An amendment to a statute that increases court-fees for a particular type of suit does not apply retrospectively to appeals and cross-objections filed in respect of suits instituted before the amendment came into force, as it would impair the substantive right of appeal of the appellants and the respondent.

JUDGMENT : - This is a reference made to me under S.5, Court-fees Act by the Taxing Officer, Appellate Side, of this Court. It raises a very interesting and important question as to whether a certain provision of Bombay Act 12 of 1954 is retrospective. The question that I have to decide is, what are the proper Court-fees to be paid by the appellant in F.A. No.5474 of 1954, by the appellant in F.A. No.6140 of 1954; and by the respondent in Cross-Objection No.6102 of 1954. As the matter in controversy is common to both the appeals and the cross-objections, one reference has been made in respect of all the three.

2. Now, these two First Appeals and the Cross-Objections arise out of suits filed for partition and these suits were filed prior to 1-4-1954, when Bombay Act 12 of 1954 came into force. When these suits were filed, the Court-fees paid were Rs.18-12-0 and that was on assumption that suits for partition by a coparcener when he is in constructive possession of joint family property fall under Sch. II, Art.17 (vii), Court-fees Act. At one time this Court had taken the view that suits for partition fell under S.7(v) and the Court-fees must be paid on an ad valorem basis.

But a different view was taken by a Full Bench of this Court in a decision in - Shankar Maruti v. Bhagwant Gunaji, AIR 1947 Bom 259 (FB) (A), and after this decision the court-fees are payable on the basis that suits for partition, where the plaintiff is in constructive possession of joint family property, fall under Art.17 (vii) of Sch. II. Now, Act 12 of 1954 by S.6 added a new sub-clause to S.7 which is sub-cl: (vi-a). That sub-clause dealt with suits for partition and it provided:

"In suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property whether or not the plaintiff is in actual or constructive possession of the property of which he claims to be a coparcener or co-owner, according to the value of the share in respect of which the suit is instituted."

Therefore, the effect of this amendment is to override the decision of this Court to which I have made reference, and it is not disputed that if this amendment applies to the appeals and cross-objections filed, then court-fees would have to be paid on the basis laid down in this amendment and not in accordance with the decision in - Shankar Maruti v. Bhagwant Gunaji (A).

3. Now, it is clear that if this amendment had not been passed, the appellants would have had to pay on the memorandum of appeal and on the cross-objections the court-fees of Rs.18-12-0, the same court-fees which were paid on the plaint in the suit. If, on the other hand, the court-fees are to be calculated on the basis of the amendment, then the court-fees to be paid would be much more and the burden upon the litigant who wishes to come to this Court in appeal would be considerably increased. What is urged by Mr. Gokhale who appears for the respondent in the cross-objections and which is also the argument for the appellants in the two appeals is that the right of appeal or the right to cross-objection which the appellants or the respondent had was a substantive right which right cannot be taken away or impaired by any legislation passed subsequent to the filing of the suit unless the right is taken away or impaired expressly or by necessary intendment.

Now, there are certain principles with regard to appeals which are beyond all controversy. The first and the most important principle is that a right of appeal is not a procedural right. It is a substantive right; it is a right vested in the litigant who files the suit. An appeal is a continuation of the suit, and when a litigant files a suit, he has the right to continue the suit up to the final Court of appeal, and that substantive or vested right cannot be taken away unless the Legislature expressly intends that it should be so