State of Bombay Vs. Supreme General
Films Exchange Ltd.  INSC 87 (22 April 1960)
22/04/1960 DAS, S.K.
CITATION: 1960 AIR 980 1960 SCR (3) 640
Court Fee-Amendment of statute enabling levy
of higher court fee-When retrospective--Suit instituted before amendment,
appeal field thereafter--Court fee on memorandum of appeal Court Fees Act, 1870
(7 of 1870), ss. 4, 6, Sch. 1, Art.
1--Court Fees (Bombay Amendment) Act, 1954
(Bom. 12 of 1954).
In 1954 certain amendments were made in the
Court Fees Act, 1870, as applied to Bombay by the Court Fees (Bombay Amendment)
Act, 1954, by which the system of charging court fees in the Bombay High Court
on the original Side was altered and instead of a fixed fee payable on the
plaint, etc., ad valorem fees became leviable. The amendments came into force
on April 1, 1954, but there was no provision, express or by necessary
intendment, for giving them retrospective effect. In respect of appeals filed
after that date against decrees passed in suits instituted before that date,
the question arose as to whether the court fees payable on the memoranda of
appeal were according to the law in force at the date of the filing of the
suits or according to the law in force at the date of the filing of appeals:
Held, that the court fees payable on the
memoranda of appeal were according to the law as it stood at the date of the
filing of the suits.
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 substantive right and an
enactment which does so is not retrospective unless it says so expressly or by
Hoosein Kasam Dada (India) Ltd. v. The State
of Madhya Pradesh and others,  S.C.R. 987 and Garikapatti Veerayya v. N.
Subbiah Choudhuyy,  S.C.R. 488, followed.
A Reference under Section 5 of the Court Fees
Act, (1954) 57 Bom. L.R. 180, Amara Eswaramma and others v. Makkam Seethamma,
641 A.I.R. 1955 Andhra 221, Ayjun v. Amyita and others, I.L.R.
 Nag. 296 and Nagendra Nath Bose v. Mon
Mohan Singh, (1930) 34 C.W.N. 1009, approved.
Mohri Kunway v. Keshri Chand, I.L.R. 
All. 558, distinguished.
CIVIL APPELLATE, JURISDICTION : Civil Appeals
Nos. 86 and 87 of 1956.
Appeals from the Judgment and Order dated
November 24, 1954, of the Bombay High Court in Appeals Nos. 89/X and 96/X of
H. R. Khanna and R. H. Dhebar, for the
appellants. S. D. Goswami and Gopal Singh, for the respondents.
1960. April 22. The Judgment of the Court was
delivered by S.K. DAS, J.-These two consolidated appeals arise out of the
judgment and order of the High Court of Bombay dated November 24, 1954, passed
on two applications in two appeals disposed of by the said High Court. The
facts are similar and the question of law arising there from is one and the
same, namely, whether in the absence of provisions giving retrospective effect
to certain amendments made in the Court Fees Act, 1870, as applied to Bombay by
the Court Fees (Bombay Amendment) Act, 1954 (Bombay Act No. XII of 1954), which
amendments came in force on April 1, 1954, hereinafter called the relevant
date, the court fees payable on two memoranda of appeal were payable according to
the law in force at the date of filing of the suits which was prior to the
relevant date, or according to the law in force at the date of the filing of
the memoranda of appeal which was after the relevant date.
The facts are simple and may be very shortly
stated. On April 16, 1953, Messrs. Sawaldas Madhavdas brought a suit against
the Arati Cotton Mills Ltd., praying for a decree for rupees two lacs and odd.
The suit was decreed on July 22, 1954. The Arati Cotton Mills Ltd. filed a
memorandum of appeal against the said decree on September 4, 1954, and paid
court fees of Rs. 3,193-12-0 on the said memorandum.
On or about October 5, 1954, a settlement was
arrived at between the parties and on October 9, 1954, a prayer was made for
dismissal of the appeal for want of prosecution.
On November 18, 1954, an application was 642
made under s. 151, Code of Civil Procedure, by the Arati Cotton Mills Ltd., for
refund of excess court fees paid on the memorandum of appeal. In the
application it was stated:
" The appellants say that the appeal
having arisen out of a suit which had been instituted on or about 16th April,
1953, long prior to the coming into force of the Court Fees (Bombay Amendment)
Act, XII of 1954, no court fees were payable on the memorandum of appeal herein
except as provided in the Table of fees hereinafter mentioned and that it was
due to a mistake that the appellants were called upon to pay the said
institution fee amounting to RE;. 3,193-12-0 and the said sum was paid by the
appellants under a bona fide mistake and/or inadvertence and/or oversight. The
appellants say that the only fee payable for the filing of the said memorandum
of appeal was the fee of Rs. 32 under item No. 58 of the Table of fees set out
at page 396 of the Rules of this Court. The appellants say that they were not
legally bound to pay anything more than the said sum of Rs. 32 and that sum of
Rs. 3,161-12-0 paid by them in excess of the said sum of Rs. 32 was paid by
mistake and ignorance of the appellant's legal rights and/or through
inadvertence or oversight. The appellants submit that it is necessary for the
ends of justice that the said sum of Rs. 3,161-12-0 should be ordered to be
refunded to them." Similarly, on December 17,1953, Messrs. Rasiklal and
Company Ltd., brought a suit against Messrs. Supreme General Films Exchange
Ltd. and two other defendants in which a decree was passed on May 11, 1954, for
a sum of Rs.
44,876-12-0 against Messrs. Supreme General
Films Exchange Ltd. The latter filed a memorandum of appeal on July 31, 1954,
and paid court fees of Rs. 1,958 on it. The appeal was, however, withdrawn with
the leave of the High Court on September 27, 1954. Messrs. Supreme General
Films Exchange Ltd. then applied for refund of the excess court fees paid on a
ground similar to that mentioned earlier in connation with the application of
the Arati Cotton Mills Ltd.
643 Both the applications were heard together
after issue of notice to the Advocate-General, Bombay, who appeared for the
State of Bombay and opposed the applications. By its judgment and order dated
November 24, 1954, the High Court allowed the applications. The State of Bombay
then asked for and obtained a certificate in the two cases which were
consolidated to the effect that they were fit for appeal to this Court. These
two appeals have been preferred on the strength of that certificate.
Now, the learned Chief Justice who delivered
the judgment allowing the two applications, referred to an earlier decision of
his, reported in A Reference Under Section 5 of the Court Fees Act (1) and ;aid
that that decision governed the present cases also. The facts which led to the
earlier decision were: (1) that prior to the relevant date a suit for partition
of joint family property fell under Schedule II, Art. 17 (vii) of the Court
Fees Act and the court fees payable were Rs. 18-12-0 only; (ii) an amendment
which came into effect on the relevant date said that the court fees payable in
such suits should be according to the value of the share in respect of which
the suit is instituted ; (iii) a suit for partition of joint family property
was brought before the relevant date but an appeal was filed thereafter.
The question was: on the facts stated above,
what court fees were payable on the memorandum of appeal. Relying on the
decision of this Court in Hoosein Kasam Dada (India) Ltd. v. The State of
Madhya Pradesh and Others (2 ) and certain other decisions to which we shall
presently refer, the learned Chief Justice held that a right of appeal is a
substantive right which vests in a litigant at the date of the filing of the
suit, and cannot be taken away unless the legislature expressly or by necessary
intendment says so;
furthermore, an appeal is a continuation of
the suit, and it is not merely that a right of appeal cannot be taken away by a
procedural enactment which is not made retrospective, but the right cannot be
impaired or imperilled nor can new conditions be attached to the filing of the
appeal; nor can a condition already existing be made more onerous or more stringent
so as to (1)  57 Bom. L.R. 180.
(2)  S.C.R. 987.
644 affect the right of appeal arising out of
a suit instituted prior to the enactment. Learned counsel for the appellant has
made a somewhat feeble attempt to distinguish the decision in A Reference Under
Section 5 of the Court Fees Act (1) on facts, but it cannot be seriously
disputed that if that decision is correct, then it must govern the two cases
before us. Though the facts are not identical, we see no difference in
principle between them.
On behalf of the State of Bombay, appellant
before us, the correctness of the decision has been challenged on the ground
that there is no vested right in procedure and reliance has been placed on the
principle " that the presumption against a retrospective construction has
no application to enactments which affect only the procedure and practice of
the courts, even when the alteration which the statute makes may be
disadvantageous to one of the parties " (see Maxwell on Interpretation of
Statutes, 10th Edn., p. 225). Very strong reliance has been placed on the
decision in Mohri Kunwar v. Keshri Chand (2) and on the observations made
therein to the effect that no suitor has a vested right to insist that during
the pendency of a litigation which a suitor has started, the enactment relating
to court fee shall not be changed and the fee leviable shall not be increased
or reduced with regard to future appeals and he would be entitled to carry on
proceedings on the basis of the law as it stood when the plaint was filed even
though the law is different when he comes to file an appeal. On behalf of the
respondent it has been submitted that since the decision of the learned Chief
Justice of the Bombay High Court in A Reference Under Section 5 of the Court Fees
Act (1), there has been another decision of this Court which concludes the
question (Garikapatti Veerayya v. N. Subbiah Choudhury) (3) and it is argued
that the true principle is that where a right of appeal is impaired or
imperilled or a more onerous or stringent condition is put on the right of
appeal, the impairment, peril or imposition of a more stringent condition is
not retrospective unless (1)  57 Bom. L.R. 180. (2) I.L.R. [1941) All.
(3)  S.C.R. 488.
645 the legislature says so expressly or by
It is necessary to state here what the High
Court has clearly pointed out with regard to the amendments made by the Court
Fees (Bombay Amendment) Act, 1954. On the relevant date the whole system of
charging court fees in the Bombay High Court on the Original Side was altered
and instead of a fixed fee payable on the plaint, etc., ad valorem fees became
leviable as in the districts. The change was effected inter alia by deleting s.
4 and amending s. 6 of the Court Fees Act, 1870, and Art. 1 of Sch. I to the
Act. There was no provision, express or by necessary intendment, for giving
retrospective effect to the amendments made in the sense of affecting a right
of appeal arising out of a suit instituted prior to the relevant date.
As this position has not been contested, it
is not necessary to read here the provisions of the Amending Act.
We proceed straightaway to consider the
arguments advanced on behalf of the appellant. So far as we have been able to
appreciate the submissions made on behalf of the parties, the point of
controversy is really this: is an impairment of the right of appeal by imposing
a more stringent or onerous condition thereon a matter of procedure only or is
it a matter of substantive right ? We think that the question is really
concluded by the decisions of this Court. We refer first to the decision in
Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and others (1).
The facts of that case were these: Section 22(1) of the Central Provinces and
Berar Sales Tax Act, 1947, provided that no appeal against an order of
assessment should be entertained by the prescribed authority unless it was
satisfied that such amount of tax as the appellant might admit to be due from
him, had been paid. This Act was amended on November 25, 1949, and s. 22(1) as
amended provided that no appeal should be admitted by the said authority unless
such appeal was accompanied by satisfactory proof of the payment of the tax in
respect of which the appeal had (1)  S.C.R. 987.
84 646 been preferred. On November 26, 1947,
the appellant submitted a return to the Sale-, Tax Officer, who, finding that
the turnover exceeded 2 lacs, submitted the case to the Assistant Commissioner
for disposal and the latter made an assessment on April 8, 1950. The appellant
preferred an appeal on May 10, 1950, without depositing the amount of tax in
respect of which he had appealed. The Board of Revenue was of opinion that s.
22(1) as amended applied to the case as the assessment was made, and the appeal
was preferred, after the amendment came into force and rejcted the appeal.
It was held by this court that the appellant
had a vested right of appeal when the proceedings were initiated in 1947 and
his right of appeal was governed by the law as it stood then. It was further
held that the amendment of 1950 could not be regarded as a mere alteration in
procedure or an alteration regulating the exercise of the right of appeal;
it whittled down the right itself, and bad no
retrospective effect as the Amendment Act of 1950 did not expressly or by
necessary intendment give it retrospective effect. This decision proceeded on
the principle that impairment of the right of appeal by imposing a more onerous
condition is not a matter of procedure only. The decision in Garikapatti
Veerayya v. Subbiah Choudhury (1), referred specifically to two decisions
relating to an increase in court fees by subsequent amendment of the Court Fees
Act, and one of the decisions was Sawaldas Madhavdas v. Arati Cotton Mills Ltd.
(2), the very decision which is under appeal
here. The other decision was R. M. Seshadri v. The Province of Madras (3).
Perhaps, our attention was not then drawn to the circumstance that the decision
in Sawaldas Madhavdas v. Arati Cotton Mills Ltd. (2) was at the time pending in
appeal here. The point of the decision in Garikapatti Veerayya (1) is, however,
this: this Court referred with approval to decisions which accepted the
position that taking away a right of appeal and imposing a more onerous condition
on such right involved the same principles as to retrospective effect of the
(1)  S.C.R 488. (2)  57 B.L.R.
647 A similar view was expressed in Amara
Eswaramma and others v. Makkam Seethamma (1) and Arjun v. Amrita and others (
The appellant has relied on In re,: Punya
Nahako (3). That was a case of review, and it was held that if between the date
of the plaint or the appeal and the date for filing the petition for review,
there was a change in the Court Fees Act increasing the fee payable ad valorem,
the petitioner must pay at the increased rate. The learned Chief Justice
(Chagla, C. J.) expressed the opinion that a review does not stand on the same
footing as an appeal, and one cannot say that there is a substantive right of
review. It may be pointed out here that even in respect of a review, a view
different from that of the Madras High Court was taken in Parmeshar Kurmi v.
Bakhtwar Pande (4). It is, however, unnecessary to say anything more about a
review, because we are riot concerned with it in the present case.
In Anand Ram Pramhans and others v. Ramgulam
Sahu and others (5) the question which was mooted and discussed related to the
proper presentation of a memorandum of appeal, and incidentally it was observed
that the new Bihar and Orissa Court Fees Act which had already come into force
applied to the case. There was no discussion of the question as to whether the
enactment in question was given retrospective effect or not. As to the decision
in Mohri Kunwar v. Keshri Chand (6) on which so much reliance has been placed
by the appellant, it is necessary to point out that the question there was if
the right of appeal created by s. 6A of the Court Fees Act, which was added by
U. P. Act, XIX of 1938, was available as against an order passed after the
coming into force of the latter Act, although that Act was not in existence and
consequently there was no right of appeal at the date of filing that plaint. It
was held that the enactment, by the amending Act of 1938, of s. 6A which
allowed an appeal against an order demanding the payment of a deficiency in
court fees did not take away any right which was vested in the plaintiff on (1)
A I.R. 1955 Andhra 221. (2) I.L.R.  Nag. 296.
(3)  I.L.R. 50 Mad. 488. (4) 
I.L.R. 54 All. 1092.
(5) A.I.R. 1923 Pat. 150. (6) I.L.R. 
648 the date on which he filed the plaint, it
only conferred on him a new right; nor did it take away any right which was
vested in the defendant, for though the defendant could object if the plaint
was not properly stamped and might also have a right to have the matter
determined by the court he had no vested right in the procedure by which it was
to be determined, and this procedure could be changed pending the suit and a
change in procedure could not be said to deprive him of any vested right. It
would appear from what has been stated above that the decision proceeded on the
footing that the amending Act conferred a new right of appeal, and not that it
took away a vested right of appeal; and the reason of the decision was based on
the principle that there is no vested right in the procedure by which the
sufficiency of court fees is determined by a court. That is a principle of a
different character from the one we are concerned with in the present case,
viz., the retrospective effect of a subsequent enactment which either takes
away a right of appeal or impairs it by imposing a more stringent or onerous
condition thereon. We do not, therefore, think that the Allahabad decision
helps the appellant.
The question was considered in reverse in
Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi (1)
and the principle of Colonial Sugar Refining Co. v. Irving (2) was applied.
Another decision in point is that of Nagendra Nath Bose V. Mon Mohan Singh Roy
(3). In that case the plaintiff instituted a suit for rent valued at Rs. 1,306-15-0
and obtained a decree. In execution of that decree the defaulting tenure was
sold on November 20, 1926, for Rs. 1,600. On December 19, 1928, an application
was made under 0. 21, r. 90, of the Code of Civil Procedure, by the petitioner
who was one of the judgment debtors for setting aside the sale. That
application having been dismissed for default of his appearance, the petitioner
preferred an appeal to the District Judge, Hoogly, who refused to admit the
appeal on the ground that the amount, recoverable in (1)  L.R. 54 I.A.
421. (2)  A.C. 369.
(3)  34 C.W.N. 1009.
649 execution of the decree had not been
deposited as required by the proviso to s. 174(c) of the Bengal Tenancy Act as
a mended by an amending Act of 1928. The contention of the petitioner was that
the amending provision, which came into force on February 21, 1929, could not
affect his right of appeal from the decision on an application made on December
19, 1928, for setting aside the sale. Mitter, J., said : " We think the
contention of the petitioner is well-founded and must prevail. That a right of
appeal is a substantive right cannot now be seriously disputed. It is not a
mere matter of procedure. Prior to the amendment of 1928 there was an appeal
against an order refusing to set aside a sale (for that is the effect also
where the application to set aside' the sale is dismissed for default) under
the provisions of Order 43, rule (1), of the Code of Civil Procedure. That
right was unhampered by any restriction of the kind now imposed by s. 174(5),
proviso. The Court was bound to admit the appeal whether the appellant
deposited the amount recoverable in execution of the decree or not. By
requiring such deposit as a condition precedent to the admission of the appeal,
a new restriction has been put on the right of appeal, the admission of which
is now hedged in with a condition. There can be no doubt that the right of
appeal has been affected by the new provision arid in the absence of an express
enactment this amendment cannot apply to proceedings pending at the date when
the new amendment came into force. It is true that the appeal was filed after
the Act came into force, but that circumstance is immaterial-for the date to be
looked into for this purpose is the date of the original proceeding. which
eventually culminated in the appeal." This decision was approved by this
Court both in Hoosein Kasam Dada (1) and Gankapatti Veerayya (2).
It is thus clear that in a long line of
decisions approved by this Court and at least in one given by this Court, it
has been held 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 (1)  S.C.R. 987.
(2)  S.C.R. 488.
650 substantive right and an enactment which
does so is not retrospective unless it says so expressly or by necessary
We are, therefore, of the view that the High
Court was right in the view it took, and the orders of refund of excess court
fees which it passed were correct in law.
Accordingly, the appeals fail and are
dismissed with costs.
There will be one set of costs, as the
appeals have been consolidated and heard together.