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In Re: Parthasarathi Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1957)2MLJ250
AppellantIn Re: Parthasarathi Naidu and anr.
Cases ReferredVeeranna v. Chinna Venkanna
Excerpt:
- .....c.j.1. these two cases have been posted before us for orders as to whether the appeals were rightly filed in this court or whether they should have been filed in the concerned district courts. the common question in both the cases arises out of the change brought about by madras act (xvii of 1956) which amended the madras civil courts act, 1873 by substituting in section 13 of the civil courts act the words rs. 10,000 for the words rs. 5,000. the result of this amendment, to put it shortly, would be, whereas hitherto an appeal would have lain to this court if the valuation was rs. 5,000 and over, according to the act it would have to be filed in the district court unless it exceeds rs. 10,000. the act received the assent of the governor' on 10th october, 1956, but section 1,.....
Judgment:
ORDER

Rajamannar, C.J.

1. These two cases have been posted before us for orders as to whether the appeals were rightly filed in this Court or whether they should have been filed in the concerned District Courts. The common question in both the cases arises out of the change brought about by Madras Act (XVII of 1956) which amended the Madras Civil Courts Act, 1873 by substituting in Section 13 of the Civil Courts Act the words Rs. 10,000 for the words Rs. 5,000. The result of this amendment, to put it shortly, would be, whereas hitherto an appeal would have lain to this Court if the valuation was Rs. 5,000 and over, according to the Act it would have to be filed in the District Court unless it exceeds Rs. 10,000. The Act received the assent of the Governor' on 10th October, 1956, but Section 1, Sub-section (2) provided that it shall come into force only on such date as the State Government may by notification appoint. It is common ground that by notification, dated 3rd January, 1957 the appointed day for the Act coming into force was 1st April, 1957. Both the appeals before us were preferred after the 1st April, 1957 to this Court and in both it is common ground that the valuation is over Rs. 5,000 and less than Rs. 10,000 and but for the amending Act the competent Court would be this Court. Mr. Desikan, learned Counsel, for the appellants in one of the cases, contended that there was a vested right in the parties to the suit out of which his appeal arises to have a regular appeal to this Court from the time of the institution of the suit, which was considerably before the passing of the amending Act. It was a further part of his contention that such a vested right could not be taken away except by making the amending Act retrospective expressly or by necessary intendment. The foundation of his contention is the well-known decision of the Privy Council in Colonial Sugar Refining Company v. Irving1, where it was laid down by Macnaghten, J., that to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure and in principle there was no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifest. In that case a right of appeal from the Supreme Court of Queensland to His Majesty in Council was taken away and a right of appeal to the High Court of Australia was provided. The cases before us are analogous because in these cases instead of a right of appeal to the High Court, an appeal to the District Court has been substituted. The principle of Colonial Sugar Refining Company v. Irving1, would apply to these cases. In a recent case before the Supreme Court (Civil Miscellaneous Petition No. 579 of 1956) their Lordships followed the decision in Colonial Sugar Refining Company v. Irving1 and applied it to the right of appeal to the Supreme Court in cases in which the value of the subject-matter was above Rs. 10,000 but less than Rs. 20,000.

2. The Privy Council, however, in the very case of Colonial Sugar Refining Company v. Irving L.R. (1905) A.C. 369 laid that if there was a clear intention that the amending statute should be retrospective and that intention was manifested either expressly or by necessary intendment, then, of course, vested rights could be affected. Now can it be said that the Madras Act (XVII of 1956) was intended to be retrospective Expressly it does not so provide. But can we say by necessary intendment the Act is retrospective In coming to the conclusion on this point we refer to the provision in Section 1, Sub-section (2) of the Amending Act that it would not come into force forthwith on receiving the assent of the Governor but would only come into force on a date to be notified and when we take into consideration the fact that on 3rd January, 1957, it was notified that the Act would come into force only on and from 1st April, 1957, we are of opinion that by necessary intendment the Act should be retrospective In this connection the following passage in leading text books on Interpretation of Statutes are instructive. In Maxwell, 10th Edition, at page 223 we have the following rule of law:

But some stress is also to be laid on the circumstance that the Act did not come into operation until eight months after its passing, for the concession of this interval seemed to show that the hardship in question has been in the contemplation of the Legislature and had been thus provided for

3. In Craies Statute Law, 5th Edition, the rule is stated thus at page 363:

A postponement clause in an Act has been sometimes said to be an indication against the presumption that a retrospective intent is not to be inferred

4. The following observations of Pollock, C.B. in Wright v. Hale (1860) 30 L.J. Ex. 40 are instructive:

I think that where an Act of Parliament alters the proceedings which are to obtain in the administration of justice, and does not specially say that it shall not apply to any action already brought, but merely causing the operation to pause for a certain time, and giving an opportunity for parties to retire from suits, it applies to actions already brought

5. We therefore hold that Madras Act (XVII of 1956) is retrospective in its application and would apply even to suits which had been instituted before that Act came into force.

6. We may also add that the question is in one sense really academic because even if we were to hold that the appeals were rightly filed in this Court, we can forthwith direct that they be transferred to the respective District Courts. There can be no doubt whatever about this: vide Veeranna v. Chinna Venkanna (1953) 2 M.L.J. 317.

7. Taking up these two appeals one after the other we find that the appeal covered by S.R. No. 12151 of 1957 was filed into this Court even before the expiry of the thirty days which is the period allowed by the Limitation Act for an appeal to the District Court. The papers will be returned to the appellant for presentation to the District Court immediately after the reopening of that Court. There can be no question of limitation as the appeal to this Court was preferred within even the time allowed by law for preferring the appeal to the District Court.

8. In the other cases, however, the appeal would be out of time if it is now presented to the District Court. But having regard to the circumstances of the case and the fact that it was filed in this Court within the ninety days allowed by law, any delay in the circumstances should be excused. The papers will be returned to the appellant to be presented to the District Court.

9. The papers will be returned immediately to counsel.


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