SHANTABAI MATHURDAS THAKKAR Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) THESE are two revision applications under Section 5(2) of the Bombay Court -fees Act, 1959, against the orders passed by the Taxing Officer relating to the. computation of the claims and the amounts of court -fees payable in respect of the claims in the two appeals to which the said orders relate.

(2.) THE Civil Revision Application No. 373 of 1960 relates to the First Appeal Stamp No. 10709 of 1959, the memorandum of which appeal was filed by the appellant on August 29, 1959. The suit out of which the said appeal arises was filed by the appellant on October 17, 1957, and the said suit was decided against her by the trial Court on June 17, 1959. The suit was for declarations that the two orders referred to in the plaint were illegal, void and of no effect and the plaintiff, therefore, continued to be in the service of the defendants and was entitled to all the benefits and emoluments including salary and allowance attached to the post held by the plaintiff including the occupation of the free quarters and also for a consequential injunction restraining the defendants from ejecting the plaintiff from the quarters occupied by her. The plaintiff had also further claimed an amount of Rs. 1,670 as arrears of her salary, allowances, etc. upto the date of the suit. At the date when the suit was filed, the Court -fees Act of 1870 was in force and the reliefs prayed for by the plaintiff in the suit had been computed and the court -fee payable in respect of the said reliefs had been paid by the plaintiff in accordance with the said Act. Thus the two declarations, which the plaintiff had prayed for in the suit, had been valued by her at Rs. 110 each and the other reliefs were valued at Rs. 100. The amount of arrears and allowances was valued at the figure claimed, namely, Rs. 1,670 and court -fees was paid on these valuations of the claim. The total ad valorem fee, which the plaintiff thus paid was Rs. 168.75nP. In the memorandum of the appeal, which the plaintiff filed in this Court, she valued the claim in the same manner as in the lower Court and offered to pay the same amount of court -fees. At the date when the memorandum of appeal was filed, the Court -fees Act of 1870 had been repealed by the Bombay Court -fees Act of 1959, which had come into force on August 1, 1959. The new Act prescribed a different provision for the computation of the claim and also prescribed a different rate of court -fee. According to the office, the claim in appeal and the payment of the court -fees on the same were required to be made in accordance with the new Act and it, therefore, raised an objection as to the computation of the claim made by the appellant and the court -fee which was offered by her. The dispute, therefore, was referred to the Taxing Officer. The Taxing Officer upheld the office objection and directed the appellant to compute the claim in appeal according to the provisions of the new Act and pay court -fee on the said computed claim according to the rates prescribed under the new Act. In view of the provisions of the new Act, the claim for the declarations and consequential reliefs had to be valued at a figure of Rs. 2,160 and the court -fee payable on the said valuation, according to the provisions of the new Act, was half the ad valorem fee and was thus Rs. 87.75nP. The ad valorem fee on the claim of Rs. 1,670 according to the rates prescribed under the new Act was Rs. 143.75 nP. The total court -fee, therefore, payable on the memorandum of appeal, according to the new Act, was Rs. 231.25 nP., which was Rs. 62.50 nP. more than what was paid by the plaintiff in the trial Court according to the old Act and which she had offered to pay in the appeal. Aggrieved by the decision of the Taxing Officer the plaintiff appellant has filed the present revision application.

(3.) NOW , it is well settled that the right of appeal is not a procedural right but a substantive right, which is vested in the litigant when the suit is filed. As observed by their Lordships of the Supreme Court in H. K. Dada (India) Ltd. v. State of M. P. : 1983(13)ELT1277(SC) :.This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by, the inferior Court. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.