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M.J. Delaflore and anr. Vs. Amir Mohammad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 79 of 1969 (P)
Judge
Reported inAIR1970Mad308
ActsPondicherry (Extension of Laws) Act, 1968 - Sections 3(1) and 4(2)
AppellantM.J. Delaflore and anr.
RespondentAmir Mohammad and ors.
Appellant AdvocateN. Arunachalam, Adv.
Respondent AdvocateGovt. Pleader, for Pondicherry at Madras and ;K.P. Sukumaran, Adv.
DispositionPetition dismissed
Excerpt:
......(page 216). the general principle, however, seems to be that alterations in procedure are retrospective, unless there be some good reason against it. but a new procedure would be presumably inapplicable, where its application would prejudice rights established under the old, or would involve a breach of faith between the parties .where rights and procedure are dealt with together, the intention of the legislature may well be that the old rights are to be determined by the old procedure, and that only the new rights under the substituted section are to be dealt with by the new procedure. a general direction such as is now sought cannot obviously be given in this application as that will clearly infringe the statute......state subject to the modification mentioned in the schedule, from the abovesaid date. the code of civil procedure, 1908, is one of enactments mentioned in the schedule. that code as in force in the state of madras on the 1st day of august 1966 was extended to pondicherry.a certain modification was made in column 5 of the schedule by stating that any judgment, decree or order passed or made before the enactment under the preexisting law in pondicherry shall be deemed to have been made or passed under the civil procedure code; but any period of limitation in respect of such judgment, decree or order under the pre existing law should not be treated as having been extended. correspondingly there was also introduced in the pondicherry (extension of laws) act a repealing and saving provision.....
Judgment:
ORDER

Ramakrishnan, J.

1. This civil revision petition is filed under Article 227 of the Constitution in somewnat unusual circumstances, which can be stated briefly. A suit O. S. No. 21 of 1968 was pending between Kichenaramanoudjam Chettiar (Plaintiff) and Alamelu Ammale and four other persons, in the Court of the Premier Instance at Karaikal. That suit was instituted on 7-4-1967. The Pondicherry Legislature passed the Pondicherry Civil Courts Act, 1966 (Act 12 of 1966). This Act provided for the replacement of the existing hierarchy of Courts dealing with civil law in the Pondicherry Union Territory (which was formerly a part of the overseas territories of France) by a hierarchy of Courts following the same pattern as in the Indian Union. To illustrate this, under Section 6(1) of the Act, the Tribunal Superieur d' Appel becomes the Court of the District Judge, the Tribunal of the Premier Instance becomes the Court of a Sub-Judge and the Court of the Judges de Paix becomes the Munsif's Court.

This Act was to come into force on such date as the Pondicherry Government by notification in the official gazette may appoint. Thereafter, the Parliament enacted the Pondicherry (Extension of Laws) Act, 1968 (Act 26 of 1968) which came into force on 5-9-1968. The Pondicherry Civil Courts Act was also brought into force on the same date. Section 3(1) of the Pondicherry (Extension of Laws) Act extended the various enactments mentioned in Part I of the Schedule, to the Pondicherry State subject to the modification mentioned in the schedule, from the abovesaid date. The Code of Civil Procedure, 1908, is one of enactments mentioned in the schedule. That Code as in force in the State of Madras on the 1st day of August 1966 was extended to Pondicherry.

A certain modification was made in column 5 of the schedule by stating that any judgment, decree or order passed or made before the enactment under the preexisting law in Pondicherry shall be deemed to have been made or passed under the Civil Procedure Code; but any period of limitation in respect of such judgment, decree or order under the pre existing law should not be treated as having been extended. Correspondingly there was also introduced in the Pondicherry (Extension of Laws) Act a repealing and saving provision as follows:--

'4(1). Any law in force in Pondicherry or any area thereof corresponding to any Act referred to in Sub-section (1) of Section 3 or any part thereof (except in so far as such law continues to be applicable to Renoncants) shall stand repealed as from the coming into force of such Act in Pondicherry.

(2) Nothing in Sub-section (1) shall affect--

(a) the previous operation of any law so repealed or anything duly done or suffered thereunder; or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed:

Provided that anything done or any action taken (including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or scheme framed, certificate obtained, permit or licence granted, or registration effected) under any such law, shall be deemed to have been done or taken under the corresponding provision of the Act extended to Pondicherry by this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act.'

Shortly after this, five people, Messrs, M. J. Delaflore, V. Janakiram, A. Veda, Amir Mohamed, M. S. Sundiramoorthy, who were not parties to the above suit, but who appear to be members of the Bar, filed I. A. No. 1 of 1968 purporting to be in O. S. No. 21 of 1968 for the following relief:--

'Petition dated 20-12-1968 given collectively by the petitioners praying the Court to decide that it has no jurisdiction and that the parties shall continue the procedure already instituted in the old cases filed before the Civil Court of first instance of Karaikal, before the promulgation of new law, for the reason that the new laws, particularly the Civil Courts Act. Civil Procedure Code, involve many difficulties both for the litigant parties and for their counsel, that the litigant parties are compelled to face with new expenses in the cases that are about to be decided, that the rights acquired by reason of the procedure already followed should be respected by virtue of the Article 4, Section 1 of the Pondicherry (Extension of Laws) Act, 19G8 and that the application of the new law to juridical deeds created under the authority of the French law entails serious inconveniences.'

Upon this application, the learned Subordinate Judge of Karaikal, who functioned in the place of the Tribunal of Premier Instance by reason of the Pondicherry Civil Courts Act, 12 of 1966, passed an order that in view of the Pondicherry (Extension of Laws) Act, which applied the Indian Civil Procedure Code to Pondicherry, the Court had no jurisdiction to order the continuation of the procedure under the French law in pending old suits.

2. Originally, the revision petition, purporting to be under Article 227 of the Constitution, was filed in this Court by one Ameer Mohammed, one of the lawyers who figured as the third petitioner in the LA. In an interlocutory order passed by me on 21-1-1969 I directed the petitioner's counsel to supply information as to whether Ameer Mohammed, the petitioner in the civil revision petition, had any interest in 9. S. No. 21 of 1968 In which the aforesaid I. A. is sought to be filed. Thereupon, the petitioner's counsel substituted, in the place of Ameer Mohamed, two persons D. M. J. Delaflore and A. Veda, who were advocates appearing for the parties in O. S. No. 21 of 1968. The other advocates who appeared as petitioners in the I. A., as well as the parties in the suit were impleaded as respondents. The matter has thereafter come for hearing. The petitioners dispensed with notice to respondents 6 to 8. Since the question involved an important principle of procedure under the new enactments notice was also given to the learned Government pleader of Pondicherry. At the time of the hearing of the petition, Sri N. Arunachalam, learned counsel appearing for the petitioners and the learned Government Pleader for Pondicherry submitted their arguments.

3. To begin with. It must be pointed out that the petition as framed in the lower Court was by five members of the Bar, two of whom alone were counsel appearing for the parties in O. S. No. 21 of 1968 and the other three were counsel not on the record of the suit but were counsel practising in Karaikal. It is very doubtful whether they have any locus standi to file an application of the present kind. Another preliminary objection to the proceeding will be that the prayer in the petition, which I have extracted above, is of a very vague and general kind which is almost academic in the sense that the Court is asked to lay down a general proposition that all pending suits in Pondicherry Courts shall continue to be dealt with under the procedure of the French Law ie., under the French Civil Code and not under the Indian Civil Procedure Code notwithstanding the specific provision in the Extension of Laws Act to which I have above referred.

It will be very improper to give what amounts to a general legal opinion touching a general problem in an I.A. purporting to be in a suit but without reference to any specific points in this suit. No specific particulars as to the rights affected by the repealing and saving enactment so far as the parties in the pending suit are concerned are set forth.

4. After setting out these preliminary objections to the present petition, which appear to me to be valid, I shall also refer briefly to the arguments at the Bar by the learned counsel for the petitioners and the learned Government Pleader for the State of Pondicherry.

5. Prima facie, the two sections of the Extension of Laws Act above referred to, namely, Sections 3 and 4 are repealing and re-enacting provisions. The preexisting French Civil Code, which corresponds to the Indian Civil Procedure Code, is repealed under Section 4(1). and the Indian Civil Procedure Code is brought into force under Section 3(1). Section 4(2) contains saving provisions framed in terms closely analogous to Section 6 of the General Clauses Act (Act 10 of 1897). Learned counsel for the petitioners lays particular stress upon Section 4(2) (d) of the Extension of Laws Act which is similar to Section 6(e) of the General Clauses Act. He urges that the provision in Section 4(2) (d) of the Extension of Laws Act, which permits a pending legal proceeding previously instituted to be continued as if the later Act had not been passed, would give jurisdiction for dealing with that proceeding under the French Civil Procedure Code.

This argument appears to me to miss the entire point of the saving provision. The saving provision referred to, interpreted in the light of the general provision governing the interpretation of statutes, would mean that the pending legal proceeding cannot be put an end to by reason of anything enacted in the later law if the party affected has a right to continue the legal proceeding under the repealed Act. What is saved by the saving provision, is only the right to continue the legal proceeding notwithstanding anything in the later enactment which may affect such continuance. But if a particular procedure had to be followed under the pre-existing law in respect of that legal proceeding, but a different procedure is prescribed under the later enactment, the legal proceeding, in so far as its further continuation is concerned, has to follow the procedure indicated in the new law.

6. The reason for this, can be gathered from the general principles for the interpretation of statutes. For this purpose one can usefully refer to the observations contained in 'The Interpretation of Statutes' by Maxwell, 1962 Edition:

'No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right, for the defaulter can have no vested right in a state of the law which left the injur-ed party without, or with only a defective remedy ..... (page 216).

The general principle, however, seems to be that alterations in procedure are retrospective, unless there be some good reason against it.' (page 217).

At the same time Maxwell has also laid down certain limitations to this rule. These are stated at page 219 thus:

'But a new procedure would be presumably inapplicable, where its application would prejudice rights established under the old, or would involve a breach of faith between the parties .....

Where rights and procedure are dealt with together, the intention of the Legislature may well be that the old rights are to be determined by the old procedure, and that only the new rights under the substituted section are to be dealt with by the new procedure.'

What I have stated above would show that the problem of interpreting the repealing and saving provision in the Extension of Laws Act cannot be dealt with in a general way. Nor can it be dealt with by giving a general direction that for all pending actions the old procedural law will apply. That will mean going in the face of the statute. No Court can give such a direction. What will be really relevant is to determine if there is anything in the old procedure in the nature of a vested right, a privilege, an obligation or a liability falling within the meaning of Section 4(2) (d) of the Act, and to seek to preserve such right etc., wherever they are likely to be jeopardised by the application of the new procedural law. What such rights are privilege etc., cannot be stated straightway in a general reference of this kind. It must be considered in the circumstances of, individual cases and the law applicable to them. For example, questions may arise in regard to property rights which might become extinguished by the application of the pre-existing law of limitation. Questions might arise about value of rights of appeal. There might be also questions of procedure which would be inextricably mixed with substantial vested rights. They can form an exception to the rule that laws of procedure are retrospective whereas laws affecting vested rights are prospective. A general direction such as is now sought cannot obviously be given in this application as that will clearly infringe the statute.

7. For all the foregoing reasons, the petition is dismissed with the above observations.


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