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Gopeshwar Pal Vs. Jiban Chandra Chandra - Court Judgment

LegalCrystal Citation
SubjectLimitation;Tenancy
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal806,(1914)ILR41Cal1125
AppellantGopeshwar Pal
RespondentJiban Chandra Chandra
Cases ReferredSoni Ram v. Kanhaiya Lal
Excerpt:
limitation - amending act, retrospective effect of--suit, right of, how far affected by amending act--vested right--bengal tenancy act (viii of 1885 as amendind by beng. act i of 1907) section 184 and schedule iii., article 3. - .....as amended that, demands the construction that the plaintiff was thereby deprived of a right of suit vested in him at the date of the passing of the amending act. it is not (in our opinion) even a fair reading of section 184 and the third schedule of the bengal tenancy act, as amended, to hold that it was intended to impose an impossible condition under pain of the forfeiture of a vested right, and we can only construe the amendment as not applying to cases where its provisions cannot be obeyed. the law as amended may regulate the procedure in suits in which the plaintiff could comply with its provisions, but cannot (in our opinion) govern suits where such compliance was from the first impossible. the effect is to regulate not to confiscate. there are thus two positions; where in.....
Judgment:

Jenkins C.J., Stephen Woodroffe, Holmwood and D. Chatterjee, JJ.

1. Owing to a difference of opinion, a point of law has been stated by Mr. Justice Fletcher and Mr. Justice N.R. Chatterjea under Section 98 of the Civil Procedure Code, and the appeal has accordingly been heard upon that point only by five of the other Judges of the Court. The point of law stated is whether the decision of the majority in the case of Manjhoori Bibi v. Akel Mahumed (1913) 17 C.W.N. 889 has been affected by the judgment of the Privy Council in the case of Soni Ram v. Kanhaiya Lal (1913) I.L.R. 33 All. 227 L.R. 40 I.A. 74. The actual decision of the majority in Manjhoori Bibi's Case (1913) 17 C.W.N. 889. was that the special rule of limitation extended to under-raiyats by the amendment in 1908 of the 3rd Article in the 3rd Schedule of the Bengal Tenancy Act did not apply, where the dispossession was in 1898 and the suit for recovery of possession was instituted on the 25th of August, 1908.

2. The judgment of the Privy Council in Soni Ram v. Kanhaiya Lal (1913) I.L.R. 33 All. 227 L.R. 40 I.A. 74 was concerned not with the special law of limitation, but with the general law as enacted in Act XIV of 1859 and Act XV of 1877. The suit in that case was instituted on the 4th March, 1907, and was brought for the redemption of a mortgage. One defence was the bar of limitation. The plaintiff sought to meet this plea by setting up certain acknowledgments and relied on the fact that the (sic) ad been given, when Act XIV of 1859 was in (sic). On the other side, it was argued that the case was governed by Act XV of 1877, and so the plaintiff could not claim the benefit of the law as to acknowledgment contained in the earlier Act. As to this it was said by the High Court 'the law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding, unless there is a distinct provision to the contrary: see Gurupadapa Basapa v. Virbhadrapa Irsangapa (1883) I.L.R. 7 Bom. 459. As Act No. XV of 1877 was in force when the suit was brought and there is no provision in it limiting. or postponing its application, Section 19 of that Act applied to the case': Shib Shankar Lal v. Soni Ram (1909) I.L.R. 32 All. 33, 43. This statement of the law was approved by the Privy Council on appeal and it is this approval that is supposed to have effected the decision of the majority in Manjhoori Bibi v. Akei Mahumed (1913) 17 C.W.N. 889. It certainly is not a decision on the same Act as that under consideration in Manjhoori Bibi's Case (1913) 17 C.W.N. 889, and as it is the construction and effect of a different Act that was under consideration, the Privy Council judgment cannot be regarded as a direct authority on the Act not before it.

3. On the contrary the essential conditions of the two cases are so distinct that in our opinion it cannot be said that the earlier decision is, in relation to the circumstances of this case, affected by the judgment of the Privy Council. It is an established axiom of construction that though procedure may be regulated by the Act for the time being in force, still the intention to take away a vested right without compensation or any saving, is not to be imputed to the Legislature unless it be expressed in unequivocal terms Cf. The Commissioner of Public Works (Cape Colony) v. Logan [1903] A.C. 355. That this view is not limited to those cases where rights of property in the limited sense are involved, is shown by The Colonial Sugar Refining Co. v. Irving [1905] A.C. 369 where, it was held that an Act ought not to be so construed as to deprive a suitor of an appeal in a pending action, which belonged to him as of right at the date of the passing of the Act Equally is a right of suit a vested right, and in Jackson v. Woolley (1858) 8 EL & B.(sic) 120 E.R. 292 the Court of Exchequer. Chamber declined, in the absence of something putting the matter beyond doubt, to put on an Act a construction that would deprive any person of a right of action vested in him at the time of the passing of the Act.

4. Williams J. said: 'It would require words of no ordinary strength in the statute to induce us to say that it takes away such a vested right.'

5. Here the plaintiff at the time when the amending Act was passed had a vested right of suit, and we see nothing in the Act as amended that, demands the construction that the plaintiff was thereby deprived of a right of suit vested in him at the date of the passing of the Amending Act. It is not (in our opinion) even a fair reading of Section 184 and the third Schedule of the Bengal Tenancy Act, as amended, to hold that it was intended to impose an impossible condition under pain of the forfeiture of a vested right, and we can only construe the amendment as not applying to cases where its provisions cannot be obeyed. The law as amended may regulate the procedure in suits in which the plaintiff could comply with its provisions, but cannot (in our opinion) govern suits where such compliance was from the first impossible. The effect is to regulate not to confiscate. There are thus two positions; where in accordance with its provisions a suit could be brought after the passing of the amendment, it may be that the amendment would apply the where it could not, then the amendment would have no application. The facts in Soni Ram v. Kanhaiya Lal (1913) I.L.R. 35 All. 227 did not involve the second of these positions, and we therefore hold that the decision of the majority in Manjhoori Bibi v. Akel Mahumed (1913) 17 C.W.N. 889. L.R. 40 I.A. 74. so far as it relates to that position, has not been affected by the judgment of the Privy Council in Soni Ram v. Kanhaiya Lal (1913) I.L.R. 35 All. 227; though it may perhaps be affected if and so far as it lays down a similar rule for suits within the first of the two positions. This however, is a point not before us, and on it therefore we do not express any definite opinion. Our judgment is on the question of limitation only, and the result is that we restore the decree of the Munsif with costs throughout.


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