The right of appeal is a substantive right that cannot be impaired by imposing onerous conditions through subsequent amendments, and the court fees payable on a memorandum of appeal are governed by the law in force at the date of filing of the suit, not the date of filing of the memorandum of appeal.

( 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 and 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 and 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.

( 4 ) ADMITTEDLY, the right of appeal is a statutory right and a substantive one as contended by Mr. Sahoo. This right is determined as soon the proceeding is instituted. This right cannot be impaired by imposing onerous condition by subsequent amendment, though such condition imposed through law, which are procedural in nature. A substantive right cannot be affected by procedural amendment. If such right is impaired and if any onerous condition is imposed making the right of appeal, onerous than that which was available under the law as prevailing on the date of institution of the suit, then it will affect the substantive right of the party. Therefore, the amendment of the Court Fees Act increasing fees would amount to a condition though procedural onerous one impairing the substantive right of appeal. Therefore, it would amount to taking away or affecting the right of appeal through retrospectivity, traveling to the date of the institution of the suit or the proceeding, given to the amendment. Therefore, the amendment brought about after the institution of the suit cannot be treated to be retrospective to the extent to affect the substantive right as available on the date of the institution of the suit. Therefore, it would be the Court Fees act as prevailing on the date of institution of the suit would govern the payment of Court fees on the memorandum of appeal.

( 5 ) THE decision in Narayan Chandra Ghosh (supra) by the Learned single Judge the dealt with the questions without having notice of the two bombay cases and the Supreme Court case, which were not considere