MAHENDRA RATILAL PATEL Vs. PATEL NAGINDAS KESHAVLAL

JUDGEMENT

(1.) This revision application under sec. 5(2) of the Bombay Court-fees Act 1959 raises a controversial question of some importance regarding the computation for the purpose of Court-fees of a claim in an appeal filed after the Bombay Court-fees Act 1959 came into force against a decree passed in a suit instituted at a time when the Court-fees Act 1870 was in operation. The claim in the plaint was computed and valued according to the Court-fees Act 1870 (hereinafter called the old Act) which was then in force and court-fees were paid at the rate then prevailing. On 1st August 1959 the Bombay Court-fees Act 1959 (hereinafter called the new Act) came into force and a decree in the suit out of which the present matter arises was passed thereafter. When an appeal against that decree was preferred in the High Court the Office raised an objection to the computation made by the appellants who are the petitioners in the present matter and asked the petitioners to compute their claim in appeal according to the Bombay Court-fees Act 1959 It is an admitted position that the new Act by its provisions including sec. 6 has made substantial changes regarding the method of computation of claims in suits. If the new Act applied it is obvious that the petitioners cannot prosecute their appeal on payment of fees calculated on a computation made under the old Act and the net result of the application of the new Act would be (1) that the petitioners would have to compute their claim according to the provisions of the new Act and (2) pay court-fees on the value so computed at the increased rate prescribed therein.

(2.) The petitioners contend that the new Act is not retrospective in effect and that they have a vested right to continue the suit to the stage of its final determination on the same terms as prevailing at the date of the suit. According to them the first proviso to sec. 49 saves their vested right which remains unaffected by the second proviso in that section. The learned Government Pleader on the other hand contends that the Act is retrospective in effect and such legislative intendment to apply the Act to all documents presented after the passing of the Act is writ large on the words used in the various provisions of the Act. According to the learned government Pleader secs. 5 6 and the second proviso to sec. 49 make it abundantly clear that all documents filed after the new Act came into operation must be stamped with court-fees chargeable under the new Act and the word rate occurring in the second proviso to sec. 49 is used in its wider sense so as to include both the processes of computation and calculation of proper fees chargeable under the new Act.

(3.) It is no doubt true that a right of appeal is a vested right available to a suitor as from the date when the suit is instituted. It is well-settled that the legal pursuit of a remedy viz. a suit an appeal and a second appeal are steps in a series of proceedings all connected by an intrinsic unity and the right of appeal is a substantive right and not a matter of mere procedure. Such a right accrues to the litigant as on and from the date his lis commences irrespective of the date of its exercise and is throughout the career of the lis governed by the law in force when the action was first brought. Equally well-settled is the rule that a vested right of appeal can be affected or impaired by a subsequent enactment if it provides so expressly or by necessary intendment. A provision impairing or disadvantageously affecting vested rights is ordinarily not given retrospective effect unless the legislative intent to do so is manifest from the provisions of the Act. The question therefore which arises for consideration is whether any such provision showing expressly or by necessary intendment that the new Act is applicable in respect of actions instituted before the date of the new Act is found or manifest in the provisions of the new Act. For this purpose it would be necessary to examine its relevant provisions.