KAMLA SUKLA Vs. KRISHNA ROY

JUDGEMENT

(1.) The Stamp Reporter in his report has pointed out that there is deficit of Rs. 12,454/- in the payment of Court fees on the Memo of Appeal. It appears that this calculation has been made on the basis of the amendment brought about in the West Bengal Court Fees Act, 1870 through the West Bengal Court Fees (Amendment) Act, 2002 increasing ad-valorem Court fees. It seems that this view was adopted by the Stamp Reporter on the basis of the decision of this Court in Narayan Chandra Ghosh v. Sm. Probhamoyee Roy Chowdhury & Ors., 73 CWN 799, by the Learned Single Judge relying on the decision of this Court and some other Courts referred to the said decision as pointed out by Mr. Sahoo, learned Counsel who was requested to assist the Court.

(2.) The learned Counsel for the appellant, on the other hand, pointed out that the right of appeal is a substantive right, which is determined on the date the proceeding is instituted. The appeal is a continuation of a proceeding and as such, except in respect of matters of procedure, the substantive law as prevailing on the date of the institution of the suit would govern the proceedings even in appeal. According to him, though the payment of Court fees is a matter of procedure but when such matter of procedure impairs the right of appeal, it affects the substantive right and, therefore, the Court fees as applicable on the date of institution of the suit would govern the Court fees on the memorandum of appeal despite amendment of the Court Fees Act, since appeal is the continuation of the same proceedings. In order to support his contention, he relied on the decision in Garikapati Veeraya v. N. Subbiah Choudhury & Ors., AIR 1957 SC 5 40.

(3.) Mr. Sahoo had contended that the decision in Narayan Chandra Ghosh (supra) was rendered without having notice to the decisions in re: Reference under Section 5 of the Court Fees Act, AIR 1955 Bombay 287, by a Learned Single Judge and Sawaldas Madhavdas v. Arati Cotton Mills Ltd., AIR 1955 Bombay 332 by a Division Bench, since affirmed by the Apex Court in State of Bombay v. M/s. Supreme General Films Exchange Ltd., AIR 1960 SC 980 affirming the view taken by the Bombay High Court. Therefore, according to him, the Court fees payable on the Memo of Appeal would be governed by the law relating to payment of Court fees prevailing on the date of institution of the suit.