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Taramoni Dasi Vs. Kalidasi Majhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2154 of 1974
Judge
Reported inAIR1977Cal43,81CWN661
ActsBengal, Agra and Assam Civil Courts Act, 1887 - Section 21; ;Code of Civil Procedure (CPC) , 1908 - Section 96; ;Court-Fees Act, 1870 - Schedule - Article 1
AppellantTaramoni Dasi
RespondentKalidasi Majhi and ors.
Advocates:Ashutosh Ganguly, Adv.
DispositionApplication allowed
Cases Referred(Nemi Chand v. The Edward Mills Co. Ltd.). It
Excerpt:
- .....choudhury). this is a decision of 5 judges and 4 of the judges held 'the legal pursuit of a remedy suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. the right of appeal is not a mere matter of procedure but is a substantive right. the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may actually be exercised when the adverse judgment is pronounced such right is to be governed by the.....
Judgment:

N.C. Mukherji, J.

1. This Rule was issued on an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 18 dated 25th May, 1974 passed by Sri A. N. Mitra, Additional District Judge, 4th Court, Alipore, in Title Appeal No. 530 of 1973. By the above order the learned Additional District Judge held that the appeal was maintainable in his court and directed the appellant to pay the deficit court-fees. Being aggrieved, the appellant has come up before us.

2. The facts of the case may briefly be stated as follows :--

The opposite parties 2 to 4 brought a suit. The plaint case is that the suit property comprising 13 decimals of land with pucca building thereon belonged to Ambika Charan Pramanik, now deceased, the husband of the defendant No. 1 and Gurupada Pramanik in equal shares. Ambika died leaving behind the defendant No. 1 as his widow who inherited 8 annas share and continued to possess the same in ejmali with Gurupada Pramanik who owned the remaining eight annas share. The defendant No. 1 thereafter by a kobala sold her above share in respect of the suit land and other properties to the plaintiffs Nos. 2 to 4 who thereafter on amicable partition with Gurupada began to possess the property separately. The defendant No. 1 filed Title Suit No. 48 of 1950 for setting aside the above kobala and got a decree. The decision was affirmed upto this Hon'ble Court. On the basis thereof the present defendant No. 1 obtained an order of joint possession with Gurupada Prama-nik. During the pendency of the aforesaid suit the plaintiff No. 2, since deceased, with the permission of the said Gurupada raised a residential pucca building on the suit land and the plaintiffs had been residing in such building and possessing land thereunder. The present defendant No. 1 by way of execution got possession of the property except the present suit land measuring 13 decimals. The plaintiffs being in possession of the above building, the defendant No. 1 did not get any possession in respect of such building. The plaintiffs Nos. 2, 3 and 4 filed objection in Title Execution Case No. 37 of 1958 for obtaining possession in respect of the suit land, as a result of which the defendant No. 1 did not get possession. Against such decision the defendant No. 1 filed F. M. A. 55 of 1960 in which it was decided that the defendant No. 1 would be entitled to get back possession of the above 13 decimals of land on removal of the structures. On 22nd of July, 1959 Gurupada transferred his 8 annas interest in favour of the plaintiff No. 1 Kalidasi, who was not a party to the above suit brought by the defendant No. 1. The defendant No. 1 Taramani filed Title Suit No. 33 of 1960 for partition and in such suit the present plaintiff No. 1 was declared to have 8 annas share on the strength of the deed of gift. The above order of delivery of possession on the removal of structures is highly prejudicial to the plaintiffs, and as such the plaintiff has filed the present suit for confirmation of possession in respect of the suit property upon declaration of title and for permanent injunction. For the purpose of jurisdiction and court-fees the plaintiffs valued the suit under Section 7(iv)(c) of the Court-Fees Act at Rs. 12,000. The learned court below decreed the suit on declaring the eight annas share of the plaintiff No. 1 in the suit land and confirming her joint possession therein and restraining the defendants from disturbing the plaintiffs' possession of the disputed property in any way till the final partition of the disputed property between the plaintiff No. 1 and the defendant No. 1 by metes end bounds either amicably or by the decree of a competent court. Against such judgment and decree an appeal was filed by the defendant No. 1. The appeal was filed on 16th of June 1973 and the appeal was valued for the purpose of court-fees at Rs. 160 on the basis of the valuation made by the Pleader Commissioner. An objection was taken by the respondents Nos. 1 to 4 that since the plaintiffs have valued the suit under Section 7(iv)(c) of the Court-Fees Act at Rs. 12,000 and as the appellant wants to have the entire decree set aside, the instant appeal has to be valued at Rs. 12.000 for the purpose of court-fees.

3. Though the appeal was filed before the District Judge, it was urged on behalf of the appellant that the appeal was wrongly filed before the District Judge and the appeal ought to have been filed before the High Court as the suit out of which the present appeal arises was instituted long before the Amendment of the Bengal, Agra and Assam Civil Courts Act. By such amendment the pecuniary jurisdiction of the District Judge to entertain an appeal was raised from Rs. 10,000 to Rs. 15,000. It was urged on behalf of the appellant that this amendment will not determine the forum in respect of the appeals arising out of suit instituted before the commencement of the amendment. It was contended that the amendment had no retrospective effect and as such the vested right of preferring an appeal in a particular forum could not be taken away. The same argument has been advanced before us most ably by Mr. Ganguly, learned Advocate for the petitioner. In support of his contention he cites before us several decisions including 1905 AC 369 (Colonial Sugar Refining Co. Ltd. v. Irving). Mr. Ganguly next refers to a Full Bench de-sion of the Allahabad High Court reported in AIR 1928 All 437 (FB) (Ram Singha v. Shankar Dayal). In this case their Lordships relying on the Privy Council decision referred to above laid down :

'An appeal is a mere continuance of the original proceeding initiated by the filing of the plaint, and the right to continue that proceeding cannot be affected by a new Act, unless it expressly says so.'

In this case a suit was filed for arrears of rent for less than Rs. 200 in the Court of the Assistant Collector when the old Agra Tenancy Act was in force. Before it could be decided, the new Act came into force on the 7th of September 1926. The suit was decreed on 23rd of December 1926. It was held

'That the right to appeal to the Court of the District Judge was govern-ed by the law prevailing at the date of the institution of the suit and not by the law that prevailed at the date of its decision, or at the date of the filing of the appeal.'

4. The next case referred to by Mr. Ganguly has been reported in : [1957]1SCR488 (Garikapati Veeraya v. N. Subbiah Choudhury). This is a decision of 5 Judges and 4 of the Judges held

'The legal pursuit of a remedy suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. The right of appeal is not a mere matter of procedure but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may actually be exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.'

We have gone through the provisions of Bengal, Agra and Assam Civil Courts (Amendment) Act and we do not find that there is any provision by which the vested right of appeal has been taken away either expressly or by necessary intendment.

5. The last case referred to by Mr. Ganguly is another Full Bench decision of the Allahabad High Court reported in : AIR1970All201 (FB) (Behari Lal v. Keshri Nandan). In this case their Lordships found as follows :

'On examining the language of Clause (a) of Sub-section (1) of Section 21 of Civil Courts Act and Sub-section (1-A) of Section 21, Civil Courts Act (as inserted by the U. P. Civil Laws Amendment Act) It becomes clear that the Legislature was anxious to give retrospective effect to the amended Section 21 of the Civil Courts 'Act. The amendment is effective even as regards a suit instituted before the commencement of the U. P. Civil Laws Amendment Act.' Their Lordships further held

'It is true that litigants have got vested right of appeal the moment a suit is instituted. But it is open to the appropriate Legislature to take away such vested right.' Thus it is clear that the legal position is that a right of appeal is vested in the parties as soon as a suit is instituted and the forum of appeal would be determined with regard to law as existing on the date of the commencement of the suit. The Legislature can take away such vested right by way of amendment and if such vested right is taken away then the forum will be changed and the forum will be determined according to the provisions of the Amendment Act. As has already been stated there is no provision in the Amendment Act which has in any way taken away the vested right of appeal, and that being so, we fully agree with Mr. Ganguly that in the present case the forum would be determined with reference to the law as it existed on the date of the commencement of the suit and that being so, the appeal was wrongly presented before the learned District Judge and the same ought to have been presented before this Court. This being the legal position, we further find that as the learned Additional District Judge had no jurisdiction to entertain the appeal he was wrong in directing the appellant to pay deficit court-fees. The proper order which the learned Additional District Judge could have passed was to return the Memorandum of Appeal to the learned Advocate for the appellant for presentation of the same to the proper court.

6. With regard to the payment of court-fees Mr. Ganguly submits that the learned court below was wrong to hold that the appellant was required to pay ad valorem court-fees at Rs. 12,000. As the suit was valued at Rs. 12,000 the appeal was also valued at Rs. 12,000 for the purpose of jurisdiction. There is no doubt that the valuation of en appeal for the purpose of jurisdiction and the valuation of the same for the purpose of payment of court-fees may be different. The payment of court-fees depends on the claim as made by a party. It is contended by Mr. Ganguly that the appellant having disclaimed any interest in the structure, the court below misdirected itself in taking the value of the structure for the determination of court-fees. In this connection it is further submitted that the relief which the appellant claimed was only in respect of undivided one-half share of 13 decimals of land which was valued by the Pleader Commissioner at Rs. 160 and as such the appellant paid court-fees on the said amount. In support of his contention that the court-fee was properly paid Mr. Ganguly refers to a decision reported in : [1953]4SCR197 (Nemi Chand v. The Edward Mills Co. Ltd.). It has been held in this case

'A memorandum of appeal as provided in Article 1 of Schedule 1, Court-Fees Act, has to be stamped according to the value of the subject-matter in dispute in appeal : in order words, the relief claimed in the memorandum of appeal determines the value of the appeal for the purpose of court-fees.' Considering the facts and circumstances of the case and the relief claimed in the appeal we agree with Mr. Ganguly that the court-fee paid on the appeal is sufficient.

7. In the result, the application succeeds and the rule is made absolute. The Order No. 18 passed by the learned Additional District Judge on 25th May 1974 is set aside. The learned Additional District Judge is directed to return the Memorandum of Appeal to the learned Advocate for presentation of the same to the proper court. Let the records go down immediately.

B.C. Ray, J.

8. I agree,


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