Case: State Of Bombay Vs. Supreme General Films Exchange Ltd.(With Connected Appeal)

or not. As to the decision in ILR (1941) All 558: (AIR 1941 All 298 ), 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 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.11. The question was considered in reverse in Delhi Cloth and General Mills Company Limited v. Income-tax Commissioner. Delhi, 54 Ind App 421 : (AIR 1927 PC 242 ), and the principle of colonial Sugar Refining Co. v. Irving, 1905 AC 369, was applied. Another decision in point is that of Nagandra Nath Bose v. Mon Mohan Singh, 34 Cal WN 1009: (AIR 1931 Cal 100 ). 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 O. 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 execution of the decree had not been deposited as required by the proviso to S. 174 (c)of the Bengal Tenancy Act as amended 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 and 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 Hossein Kasam Dada, 1953 SCR 987 : (AIR 1953 Sc 221 ) and Garikapatti Veeraya, 1957 SCR 488 : ((S) AIR 1957 SC 540 ) (supra).12. It is thus clear that in a long lime 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 substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.13. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. 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 (Bombay Act No. XII of 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 Schedule 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 rights 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.It is thus clear that in a long lime 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 substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.13. 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.