DINAJI Vs. JIWANLAL

JUDGEMENT

(1.) The Taxing Officer has referred the question as to whether the Court-fee on this appeal is payable as per Amendment Act No. 4/1976, which came into force on 1-3-1976, during pendency of the suit in the trial Court.

(2.) The plaintiff filed the persent suit on 1-10-74 for possession of 1.02 acres out of Khasra No. 132/1, area 1.98 acres in Budhena Khurd, Tahsil and District Seoni. The plaintiff originally claimed permanent injunction only and valued the claim at Rs. 300/- and Court-fee by stamp of Rs. 30/- was paid. By Amendment relief for possession was claimed in the alternative and valued the claim at Rs. 6000/-, being the market value and paid Court-fee by stamp of Rs. 600/-, as the suit land is not separately assessed to land revenue nor it is a definite share of the land revenue paying estate. The trial Court dismissed the suit on 28-2-77 holding that defendant is the owner and in possession of the suit land. In appeal, the decree has been affirmed by the lower appellate Court on 19-11978. The second appeal has been confined only to the claim for possession but it has been valued at Rs. 40/-, taking advantage of the Amendment Act No. 4/1976, under which if the land is not assessed to land revenue then Court-fees has to be paid twenty times of the laud revenue worked out at the rate of two rupees per acre. The question is whether the Court-fees has to be paid for this appeal as per the provisions of the Court-fees Act existing on the date of the filing of the suit because the Amendment Act No. 4/1976 is not retrospective in operation.

(3.) Court-fee does not become payable when the cause of action arises. The Court-fees Act becomes applicable only on the claim being preferred in Court. All rights of appeal or other substantive rights in force on the date of the institution of the proceedings are preserved to the parties till the end of the career of the proceedings, unless any subsequent enactment, expressly or by necessary in-tendment, lays clown any restriction on such right or affects such right. But where between the date of the presentation of the plaint and the filing of the appeal, the Act has been amended without giving any retrospective operation there has arisen a sharp conflict of opinions as to the applicability of the Amending Act to the memorandum of appeal. One view is that the law in force at the time the appeal is filed should be applied. The other view is that the Act as it existed at the time of institution of the suit should govern Bisan Parashram v. Ganpat Sakharam, AIR 1955 Nag 46 and Arjuna Govinda v. Amrita Keshiba, AIR 1956 Nag 281. If the amendment is not retrospective in operation the court-fee prescribed thereby cannot apply to the appeal against any decision in a suit instituted before the amendment came into force [In re- Reference under C. F. Act, AIR 1955 Bom 287]. The conflict has been set at rest by the Supreme Court holding that court-fee is payable on memorandum of appeal according to the law in force on the date of the institution of the suit, in the absence of any provision giving retrospective effect to the amendment increasing the court-fees payable. [State of Bombay v. Supreme General Films, AIR 1960 SC 980].