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Samdukhan Vs. Madanlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 16 of 1957
Judge
Reported inAIR1958Raj62
ActsRajasthan Civil Courts Ordinance, 1950 - Sections 21; Code of Civil Procedure (CPC) , 1908; Rajasthan Civil Courts (Amendment) Act, 1956 - Sections 21; Rajasthan Civil Courts (Amendment) Ordinance, 1957 - Sections 21A
AppellantSamdukhan
RespondentMadanlal and ors.
Appellant Advocate L.N. Chhangani, Adv. and;Party in person
Respondent Advocate Sumerchand, Adv. for Respondent No. 1
Cases Referred(D) and Rex v. Oliver
Excerpt:
.....213 of the constitution whereunder an ordinance promulgated under that article has the same force and effect as an act of the legislature of the state assented to by the governor, but the ordinance must be laid before such legislature when it reassembles and automatically ceases to have any effect beyond six weeks from the date of re-assembly unless it is disapproved earlier by that legislature. now, let us, therefore, see, with these initial difficulties cleared from the way, what the section precisely means. ' it is this last category of cases with which section 21a specifically deals, and it clearly & expressly provides that the provisions of the amendment act of 1956, as to the forum of appeals shall apply to such cases. in this view of the matter, the provision enacted by..........amended provisions as to the forum of appeal as enacted by act no. 6 of 1956 shall apply to all suits pending at the time of the commencement of the said act. now, there types of cases may arise in this connection. the first type consists of those suits which come to be filed after act no. vi of 1956 came into force. there cannot possibly be any doubt that first appeals in such cases in suits of the value under contemplation must be filed before the district judge.the second type of cases will be those which have been instituted before the amendment act of 1956 came into force. suits under this category may again be sub-divided into two classes. the first sub-division consists of those suits which were instituted and decided before the amendment act of 1956 came into force. so far as.....
Judgment:

Modi, J.

1. The only point for determination before the Full Bench in this appeal is whether it rightly lies to this Court or the appeal should have been filed in the court of the District Judge concerned.

2. We may state a few facts only which have a bearing on the question for decision. The suit out of which this appeal arises was filed by the plaintiff respondent Madanlal against the defendant appellant Samdu Khan in the court of the Senior Civil Judge, Merta, on the 11-2-1953. The suit was for dissolution of partnership and rendition of accounts, and the plaintiff respondent had valued it at Rs. 5250/-for purposes of court-fee. The trial court passed a preliminary decree in favour of the plaintiff respondent by its judgment dated the 31st January 1957. The defendant appellant then filed this appeal against that judgment and decree in this Court on the 13-3-1957. The appeal was registered in this Court on the same day. The appellant had somehow valued his appeal at Rs. 10,500/- but put in fixed court-fee only. When the matter came for determination of the proper court-fee payable on the appeal in this Court before a Division Bench, the appellant was directed to pay an ad valorem court-feel on Rs. 5250/-, and time was granted to him to make good the deficiency by the 31-5-1957, and the Bench directed that the question of jurisdiction would stand over until the deficiency in the court-fee was made good. There was a few days' delay in the payment of the court-fee but this was condoned by the Bench in the circumstances of the case. As regards the decision of the question whether the appeal lies to this Court or not, the appeal has been referred to the Full Bench in view of the importance of the question.

3. The question of the venue of the appeal depends upon Section 21 of the Rajasthan Civil Courts Ordinance (No. VII) of 1950, This section at the time the present suit was filed in 1953 stood as follows:

'21. Appeals from Civil Judges and Munsifs -- (1) Save as aforesaid an appeal from a decree or order of a Civil Judge shall lie:

(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which, the decree or order was made did not exceed Rs. 5000/-;

(b) to the High Court in any other case.... ... ... ... ... ... ...'

Then came the Rajasthan Civil Courts (Amendment) Act, 1956 (No. VI of 1956) by which) it has been enacted that the figure of Rs. 10,000/-be substituted for Rs. 5000/- in clause (a) of sub-section (1) of Section 21 as set out above. It is contended on the strength of this amendment, on behalf of the plaintiff respondent that as 'the present appeal has been filed in March 1957, after the amendment Act of 1956 had come into force on the 11th April 1956, the proper forum for the filing of this appeal was the court of the District Judge and not this Court.

4. If the matter had merely stood at this, the question as to the proper forum of the present appeal would have presented far greater complexities than to our minds it presents at this date.

5. A Division Bench of this Court to which two of us were parties had an occasion to consider the effect of the amendment Act No. VI of 1956 in Doongarmal v. Roopsingh, Civil Regular First Appeals Nos. 55 and 56 of 1956, D/- 30-4-1957: (AIR 1957 Raj 336) (A). There the judgments under appeal had been made in January, 1956, before the amendment Act had come into force on the 11-4-1956. It was held by the Bench that the appeals in those cases lay to the High Court inasmuch as the right of appeal in those cases had certainly come into play before the commencement of the Amendment Act, and that any other view would amount to giving a retrospective effect to that Act, and such effect could not rightly be given in the absence of an express provision or necessary intendment to that effect.

The question as to what would be the correct legal position as to the forum of appeals in suits which had been filed before but which were decided after, the Amendment Act of 1956 came into force, was left open, though the author of this judgment who was also responsible for the judgment in the Bench case had taken the opportunity to express himself in the following words towards the conclusion of that judgment:

'A strong argument was raised at the bar of this Court that the right of appeal is a vested right and is in law determined, before the right of appeal actually arises, at the very commencement of the action; and, that being so, an appeal must as a rule be governed by the law which was in force at the time the suit was brought. See Colonial Sugar Refining Co. v. Irving, 1905 AC 369 (B). If this argument should prevail (as indeed one o us--the writer of this judgment is inclined to think), although we make no pronouncement as to this in the present case, it is feared that all first appeals in cases instituted before the present Amendment Act came into force would still have to be filed in the High Court, and the fulfilment of the object sought to be achieved by the Amendment Act may remain deferred in actual practice for some years to come.'

6. The present case is the type of a case which had not been considered by the Bench, as it was decided in March 1957 after the Amendment Act of 1956 had come into force. Obviously, therefore, this case is not governed by the decision given in Dongarmal's case (A) which was decided on the 30th April, 1957, by this Court.

7. After the above decision, the Rajas-than Civil Courts (Amendment) Ordinance, 1957 (Ordinance No. 7 of 1957) has been brought into force on the 5-8-1957. By this Ordinance, Section 21 (A) has been added in the Ordinance No. VII of 1950. naturally for the period of the operation of the Ordinance. Section 21A is in these terms:

'21A. Applicability of Section 21 to certain suits. The provisions of section 21 as amended by the Rajasthan Civil Courts (Amendment) Act, 1956 (Rajasthan Act VI of 1956) shall apply to all suits and proceedings instituted before and pending at the commencement of the said Act.'

It is the effect of this provision which we are mainly called upon to consider in the present case in the setting which we have already given above.

8. Learned Government Advocate who appeared for the appellant conceded before us that all first appeals filed in suits of the value in question should be filed before the District Judge where such appeals are filed after the commencement of this Ordinance. But it is strenuously contended that this provision cannot apply to appeals which have already been filed in this Court and filed properly and are pending here. The contention is that Section 21A speaks in terms of 'shall' and does not apply to appeals which are already pending at the time this Ordinance came into force. In other words, it is claimed that this section is not retrospective, and, at any rate, should not be given a larger retrospective operation than it properly bears. Our attention was also invited in this connection to the words appearing before Section 21A in the said Ordinance, which are to the following effect:

'During the period of operation of this Ordinance the Rajasthan Civil Courts Ordinance, 1950 (Rajasthan Ordinance VII of 1950) shall have effect as if after Section 21 thereof the following new section were inserted, namely.'

So far as this wording is concerned, we may mention at once that this is not part of the section which follows immediately thereafter, and cannot be used to control the content or the import of the section.

So far as we can see, this phraseology was used merely to show that Section 21A was being introduced into the Rajasthan Civil Courts Ordinance No. VII of 1950 by an Ordinance promulgated by the Governor under Article 213 of ' the Constitution and not by means of an Act as these terms are used in the Constitution. We may pause to point out here that the word 'Ordinance' as used with respect to Rajasthan Ordinance No. VII of 1950 does not bear any different meaning from the word 'Act' properly so called; the word 'Ordinance' therein was used for the word 'Act' as there was no separate Legislature in Rajasthan at that time. The Ordinance of 1957 however stands entirely on a different footing and the word 'Ordinance therein bears the meaning and effect given to that expression in Article 213 of the Constitution whereunder an Ordinance promulgated under that Article has the same force and effect as an Act of the Legislature of the State assented to by the Governor, but the Ordinance must be laid before such Legislature when it reassembles and automatically ceases to have any effect beyond six weeks from the date of re-assembly unless it is disapproved earlier by that Legislature.

In this view of the matter, it was, in our opinion, entirely unnecessary to have said that Section 21A will have force during the period of the , operation of this Ordinance only, for the Ordinance could not possibly have a larger effect than that assigned to it under Article 213.

9. Coming next to the main provision, the question is whether the Legislature has enacted it retrospectively or it has only a prospective operation. The use of the word 'shall', in our view, is of no particular significance as the Legislature court not have used a past-tense in order to give a retrospective effect to the provision sought to be made. Now, let us, therefore, see, with these initial difficulties cleared from the way, what the section precisely means.

It says in plain language that the amended provisions as to the forum of appeal as enacted by Act No. 6 of 1956 shall apply to all suits pending at the time of the commencement of the said Act. Now, there types of cases may arise in this connection. The first type consists of those suits which come to be filed after Act No. VI of 1956 came into force. There cannot possibly be any doubt that first appeals in such cases in suits of the value under contemplation must be filed before the District Judge.

The second type of cases will be those which have been instituted before the Amendment Act of 1956 came into force. Suits under this category may again be sub-divided into two classes. The first sub-division consists of those suits which were instituted and decided before the Amendment Act of 1956 came into force. So far as this class of cases goes, they will be governed by the decision of the Bench in Doongarmal's case (A) of which we approve. These cases do not fall within the ambit of the expression 'all suits and proceedings instituted before and pending at the commencement of the said Act'. These suits though they were instituted before cannot be said to be 'pending at the commencement of the said Act' and, therefore, they fall outside the attract ability of Section 21A.

The third type of suits which are constituted by the second Sub-division in the last mentioned category arises where a suit has been instituted before the Amendment Act of 1956 and is 'pending at the commencement of the said Act.' It is this last category of cases with which Section 21A specifically deals, and it clearly & expressly provides that the provisions of the Amendment Act of 1956, as to the forum of appeals shall apply to such cases. In other words, a first appeal in a suit instituted before the aforesaid Act of 1956 came into force & having of the valuation of over Rs. 5000/- and up to Rs. 10,000/- shall lie to the district court as provided by Section 21 of the Amendment Act where such a suit is pending at the commencement of the Act.

In this view of the matter, the provision enacted by Section 21A is clearly retrospective. It takes us back to the commencement of the Act of 1956 and asks us to see whether the suit was pending at that time. If it was, then Section 21 of the Amendment Act of 1956 must apply. If it was already decided before the Act came into force, Section 21A will have no application, and so also Section 21 of the Act of 1956.

10. If our analysis of Section 21A is correct, as we think it is, the section is nothing if not retrospective. We also see no reason why the section should have been worded in the manner in which it has been, if the intention behind the Ordinance merely was to make it prospective, that is operative from the commencement of the Ordinance. In that case, there was nothing to prevent it being said in the Ordinance that the Amendment Act of 1956 shall apply to all suits and proceedings pending at the commencement of the Ordinance. The real key to the meaning of this provision is furnished by the use of the word 'Act' as the point of commencement and not the 'Ordinance' itself. We are, therefore, convinced that the provision contained in Section 21A is clearly intended to bear a retrospective operation, and we hold accordingly.

11. As already stated above, this provision cannot apply to suits or proceedings which have already been decided and are, therefore, no longer pending at the commencement of the said Act in which cases the law, as to appeals, which was in force before the Amendment Act No. VI of 1956, came into operation must apply.

12. The principle as to retrospective operation of statutes, so far as it is relevant for the present purposes, may be briefly summed up like this. Statutes, other than those relating to matters of procedure, do not and cannot have retrospective operation so as to destroy or impair existing vested rights. No principle is more firmly established than this in Indian Law as in English Law. It follows that, as a general rule, when law is altered during the pendency of an action, the law which is properly applicable to it is the law which existed at the commencement of the action.

It is further well established that the right o appeal is a vested right and cannot be taken away retrospectively unless such a right is so taken by an express provision to that effect or by a distinct and necessary intendment. While all this is so, it is equally well established and unquestionable that where a statute governing a right of appeal or for that matter any vested right is in its dominant intention and effect plainly retrospective, then it has to be accorded a retrospective effect, and the objection that such operation takes away a vested right is of little consequence.

See in this connection Re. Williams and Stepney, (1891) 2 QB 257 (C), Barber v. Pigden, 1937-1 KB 664 at p. 673 (D) and Rex v. Oliver, (1944) 1944-1 KB 68 at p. 76 (E). We are, clearly of opinion that judged by these principles, Ordinance No. 7 of 1957 is unquestionably retrospective inasmuch as the provisions of Section 21 of the Civil Courts Ordinance as amended in 1956 have been made expressly applicable to suits which were instituted before the Amendment Act of 1956 came into force but which were pending at the time of the commencement of that Act. We hold, therefore, that the Ordinance is retrospective in its true intention and effect, and we do construe it accordingly.

13. Now let us apply the conclusions to which we have come above to the case before us. The suit here was no doubt filed in 1953 before the Amendment Act No. VI of 1956 came into force on the 11th April, 1956. The suit was pending on that date in the trial court, and the judgment and decree under appeal were passed on the 31st January, 1957. The suit was thus clearly pending at the commencement of the said Act, and the valuation of the suit was Rs. 5250/-, and, therefore, Section 21 of the Amendment Act of 1956 is fully attracted by virtue of Ordinance No. 7 of 1957. In these circumstances, we hold that the proper forum for the Institution of this appeal is the district court. As Section 21A enacted by the Ordinance of 1957 has a clear retrospective effect to the extent we have indicated above, we do not consider it necessary to deal with the situation which would have arisen or which would arise in its absence, with respect to the type of appeal before us.

14. We should like to add before parting with the case that the question of the proper venue of the appeal became not a little intricate on account of the Amendment Act No. VI of 1956, and its true effect was bristling with difficulties, and if in these circumstances this appeal is re-presented in due course in the proper court with an application for condonation of limitation under Section 5 of the Limitation Act, we have no doubt that such a request will be considered with the sympathy which it deserves.

15. We accordingly order that this appealshall be returned to the appellant for presentation to the proper court. We would make noorder as to costs in this Court in the circumstances of the case.


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