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HIGH COURT OF CALCUTTA
P.N. MUKHERJEE, U.C. LAW, JJ.
Mukunda Das Nandy - Appellant
Versus
Bidhan Chandra Roy - Respondent
A.F.O.D. 11 Of 1959
Decided on : July 01, 1959
APPEAL - JURISDICTION - AMENDMENT OF ACT - RETROSPECTIVE OPERATION - INTERPRETATION OF STATUTES - NECESSARY IMPLICATION - EXPRESSION UNIUS EST EXCLUSIO ALTERIUS - STATEMENT OF OBJECTS AND REASONS - CONTINUATION OF EARLIER APPEAL - HEARING ON MERITS.
Fact of the Case:
The suit for ejectment and mesne profits, out of which this appeal arises and which was valued at Rs. 6,400/-, was filed before the learned Subordinate Judge, 4th Court, 24-Parganas, on 23-6-1955. It was decreed by the trial court on the earlier occasion by its judgment, dated 10-8-1956, and the decree was actually signed on 17-8-1956. From the said decision of the learned Subordinate Judge, the then defendant, who was the predecessor-in-interest of the present defendants, filed an appeal in this Court (Krishna Das Nandy v. Bidhan Chandra Roy, F. A. No. 538 of 1956:, on 11-9-1956, and, on 28-1-1958, the said appeal was allowed in part, the trial court's decree was set aside and the case was remanded for final disposal to the trial court in accordance with certain directions, contained in the judgment of this Court, delivered on that occasion. The decree of this Court, following the said judgment, was signed on 19-2-1958. On 14-11-1958; the suit, after further hearing by the learned Subordinate Judge in terms of the above judgment of this Court, was again decreed by his judgment of that date and the decree was actually signed on 21-11-1958. The present appeal was then filed in this Court on 24-12-1958.
Finding of the Court:
The amending Act (West Bengal Act XVI of 1957) applies to pending proceedings also, where the decree or order in question was passed on or after its commencement on 1-1-1958. That view is, no doubt, founded upon the necessary intendment or implication, deduced by us from Section 4 of the Act, but, from what we have already stated, such deduction is eminently reasonable and amply justified.
Issues: 1. Whether the West Bengal Act XVI of 1957, which amended the Bengal, Agra and Assam Civil Courts Act, 1887, by raising the figure of Rs. 5,000/- to Rs. 10,000/-in Section 21 of this latter Act and thus taking away from this Court the jurisdiction to entertain, appeals from Subordinate Judges in suits, valued between Rs. 5,000/- and Rs. 10,000/- (inclusive), has retrospective effect or applies to pending proceedings? 2. Whether the present appeal lies to this Court or to the District Judge?
Ratio Decidendi: 1. The necessary implication of Section 4 would, therefore, be that the amending Act would apply to all appeals from all orders or decrees, passed on or after the date of commencement of the amending Act, no matter whether such decrees or orders are passed in suits, instituted before or after such commencement. 2. The broad distinction, adopted by the legislature was based on the point of time, when the decree or order, from which the appeal in question is preferred, is passed, and, by expressly providing in Section 4 that "nothing in the Act shall apply to or affect any appeal from any decree or order, passed before the commencement of the Act," the legislature may well be taken to have laid down, by necessary intendment or implication, a positive test for the application of the Act, namely, that to attract its application, the appeal must be from a decree or order, passed on Or after the date of commencement of the said (amending) Act and, further, that that test will be sufficient for the purpose. 3. In other words, the intention of the amending Statute was to give a limited retrospective operation to the amendment by applying it to cases of pending proceedings too but only in respect of decrees or orders, passed on or after the date of its commencement.
Final Decision: The appeal is disposed of by holding that it lies to the District Judge and not to this Court and directing return of the memorandum of appeal to the learned filing Advocate for presentation to the proper Court and for taking other necessary steps.
P.N. Mookerjee, J.
1. THIS appeal is by some of the substituted defendants and it arises out of a suit for ejectment and mesne profits. The suit has had chequered career. It came up once to this Court on appeal from the decree, passed by the learned Subordinate Judge on an earlier occasion. The said appeal was allowed in part, the decree of the learned Subordinate Judge was set aside and the case was remanded to the trial court for final disposal in accordance with the directions, contained in the judgment of this Court.
2. AFTER remand, the suit was decreed again by the learned Subordinate Judge and, against this new decree, the present appeal was preferred in this Court on 24-12-1958.
In the appeal, the appellants filed, on 24-2-1959, an application, for stay of execution of the decree, appealed from, and that application was eventually heard by the Court as a contested application and allowed on 6-3-1959, with a direction, inter alia, that the paper books in the appeal were to be filed by 17-4-1959, and the appeal was to be placed on the Daily List for hearing a fortnight after the filing of the paper books. The paper books were duly filed on 17-4-1959 but, by consent, the date of hearing of the appeal was shifted ultimately to 7-5-1959, and it was actually taken up for hearing on that date.
3. MEANWHILE, certain events of importance happened which it is necessary to recite for purposes of the present judgment. On 1-1-1958, when the present proceedings were pending in appeal in this Court on the earlier occasion in F. A. No. 338 of 1956, West Bengal Act XVI of 1957, by which Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, was amended, changing the forum of appeals from decisions (decrees or orders) of Subordinate Judges in suits, valued between Rs. 5,000/-and Rs. 10,000/- (inclusive) from this Court to the District Judge, came into force. If the said Act applied to this case (the suit wherein was valued at Rs. 6,400/- but which was pending in appeal, that is, on the earlier occasion in F. A. No. 338 of 1956, in this Court, at the time of commencement of the said Act), the present appeal would lie to the District Judge and not to this Court. Otherwise, this Court would be the proper forum for the present appeal and it would be quite competent to entertain the same. A similar situation arose in many other appeals, filed in this Court after 1-1-1958, in one of which namely F. A. No. 317 of 1958 (Cal), an application had been filed by the respondent on 3-9-1958, that is, even before the present appeal came to be filed on 24-12-1958, objecting to the competency of the said appeal (F. A. No. 317 of 1958 (Cal)), in this Court in view of the above amending Act. On 12-9-1958, this Court adjourned the hearing of the said application till two weeks after the long Vacation and, after some further adjournments, that application was first taken up for hearing on 15-12-1958. The hearing, however, could not be completed on that date and, the application remained part-heard, and thereafter, due to some practical difficulties and on the prayer of the learned Advocates, the further hearing of the same had to be adjourned from time to time till 1-6-1959. In the meantime, in the present appeal itself, a preliminary objection was taken by the plaintiff -respondent (who had entered appearance on 9-1-1959) to its competency in this Court and, by an order of this Court, that preliminary objection was provisionally fixed for hearing on 3-2-1959, and eventually, it came up for consideration on 20-3-1959. On that date, however, the plaintiff-respondent intimated to the Court that he would not press his said objection, but, as the question was one of jurisdiction and so could not be disposed of simply on waiver or acquiescence, the court directed that the point be brought to its notice at the time of final hearing of the appeal which was due, at the time, at or about the end of April, 1959. Accordingly, when on 7-5-1959, the app
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