P L D 1965 Dacca 296 (PLP)

MURSHED, C. J.‑--The point before us is a simple one, but it involves a very important and substantial question from the point of view of litigants in this country. The matter came up before us under the following circumstances:‑ A suit was filed in the Court of a Subordinate Judge at Chittagong for declaration of title of the plaintiffs in respect of the suit land, for confirmation of possession thereof, for injunction and, in the alternative, for recovery of possession. The judgment was passed in favour of the plaintiffs on the 9th of October 1963, and the decree was signed on the 20th of November 1963. Being aggrieved by the aforesaid decree the defendants preferred an appeal to this Court on the 12th of February 1964. The suit being valued at Rs. 5,470‑00, in accordance with section 96 of the Code of Civil Procedure read along with unamended section 21 of the East Bengal Civil Courts Act, 1887, apparently, the appeal was properly filed before this Court. In the meantime, that is, before the filing of the said appeal in this Court, the aforesaid East Bengal Civil Courts Act, 1887, was amended by another Act, namely, East Pakistan Act I of 1964, which is called the East Bengal Civil Courts (Amendment) Act of 1963 (hereinafter called the Amending Act). Prior to the aforesaid Amending Act, which came into effect on the 25th of January 1964 the relevant portion of section 21 of the East Bengal Civil Courts Act of 1887 read as follows: "21. (1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie‑ (a) to the District Judge where the value of the original suit in .which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees, and (b) to the High Court in any other case. (2) ??.." (3) ??.." (4) ??..." The Amending Act is a very short one, consisting of four sections. Sections 2 and 3 of the Amending Act read thus: "

2. The East Bengal Civil Courts Act, 1887 shall be amended as hereinafter provided.

3. In clause (a) of subsection (1) of section 21 of the East Bengal Civil Courts Act, 1887, for the words `five thousand rupees', the words `ten thousand rupees' shall be substituted." Thereafter comes the very important and vital provision incorporated in the last section, namely, section 4, which is couched in the following language: "

4. Notwithstanding anything contained in section 21 of the said Act, as amended by section 3 of this Act, any appeal from a decree or order of a Civil Court subordinate to the Court of a District Judge, which, immediately before the commencement of this Act, was pending before a High Court or a District Judge shall be proceeded with and heard and disposed of by the High Court or the District Judge as the case may be, as if this Act, had not been passed." It is obvious from the provisions of the Amending Act that first appeals in respect of decrees passed in suits valued at a sum of money up to Rs. 10,000.00 would lie before the District Judge, and not before the High Court, if valued above Rs. 5,000.00, as was the requirement under the unamended section 21 of the Act of 1887. An objection was taken by the relevant office in this Court as to whether the appeal would have to be filed before the District Judge of Chittagong or it would lie in this Court, the appeal being filed after the 25th of January 1964, when the aforesaid Act came into force. Before we proceed to deal with the points that have been raised before us, we would like to acknowledge the able assistance that we have received both from Mr. Siddique Ahmed Chaudhry, who has appeared on behalf of the appellant‑petitioner before us, as well as from Mr. Maksum‑ul‑Hakim, the learned Advocate?-General of East Pakistan, who appeared as amicus curiae in this case. We had the advantage of a full argument which was addressed from the Bar. Mr. Siddique Ahmed Chaudhry has contended that this case falls within the ratio decidendi of the case of The Colonial Sugar Refining Company, Limited v. Irving (1905 A C 369). The relevant facts of that case may shortly be stated as follows: The Australian Commonwealth Judiciary Act, 1903, took away the jurisdiction of His Majesty‑in‑Council (Privy Council) to hear appeals from any decision of the Courts in the Commonwealth of Australia. Prior to its coming into force, the law, as it stood, gave the right of appeal to an aggrieved party from a decision of the Supreme Court of Queensland to His Majesty‑in‑Council. The aforesaid Judiciary Act, 1903, took away the said right of appeal to His Majesty‑in‑Council. The question which was mooted before the Privy Council in the aforesaid case was, in the first place, whether the Judiciary Act, 1903, was retrospective in its operation and, secondly, whether the right of appeal to the King‑in‑Council in a pending suit could be taken away without any express provision to that effect or by necessary implication of the language of the latter Act. It was held that the Act was not retrospective in its operation and it was further held that the Act could not be construed so as to deprive a suitor in a pending action of appeal to a superior tribunal which belonged to him as of right. We may cite here the oft‑quoted dictum of Lord Macnaghten, which has been set out at page 372 of the report as follows: "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only the petition is well‑founded. On the one hand if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is: Was the appeal to His Majesty‑in‑Council a right vested in the appellants at the date of passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well?-known general principle that statutes are not to be held to act restrospectively unless a clear intention to that effect is manifested." This decision has been followed in a series of cases and the principle laid down therein can now be taken to be well‑settled and well‑established. In this connection, reference may be made to the decision of a Special Bench of the Calcutta High Court in the case of Shaikh Sadai Ali v. Shaikh Dalinsuddin (32 C W N 1130). The same principle has been discussed in a Full Bench decision of the Lahore High Court in the case of (Bhai) Kripa Singh v. Rasalldar Ajaipal Singh and others (A I R 1928 Lah. 627) and Messrs Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and others (A I R 1953 S C 221). A perusal of the aforesaid cases will make it clear that there is a distinction between the statutes which effect procedural change and those which affect substantive distinction is very important, because a procedural changes come into effect as soon as the law has come into force even in respect of proceedings which had been started prior to the date when the amendment came into effect. With regard to vested rights, various kinds of principles apply. It is well‑known that a statute is construed as prospective and it is never presumed to be retrospective unless it has been specifically made so or the necessary implication of the enactment leads to that conclusion. To this view we would also like :o add a further rule, namely, that even with regard to a statute which is retrospective, in effect, no greater retrospection should be given to it than is necessary for the purpose of giving effect to the requirement of the relevant statute. For the last proposition it is enough to refer to the weighty observation of Bowen, L. J., in the case of Reid v. Reid (1886 31 Ch. D 402). The passage begins at page 408 and is concluded as follows: "I am of the same opinion. Assuming that the words i4 the section are ambiguous, and capable of two constructions, what is the principle of construction which we ought to apply? We are dealing, it is true, with an Act which is in some sense and to some extent retrospective, and with a section that is to some degree retrospective. The section applies to and affects marriages contracted before the commencement of the Act, and 'alters with respect to such marriages, in the manner indicated by the section, the consequences of the marital relation. Now the particular rule of construction which has been referred to, but which is valuable only when the words of an Act of Parliament are not plain, is embodied in the well‑known trite maxim omnis nova constitutio futuris formam imponere debet non praeteritis, that is, that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights. It seems to me that even in construing an Act which is to a certain extent retrospective, and in construing a section which is to a certain extent retrospective, we ought nevertheless to bear in mind that this maxim is applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective than you can plainly see the Legislature meant." It would not be out of place to re‑emphasise here that canons of construction and rules of interpretation are directed to one and only one end, namely, towards finding out the intention of the Legislature. When the language used by the Legislature is clear, there is no room for praying in aid any extraneous principle of interpretation or canons of construction. On a plain reading of the provisions of the enactment, there is no escape from the conclusion that the Act was designed to make a somewhat feeble and modest attempt at regularising the matter of valuation of suits in the light of the fact that prices had gone up rapidly with regard to almost everything in this world ever since the year 1887. Furthermore, it is also clear that the framers of the Act intended to relieve the High Court from the congestion of first appeals, which was necessarily involved in the rise of prices with regard to the subject‑matters of suits and pro tanto the converse proposition also follows that it was further intended to restore to the District Judge the power to hear appeals which, of necessity, must have been curtailed because of rise of prices of land, goods and various other matters. Subsection (3) of section 1 of the Amending Act specifically says that, "It shall come into force at once." This shows the peremptory nature of the provision, and if we now read it along with sections 2, 3 and 4 thereof, which we have quoted above, we have practically read the whole of the Amending Act. The provisions of the Amending Act, read as a whole, will lead one to think that they are, in essence, retrospective but in a limited sense. They are intended to come into effect peremptorily and that is why it was necessary to enact the provisions of section 4 which merely saved pending actions. If we return back to the aforesaid section 4 of the Amending Act, it will be seen that although the Amending Act came into force on the 25th of January 1964, provisions have been made as to what would happen to appeals which, rightly or wrongly, had been filed and were physically pending before either the District Judge or the High Court. The above‑mentioned section 4 specifically provides to reserve the status quo and forbids any disturbance of matter already pending before the respective Courts. It states that if an appeal is pending before the District Judge, it will be heard and disposed of by the District Judge and, vice versa, if it is pending before the High Court, it must be heard and disposed of by the High Court. Mr. Siddique Ahmed Chaudhry has, in this connection, stated that prior to the 25th of January 1964, the law did not permit the District Judge to hear a first appeal in respect of a suit which had been valued at over Rs. 5,000.00. We would like to point out that the word "pending" as used in section 4 of the Amending Act has been used in a physical sense, that is, in the sense that it must have been pending physically, whether lawfully or otherwise. From what we have stated above, the further conclusion would also follow that the Amending Act intended to apply a guillotine in respect of those first appeals where decrees had already been passed with regard to suits valued at ten thousand rupees or below that sum, on the basis, as we have stated above, of a modest re‑adjustment in proportion to the rise in prices that has taken place in the course of the last half a century. Strictly speaking, therefore, we might have been driven into holding that even in the present case the appeal should have gone to the District Judge; but, we are faced with a proposition of a different kind in this behalf, and we propose to deal with the same in the following manner. The following contention of Mr. Siddique Ahmed Chaudhry is most material on this point. He has submitted that he obtained the decree in respect of the present appeal, prior to the 25th of January 1964, namely prior to the period when the Amending Act came into force. The position, therefore, was that at the time when the decree was passed, the law clothed him with a right to prefer an appeal to this Court and if he had come to this Court against the decree which was passed, as mentioned above, on the 24th of January 1964, no question would have arisen that the appeal should have been filed in this Court and this Court alone. He has, therefore, asked, just because he has come to this Court later than the 25th of January 1964, but within the period of limitation provided for filing of the appeal to this Court, whether he can be thrown out of this Court and deprived of a right which had vested in him prior to the date when the Amending Act came into effect. There is not only a good deal of force and substance in this contention, but, in our opinion, this point is completely covered by the opinion of Lord Macnaghten pronounced on behalf of the Judicial Committee of the Privy Council in the Colonial Sugar Refining Company's case. We may recall that the material point in that case was that a statute had taken away a right of appeal to the Privy Council, but such right had existed at the time when the decision, against which the appeal was preferred was given by a Court in Australia. The argument that was advanced in that case was exactly of the same nature which has been canvassed before us, namely, that a statute cannot be construed so as to take away a vested right unless E there are express provisions of law to that effect or unless such a result follows as a necessary implication of the language in the statute. The meaning and effect of the Amending Act is clear from what we have stated above. It was intended to come into force on the 25th of January 1964, peremptorily and it must have full effect subject to the provision which has been incorporated in section 4 of the Amending Act and subject to the preservation of any right vested prior to the coming into operation of the said Amending Act. Our attention was drawn to the language used by Sir George Rankin, C. J., in Shaikh Sadai Ali's case (1). We are referring to the following passages which occur at pages 1132‑33: ? "Now the reasoning of the Judicial Committee in the Colonial Sugar Company's case (1905 A C 369) is a conclusive authority to show that rights of appeal are not matters of procedure and that the right to enter the superior Court is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior Court . . . . . In the present case, however, there is a further element of contingency in that the case might never have been dealt with by a Single Judge, and the right claimed .under clause 15 of the unamended Letters Patent might never have arisen at all. Whether this element would make the reasoning of the Judicial Committee in the Colonial Sugar Company's case (1905 A C 369) inapplicable to the present case is a question which must be answered in: the negative, if, as I think, the applicant at the date of the suit had a right to the use of the then existing system of appeals. But this question is I think academic in view of the effect of section 111 of the Code upon the change introduced by the new Letters Patent." The result, therefore, is that we are of opinion that in so fag as a right of appeal that was vested in a suitor prior to the 25t1 of January 1964, it would not be disturbed by the provisions o1 the aforesaid Amending Act. The question is: What is a vested right? In our opinion there is a world of distinction between a right which comes into operation in future or a right which is merely a part of a system which may come into life at a future occasion such a right as has been described in a Full Bench decision of the Calcutta High Court in the case of Jatindra Nath De v. Jeto Mahato (50 C W N 502) is a right in the air, which cannot be treated as a "vested right". It has been somewhat faintly argued before us that even in respect of a suit filed on or before the 24th of January 1964, although the decree may be obtained ten years later, the suitor will still have a right of first appeal to the High Court when the subject‑matter of the suit is valued at less than ten thousand rupees but above five thousand rupees. We are afraid, we cannot subscribe to such a wide proposition as that, because,‑, in the first place, it would lead to an absurd result and practically stultify the effect of the Amending Act and secondly, because the mere filing of a suit does not, by itself, clothe a suitor with any "vested right" in any particular kind of appeal. It is true, and we may say so with respect, that it is correct to say that at the time when a suit is brought, a chain of system, including a process of appeal, is set into motion which can be treated as a unit. But until the suit has fructified into a decree, no right of appeal is "vested" in any party to the suit. There may be an inchoate right of appeal in embryo; but until a decree is passed, no right has been born in the sense that the party has not yet been "vested" with any right. We may also refer to the provisions of section 8 of the Bengal General Clauses Act, 1899. The relevant portion of that section reads as follows: "

8. Where this Act, or any Bengal Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not‑ (a) . (b) . (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; An amendment which substitutes a new provision for an older one, in effect, brings about a repeal of the previous provision and replaces it by a totally different one. Therefore, the rule of construction that a "vested right" is not presumed to be taken away by a statute unless there are clear words to that effect or unless it is so taken away by necessary implication, does not apply to a right which has not been vested in a party but which exists in a potential form as a right in embryo which has not yet been born. So far as the present case is concerned, it was unnecessary for us to deal with the latter portion of the decision that we have given in this judgment. We have, however, given our opinion in view of the fact that it is a point of substantial importance which will apply to innumerable first appeals that will arise out of decrees passed in respect of pending suits valued above Rs. 5,000.00 but below Rs. 10,000,

00. The appeals in such cases in which decrees are passed on or after the 25th of January 1964, must lie to the District Judge. In the result, we hold that the petitioner in this case is entitled to file the first appeal in this Court and we direct that the memorandum of appeal be accepted and registered, if otherwise in order. ABU MD. ABDULLAH, J.‑--I agree. S. Q.??????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.