REFERENCE UNDER SECTION 5 COURT FEES ACT Vs. STATE OF MAHARASHTRA
LAWS(BOM)-1954-10-6
HIGH COURT OF BOMBAY
Decided on October 28,1954

REFERENCE UNDER SECTION 5, COURT-FEES ACT Appellant
VERSUS
STATE Respondents


Referred Judgements :-

NAGENDRA NATH BOSE V. MON MOHAN SINGHA [REFERRED TO]
MOHRI KUNWAR V. KESHRI CHANDRA [REFERRED TO]
GHOSH BEEVI [REFERRED TO]
SHANKAR MARUTI V. BHAGWANT GUNAJI [REFERRED TO]
EOOSEIN EASAM DADA INDIA LIMITED VS. STATE OF MADHYA PRADESH [REFERRED TO]
R M SESHADRI VS. PROVINCE OF MADRAS [REFERRED TO]



Cited Judgements :-

ATMARAM LAXMAN VS. STATE OF MAHARASHTRA [LAWS(BOM)-1964-7-5] [REFERRED TO]
RANGANATHA D. VS. STATION HOUSE OFFICER, BMTF POLICE [LAWS(KAR)-2016-4-157] [REFERRED TO]
JAYKISAN PANNALAL MALPANI VS. SPECIAL LAND ACQUISITION OFFICER [LAWS(BOM)-1988-12-99] [REFERRED]


JUDGEMENT

- (1.)This is a reference made to me under Section 5, Court-fees Act by the Taxing Officer, Appellate Side, of this Court. It raises a very interesting and important question as to whether a certain provision of Bombay Act 12 of 1954 is retrospective. The question that I have to decide is, what are the proper Court- fees to be paid by the appellant in F.A. No. 5474 of 1954, by the appellant in F. A. No. 6150 of 1954; and by the respondent in Cross-Objection No. 6102 of 1954. As the matter in controversy is common to both the appeals and the gross-objections, one reference has been made in respect of all the three.
(2.)Now, these two First Appeals and the Cross-Objections arise out of suits filed for partition and these suits were filed prior to 1-4-1954, when Bombay Act 12 of 1954 came into force. When these suits were filed, the Court-fees paid were Rs. 18-12-0 and that was on assumption that suits for partition by a coparcener when he is in constructive possession of joint family property fall under Sch. II, Article 17 (vii), Court-fees Act. At one time this Court had taken the view that suits for partition fell under Section 7(v) and the Court-fees must be paid on an 'ad valorem' basis. But a different view was taken by a Full Bench of this Court in a decision in - 'Shankar Maruti v. Bhagwant Gunaji', AIR 1947 Bom 259 (FB) (A), and after this decision the court-fees are payable on the basis that suits for partition, where the plaintiff is in constructive possession of joint family property, fall under Article 17 (vii) of Sch. II. Now, Act 12 of 1954 by Section 6 added a new sub-clause to Section 7 which is Sub-clause (vi-a). That sub-clause dealt with suits for partition and it provided; "In suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property whether or not the plaintiff is in actual or constructive possession of the property of which he claims to be a coparcener or co-owner, according to the value of the share in respect of which the suit is instituted." Therefore, the effect of this amendment is to override the decision of this Court to which I have made reference, and it is not disputed that if this amendment applies to the appeals and cross-objections filed, then court-fees would have to he paid on the basis laid down in this amendment and not in accordance with the decision in -- 'Shankar Maruti v. Bhagwant Gunaji' (A).
(3.)Now, it is clear that if this amendment had not been passed, the appellants would have had to pay on the memorandum of appeal and on the cross-objections the court-fees of Rs. 18-12-0, the same court-fees which were paid on the plaint in the suit. If, on the other hand, the court-fees are to be calculated on the basis of the amendment, then the court-fees to be paid would be much more and the burden upon the litigant who wishes to come to this Court in appeal would be considerably increased. What is urged by Mr. Gokhale who appears for the respondent in the cross-objections and which is also the argument for the appellants in the two appeals is that the right of appeal or the right to cross- objection which the appellants or the respondent had was a substantive right which right cannot be taken away or impaired by any legislation passed subsequent to the filing of the suit unless the right is taken away or impaired expressly or by necessary intendment. Now, there are certain principles with regard to appeals which are beyond all controversy. The first and the most important principle is that a right of appeal is not a procedural right. It is a substantive right; it is a right vested in the litigant who files the suit. An appeal is a continuation of the suit, and when a litigant files a suit, he has the right to continue the suit up to the final Court of appeal, and "that substantive or vested right cannot be taken away unless the Legislature expressly intends that it should he so taken away. As I shall presently point out, it is not merely that a right of appeal cannot be taken away by a procedural enactment which is not made expressly retrospective, but the right cannot even 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. Apart from the authorities, the position that arises for my consideration is whether in increasing the court-fees the Legislature has made it more difficult for the appellant to appeal to this Court and whether it has made a condition which already existed for the filing of the appeal more onerous and more stringent. Mr. Gokhale's contention on this point is that obviously it has become more difficult for a litigant to come to this Court by reason of the increase of the court-fees. When he filed the" suit he knew that he could prosecute the appeal in the event of his losing in the suit by paying certain court-fees. It was on that assumption that he filed the suit and that right which he has to file the appeal, on payment of smaller court-fees has been impaired by the Legislature increasing the amount of court- fees. As against that Mr. Desai on behalf of the Government contends that no litigant has a vested right in procedure and according to Mr. Desai the payment of court- fees is a matter of procedure and no litigant can say that he will only pay the court-fees which he was Liable to pay at the date of the filing of the suit and he will not pay Court-fees which have been increased after the suit was filed and before the appeal was preferred. It is the further contention of Mr. Desai that court-fees are payable at the date when the appeal is preferred and it is for the State to regulate what are the proper fees which a litigant shall pay when he prefers the appeal. It is the further contention of Mr. Desai that the payment of court-fees is not a condition for preferring the appeal, and in increasing the court- fees the state has neither imposed a new condition upon the appellant for preferring his appeal nor has it in any way made an existing condition more burdensome or onerous.


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