SHAH CHHABILDAS MANGALDAS Vs. LUHAR MOHAN ARJAN

JUDGEMENT

(1.) The only question which is raised in this Second Appeal is about the correctness of the decision recorded by the two Courts that the instrument dated 30th December 1951 was a promissory note within the meaning of the Indian Stamp Act 1899 (XI of 1899) (hereafter called the Act) and as such inadmissible in evidence. Plaintiff-appellant brought the suit from which the Second Appeal arises for recovering a sum of Rs. 769-4-0 from defendant-respondent The claim was based on the aforesaid document dated 20th December 1951 When the document was sought to be got admitted in the trial Court defendant raised an objection that as the document was a promissory note within the meaning of sec 2 sub-sec. (22) of the Act and as it was not stamped as required by Article 49 of the Act the same was not admissible in evidence under sec. 35 of the Act. This contention was upheld by the trial Court and on that finding the suit of plaintiff was dismissed. Plaintiff preferred an appeal to the District Court Gohilwad at Bhavnagar

(2.) The learned District Judge upheld the finding of the trial Court and dismissed the appeal.

(3.) Mr. Hathi on behalf of respondent raises a preliminary objection based on sec 102 Civil Procedure Code 1908 He contends that as the claim involved in the suit does not exceed Rs. 1 0 no Second Appeal lies The limit of Rs. 1 0 was introduced in sec. 102 for the first time by the Amending Act LXVI of 1956 which Act came into operation on 1st January 1957 The suit from which the Second Appeal arises was instituted in the year 1954 before the aforesaid amending Act came into force. Before the amendment the limit was Rs. 500.00. Mr. Mankad contends that the question as to whether a Second Appeal lies or not depends upon the value of the subject-matter at the date when the suit was instituted and not the value of the subject-matter at the date when the question is raised for the first time in the Second Appeal. Mr. Mankad contends that a right of appeal is a vested right which comes into existence at the very inception of the suit and unless the amendment introduced by Act LXVI of 1956 in sec. 102 of the Civil Procedure Code 1908 was retrospective the right to present a Second Appeal which became vested when the suit was first filed would not be affected. In my judgment the contention of Mr. Mankad is valid and must be upheld. Mr. Hathi was unable to show to me that the amendment introduced by the aforesaid amending Act was retrospective in operation. In the absence of such retrospective operation it is quite clear that the right of presenting a Second Appeal which became vested at the date of the institution of the suit would not be affected by the limit being raised from Rs. 500/to Rs. 1 0