State Of Bombay vs Supreme General Films Exchange … on 22 April, 1960

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Supreme Court of India
State Of Bombay vs Supreme General Films Exchange … on 22 April, 1960
Equivalent citations: 1960 AIR 980, 1960 SCR (3) 640
Author: S Das
Bench: Das, S.K.
           PETITIONER:
STATE OF BOMBAY

	Vs.

RESPONDENT:
SUPREME GENERAL FILMS EXCHANGE LTD.(with connected appeal)

DATE OF JUDGMENT:
22/04/1960

BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
SARKAR, A.K.
HIDAYATULLAH, M.

CITATION:
 1960 AIR  980		  1960 SCR  (3) 640


ACT:
       Court Fee-Amendment of statute enabling levy of higher court
       fee-When	 retrospective--Suit instituted	 before	 amendment,
       appeal field thereafter--Court fee on memorandum of  appeal-
       Court  Fees  Act, 1870 (7 of 1870), ss. 4, 6, Sch.  1,  Art.
       1--Court	 Fees  (Bombay	Amendment) Act, 1954  (Bom.  12	 of
       1954).



HEADNOTE:
In 1954 certain amendments were made in the Court Fees	Act,
1870,  as  applied  to	Bombay by  the	Court  Fees  (Bombay
Amendment) Act, 1954, by which the system of charging  court
fees  in  the  Bombay High Court on the	 original  Side	 was
altered	 and instead of a fixed fee payable on	the  plaint,
etc., ad valorem fees became leviable.	The amendments	came
into  force  on April 1, 1954, but there was  no  provision,
express	  or  by  necessary  intendment,  for  giving	them
retrospective  effect.	 In respect of appeals	filed  after
that date against decrees passed in suits instituted  before
that  date, the question arose as to whether the court	fees
payable on the memoranda of appeal were according to the law
in force at the date of the filing of the suits or according
to the law in force at the date of the filing of appeals:
Held, that the court fees payable on the memoranda of appeal
were  according	 to the law as it stood at the date  of	 the
filing of the suits.
An  impairment	of  the right of appeal	 by  putting  a	 new
restriction thereon or imposing a more onerous condition  is
not  a matter of procedure only ; it impairs or	 imperils  a
substantive  right  and an enactment which does	 so  is	 not
retrospective  unless it says so expressly or  by  necessary
intendment.
Hoosein	 Kasam	Dada  (India) Ltd. v. The  State  of  Madhya
Pradesh	 and  others,  [1953]  S.C.R.  987  and	 Garikapatti
Veerayya v. N. Subbiah	 Choudhuyy,   [1957]   S.C.R.	488,
followed.
A Reference under Section 5 of the Court Fees Act, (1954) 57
Bom.   L.R.  180,  Amara  Eswaramma  and  others  v.  Makkam
Seethamma,
641
A.I.R.	1955 Andhra 221, Ayjun v. Amyita and others,  I.L.R.
[1956]	Nag. 296 and Nagendra Nath Bose v. Mon Mohan  Singh,
(1930) 34 C.W.N. 1009, approved.
Mohri  Kunway  v.  Keshri Chand,  I.L.R.  [1941]  All.	558,
distinguished.



JUDGMENT:

CIVIL APPELLATE, JURISDICTION : Civil Appeals Nos. 86 and 87
of 1956.

Appeals from the Judgment and Order dated November 24, 1954,
of the Bombay High Court in Appeals Nos. 89/X and 96/X of
1954.

H. R. Khanna and R. H. Dhebar, for the appellants.S. D.
Goswami and Gopal Singh, for the respondents.
1960. April 22. The Judgment of the Court was delivered by
S.K. DAS, J.-These two consolidated appeals arise out of
the judgment and order of the High Court of Bombay dated
November 24, 1954, passed on two applications in two appeals
disposed of by the said High Court. The facts are similar
and the question of law arising therefrom is one and the
same, namely, whether in the absence of provisions giving
retrospective effect to certain amendments made in the Court
Fees Act, 1870, as applied to Bombay by the Court Fees (Bom-
bay Amendment) Act, 1954 (Bombay Act No. XII of 1954), which
amendments came in force on April 1, 1954, hereinafter
called the relevant date, the court fees payable on two
memoranda of appeal were payable according to the law in
force at the date of filing of the suits which was prior to
the relevant date, or according to the law in force at the
date of the filing of the memoranda of appeal which was
after the relevant date.

The facts are simple and may be very shortly stated. On
April 16, 1953, Messrs. Sawaldas Madhavdas brought a suit
against the Arati Cotton Mills Ltd., praying for a decree
for rupees two lacs and odd. The suit was decreed on July
22, 1954. The Arati Cotton Mills Ltd. filed a memorandum of
appeal against the said decree on September 4, 1954, and
paid court fees of Rs. 3,193-12-0 on the said memorandum.
On or about October 5, 1954, a settlement was arrived at
between the parties and on October 9, 1954, a prayer was
made for dismissal of the appeal for want of prosecution.
On November 18, 1954, an application was
642
made under s. 151, Code of Civil Procedure, by the Arati
Cotton Mills Ltd., for refund of excess court fees paid on
the memorandum of appeal. In the application it was stated:
” The appellants say that the appeal having arisen out of a
suit which had been instituted on or about 16th April, 1953,
long prior to the coming into force of the Court Fees
(Bombay Amendment) Act, XII of 1954, no court fees were
payable on the memorandum of appeal herein except as
provided in the Table of fees hereinafter mentioned and that
it was due to a mistake that the appellants were called upon
to pay the said institution fee amounting to RE;. 3,193-12-0
and the said sum was paid by the appellants under a bona
fide mistake and/or inadvertence and/or oversight. The
appellants say that the only fee payable for the filing of
the said memorandum of appeal was the fee of Rs. 32 under
item No. 58 of the Table of fees set out at page 396 of the
Rules of this Court. The appellants say that they were not
legally bound to pay anything more than the said sum of Rs.
32 and that sum of Rs. 3,161-12-0 paid by them in excess of
the said sum of Rs. 32 was paid by mistake and ignorance of
the appellant’s legal rights and/or through inadvertence or
oversight. The appellants submit that it is necessary for
the ends of justice that the said sum of Rs. 3,161-12-0
should be ordered to be refunded to them.”

Similarly, on December 17,1953, Messrs. Rasiklal and
Company Ltd., brought a suit against Messrs. Supreme
General Films Exchange Ltd. and two other defendants in
which a decree was passed on May 11, 1954, for a sum of Rs.
44,876-12-0 against Messrs. Supreme General Films Exchange
Ltd. The latter filed a memorandum of appeal on July 31,
1954, and paid court fees of Rs. 1,958 on it. The appeal
was, however, withdrawn with the leave of the High Court on
September 27, 1954. Messrs. Supreme General Films Exchange
Ltd. then applied for refund of the excess court fees paid
on a ground similar to that mentioned earlier in connexion
with the application of the Arati Cotton Mills Ltd.

643

Both the applications were heard together after issue of
notice to the Advocate-General, Bombay, who appeared for the
State of Bombay and opposed the applications. By its
judgment and order dated November 24, 1954, the High Court
allowed the applications. The State of Bombay then asked
for and obtained a certificate in the two cases which were
consolidated to the effect that they were fit for appeal to
this Court. These two appeals have been preferred on the
strength of that certificate.

Now, the learned Chief Justice who delivered the judgment
allowing the two applications, referred to an earlier
decision of his, reported in A Reference Under Section 5 of
the Court Fees Act (1) and ;aid that that decision governed
the present cases also. The facts which led to the earlier
decision were: (1) that prior to the relevant date a suit
for partition of joint family property fell under Schedule
II, Art. 17 (vii) of the Court Fees Act and the court fees
payable were Rs. 18-12-0 only; (ii) an amendment which came
into effect on the relevant date said that the court fees
payable in such suits should be according to the value of
the share in respect of which the suit is instituted ; (iii)
a suit for partition of joint family property was brought
before the relevant date but an appeal was filed thereafter.
The question was: on the facts stated above, what court fees
were payable on the memorandum of appeal. Relying on the
decision of this Court in Hoosein Kasam Dada (India) Ltd. v.
The State of Madhya Pradesh and Others
(2 ) and certain
other decisions to which we shall presently refer, the
learned Chief Justice held that a right of appeal is a
substantive right which vests in a litigant at the date of
the filing of the suit, and cannot be taken away unless the
legislature expressly or by necessary intendment says so;
furthermore, an appeal is a continuation of the suit, and it
is not merely that a right of appeal cannot be taken away by
a procedural enactment which is not made retrospective, but
the right cannot be impaired or imperilled nor can new
conditions be attached to the filing of the appeal; nor can
a condition already existing be made more onerous or more
stringent so as to
(1) [1954] 57 Bom. L.R. 180.

(2) [1953] S.C.R. 987.

644

affect the right of appeal arising out of a suit instituted
prior to the enactment. Learned counsel for the appellant
has made a somewhat feeble attempt to distinguish the
decision in A Reference Under Section 5 of the Court Fees
Act (1) on facts, but it cannot be seriously disputed that
if that decision is correct, then it must govern the two
cases before us. Though the facts are not identical, we see
no difference in principle between them.

On behalf of the State of Bombay, appellant before us, the
correctness of the decision has been challenged on the
ground that there is no vested right in procedure and
reliance has been placed on the principle ” that the
presumption against a retrospective construction has no
application to enactments which affect only the procedure
and practice of the courts, even when the alteration which
the statute makes may be disadvantageous to one of the
parties ” (see Maxwell on Interpretation of Statutes, 10th
Edn., p. 225). Very strong reliance has been placed on the
decision in Mohri Kunwar v. Keshri Chand (2) and on the
observations made therein to the effect that no suitor has a
vested right to insist that during the pendency of a
litigation which a suitor has started, the enactment
relating to court fee shall not be changed and the fee
leviable shall not be increased or reduced with regard to
future appeals and he would be entitled to carry on
proceedings on the basis of the law as it stood when- the
plaint was filed even though the law is different when he
comes to file an appeal. On behalf of the respondent it has
been submitted that since the decision of the learned Chief
Justice of the Bombay High Court in A Reference Under
Section 5 of the Court Fees Act (1), there has been another
decision of this Court which concludes the question
(Garikapatti Veerayya v. N. Subbiah Choudhury) (3) and it is
argued that the true principle is that where a right of
appeal is impaired or imperilled or a more onerous or
stringent condition is put on the right of appeal, the
impairment, peril or imposition of a more stringent
condition is not retrospective unless
(1) [1954] 57 Bom. L.R. 180. (2) I.L.R. [1941) All. 558.
(3) [1957] S.C.R. 488.

645

the legislature says so expressly or by necessary
intendment.

It is necessary to state here what the High Court has
clearly pointed out with regard to the amendments made by
the Court Fees (Bombay Amendment) Act, 1954. On the
relevant date the whole system of charging court fees in the
Bombay High Court on the Original Side was altered and
instead of a fixed fee payable on the plaint, etc., ad
valorem fees became leviable as in the districts. The
change was effected inter alia by deleting s. 4 and amending
s. 6 of the Court Fees Act, 1870, and Art. 1 of Sch. I to
the Act. There was no provision, express or by necessary
intendment, for giving retrospective effect to the
amendments made in the sense of affecting a right of appeal
arising out of a suit instituted prior to the relevant date.
As this position has not been contested, it is not necessary
to read here the provisions of the Amending Act.
We proceed straightaway to consider the arguments advanced
on behalf of the appellant. So far as we have been able to
appreciate the submissions made on behalf of the parties,
the point of controversy is really this: is an impairment of
the right of appeal by imposing a more stringent or onerous
condition thereon a matter of procedure only or is it a
matter of substantive right ? We think that the question is
really concluded by the decisions of this Court. We refer
first to the decision in Hoosein Kasam Dada (India) Ltd. v.
The State of Madhya Pradesh and others
(1). The facts of
that case were these: Section 22(1) of the Central Provinces
and Berar Sales Tax Act, 1947, provided that no appeal
against an order of assessment should be entertained by the
prescribed authority unless it was satisfied that such
amount of tax as the appellant might admit to be due from
him, had been paid. This Act was amended on November 25,
1949, and s. 22(1) as amended provided that no appeal should
be admitted by the said authority unless such appeal was
accompanied by satisfactory proof of the payment of the tax
in respect of which the appeal had
(1) [1053] S.C.R. 987.

84
646

been preferred. On November 26, 1947, the appellant
submitted a return to the Sale-, Tax Officer, who, finding
that the turnover exceeded 2 lacs, submitted the case to the
Assistant Commissioner for disposal and the latter made an
assessment on April 8, 1950. The appellant preferred an
appeal on May 10, 1950, without depositing the amount of tax
in respect of which he had appealed. The Board of Revenue
was of opinion that s. 22(1) as amended applied to the case
as the assessment was made, and the appeal was preferred,
after the amendment came into force and rejcted the appeal.
It was held by this court that the appellant had a vested
right of appeal when the proceedings were initiated in 1947
and his right of appeal was governed by the law as it stood
then. It was further held that the amendment of 1950 could
not be regarded as a mere alteration in procedure or an
alteration regulating the exercise of the right of appeal;
it whittled down the right itself, and bad no retrospective
effect as the Amendment Act of 1950 did not expressly or by
necessary intendment give it retrospective effect. This
decision proceeded on the principle that impairment of the
right of appeal by imposing a more onerous condition is not
a matter of procedure only. The decision in Garikapatti
Veerayya v. Subbiah Choudhury
(1), referred specifically to
two decisions relating to an increase in court fees by
subsequent amendment of the Court Fees Act, and one of the
decisions was Sawaldas Madhavdas v. Arati Cotton Mills Ltd.
(2), the very decision which is under appeal here. The
other decision was R. M. Seshadri v. The Province of Madras
(3). Perhaps, our attention was not then drawn to the
circumstance that the decision in Sawaldas Madhavdas v.
Arati Cotton Mills Ltd. (2) was at the time pending in
appeal here. The point of the decision in Garikapatti
Veerayya (1) is, however, this: this Court referred with
approval to decisions which accepted the position that
taking away a right of appeal and imposing a more onerous
condition on such right involved the same principles as to
retrospective effect of the subsequent legislation.
(1) [1957] S.C.R 488. (2) [1954] 57 B.L.R. 394.

647

A similar view was expressed in Amara Eswaramma and others
v. Makkam Seethamma (1) and Arjun v. Amrita and others ( 2).
The appellant has relied on In re,: Punya Nahako (3). That
was a case of review, and it was held that if between the
date of the plaint or the appeal and the date for filing the
petition for review, there was a change in the Court Fees
Act increasing the fee payable ad valorem, the petitioner
must pay at the increased rate. The learned Chief Justice
(Chagla, C. J.) expressed the opinion that a review does not
stand on the same footing as an appeal, and one cannot say
that there is a substantive right of review. It may be
pointed out here that even in respect of a review, a view
different from that of the Madras High Court was taken in
Parmeshar Kurmi v. Bakhtwar Pande (4). It is, however,
unnecessary to say anything more about a review, because we
are riot concerned with it in the present case.
In Anand Ram Pramhans and others v. Ramgulam Sahu and others
(5) the question which was mooted and discussed related to
the proper presentation of a memorandum of appeal, and
incidentally it was observed that the new Bihar and Orissa
Court Fees Act which had already come into force applied to
the case. There was no discussion of the question as to
whether the enactment in question was given retrospective
effect or not. As to the decision in Mohri Kunwar v. Keshri
Chand (6) on which so much reliance has been placed by the
appellant, it is necessary to point out that the question
there was if the right of appeal created by s. 6A of the
Court Fees Act, which was added by U. P. Act, XIX of 1938,
was available as against an order passed after the coming
into force of the latter Act, although that Act was not in
exist-

ence and consequently there was no right of appeal at the
date of filing that plaint. It was held that the enactment,
by the amending Act of 1938, of s. 6A which allowed an
appeal against an order demanding the payment of a
deficiency in court fees did not take away any right which
was vested in the plaintiff on
(1) A I.R. 1955 Andhra 221. (2) I.L.R. [1956] Nag. 296.
(3) [1926] I.L.R. 50 Mad. 488. (4) [1932] I.L.R. 54 All.
1092.

(5) A.I.R. 1923 Pat. 150. (6) I.L.R. [1941] All. 558.

648

the date on which he filed the plaint, it only conferred on
him a new right; nor did it take away any right which was
vested in the defendant, for though the defendant could
object if the plaint was not properly stamped and might also
have a right to have the matter determined by the court he
had no vested right in the procedure by which it was to be
determined, and this procedure could be changed pending the
suit and a change in procedure could not be said to deprive
him of any vested right. It would appear from what has been
stated above that the decision proceeded on the footing that
the amending Act conferred a new right of appeal, and not
that it took away a vested right of appeal; and the reason
of the decision was based on the principle that there is no
vested right in the procedure by which the sufficiency of
court fees is determined by a court. That is a principle of
a different character from the one we are concerned with in
the present case, viz., the retrospective effect of a
subsequent enactment which either takes away a right of
appeal or impairs it by imposing a more stringent or onerous
condition thereon. We do not, therefore, think that the
Allahabad decision helps the appellant.

The question was considered in reverse in Delhi Cloth and
General Mills Co. Ltd. v. Income-tax Commissioner, Delhi
(1)
and the principle of Colonial Sugar Refining Co. v. Irving
(2) was applied. Another decision in point is that of
Nagendra Nath Bose V. Mon Mohan Singh Roy (3). In that case
the plaintiff instituted a suit for rent valued at Rs.
1,306-15-0 and obtained a decree. In execution of that
decree the defaulting tenure was sold on November 20, 1926,
for Rs. 1,600. On December 19, 1928, an application was
made under 0. 21, r. 90, of the Code of Civil Procedure, by
the petitioner who was one of the judgment debtors for
setting aside the sale. That application having been
dismissed for default of his appearance, the petitioner
preferred an appeal to the District Judge, Hoogly, who
refused to admit the appeal on the ground that the amount,
recoverable in
(1) [1927] L.R. 54 I.A. 421. (2) [1905] A.C. 369.
(3) [1930] 34 C.W.N. 1009.

649

execution of the decree had not been deposited as required
by the proviso to s. 174(c) of the Bengal Tenancy Act as a
mended by an amending Act of 1928. The contention of the
petitioner was that the amending provision, which came into
force on February 21, 1929, could not affect his right of
appeal from the decision on an application made on December
19, 1928, for setting aside the sale. Mitter, J., said : ”
We think the contention of the petitioner is wellfounded and
must prevail. That a right of appeal is a substantive right
cannot now be seriously disputed. It is not a mere matter
of procedure. Prior to the amendment of 1928 there was an
appeal against an order refusing to set aside a sale (for
that is the effect also where the application to set aside’
the sale is dismissed for default) under the provisions of
Order 43, rule (1), of the Code of Civil Procedure. That
right was unhampered by any restriction of the kind now
imposed by s. 174(5), proviso. The Court was bound to admit
the appeal whether the appellant deposited the amount
recoverable in execution of the decree or not. By requiring
such deposit as a condition precedent to the admission of
the appeal, a new restriction has been put on the right of
appeal, the admission of which is now hedged in with a
condition. There can be no doubt that the right of appeal
has been affected by the new provision arid in the absence
of an express enactment this amendment cannot apply to
proceedings pending at the date when the new amendment came
into force. It is true that the appeal was filed after the
Act came into force, but that circumstance is immaterial-for
the date to be looked into for this purpose is the date of
the original proceeding. which eventually culminated in the
appeal.” This decision was approved by this Court both in
Hoosein Kasam Dada (1) and Gankapatti Veerayya (2).
It is thus clear that in a long line of decisions approved
by this Court and at least in one given by this Court, it
has been held that an impairment of the right of appeal by
putting a new restriction thereon or imposing a more onerous
condition is not a matter of procedure only; it impairs or
imperils a
(1) [1953] S.C.R. 987.

(2) [1957] S.C.R. 488.

650

substantive right and an enactment which does so is not
retrospective unless it says so expressly or by
necessary intendment.

We are, therefore, of the view that the High Court was right
in the view it took, and the orders of refund of excess
court fees which it passed were correct in law.
Accordingly, the appeals fail and are dismissed with costs.
There will be one set of costs, as the appeals have been
consolidated and heard together.

Appeals dismissed.

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