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Subramania Aiyar Vs. Namasivaya Asari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1918Mad162; 45Ind.Cas.11; (1918)35MLJ377
AppellantSubramania Aiyar
RespondentNamasivaya Asari
Cases ReferredVajechan v. Nandram
Excerpt:
- - 'it is a well recognised principle in the construction of the statutes that they operate only on cases and facts which come into existence after the statutes were passed, unless a re-trespectiye effect is clearly intended. nandram (1907)9bomlr1028 ,as well......contention of the learned vakil was that the right of preventing an appeal being filed is not a vested right. it was held in colonial sugar refining co. v. irving (1965) a.c 369 that the right to prefer an appeal being a vested right, it will not be affected by a new legislation. we think that the principle of that decision applies to the present case. the right claimed by one party to take up a matter to an appellate tribunal is no more sacred, than the right given to the other party to prevent the right of finality attaching to the decree obtained by him not being disturbed. we think that the statement of law by the judicial committee is equally applicable to parties who have acquired a right to a judgment being regarded as final and conclusive.5. the next contention was that the.....
Judgment:

1. A preliminary objection has been taken by Mr. Purushotam Aiyar to the maintainability of the second appeal, and we are of opinion that the objection should prevail.

2. The suit was for Rs. 50 and odd for cutting and carrying away trees. It was originally instituted in the Small Cause side of the Tanjore Subordinate Judge's Court. As a question of title was involved in the determination of the claim, the plaint was returned for presentation to the District Munsiff's Court at Pattukottai, The suit was tried by that Court and an appeal was heard therefrom by the District Judge. This second appeal is against the decree of the District Judge.

3. The suit as originally filed was not exempted from the jurisdiction of the Small Cause Court. An amending Act was passed in 1914 by which a new Clause (ii) was added to Article 35 of the second schedule of the Provincial Small Cause Courts Act. Under this new clause if the suit were to be filed now, there can be no question that the Small Cause Court will have no jurisdiction to try it. The point for determination is whether this amendment affects the operation of Section 102 of the Code of Civil Procedure. Under that section no second appeal lies in any suit of the nature cognizable by the Small Cause Courts, if the value of the subject-matter does not exceed Rs. 500. In the present case all the disqualifying conditions are present. Mr. Raja Aiyar contended that the nature of the suit must be considered with reference to the date on which the second appeal is presented and not with reference to the date on which suit was filed; and as the amending Act was passed in 1914, before the second appeal was filed, the character of the suit has changed so as to admit of a second appeal being presented. This ingenious argument ignores the consideration that the appeal is against the decree which has been passed in the suit as originally filed. That decree was in a suit of the nature cognizable by the Small Cause Courts. The word 'cognizable' must be restricted to the nature of the proceeding prior to decree and not to its character at the time of the second appeal.

4. The next contention of the learned Vakil was that the right of preventing an appeal being filed is not a vested right. It was held in Colonial Sugar Refining Co. v. Irving (1965) A.C 369 that the right to prefer an appeal being a vested right, it will not be affected by a new legislation. We think that the principle of that decision applies to the present case. The right claimed by one party to take up a matter to an appellate tribunal is no more sacred, than the right given to the other party to prevent the right of finality attaching to the decree obtained by him not being disturbed. We think that the statement of law by the Judicial Committee is equally applicable to parties who have acquired a right to a judgment being regarded as final and conclusive.

5. The next contention was that the matter is one of procedure. Reliance was placed upon the decision in Attorney General v. Theobald (1890) 24 Q. B.D. 557. That was a case in which a declaratory enactment was construed. It was held that where the legislature declares the meaning of a particular expression that must be deemed to have been the meaning from the outset. In the present case the legislature has deliberately withdrawn certain cases from the jurisdiction of the Small Cause Courts. This is not a case of declaring the law but of making a new law. To such an enactment, the statement of law contained in the judgment of Lope's, L.J., in In re School Board Election for Parish of Pullborough : Bourke v. Nutt (1894) 1 Q. B. D. 737, is peculiarly applicable. ' It is a well recognised principle in the construction of the statutes that they operate only on cases and facts which come into existence after the statutes were passed, ' unless a re-trespectiye effect is clearly intended.'

This principle of construction is especially applicable when the enactment to which a retrospective effect is sought to be given would prejudicially affect vested rights or the legal character of past transactions.

6. Mr. Rajah Aiyar next referred to cases which have held that there is no vested right in having, the case tried by a tribunal which has been deprived of jurisdiction by a subsequent enactment. Such a right has been held by Lord Macnaughten in Colpnial Sugar Refining. Co. v. Irving (1965) A.C 369, as pertaining to the province of processual law and not to vested right, because so long as there has been no trial no party has any right to say that the mode of trial or the procedure for trying it shall not be changed. These observations apply to Vajechan v. Nandram : (1907)9BOMLR1028 , as well.

7. For these reasons we are of opinion that no second appeal lies to this case and we reject it with costs.


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