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

On 16-4-1953, 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 22-7-1954. The Arati Cotton Mills, Ltd., filed a memorandum of appeal against the said decree on 4-9-1954, and paid court-fees of Rs. 3,193-12-0 on the said memorandum. On or about 5-10-1954, a settlement was arrived at between the parties and on 9-10-1954, a prayer was made for dismissal of the appeal for want of prosecution. On 18-11-1954, an application was made under S. 151 C. P. C., by the Arati Cotton Mills, Ltd., for refund of excess court-fees paid on the memorandum of appeal. In the application it wasappellants 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 Rs. 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 appellants 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, Limited brought a suit against Messrs. Supreme General Films Exchange Limited 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 Limited. 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 The appeal was, however, withdrawn with the leave of the High Court on September 27, 1954.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 Limited then applied for refund of the excess court-fees paid on a ground similar to that mentioned earlier in connexion with the application of the Arati Cotton Mills, Limited.4. Both the applications were heard together after issue of notice to the Advocate General. Bombay who appeared for the State of Bombay and opposed theits judgment and order dated November 24, 1954 (Reported in (S) AIR 1955 Bom 332  .), 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.

Reasoning: 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.