Case: Keshavlal Jethalal Shah Vs. Mohanlal Bhagwandas &amp; Anr

provision of the law could not be affected retrospectively under an Amending Act so as to deprive the order of its finality acquired under the original provision. In Dafedar Niranjan Singhs case, (1962) 1 SCR 214 = (AIR 1961 SC 1425 ) an order releasing the property in dispute was passed by the Custodian of Evacuee Property under Patiala Ordinance No. IX of 2004 Samvat. No appeal was filed against the order of the Custodian and it became final on that account. The order was however set aside by the Custodian in exercise of jurisdiction under S. 58 (3) of the Administration of Evacuee Property Act 31 of 1950. This Court held that since the order had become final in exercise of the jurisdiction subsequently conferred, in the absence of any positive indication giving Section 58 (3) retrospective operation, the finality of the previous order could not be taken away.6. Counsel for the respondent relied upon a judgment of this Court in Moti Ram v. Suraj Bhan, (1960) 2 SCR 896 = (AIR 1960 SC 655 ) in which following Indira Sohanlals case, 1955-2 SCR 1117 = (AIR 1956 SC 77 ) it was held that the High Court could, in exercise of jurisdiction under an Amending Act enacted after the litigation was commenced, set aside an order which according to the law in force at the date when the litigation was commenced, was not subject to the jurisdiction of the High Court. In Moti Rams case, (1960) 2 SCR 896 = (AIR 1960 SC 655 ) an application for eviction of the appellant from a shop was made in August 1958 under Section 13 of the East Punjab Urban Rent Restriction Act, 1949. An appeal was provided under Section 15 of the Act from the order of the Rent Controller, and sub-section (4) of Section 15 provided that the decision of the appellate authority, and subject only to such decision, the order of the Controller shall be final. By Amending Act 29 of 1956 which came into force on September 24, 1956, the High Court was empowered to call for and examine the records relating to any order passed under the Act for satisfying itself as to the legality or propriety of such order. The landlords application was dismissed by the Rent Controller and in appeal the appellate authority confirmed the order. Thereafter on the application of the landlord the High Court reversed the order. This Court rejected the contention that the High Court had no jurisdiction to entertain the revision application under Section 15 (3) as amended. The decision brought before the High Court in exercise of its revisional jurisdiction under Section 15 (5) of the amended Act was delivered on August 19, 1958, after amendment of the Act on September 24, 1956. On the date on which it was made, the order had acquired no finality, for it was subject to an order which may be passed in a revision application which may be filed before the High Court under the amended Act. Moti Rams case. (1960) 2 SCR 896 = (AIR 1960 (SC 655 ) has. therefore, no application to this case.7. Counsel for the respondent urged that the extension of the jurisdiction of the High Court by Section 29 (2) of Bombay Act 57 of 1947 as amended by Gujarat Act 18 of 1965 related not to any right in existence, but to a matter of procedure, and on that account the Act as amended applied at the hearing, and in deciding the revision application filed by the respondent the High Court was boned to apply the amended Act. But when the revision application was entertained under Section 115 of the Code of Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that section, and in the absence of any express provision made in the Amending Act, the jurisdiction conferred by that section could not be extended. The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not a matter of procedure. The order of the appellate court subject to scrutiny by the High Court within the limited field permitted by Section 115 of the Civil Procedure Code, was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate court was according to law. the Legislature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finally decided.8. Counsel for the respondent also submitted that Section 29 (2) as amended was intended to have retrospective operation, because the amending Act was in the nature of explanatory legislation.There is nothing in the language of Section 29 (2) as amended, which may, indicate that it was intended to be retrospective in operation. Section 29 (2) as amended in terms confers jurisdiction upon the High Court to call for the record of a case for the purpose of satisfying itself that the decision in appeal was according to law, which the High Court did not possess before the date of the Amending Act. The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from S. 115, Civil Procedure Code, and the Legislature has by the Amending Act not attempted to explain the meaning of that provision.An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. Section 29(2), before it was enacted was precise in its implication as well as in its expression; the meaning of the words used was not in doubt, and there was no omission in its phraseology which was required to be supplied by the amendment.

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

Explanation:
1[ds]We do not think it necessary to express any opinion on the first question, because, in our judgment, on the second point raised by counsel, the appeal mustwhen the revision application was entertained under Section 115 of the Code of Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that section, and in the absence of any express provision made in the Amending Act, the jurisdiction conferred by that section could not be extended.The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not a matter of procedure.The order of the appellate court subject to scrutiny by the High Court within the limited field permitted by Section 115 of the Civil Procedure Code, was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate court was according to law. the Legislature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finallyIndira Sohanlals case 1955-2 SCR 1117   = (AIR 1956 SC 77  ) the Court was dealing with a case in which by amendment of statute, the finality which would but for the amendment have attached was taken away before the order was made. This Court in Dafedar Niranjan Singh v. Custodian Evacuee Property (Punjab). (1962) 1 SCR 214   = (AIR 1961 SC 1425  ) distinguished Indira a Sohanlals case. 1955-2 SCR 1117   = (AIR 1956 SC 77  ) and held that an order which had become final under a provision of the law could not be affected retrospectively under an Amending Act so as to deprive the order of its finality acquired under the original provision. In Dafedar Niranjan Singhs case, (1962) 1 SCR 214   = (AIR 1961 SC 1425  ) an order releasing the property in dispute was passed by the Custodian of Evacuee Property under Patiala Ordinance No. IX of 2004 Samvat. No appeal was filed against the order of the Custodian and it became final on that account. The order was however set aside by the Custodian in exercise of jurisdiction under S. 58 (3) of the Administration of Evacuee Property Act 31 of 1950. This Court held that since the order had become final in exercise of the jurisdiction subsequently conferred, in the absence of any positive indication giving Section 58 (3) retrospective operation, the finality of the previous order could not be takenMoti Rams case, (1960) 2 SCR 896   = (AIR 1960 SC 655  ) an application for eviction of the appellant from a shop was made in August 1958 under Section 13 of the East Punjab Urban Rent Restriction Act, 1949. An appeal was provided under Section 15 of the Act from the order of the Rent Controller, and sub-section (4) of Section 15 provided that the decision of the appellate authority, and subject only to such decision, the order of the Controller shall be final. By Amending Act 29 of 1956 which came into force on September 24, 1956, the High Court was empowered to call for and examine the records relating to any order passed under the Act for satisfying itself as to the legality or propriety of such order. The landlords application was dismissed by the Rent Controller and in appeal the appellate authority confirmed the order. Thereafter on the application of the landlord the High Court reversed the order. This Court rejected the contention that the High Court had no jurisdiction to entertain the revision application under Section 15 (3) as amended. The decision brought before the High Court in exercise of its revisional jurisdiction under Section 15 (5) of the amended Act was delivered on August 19, 1958, after amendment of the Act on September 24, 1956. On the date on which it was made, the order had acquired no finality, for it was subject to an order which may be passed in a revision application which may be filed before the High Court under the amended Act. Moti Rams case. (1960) 2 SCR 896   = (AIR 1960 (SC 655  ) has. therefore, no application to thisis nothing in the language of Section 29 (2) as amended, which may, indicate that it was intended to be retrospective in operation. Section 29 (2) as amended in terms confers jurisdiction upon the High Court to call for the record of a case for the purpose of satisfying itself that the decision in appeal was according to law, which the High Court did not possess before the date of the Amending Act. The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from S. 115, Civil Procedure Code, and the Legislature has by the Amending Act not attempted to explain the meaning of that provision.An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. Section 29(2), before it was enacted was precise in its implication as well as in its expression; the meaning of the words used was not in doubt, and there was no omission in its phraseology which was required to be supplied by the amendment.