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Mukunda Das Nandy and ors. Vs. Bidhan Chandra Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 11 of 1959
Judge
Reported inAIR1960Cal67,63CWN834
ActsBengal, Agra and Assam Civil Courts (West Bengal Amendment), 1957 - Section 4; ;Bengal, Agra and Assam Civil Courts Act, 1887 - Section 21(1)
AppellantMukunda Das Nandy and ors.
RespondentBidhan Chandra Roy and ors.
Appellant AdvocateAtul Chandra Gupta, ;Rabindra Nath Bhattacharyya, ;Jnanendra nath De and ;Binayendra Deb Rai Mahasay, Advs.
Respondent AdvocateS.M. Bose, Adv. General, ;S. Choudhury, ;Chandra Narayan Laik, ;Rathindra Dev, ;Jayanta Kumar Mukherjee, ;Pratap Chandra Chunder and ;Ajit Kumar Mukherjee, Advs.
Cases ReferredAttorney General v. H.R.H. Prince Earnest Augustus of Hanover
Excerpt:
- p.n. mookerjee, j. 1. this appeal is by some of the substituted defendants and it arises out of a suit for ejectment and mesne profits. the suit has had chequered career. it came up once to this court on appeal from the decree, passed by the learned subordinate judge on an earlier occasion. the said appeal was allowed in part, the decree of the learned subordinate judge was set aside and the case was remanded to the trial court for final disposal in accordance with the directions, contained in the judgment of this court. 2. after remand, the suit was decreed again by the learned subordinate judge and, against this new decree, the present appeal was preferred in this court on 24-12-1958. 3. in the appeal, the appellants filed, on 24-2-1959, an application, for stay of execution of the.....
Judgment:

P.N. Mookerjee, J.

1. This appeal is by some of the substituted defendants and it arises out of a suit for ejectment and mesne profits. The suit has had chequered career. It came up once to this Court on appeal from the decree, passed by the learned Subordinate Judge on an earlier occasion. The said appeal was allowed in part, the decree of the learned Subordinate Judge was set aside and the case was remanded to the trial court for final disposal in accordance with the directions, contained in the judgment of this Court.

2. After remand, the suit was decreed again by the learned Subordinate Judge and, against this new decree, the present appeal was preferred in this Court on 24-12-1958.

3. In the appeal, the appellants filed, on 24-2-1959, an application, for stay of execution of the decree, appealed from, and that application was eventually heard by the Court as a contested application and allowed on 6-3-1959, with a direction, inter alia, that the paper books in the appeal were to be filed by 17-4-1959, and the appeal was to be placed on the Daily List for hearing a fortnight after the filing of the paper books. The paper books were duly filed on 17-4-1959 but, by consent, the date of hearing of the appeal was shifted ultimately to 7-5-1959, and it was actually taken up for hearing on that date.

4. Meanwhile, certain events of importance happened which it is necessary to recite for purposes of the present judgment. On 1-1-1958, when the present proceedings were pending in appeal in this Court on the earlier occasion in F. A. No. 338 of 1956, West Bengal Act XVI of 1957, by which Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, was amended, changing the forum of appeals from decisions (decrees or orders) of Subordinate Judges in suits, valued between Rs. 5,000/-and Rs. 10,000/- (inclusive) from this Court to the District Judge, came into force. If the said Act applied to this case (the suit wherein was valued at Rs. 6,400/- but which was pending in appeal, that is, on the earlier occasion in F. A. No. 338 of 1956, in this Court, at the time of commencement of the said Act), the present appeal would lie to the District Judge and not to this Court. Otherwise, this Court would be the proper forum for the present appeal and it would be quite competent to entertain the same. A similar situation arose in many other appeals, filed in this Court after 1-1-1958, in one of which namely F. A. No. 317 of 1958 (Cal), an application had been filed by the respondent on 3-9-1958, that is, even before the present appeal came to be filed on 24-12-1958, objecting to the competency of the said appeal (F. A. No. 317 of 1958 (Cal)), in this Court in view of the above amending Act. On 12-9-1958, this Court adjourned the hearing of the said application till two weeks after the long Vacation and, after some further adjournments, that application was first taken up for hearing on 15-12-1958. The hearing, however, could not be completed on that date and, the application remained part-heard, and thereafter, due to some practical difficulties and on the prayer of the learned Advocates, the further hearing of the same had to be adjourned from time to time till 1-6-1959. In the meantime, in the present appeal itself, a preliminary objection was taken by the plaintiff -respondent (who had entered appearance on 9-1-1959) to its competency in this Court and, by an order of this Court, that preliminary objection was provisionally fixed for hearing on 3-2-1959, and eventually, it came up for consideration on 20-3-1959. On that date, however, the plaintiff-respondent intimated to the Court that he would not press his said objection, but, as the question was one of jurisdiction and so could not be disposed of simply on waiver or acquiescence, the court directed that the point be brought to its notice at the time of final hearing of the appeal which was due, at the time, at or about the end of April, 1959. Accordingly, when on 7-5-1959, the appeal actually came up for hearing before us, we decided to heat the point of jurisdiction first, and, by consent, it was taken up at once.

5. The point was then heard on the said date (May 7, 1959) and also on the next day (May 8, 1959), when both the appellants and the plaintiff-respondent (who alone of the respondents had entered appearance) submitted before us that the appeal would competently lie in this Court. There were elaborate arguments on the point by Mr. Gupta for the appellants and by the learned Advocate General and Mr. Choudhury for the plaintiff-respondent and, however much they differed as to the merits, of the appeal, -- as they incidentally observed, -- they were all agreed that, for the present appeal, this Court was the proper forum and it should be heard by us. In view, however, of the arguments on the point, which had been heard on the previous day (May 6, 1959) in First Appeal No. 315 of 1958 (Cal), and earlier on 15-12-1958, in First Appeal No. 317 of 1958 (Cal), and on 7-4-1959, in Loknath Mukherjee v. Subasoona Sadhukhan, F. A. No. 9 of 1959 (Cal), and in view also of the statute in question, namely, West Bengal Act XVI of 1957, particularly Section 4 thereof, we felt some difficulty in the matter and, having regard to the importance of the question and its far-reaching character, we requested Mr. Prafulla Kumar Roy, a senior Advocate of this Court, to assist us as 'amicus curiae' in coming to a proper decision on the point before us. Mr. Roy was good enough to assist us in the matter and we are grateful to him for his assistance.

6. The point of jurisdiction, so far as the instant case is concerned, arises in this way:

7. The suit for ejectment and mesne profits, out of which this appeal arises and which was valued at Rs. 6,400/- was filed before the learned Subordinate Judge, 4th Court, 24-Parganas, on 23-6-1955. It was decreed by the trial court on the earlier occasion by its judgment, dated 10-8-1956, and the decree was actually signed on 17-8-1956. From the said decision of the learned Subordinate Judge, the then defendant, who was the predecessor-in-interest of the present defendants, filed an appeal in this Court (Krishna Das Nandy v. Bidhan Chandra Roy, F. A. No. 538 of 1956: : AIR1959Cal181 , on 11-9-1956, and, on 28-1-1958, the said appeal was allowed in part, the trial court's decree was set aside and the case was remanded for final disposal to the trial court in accordance with certain directions, contained in the judgment of this Court, delivered on that occasion. The decree of this Court, following the said judgment, was signed on 19-2-1958. On 14-11-1958; the suit, after further hearing by the learned Subordinate Judge in terms of the above judgment of this Court, was again decreed by his judgment of that date and the decree was actually signed on 21-11-1958. The present appeal was then filed in this Court on 24-12-1958.

8. While the appeal was pending in this Court on the former occasion, that is, before the judgment had been delivered therein, the WestBengal Act XVI of 1957, which amended theBengal, Agra and Assam Civil Courts Act, 1887, by raising the figure of Rs. 5,000/- to Rs. 10,000/-in Section 21 of this latter Act and thus taking away from this Court the jurisdiction to entertain, appeals from Subordinate Judges in suits, valued between Rs. 5,000/- and Rs. 10,000/- (inclusive), came into force on 1-1-1958. That amending Act, which is instituted 'An Act to amend the Bengal, Agra and Assam Civil Courts Act 1887' and which is styled as West Bengal Act XVI of 1957, the Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act, 1957, opens with a short preamble in the following terms:

'Whereas it is expedient to amend the Bengal, Agra and Assam Civil Courts Act, 1887, in its application to West Bengal for the purpose and in the manner hereinafter appearing:

It is hereby enacted in the Eighth Year of the Republic of India, by the Legislature of West Bengal as follows:' and ends with the fourth section which bears a marginal note 'Savings'*.

9-11. The four sections, which together with the preamble as quoted above, comprise the whole of the amending Act, stand with marginal notes as follows :Short title and commencement.

'1. (1) This Act may be called the Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act, 1957.

(2) It shall come into force on such date as the State Government may, by notification in the official gazette, appoint.

Amendment of Act XII of 1887 in its application to West Bengal.

2. The Bengal, Agra and Assam Civil Courts Act, 1887 (hereinafter referred to as the said Act), shall, in its application to West Bengal, be amended for the purpose and in the manner hereinafter mentioned.

Amendment of Section 21.

3. In Clause (a) of Sub-section (1) of Section 21 of the said Act, for the words 'five thousand rupees' the words 'ten thousand rupees' shall be substituted. Savings.

4. Nothing in this Act shall apply to or affect any appeal from any decree or order passed before the commencement of this Act.'

12. Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, which the amending Act amends by Section 3 by substituting the words 'ten thousand rupees' for 'five thousand rupees' was, to quote its material part, before the above amendment, in the following form:

'21 (1) Save as aforesaid, an appeal from a decree or order of a Subordinate 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 five thousand rupees, and

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

13. The above amending Act was passed sometimes before 29-8-1957, and it received the assent of the President, which was first published in the Calcutta Gazette of that date. The Act, however, came into operation about three months later, that is, on 1-1-1958, under Notification No. 7967J., dated 20-11-1957, published by the Government of West Bengal in the Calcutta Gazette, dated 20-11-1957, Part I, page 4170.

14. There can be no possible doubt that the plain purpose of the amendment was to alter orchange the forum of appeals from decisions (decrees or orders) of Subordinate Judges from this Court to the District Judges' Court in suits, valued between Rs. 5,000/- and Rs. 10,000/- (inclusive). Prior to the amendment, such appeals lay to this Court, as, under the old Section 21, only appeals from Subordinate Judges in cases of suits, not exceeding Rs. 5,000/- in value, lay to the District Judge and, in all other cases to the High Court. After the amendment, however, appeals from decisions (decrees or orders) of Subordinate Judges in suits, not exceeding Rs. 10,000/- in value, would lie to the District Judge, or in other words, appeals from decisions of the Subordinate Judges in suits upto that value (Rs. 10,000/-) would lie to the District judge. There was thus an enlargement of the jurisdiction of the District Judge in the matter of appeals from decisions of the Subordinate Judges and corresponding curtailment of the jurisdiction of this Court in the matter of such appeals. That, indeed, is plain enough, but it is also equally plain, on well-established authorities, that this enlargement of the appellate jurisdiction of the District Judge and the consequent and corresponding curtailment of the appellate jurisdiction of this Court, which obviously, meant and involved a change of the law of forum in regard to appeals from decisions (decrees or orders) of Subordinate Judges in the particular cases, mentioned hereinbefore, could not, in the absence of express words or necessary intendment or implication to that effect, be given retrospective effect or applied to pending proceedings. If, therefore, the amendment is to have, or was intended to have such application or effect, the mere substitution of the words 'ten thousand rupees' for 'five thousand rupees', as done by Section 3 of the amending Act in Section 21 of the old Act, would not be enough for the purpose. Those words, by themselves, do not express any such intention, nor do they give rise to any implication, -- fur less, any necessary implication, -- in that behalf, and if the matter had rested there, the amendment would have been clearly prospective and would not have affected pending proceedings.

15. The complexion, however, is entirely changed by the enactment of Section 4 of the amending Act. That section purports to save from the operation of the amending Act appeals from decrees or orders, passed, before the date of commencement of the said Act, and, by so doing it attracts and applies the amendment to appeals from decrees or orders, passed on or after the said date even in suits, instituted prior thereto. In other words, by virtue of Section 4, the amending Act is made retrospective and it applies to pending suits or proceedings as well, though only in respect of decrees or orders, passed on or after the date of its commencement. True, there are no express words in Section 4 to the above effect, but, as held hy us in our judgment in First Appeal No. 9 of 1959 (Cal), delivered only two days back, the section, reasonably construed, contains in it -- or, at least, sufficiently discloses, -- the necessary implication or intendment. In that judgment, we have given the basic reasons in support of our above view and, after examining the three possible stand-points, from which the matter may be looked at, and, rejecting the two arguments that Section 4 was redundant or unnecessary and superfluous or that it was inserted ex abundanti cautela, we accepted and affirmed the third view that it was enacted to give the amending Act a partial or limited retrospective effect or operation, namely, to the extent, noted hereinbefore. That appeared to us to bethe only reasonable view of the amending Act in the light of its Section 4, as quoted hereinbefore, and we recorded our conclusion accordingly.

16. We have, in the preceding paragraph, given the substance of our decision in First Appeal No. 9 of 1959 (Cal), which, in our opinion, concludes the present appeal and negatives its competency in this Court. For better and easy appreciation of the position, however, we would reproduce hereinbelow the relevant part of our said decision and, in fairness to the learned Advocates, who argued the point in the present appeal and to whom we are indebted for a fuller discussion, and in deference to their very exhaustive and elaborate arguments which covered a wide field and embraced a variety of aspects, we would append a detailed consideration of the said arguments too.

17. The relevant part of our decision in First Appeal No. 9 of 1959 (Cal), may now be quoted as follows:

'Now Section 4 provides that 'nothing in the amending Act will apply to or affect any appeal from any decree or order passed before the commencement of the said Act.' That, indeed, would have been the position even without the section. Why then was the section (Section 4) enacted at all? The answer to this question will give as the necessary clue to the solution of the problem before us.

There are three possible points of view, from which the matter may be looked at, namely,

(1) That Section 4 was redundant or unnecessary and superfluous.

(2) That Section 4 was inserted only by way of abundant caution, or, to use the more familiar expression or expressions in that behalf, 'ex-majore cautela or ex abundanti cautela', and its sole purpose was to emphasise what would have been the position even without it, -- or rather, a particular aspect of it, -- namely, that, if the decree or order had been passed before the commencement of the amending Act, the appeal therefrom would not have been affected by the said amending Act;

(3) That enactment of Section 4 was to emphasise exclusion from the operation of the amending Act of appeals from decrees or orders, passed before the commencement of the said amending Act, and to confine such exclusion only to such appeals, indicating and implying necessarily that appeals in 'cases of other orders and decrees will be governed by the amending Act.

18. The first view will, obviously, have to be rejected as, according to well-settled rules or principles (canons) of construction of statutes, no apart of a statute should be held to be a surplusage or rejected as redundant or unnecessary or superfluous, -- or, to put it otherwise, should be repealed by interpretation, -- unless otherwise an absurdity would result, and there is no question of any such absurdity here.

19. The contest, therefore, will lie between the two other points of view, as stated in (2) and (3) above, of these, the theory of insertion by way of abundant caution does not, in our opinion, apply to the present case. From the materials placed before us, we have not been able to discover any particular or special circumstance or reason to explain sufficiently the insertion of this provision (Section 4) 'ex abundanti cautela' or by way of abundant caution. The legislature must be presumed to have known the settled principle that, in theabsence of express words or necessary intendment or implication, a statute, seeking to alter the forum of appeal or to affect the right of appeal, would not be retrospective in operation and would not apply to pending proceedings or to suits which had been instituted prior to its commencement and would not affect the same in any way whatsoever, and we can find no conceivable reason here why it would have deemed it necessary to emphasise that aspect, -- and, there again, a part only of it, -- by a specially inserted provision, unless its intention was that, except to that extent, the above principle would not apply.

20. We have, therefore, reached the conclusion that Section 4 would have been wholly unnecessary -- and somewhat unmeaning, -- and would not have been inserted in the amending Act, if the intention of the legislature was that the said amending Act would not have any retrospective operation whatsoever. On the other hand, it seems to us that, by enacting Section 4 of the Act, the legislature was seeking to make a distinction between appeals from decrees or orders, passed before the commencement of the amending Act, and those, passed on the date of its commencement or after it, and that distinction was made irrespective of any question of pending proceedings. In other words, the emphasis was on the point of time of the coming into operation of the new Act, the distinction being between pre-Act and post-Act decrees or orders irrespective of the pendency of the proceedings, in which they were made, at the date of commencement of the Act, except to the extent such emphasis may be involved in the above distinction in its application to such proceedings. The necessary implication of Section 4 would, therefore, be that the amending Act would apply to all appeals from all orders or decrees, passed on or after the date of the commencement of the amending Act, no matter whether such decrees or orders are passed in suits, instituted before or after such commencement. The broad distinction, adopted by the legislature was based on the point of time, when the decree or order, from which the appeal in question is preferred, is passed, and, by expressly providing in Section 4 that 'nothing in the Act shall apply to or affect any appeal from any decree or order, passed before the commencement of the Act,' the legislature may well be taken to have laid down, by necessary intendment or implication, a positive test for the application of the Act, namely, that to attract its application, the appeal must be from a decree or order, passed on Or after the date of commencement of the said (amending) Act and, further, that that test will be sufficient for the purpose. In other words, the intention of the amending Statute was to give a limited retrospective operation to the amendment by applying it to cases of pending proceedings too but only in respect of decrees or orders, passed on or after the date of its commencement. In our Opinion, this is the reasonable interpretation of this particular statute West Bengal Act XVI of 1957, the Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act, 1957, which is consistent with and logically follows from the theory of intention of the legislature in the light of settled principles, bearing upon retrospective operation of statutes, dealing with substantive rights, in view of the language used (employed) by the legislature, and without doing violence to it or overlooking or ignoring its express terms and the necessary intendment or implication, following therefrom.

21. We hold, therefore, that the amending Act (West Bengal Act XVI of 1957) applies topending proceedings also, where the decree or order in question was passed on or after its commencement on 1-1-1958. That view is, no doubt, founded upon the necessary intendment or implication, deduced by us from Section 4 of the Act, but, from what we have already stated, such deduction is eminently reasonable and amply justified.

22. AS we have said above, Section 4 would have been otherwise quite unnecessary, -- and somewhat unmeaning, -- and that is quite sufficient for letting in the deduction, as made, above by us, by way of necessary implication or inference (vide per Day J., in Gorton Local Board v. Prison Commissioners, (1904) 2 KB 165 (n) at page 166 (n). We may point out further that, while an implication, merely desirable or plausible, may not satisfy the test of necessary implication, the implication need not, for satisfying such test, shut out every other possible conclusion. The implication, indeed, need not be one, 'from which there is no escape, though it must be one which, under all the circumstances, is compelled by a reasonable view of the statute and the contrary of which would be improbable or absurd,' or, in other words, 'it must be so strong in its probability that the contrary thereof cannot be reasonably supposed' (see Crawford on 'the Construction of Statutes', p. 266, Section 168).

23. From the above point of view, the test of necessary implication is, in our opinion, amply satisfied in the present case, that is, so far as the amending statute before us is concerned.

24. It is useful to note here two special features of the present case, namely, (i) that, on 1-1-1958, when the amending Act came into force, the earlier appeal : AIR1959Cal181 was pending in this Court, & (ii) that the objection to the competency of the present appeal (F. A. No. 11 of 1959) came up for consideration when the said appeal (F. A. No. 11 of 1959} was ready for final hearing. We are making a special reference to these two features, as, upon them, two special arguments have been advanced before us,-- one for retaining this appeal in this Court upon the view that, notwithstanding the above amending Act, the present appeal would lie to this Court in view of the said special circumstance, first above enumerated, and the other for a full hearing and decision of the appeal on the merits too, even if the point of its competency in this Court be adversely decided. This latter argument-- and here the parties differed, Mr. Gupta not supporting this particular plea, -- has been particularly pressed before us by Mr. Choudhury in view of the fact that the appeal actually appeared on the list for final hearing after the paper books had been prepared and the appeal had become ready for such hearing. We shall deal with these special arguments after we have considered the submissions of the learned Advocates on the aspect, dealt with and covered by our decision in First Appeal No. 9 of 1959 (Cal), to which reference has been made hereinbefore.

25. Mr. Gupta urged, -- and, in this, he was supported by the learned Advocate General and Mr. Choudhury, -- that the amending Act is fully prospective and Section 4 contains no contrary indication. He argued that, by the amending Act, the forum of appeal was being changed and it was thus a statute, affecting substantive rights, and normally, therefore, it would be prospective and would not be retrospective and would not affect pending proceedings in the absence of express words or necessary intendment or implication. Forthis proposition (which possibly cannot be disputed, notwithstanding the minority view of Venkatarama Ayyar, J. in Gorikapati Veeraya v. N. Subbiah Choudhury, 1957 SCA 495 : ((S) : [1957]1SCR488 , reliance was placed on the direct decision of the Judicial Committee of the Privy Council in the well-known case of the Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369, and also on the later decision of the same tribunal in Delhi Cloth and General Mills Co. v. Income-tax Commissioner , and the decision of the Letters Patent Bench of this Court in the case of Sadar Ali v. Doliluddin Ostagar : AIR1928Cal640 , and the majority decision of the Supreme Court in the recent case, reported : [1957]1SCR488 supra. The proposition, however, would not sufficiently answer Mr. Gupta'spurpose, unless the exception, mentioned therein, is held to be inapplicable here. That there are no words here, excluding or abrogating the normal rule, has to be conceded, but, for such purpose, express words are not absolutely necessary and it may well be achieved by necessary implication or intendment (Vide Gulabchand v. Kudilal, : [1959]1SCR313 . Mr. Gupta contends that necessary intendment or implication postulates that no other conclusion is possible. We do not think, however, that that extreme view is justified and, in our opinion, as we have said already in our judgment in First Appeal No. 9 of 1959 (Cal), the test of necessary implication may well be otherwise satisfied also, that is, where the implication is 'one which, under all circumstances, is compelled by a reasonable view of the statute and the contrary of which would be improbable or absurd' or, in other words, where the implication 'is so strong in its probability that the contrary thereof cannot be reasonably supposed'. Even, however accepting Mr. Gupta's extreme contention on the point, we do not think that the position would be different in the present case. This is sufficiently clear from the discussion in the extract or extracts, quoted above from our judgment in F. A. No. 9 of 1959 (Cal), and we need not say more to reject Mr. Gupta's submission under this head. We may add that, on principle a similar view was taken by this Court in Mahomed Hushen v. Jamini Nath, AIR 1938 Cal 97, when dealing with Section 53A of the Transfer of Property Act in the light of Section 63 of the Amending Act XX of 1939.

26. It was argued next that Section 4 was inserted by way of greater caution. This argument also has already been rejected by us in the aforesaid appeal (F. A. No. 9 of 1959 (Cal)) for reasons given there and which have also been quoted herein before, and those reasons sufficiently answer the essential point in Mr. Gupta's present argument.

27. Mr. Gupta, however, sought to reinforce his above argument by referring to Maxwell, Tenth Edition, pages 316 and 317, and incidentally reminded us that the maxim expressio unius, exclusio alterius, on which some reliance may be placed for the opposite view, has fallen into disuse. In the above connection, Mr. Gupta, with his usual fairness also drew our attention to Maxwell's pages 331 and 332, wherein the learned author cites instances where the maxim was applied, pointing out, at the same time, the grave judicial warning against its misuse.

28. We have given this matter our most anxious consideration and we have read the passages, cited by Mr. Gupta, over and over again,but we do not think that they support his extremecontention that the above maxim has fallen into disuse, (Vide in this connection Whiteman v. Sadler, (1910) AC 514 at p. 527 and Alien v. Waters and Co., (1935) 1 KB 200 at p. 207), or that they assist him materially in this case or affect the view which We have taken of the crucial Section 4 and of the Amending Act as a whole in F. A. No. 9 of 1959 (Cal). Maxwell's comments, on which the whole of Mr. Gupta's above argument was built, are based on the several decisions, to which we shall draw immediate attention, and they rely for their fundamental emphasis upon the said several decisions, Those decisions, however, had their own special features and, when carefully examined, they all disclose circumstances which justified the application of the ex abundanti cautela theory in preference to the maxim 'expressio unius exclusio alterius,' Thus, in London Joint Stock Bank v. Mayor of London, (1875) 1 C.P.D. 1, their Lordships found it more reasonable to bold that 'the two great Corporations' -- the East India Company and the Bank of England, -- in whose favour the particular express statutory exceptions or exemptions were made, prevailed on Parliament to enact the said special exemptions in their favour than that the express mention of the said exemptions in favour only of the said two Corporations suggested or supported the inference that no such exemptions were to be available to other Corporations or Corporate bodies even though they, as held in that case and, also, on appeal, by the House of Lords in the same case in London Corporation v. London Joint Stock Bank, (1881) AC 393, were or would have been otherwise available to them in law, and in Weymonth v. Nugent (1865) 34 LJMC 81, the Hornsey Urban District Council v. Hennell, (1902) 2 KB 73, Westover v. Perkins (1850) 28 LJMC 227 and Smithet v. Blythe, (1830) 1 B and Ad 509: 9 LJKB 39. the express mention of certain exemptions in favour of the Crown in some of the Local Acts was held not to affect the more extensive exemptions, enjoyed by the Crown by virtue of its prerogatives. To hold otherwise would, indeed, have been disastrous, -- and hardly reasonable and verging almost on absurdity and the court was as much justified in giving effect to the ex abundanti cautela theory in those cases as it was in applying the above maxim in the cases, cited by the learned author himself as instances in that behalf. It is also significant to note in the above connection the following observations of their Lordships in the London Joint Stock Bank's case, 1875-1 C.P.D. 1, supra, at p. 17 :

'The general principle that Expressio unius est exclusio alterius cannot indeed be questioned; but it applies with a force differing in different cases; and in this instance it seems much more reasonable to hold that the two great Corporations above-mentioned prevailed upon Parliament to prevent all questions as to themselves, by direct enactment than to hold that Parliament by such special enactment in these two cases meant to determine this question in all other cases adversely to Corporations.'

29. The observations of Lopes, L. J. and Wills, J. respectively in the Court of Appeal in Colquhoun v. Brooks, (1888) 21 QBD 52 at p. 65 and in the same case earlier, in the Divisional Court, in Colquhoun v, Brooks, (1887) 19 QB 400 at p. 406, on which also reliance was placed by Mr. Gupta, quoting Maxwell, namely,

'The maxim Expressio unius, exclusio alterius. has been pressed upon us. I agree with what issaid in the Court below by Wills, J., about this, maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes, or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject matter to which it is to be applied, leads to inconsistency or injustice.'

(per Lopes, L. J., p. 65) and

'I may observe that the method of construction summarised in the maxim 'Expressio unius exclusio alterius' is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stressed beyond their due limits. The failure to make the 'expressio' complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind; and the application of this and every other technical rule of construction varies so much under differing circumstances, and is open to so many qualifications and exceptions, that it is rarely that such rules help one to arrive at what is meant. Certainly in the present case the only use of the maxim in question is to summarise in four words-the argument upon this point for the Crown.' (per Wills, I. p. 406)

do not, in our opinion, amount to anything more than a timely warning or note of caution against the misuse of the above maxim in cases where, in the circumstances, the ex abundanti cautela theory ought to be applied and the reasons, why in such circumstances the latter theory should be preferred were adequately stated and explained in the said observations. As a matter of fact Lopes, L. J. refused to apply the maxim in the above case before him for the reason, -- and here we quote his own words, -- as therein appearing, namely :

'I think a rigid observance of the maxim in this case would make other provisions of the statute inconsistent and absurd, and result in injustice. I cannot, therefore, permit it to govern by decision.' (p. 65).

and Wills, J. also gave his reasons at p. 414 in the following terms :

'It is clear that, so far as the profits derived from foreign or colonial securities or possessions are concerned, the Act itself proceeds upon the same principle. I can conceive no reason why a distinction should have been made in favour of the profits of foreign securities as compared with those of a foreign business, and why the profits of the business should be taxable whether remitted to the partner resident or not, whilst the profits of foreign securities or possessions should escape taxation unless remitted. No ground of principle for such a distinction has been or can be suggested. There is no reason, therefore, why the maxim, expressio unius exclusio alterius, should apply; whereas the provisions made in respect of the tax upon the profits of foreign possessions or securities are in strict accordance with what I have shewn to be a recognised principle of English law. It is far easier to suppose that the omission of any special mention of the case of a person resident here and not receiving the whole or part of the profits of a business carried on abroad by a firm of which he is a partner is an accident, than that there should, in respect of an isolated case, of this kind, be a departure without express words from a well-established principle regulating the application of Acts, of Parliament in general and, as has been shewn.repeatedly recognised and acted upon in respect offiscal statutes.' (p. 414).

30. No such circumstances, as indicated above by their Lordships are, however, to be found in this case and the reasons, set out in the cases cited do not apply here. On the other hand, the distinction, on which, as stated above by us, Section 4 of the Amending Statute is founded, is quite an intelligible distinction and it manifests and embodies in it a well defined principle which supports the view we have taken above of the said section and of the Amending Act as a whole. Accordingly, no argument, founded on Maxwell's comments, is available in the present case nor would any such argument determine the particular question now before us.

31. To complete our above discussion, we may briefly refer to some other cases, to which reference has been made, upon this particular subject, by Craise in his treatise on 'Statute Law', 5th Ed., pages 200 and 240, and in Halsbury's Laws of England, 2nd Ed., Vol. XXXI, at pages 486 and 506, Ss. 608 and 651, dealing with 'interpretation of Statutes'. In Craise, the relevant reference is first to Wakefield Board of Health v. Westriding and Grinsby Rly. Co., (1865) 1 QB 84 at p. 86, where, in the circumstances, before him, Cockburn, C. J. applied the ex abundanti cautela theory as he was satisfied, on the facts before him that the particular provision there had been inserted to prevent apprehended misapplication of the statute and, further, that if the legislative intent were otherwise, that particular provision would have been differently worded. Incidentally, we may observe that Mr. Gupta also advanced a similar argument here that, if the insertion of Section 4 of the amending statute was not by way of abundant caution but for giving the amendment partial retrospective operation, as held above by us, it could have been, -- and, indeed, would have been, -- put in a positive and more direct form and in appropriate express language to achieve that purpose, but, as already noticed herein and as we shall presently see also over again, express words are not necessary for the above purpose and the absence of the same or of a positive or more direct form, as suggested by Mr. Gupta, does not necessarily rule out the above maxim or let in the ex abundanti cautela theory or militate against the view, taken above by us, of the amendment in question in the light of Section 4 of the amending Act, if the broad distinction, resting on the point of time when the relevant decree or order is made, be borne in mind as underlying the scheme and purpose of this particular section. The other case, cited by Craise, namely, Lowe v. Dorling and Son, (1906) 2 KB 772, 784-5, while stating that, for the application of the allied or synonymous maxim 'expressio facit cessare taciturn' 'it is not enough that the express and the tacit are merely incongruous; it must be clear that they cannot reasonably be intended to co-exist' --and, incidentally, that, indeed, is the necessary implication thereof as explained above by us, -- and thus emphasising the rule of reasonable approach in the application of the said maxim, does not really go beyond the warning or caution, sounded by Lopes, L. J, and Wills. J. and only cites their observations on the point with approval. Of the three additional cases, cited by Halsbury on this particular point, The Duke of Newcastle v. Morn's, (1870) 4 HL 661, merely recognises and records the well-known fact that provisions may be inserted in statutes ex abundanti cautela and emphasises that the insertion of such a provision in a particular statute does not necessarily affect or control rights under other statutes (vide p. 671) and Smyth v. The Queen, (1898) AC 782, was really concerned with the interpretation of the expression 'prosecuting barrister' (as used in the saving section there) vis-a-vis the term 'Crown prosecutor' (which, two terms or expressions represented, as pointed out by their Lordships two well-known and well-recognised distinct and separate classes), while noticing incidentally that the said saving section might have been inserted, 'ex majore cautela or otherwise' and the third, namely, McLaughlin V. Westgarth, (1906) 75 LJPC 117, contains, at page 118, a very significant passage which runs as follows :

'It may be that modern statutes are drawn with greater particularity and minuteness. The misfortune in the framing of those statutes is that any body of persons, seeing a possibility of liability on their part, apply to Parliament to have special provisions inserted for their protection. That application is occasionally complied with, and then the argument arises which their Lordships have heard to-day namely, that anybody who is not included in the enumeration of the particular persons so inserted must be taken to be excluded by the operation of the statute from protection just because they are not included and others, are', (per Lord Halsbury)

What follows thereafter is, when closely read, just a repetition of the warning, alluded to hereinbefore, against misuse of the maxim in cases where, on a reasonable view the ex abundanti cautela theory should apply -- there being good reasons for mention of a particular thing and non-mention of another without intending any material distinction between the two in the ultimate analysis.

32. In the light of the above discussion, we would prefer to hold that the cases cited in the different authorities and text books, do not lay clown anything more than that the maxim 'expressio unius (est) expressio alterius', or its synonym 'expressum facit cessare tacitum' should be applied with caution and should not be allowed to get the upperhand in the matter of interpretation of the particular statute before the Court and, if the court finds some reasonable explanation for the provision which may fit in with the ex abundant) cautela theory and exclude application of the maxim expressio unius, exclusio alterius, the court may refuse to apply the said maxim and proceed to hold that the particular insertion was by way of greater caution. That element, however, is entirely wanting in the present case and the reasonable view on which we have applied here the necessary implication theory, would also support the application of the above maxim and so Mr. Gupta's above argument cannot succeed.

33. On the above aspect of the matter, the learned Advocate General and Mr. Choudhury did not advance any new argument but contented themselves by merely adopting Mr. Gupta's submissions and so nothing more need be said here, so far as the said aspect is concerned.

34. During discussion, reference was made to the recent decision of the Supreme Court, reported in : [1959]1SCR313 supra, on the question of retrospective operation of statutes. We, however, agree with Mr. Choudhury that that case has no relevancy here except where (vide pp. 172-173), as already noted, it states that, for such operation, express words are not necessary and affirmed that the same result may follow from-necessary implication or intendment (vide p. 169).That this is the correct view or an accurate statement of the law was, indeed, not disputed by any of the learned Advocates and we have also proceeded solely on the necessary implication or necessary intendment theory.

35. A question also arose whether it is permissible, in interpreting statutes, to refer to its Statement of Objects and Reasons. As we have carefully avoided any reference to any such Statement and as we have reached our conclusion independently of the same, we do not think that here also much discussion is necessary, but we may just refer to the several cases, which were cited before us on this point, namely, Thangal Kunju Musaliar v. M. Venkatachallam Potti, 1956 SCA 259 at pp. 291-292 : ( (S) AIR 1956 SC 249 at p. 265), State of West Bengal v. Suhodh Go-pal, : [1954]1SCR587 ; Kathi Raning Rawat v. State of Saurashtra, : 1952CriLJ805 , and Aswini Kumar Ghose v. Arabinda Bose, : [1953]4SCR1 , and also to the well-known decision of the Judicial Committee in AdministratorGeneral of Bengal v. Premlal Mullick, 22 Ind App 107 (PC). The last quoted decision is often cited as an authority against the permissibility of any reference to the Statement of Objects and Reasons 'in interpreting a statute (Vide the Bijni case, De-bendra Narain v. Jogendra Narain : AIR1936Cal593 ; vide also : [1953]4SCR1 , and the later Privy Council case of Krishna Ayyangar v. Nallaperumal Pillai, 47 Ind App 33 at p. 42 : (AIR 1920 PC 56 at p. 59), also supports the same view on the point, and in any event, in the Supreme Court case, supra, it was distinctly ruled that such Statement was inadmissible as an aid to the construction ofa statute, though in the first three of them, reference was made to it, and that, indeed, was held permissible, -- for the limited purpose of ascertaining the conditions prevailing at the time which necessitated the making of the particular law. We may point out, however, that such reference, even in those three Supreme Court decisions, was made only where their Lordships were considering the vires of the particular Act and it may well be, as pointed out by Mr. Choudhury, that the rule or authority in that behalf cannot be extended tocases of interpretation of statutes, not limited to the question of vires thereof. We are, however, as, at present, advised, reluctant to close the matter finally and permit the reference only to that extent as, in our opinion, the recent observations of Lord Simonds in Attorney General v. H.R.H. Prince Earnest Augustus of Hanover, 1957-1 All ER 49 at pp. 53-4, may open a new chapter and serve as a new guide to the develonment of this branch of the law too in the light of requirements undermodern conditions. Those observations echo the sentiments of many judicial minds and they are so very instructive and so pregnant with possibilities that it will be useful to recall them whenever difficult statutes will fall to be construed from whatever standpoint such construction may arise or bedeemed to be necessary. To complete this part of our discussion, we reproduce hereinbelow the observations of the noble Lord as follows :

'Since a large and ever increasing amount of the time of the courts has, during the last three hundred years, been spent in the interpretation and exposition of statutes, it is natural enough that, in a matter so complex, the guiding principles should be stated in different language and with such varying emphasis on different aspects of the problem that support of high authority may be found for general and apparently irreconcilable propositions. I shall endeavour not to add to their number, though I must admit to a consciousness of inadequacy if I am invited to interpret any part of any statute without a knowledge of its context in the fullest sense of that word.'

'And, by 'context', 'the noble Lord meant inter alia,' the historical background .......and the state of the relevant law as well as the verbal context of the Act itself, including its preamble 'and used it' in the widest sense as including not only other enacting previsions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy.'

and we conclude this part of the case by quoting from Mukherjee, J. as he then was, in : [1953]4SCR1 , that, on the point of permissibility of reference to, inter alia, the Statement of Objects and Reasons to ascertain the intention of the legislature in enacting a particular statute, 'judicial opinion is not uniform', and by pointing out once again that, for our present purpose, it is not necessary to probe into the matter any further.

36. No argument was made before us in this case that Section 4 was superfluous or redundant and unnecessary and so we need not say anything on the said point.

37. We turn now to the second branch of Mr. Gupta's argument. Here Mr. Gupta contended that the present appeal must be regarded as a continuation of the earlier appeal (F. A. No. 338 of 1956 : : AIR1959Cal181 , and, as the said earlier appeal properly lay to this Court, this appeal also should, under Section 4 or even in spite of it. We do not think that this argument is sound or acceptable. The earlier appeal (P. A. No. 338 of 1956 : : AIR1959Cal181 , was finally disposed of and the earlier decree passed by the learned Subordinate Judge, was set aside by this Court. A new decree has now been made and the present appeal is from that new decree. In the circumstances, the earlier chapter must be deemed to have been closed and the relevant decree now is the new decree and the relevant appeal is the present appeal. We do not think, therefore, that Section 4 can at all assist Mr. Gupta. Far from it, on the construction, made by us, the said section is definitely against the competency of the present appeal in this Court and Mr. Gupta certainly cannot succeed in his above submission that, in spite of the said section, the present appeal is maintainable in this Court.

38. Lastly, comes the question whether, in the circumstances before us, the appeal should be heard on the merits in spite of our view that it is not maintainable or entertainable in this Court. We have spent some very anxious moments over this question. But, after the fullest consideration, we have decided, though with the utmost reluctance and not without hesitation, that it will not be proper, in view of our finding on the above question of jurisdiction, to hear the appeal on the merits. This is, no doubt, somewhat regrettable in the facts of the present case, as the paper books have been prepared and the appeal is ready for hearing and so also are the parties and their learned Advocates. But, in fairness to the parties themselves and in fairness to us as also to the superior and inferior courts, to which the matter may travelhereafter, and, above all, in the interest of fair play and justice, we have deemed it necessary not totake up the appeal on the merits. True, as Mr. Choudhury suggests, the matter may go to theSupreme Court and, if their Lordships there overrule us on the point of jurisdiction, they may feelembarrassed and somewhat handicapped in putting an end forthwith to the disputes between the parties, but, on the other hand, if we are right on the above point of jurisdiction, any expression of opinion on the merits of the said disputes from this Court may seriously embarrass the learned District Judge in the determination of the appeal and that may produce the gravest injustice. That possibility cannot be ignored and, to our mind, that appears to be of supreme moment, -- and, indeed, of overbearing importance, -- in the decision of this particular aspect of the matter. Moreover, after having held that we have no jurisdiction to entertain and hear the appeal and that the same lies to the District Judge, we do not think that we can, with consistency and propriety, hear it on the merits.

39. We, accordingly, dispose of this appeal by holding that it lies to the District Judge and not to this Court and directing return of the memorandum of appeal to the learned filing Advocate for presentation to the proper Court and for taking other necessary steps. These, however, in the special circumstances of this case, should be donewith as much expedition as possible and the hearing before the District Judge also, if the appeal is filed before him, should not be unduly delayed.

40. The appeal is disposed of as above.

41. There will be no order for costs in thisCourt.

Law, J.

42. I agree.


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