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Renuka Pachal Vs. Sm. Chapa Guha Neogi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1465 of 1977
Judge
Reported inAIR1978Cal457,83CWN135
ActsBengal, Agra and Assam Civil Courts Act, 1887 - Section 21; ;Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act, 1969 - Sections 4 and 5; ;Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act, 1957; ;Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act, 1977
AppellantRenuka Pachal
RespondentSm. Chapa Guha Neogi and ors.
Appellant AdvocateNirmal Chandra Chakraburtty, ;Narendra Nath Biswas and ;Tarak Nath Bandopadhyay, Advs.
Respondent AdvocateSakti Nath Mukherjee and ;Amitava Choudhury, Advs.
Cases ReferredNishikantaRoy v. Monomohan Sengupta
Excerpt:
- .....made on the 23rd nov., 1977. the question is whether the bengal, agra and assam civil courts (west bengal amendment) act being act xxvi of 1969 is retrospective in operation. in an unreported decision of a division bench of this court it was held that the amendment act was not retrospective. this decision was pronounced on the 3rd dec., 1976 but certain earlier division bench decisions were not considered. in the earlier decisions similar amendment acts were held to be retrospective. banerjee and ray jj. were inclined to agree with the earlier decisions. that is why, the present reference has been made. 2. let us first discuss the relevant facts. the bengal, agra and assam civil courts act was passed in 1887. before 1957, section 21(1) of this act ran thus : 'section 21. appeals.....
Judgment:

Sankar Prasad Mitra, C.J.

1. This matter has been referred to a larger Bench by the Division Bench consisting of Pradyot Banerjee and G. N. Ray, JJ. by an order made on the 23rd Nov., 1977. The question is whether the Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act being Act XXVI of 1969 is retrospective in operation. In an unreported decision of a Division Bench of this Court it was held that the amendment Act was not retrospective. This decision was pronounced on the 3rd Dec., 1976 but certain earlier Division Bench decisions were not considered. In the earlier decisions similar amendment Acts were held to be retrospective. Banerjee and Ray JJ. were inclined to agree with the earlier decisions. That is why, the present reference has been made.

2. Let us first discuss the relevant facts. The Bengal, Agra and Assam Civil Courts Act was passed in 1887. Before 1957, Section 21(1) of this Act ran thus :

'Section 21. Appeals from Subordinate Judges and Munsiffs.-- (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.'

3. In 1957 by the West Bengal Act No. XVI of 1957, Section 21(1)(a) was amended. For the words 'five thousand rupees' in Section 21(1)(a) the words 'ten thousand rupees' were substituted. The Act came into force on the 4th Jan., 1958. The effect of the amendment was that an appeal from a decree or order of a subordinate Judge lay 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 ten thousand rupees.

4. When this amendment Act was in force Sudhinda Mohan Guha Neogy, since deceased, filed in the subordinate Judge's Court at Alipore on the 14th Sept., 1964 a title suit being T. S. 89 of 1964 for, inter alia, declaration of title, possession and mesne profits against Renuka Pachal the petitioner before us. The suit was valued at Rs. 10,635/-.

5. When this suit was pending the Bengal, Agra and Assam Civil Courts Act, 1887 was again amended by the West Bengal Act XXVI of 1969. Section 21(1)(a) as amended by the 1957 Act was changed. In the new amendment for the words 'ten thousand rupees' the words 'fifteen thousand rupees' were substituted. In other words, the District Judges' jurisdiction to entertain appeals was raised from ten thousand rupees to fifteen thousand rupees. The West Bengal Act XXVI of 1969 came into force on the 21st Nov., 1969.

6. On May 27, 1973, a decree was passed in Title Suit No. 89 of 1964 against the petitioner. The petitioner preferred an appeal not to the High Court but to the District Judge being Appeal No. 660 of 1973. On the 22nd Nov. 1976, the hearing of the appeal before the District Judge was concluded and judgment was reserved.

7. On the 3rd Dec., 1976, a Division Bench of this Court in an unreported judgment in Taramoni Dasi v. Kalidasi Maji (since reported in : AIR1977Cal43 ) held that the 1969 amendment Act was not retrospective in operation.

8. On the 23rd Dec., 1976 the District Judge at Alipore delivered his judgment against the petitioner before us. On the18th May, 1977, the petitioner moved this Court under Article 227 of the Constitution challenging the validity of the judgment of the District Judge on the ground that he had no jurisdiction to entertain the appeal.

9. Mr. Nirmal Chakraburtty appearing on behalf of the petitioner, has drawn our attention to the Supreme Court's judgment in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, AIR 1963 SC 221. In this judgment the Supreme Court has said that a right of appeal is not merely a matter of procedure. It is a matter of substantive right. The right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by the inferior court. Such a vested right cannot be taken away except by an express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implications.

10. Mr. Chakraburtty's point is that on the 14th Sept. 1964, when Title Suit No. 89 of 1964 was filed in the Alipore Court to be heard by a Subordinate Judge, there was a vested or substantive right of appeal to the High Court by reason of West Bengal Act XVI of 1957. This vested or substantive right has not been taken away either by express words or by necessary intendment by the Act of 1969. Mr. Chakraburtty has also relied on the Supreme Court's decision in Vitthalbhai v. Commrs. of Sales Tax, M. P. reported in : AIR1967SC344 . He says that there is a distinction between content of appeal and forum of appeal. The change of forum cannot be equated to the vested right of appeal. A change of forum does not affect the substantive right of appeal conferred by a Statute.

11. There are two Division Bench judgments of our Court which were not considered in Taramoni Dasi's case : AIR1977Cal43 . We have said that by the West Bengal Act XVI of 1957, Section 21(1)(a) of the Bengal, Agra and Assam Civil Courts Act, 1887 was amended. The District Judges' jurisdiction was raised from five thousand rupees to ten thousand rupees. Section 4 of the West Bengal Act XVI of 1957 was as follows:--

'Section 4. Savings:-- Nothing in this Act shall apply to or affect any appeal fromany decree or order passed before the commencement of this Act.'

12. The above section was construed by a Division Bench of this Court in Lokenath v. Subasona Sadhukhan reported in (1959) 63 Cal WN 812. The Division Bench has said that Section 4 purports to save from the operation of the amending Act, appeals from decrees or orders passed before the date of commencement of the Act. By doing so Section 4 makes the amending Act applicable to appeals from decrees or orders passed on or after the said date, even in suits or proceedings instituted prior thereto. In other words, Section 4 though applicable in respect of decrees or orders passed on or after the date of the commencement of the amending Act, makes by necessary implications or intendment, the amending Act applicable retrospectively to pending suits or proceedings, although there are no express words to that effect in the section itself. The reasonable construction of Section 4 is that it was enacted with a view to give the amending Act a limited retrospective effect to the extent indicated above.

13. This was a Division Bench consisting of P. N. Mukherjee and Law, JJ. The same Division Bench heard the case of Mukundadas Nundy v. Bidhan Chandra Roy reported in : AIR1960Cal67 . Again it was observed that the Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act, 1957 applied to pending proceedings also, where the decree or order in question was passed on or after its commencement on Jan. 1, 1958. This view was founded upon the necessary intendment or implication, deduced from Section 4 of the aforesaid amending Act and such deduction according to the Division Bench was eminently reasonable and amply justified.

14. In both the above cases, therefore, the Division Bench took the view that the West Bengal Act XVI of 1957 had retrospective operation and applied to pending suits and proceedings, to the delineated extent. The conclusion of the Division Bench was founded upon necessary intendment or implication inferred from the wordings of Section 4 of the Act. Mr. Chakraburtty has submitted to us that the Division Bench had not taken into consideration the Supreme Court's decision in the case reported in : 1983(13)ELT1277(SC) in which it was expressly held that a right of appeal was a vested or substantive right and did not try to interpret Section 4 of the West Bengal Act XVI of 1957 from that point of view. An appeal preferred after the enactment cannot receive the protection of Section 4. We have already said that the Division Bench in the two decisions cited above held that the 1957 Act was retrospective by necessary intendment or implication. The Supreme Court also in : 1983(13)ELT1277(SC) said that by necessary intendment such retrospective operation could be given.

15. When the State Legislature enacted the West Bengal Act XXVI of 1969 raising the District Judges' jurisdiction from ten thousand rupees to fifteen thousand rupees, it must be presumed to have known how Section 4 of the West Bengal Act XVI of 1957 was interpreted by the Division Bench of this Court in the cases, reported in 63 Cal WN 812 and : AIR1960Cal67 . In spite of the said decisions the same savings clause was introduced by Section 5 of the 1969 Act. In Section 5 it was stated: 'Nothing in this Act shall apply to or affect any appeal from any decree or order passed before the commencement of the Act.' This was, therefore, a conscious adoption or approval by the legislature of this Court's decisions in (1959) 63 Cal WN 812 and : AIR1960Cal67 . It is interesting that the Bengal, Agra and Assam Civil Courts Act has once again been amended by the West Bengal Act XIII of 1977 which came into force on the 27th June, 1977. Certain amendments were made to Section 25 of the original Act and the same savings section is there which is Section 4.

16. Our point is that by adopting the same savings provisions over and over again the State Legislature made both the 1969 Act and 1977 Act retrospective in operation to a limited extent. In Craies on Statute Law. 6th Edition at 167 it is stated: 'There is a well known principle of construction that where the legislature used in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears.'

17. The Supreme Court adopted this principle of construction in Vajravelu v. Deputy Collector, : [1965]1SCR614 and in Aihmed G. H. Ariff v. Wealth Tax Commr., Calcutta, : [1970]76ITR471(SC) . Our court also took the same view in NishikantaRoy v. Monomohan Sengupta, : AIR1973Cal529 .

18. In our view this reference can be disposed of on the basis that the State Legislature by enacting Section 5 of the West Bengal Act XXVI of 1969 has consciously made the said Act retrospective in view of the two decisions of this Court reported in (1959) 63 Cal WN 812 and : AIR1960Cal67 . We have not found any intention of the legislature to the contrary. We hold, therefore, that the Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act 1969 is retrospective in operation and the appeal to the District Judge, in the instant case, was competent and maintainable. We answer the reference accordingly.

19. The Rule, therefore, issued by this Court on the 18th May, 1977, is discharged. Interim orders, if any, are vacated. We direct that the records be sent back to the Alipore Court. We make no order as to costs.

Sabyasachi Mukhabji, J.

I agree.

Amiya Kumar Mookerji, J.

I agree.


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