BADRUDDIN ABDUL RAHIM Vs. SITARAM VINAYAK APTE

JUDGEMENT

(1.) Mr. Patwardhan contends that his client had a right of appeal to a Division Bench of this Court which had accrued to him on January 19, 1928; that this was not a mere matter of procedure but a substantive right, as ruled by the Privy Council in The Colonial Sugar Refining Company Ltd. V. Irving (1905) A.C. 369; and that therefore this amendment does not operate retrospectively so as to take away that right of appeal. He also relies on Nana V/s. Sheku (1908) I.L.R. 32 Bom. 337, s.c. 10 Bom. L.R. 330 and Ramakrishna Chetty V/s. Subbaraya Iyer. (1912) I.L.R. 38 Mad. 101. If this question arose out of an Act either of the All India Legislature or of a local Legislature, or oven an Act of Parliament, then in the absence of clear words in the enactment making it retrospective as to the right of continuing legal proceedings commenced before the enactment, there would be a good deal to support Mr. Patwardhan a argument. In the case of a repeal by an enactment there are clear statutory authorities against retrospectivity of legislation in such a case; for instance Section 38 of the Interpretation Act, 1889 (52 & 53 Vic, c. 63), and Section 6 of the General Clauses Act, 1897. These provisions do not, however, cover an amendment to this Court's Letters Patent, which is made by His Majesty under the powers conferred by Sub-section (1A) of s. "1QQ of the Government of India Act. There is also a ruling on this point which has to be considered. In Framji Bomanji v. Hormanji Barjorji (1866) 3 B.H.C.R. (O.C.J.) 49 a question arose whether a light of appeal that existed under Section 14 of the Charter of 1862 was taken away by Section 15 of the amended Charter of 1865. It was decided by Sir Richard Couch C.J. and two other Judges that the intention of the framers of the new Charter was that the right of appeal was taken away. Reference is made in the judgment to Clause 2 of the present Letters Patent of 1865 which, among other things, says : Clause 15 of the Letters Patent of this Court has been altered, so that no appeal from the judgment of one Judge of this Court lies to a Division Bench, if it is made in the exercise of second appellate jurisdiction, except in any case where such single Judge declares that it is a fit one for appeal. The question before us is whether this alteration has retrospective effect so as to apply to an appeal from the judgment of a single Judge on January 19, 1928, which was made on February 13, 1928, i.e., after the date, when the substituted 15 clause of the Letters Patent was published in the Bombay Government Gazette (February 2, 1928). Paragraph 2 of the Notification at page 197 of Part I of that Gazette says : And we do further ordain and declare that these Letters Patent shall he published in the Bombay Gazette shall have effect from the date of such publication. That all proceedings commenced in the said High Court prior to the date of the publication of the Letters Patent shall be continued and depend in the said High Court, as if they had commenced in the said High Court after the date of such publication.

(2.) In regard to this Couch C.J. remarks (p. 53) : I do not say that these words may not bear a more limited meaning, although ifc does not appear to mo that they do; but the intention would appear to have been not to make any reservation in favour of suits brought before the publication of these Letters Patent, or to provide that they should be continued in the same way as they would have been continued before that time, and that the parties should have preserved to them any right of appeal which then existed. The intention was that at the time the Letters Patent were published every suit pending in the Court should be treated as if it had been a suit brought after the Letters Patent were published.

(3.) Having regard to this provision in the Letters Patent of 1865, it seems to mo probable that, when His Majesty directs the amendment to take effect from the date of its publication in the Bombay Government Gazette, the intention is that the amendment should be retrospective in regard to the continuance of proceedings in the High Court of the kind contemplated in this Clause 2.