Back
1967 Supreme(Goa) 16
Goa High Court
V.S.JETLEY
Joaquim Santana Simplicio da Silva of Margao - Appellant
Versus
Nicolau Gracias Caldeira of Margao - Respondent
Decided On : 08/03/1967
B.F. D'Souza, for Petitioner, S. Tamba, Govt. Pleader, for the State.
A change in the law as to court fees subsequent to the institution of the suit and before its disposal cannot affect the court fee payable on the plaint in the suit.
Headnote:
COURT FEES ACT - COURT FEES - SECTION 4 - REPEAL AND SAVING CLAUSE - PREVIOUS OPERATION OF REPEALED LAW NOT AFFECTED - CHANGE IN LAW AS TO COURT FEES SUBSEQUENT TO INSTITUTION OF SUIT AND BEFORE ITS DISPOSAL CANNOT AFFECT COURT FEE PAYABLE ON PLAINT - APPEAL IS RE-HEARING OF SUIT - CHANGE IN LAW AS TO COURT FEE BETWEEN DATE OF SUIT AND DATE OF APPEAL GOVERNED BY LAW IN FORCE WHEN SUIT INSTITUTED.
Fact of the Case:
Petitioner filed a petition under Section 8(2)(b) of the Goa, Daman and Diu (Judicial Commissioner's Court) Regulation, 1963, challenging an order passed by the Comarca Judge directing payment of court fees in a summary execution suit. The suit was filed before the Indian Court Fees Act, 1870 was extended to the territory and later brought into force on 3rd April 1964. The petitioner argued that the court fee was payable under the relevant Portuguese Law, which was repealed by the extension of the Indian Court Fees Act, but the saving clause in Section 4(2) of the Goa, Daman and Diu (Laws) No. 2, Regulation, 1963, protected the previous operation of the repealed law.
Finding of the Court:
The court held that the order passed by the Comarca Judge was incorrect and set it aside. The court found that the change in the law as to court fees subsequent to the institution of the suit and before its disposal could not affect the court fee payable on the plaint in the suit. The court also held that an appeal is a re-hearing of the suit and any change in the law as to court fee between the date of the suit and the date on which appeal is filed would be governed by the law in force when the suit was instituted.
Issues: Whether the order passed by the Comarca Judge directing payment of court fees in a summary execution suit was correct.
Ratio Decidendi: The court relied on the saving clause in Section 4(2) of the Goa, Daman and Diu (Laws) No. 2, Regulation, 1963, which protected the previous operation of the repealed Portuguese Law under which court fee was payable. The court also relied on the principle that a change in the law as to court fees subsequent to the institution of the suit and before its disposal cannot affect the court fee payable on the plaint in the suit.
Final Decision: The court allowed the petition and set aside the order passed by the Comarca Judge dated 10th February 1967.
2. The facts leading to this petition may be broadly stated. A summary execution suit for recovery of Rs. 250 together with interest etc. was filed by respondent No. 2 against respondent No. 1 on 4th November 1963 in the Court of Comarca Judge of Salcete. After respondent No. 1 was served with summons respondent No. 2 claimed recovery of an additional sum of Rs. 325. The petitioner had also a claim against the respondent No. 1 and consequently he intervened in the suit on 5th August 1965. The claim preferred by him was for recovery of Rs. 4,500. The learned Comarca Judge, after considering the evidence led by the petitioner and respondent No. 2, passed an order on 26th November 1965. In that order it was directed that the claims of the petitioner and respondent No. 2 may be paid out of the assets of the respondent No. 1 in proportion to the assets owned by respondent No. 1. Respondent No. 1 thereafter was directed to pay Court Fee and costs according to the relevant provisions of the Portuguese Law. The accounts were prepared by the 'Contador' of the Court in accordance with the order passed by the learned Judge dated 28th November 1965. Neither the petitioner nor respondent No. 1 challenged the applicability of the Portuguese Law in so far as payment of Court Fee etc. was concerned. The respondent No. 2 made an application later by way of 'reclamacao' on 24th January 1967. In that application he challenged the valuation of the suit at Rs. 7,875 which was calculated by the Accountant of the Court. According to him, Court Fee was payable on the original claim of Rs. 250. The learned Judge did not accept the 'reclamacao' by respondent No. 2. It was held that the suit should be divided in two parts for the purposes of payment of Court Fee. Before the Indian Court Fees Act, 1870 was brought into force the petitioner and the respondent No. 1 were required to pay Court Fee under the Portuguese Law. Thereafter, they were required to pay the Court Fee under the said 1870 Act. The petitioner felt aggrieved by the order of the learned Judge and consequently filed the present petition wrongly labelled as an "appeal".
3. The short question for consideration in this petition is whether the order passed by the learned Judge is correct. It is an admitted fact that the suit was filed before the Indian Court Fees Act was extended to this territory and later brought into force on 3rd April 1964. This action was taken under the Goa, Daman and Diu (Laws) No. 2, Regulation, 1963, promulgated by the President, Section 4 of this Regulation contains a repeal and saving clause. Sub-Section (1) provides for repeal of laws corresponding to any Act extended to the territory.
The relevant Portuguese Law under which Court Fee was payable corresponds to the Indian Court Fees Act and, accordingly, that law stood repealed with effect from 3rd April 1964. Sub-Section (2) is a saving clause and it is expressly provided therein that the previous operation of any law so repealed or anything duly done shall not be affected. It is also provided that any right accrued under any law so repealed and any legal proceeding or remedy may be instituted, continued or enforced as if this Regulation had not been made. This section modelled on
Section 6 of the General Clauses Act. As a result of Sub-Section (2) the previous operation of the relevant Portuguese law under which Court Fee was payable is not affected by the repeal. Apart from this provision it is well-settled law that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only. It impairs or imperils a substant
