BALA PRASAD Vs. SHYAM BEHARI LAL

JUDGEMENT

(1.) THE learned Judge of the lower appellate Court was wrong in refusing to hear the appeal on the ground that no appeal lay. A decree in a suit for recovery of arrears of rent was passed by an Assistant Collector on 31 August 1926. On that date the former Tenancy Act (2 of 1901) was in force and the appellant had a right on that day to file an appeal. Before the appeal was filed on 18 October 1926, Act 3 of 1926 came into operation on 7 September 1926. Under Section 242(1) (a) an appeal did not lie because the value of the subject-matter does not exceed Rs. 200 though it exceeded Rs. 100. Under the new Act the limit of appeal was raised from Rs. 100 to Rs. 200. THE learned Judge was of opinion that the Act applicable would be the Act which was in operation on the date on which the appeal was filed. I disagree with that view. When the suit was decided the appellant acquired a right of appeal and the passing of a statute subsequently cannot apply retrospectively so as to deprive a party of a right. THE matter is not one of procedure as to how an appeal is to he filed or decided, but one of substantive right as regards the capacity to appeal. A Privy Council ruling is in point: Delhi Cloth and General Mills Go. Ltd. V/s. Income-tax Commissioner, Delhi . This was a converse case to a right of appeal. THEir Lordships applied the previous ruling in the case of Colonial Sugar Refining Co. V/s. Irving [1905] A.C. 369 and held that while the provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of a statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.

(2.) I set aside the lower appellate Court's order, remand the case to it for trial on merits and direct that costs here and heretofore shall abide the result. This revision was heard ex parte.