.'
7. The question that I have to decide is as to whether an appeal which was instituted in this Court can be continued or it comes to an end because of the area of Budhlada having gone into PEPSU. The matter is not 'res integra.' In -- 'Nikka Singh v. The State', Cri Appeal No. 36 of 1950, which is reported in a publication 1951-6 Dom LR (Simla) 228, it was held that an appeal which was pending in a murder case could be decided by this Court although the area from which the appeal had come had been merged into PEPSU. In another case which I decided sitting alone I followed the rule laid down in -- 'Nikka Singh's case' and held that an appeal from Kasauli which had since gone into PEPSU could be heard and decided by this Court. I gave leave to appeal but I do not know as to what has been decided in that case. In - 'Venugopala Reddiar v. Krishnaswami Red- diar', AIR 1943 FC 24, it was held that 'a right to continue a duly instituted suit is in the nature of a vested right and it cannot be taken away except by a clear indication of intention to that effect. In the absence of such a clear indication in the Constitution Act, a British Indian Court continues to have jurisdiction to proceed with trial of a suit already pending before it even with respect to properties situated in Burma.'
There a suit had been instituted in 1932 in a British Indian Court with respect to properties situated in British India and in Burma. The question was whether the suit in regard to properties in Burma could be continued after Burma had been separated in 1937. Reliance was there placed on -- 'Colonial Sugar Refining Co. v. Irving', (1905) AC 369, which was a case which dealt with appeals. In -- Marsh v. Higgins', (1850) 82 RR 436, Wilde C. J., observed:
'It must have been well known to both branches of the Legislature that strong and distinct words would be necessary to defeat a vested right to continue an action which has been well commenced.'
8. The right of appeal is a right vested in a litigant, and once that appeal has been properly filed in a proper Court the right to continue it cannot be taken away except by a clear indication of intention to that effect, and in Section 8 of the Order there is nothing which shows such an intention. Following the rulings that I have quoted above I am of the opinion that this Court has jurisdiction to continue to hear the appeal which was properly instituted in this Court. I would therefore overrule this preliminary objection.
9. The question then arises as to whetherin this particular case any ground has been made out for interference with the judgments and decrees of the Courts below Section 41 (1) (e) and (2), Punjab Small Towns Act is as follows:
'41. (1) A committee may charge fees for-
* * * * (e) the temporary or permanent occupation of any portion of a public street;
* * * * (2) The rates of the fees to be charged must in each case be approved by the Commissioner.'
In terms of this section the Committee could have passed a resolution charging fees from the particular persons provided the rates of the fees which were charged had received the approval of the Commissioner. In this parti-cular case there is no proof on the record that the Commissioner gave any approval to the amount of fees which had been demanded from the plaintiffs. Mr. Chiranjiva Lal Aggarwal for the appellant has put forward two arguments: (1) that the onus was on the plaintiffs and they have failed to discharge it; and (2) that there was a judgment of the High Court on the file which showed that the Commissioner had given his approval to the fees which were demanded.
10. With regard to the first argument, no doubt, the form of the issue shows that it was for the plaintiffs to prove the illegality of the resolution. But cases of this kind where evidence is entirely in the hands of the defendant cannot be decided on an abstract principle of onus of proof. A defendant cannot succeed merely on the ground that evidence has not been produced when the evidence is solely in his, possession. But apart from that in this particular case the defendant seems .to have accepted that it was for it to produce evidence on the record showing the legality of the resolutions which had been passed by it. Even the resolutions which have been placed on the record do not show that the Committee was conscious of the fact that sanction of the Commissioner was required in regard to the rates, nor are the wordings of the resolution sufficient to show that the Committee did pass a resolution as sufficient to show that the Committee did pass a resolution as required by Section 41(1) (e) of the Act. All that they said was that Milkhi Ram should get Rs. 26/- deposited by Firm Bhuria Mal-Parmeshri Das, which is hardly a proper form of resolution. But I attach no importance to the wording of! the resolution when deciding this question of legality of the notice. I am, therefore, of the opinion that the resolutions and notices were not proper and the Courts below have rightly come to that conclusion.
11. With regard to the second argument that there is a judgment of the Lahore High Court which shows that sanction of the Commissioner had been obtained, I have only to say this that although there is a reference to the sanction of the Commissioner this judgment cannot prove the factum of sanction, and what is more there is nothing to show that the Commissioner had sanctioned the amount of fees which were demanded from the plaintiffs.
12. Mr. Chiranjiva Lal Aggarwal then prayed that he should be allowed to put on the record additional evidence, that is, the sanction of the Commissioner. This document was not sought to be placed on the record in the trial Court and no such request was made to the first appellate Court which is the proper Court dealing with questions of fact. I am, therefore, unable to allow Mr. Chiranjiva Lal to file these documents at this stage, nor do I feel that there is any such lacuna as will entitle me to take the evidence at this stage, and it is doubtful whether a Court of law as, opposed to a Court of fact can take addi-tional evidence.
13. I am therefore of the opinion that that appeals must fail and I would dismiss them with costs throughout.