http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

[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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

      (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

      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.