TMI Blog1968 (4) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... e operation. In Colonial Sugar Refining Co. Ltd. v. Irving(1), the Judicial Committee held that while provisions of a statute dealing merely with matters of procedure (1) [1905] A.C. 369 may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are, not to be applied retrospectively in the absence of express enactment or necessary intendment . The Judicial Committee further observed that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. The same principle has been affirmed by the Judicial Committee in a later decision in Delhi Cloth and General Mills v. Income-tax Commissioner, Delhi((1927)L.R.54 I.A.--421). In Indira Sohan Lal v. Custodian of Evacuee Property Delhi(2), one of the points decided by this Court in dealing with a case under the Evacuee (Administration of Property) Act, 1947, as amended in 1948, was that even if at the date when an application was made for confirmation of a transaction of exchange b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under s. 115-Civil Procedure Code; it has been tried by the High Court under the amended s. 29(2) of the Rents, Rates Control Act. Indira Sohanlal's case([1955] 2 S.C.R. 1117) has made a departure from what was apparently a settled rule. The question in this case is whether the rule in Colonial Sugar Refining Company's case([1905] A.C. 369) will apply, or the exception engrafted upon the rule by the judgment in Indira Sohanlal's case(1) will apply. We direct that this case be placed before a larger Bench. It will be open to the parties to argue such other points as arise out of the order of the High Court, but subject to the restrictions imposed by the order granting rule. The Judgment of the Court was delivered by Shah J. The respondents sued the appellant for a decree in ejectment in respect of shop Municipal Census No. 1754 at Ahmedabad and for rent in arrears and additional taxes. The trial court dismissed the claim for ejectment and passed a decree for arrears of rent and permitted increases. In appeal under S. 29 of the Bombay Rents, Hotel and Lodging House Rate,, Control Act 57 of 1947, the decree was confirmed on February 25, 1963 By S. 29(2) of that Act, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its jurisdiction. Thereafter the Gujarat Legislature amended s. 29(2) by Act 18 of 1965 in the manner set out, so as to confer upon the High Court a jurisdiction wider than the jurisdiction exercisable under s. 115 of the Code of Civil Procedure. Counsel for the appellant contended that in entering upon an enquiry into the questions raised by the respondent, the High Court exercised jurisdiction which it did not possess. Counsel contended that the right to appeal-and which expression includes the right to move a superior court in exercise of the revisional jurisdiction-attaches to a litigation when it commences and it is not affected by any subsequent amendment unless an express provision is made giving retrospective operation to the amendment and that the right to appeal which originally attached to the litigation will continue to govern it till it is finally decided. Counsel relied in support of that contention upon the decisions in Colonial Sugar Subbiah Choudhurt([1957] S.C.R. 488); and Nana Bin Aba v. Sheku Bin Andu(I.L.R. 32 Bom. 337). In the alternative counsel contended that the order of the appellate court which had acquired finality, subject to the exercise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Singh's case(3) 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 s. 58(3) retrospective operation, the finality of the previous order could not be taken away. Counsel for the respondent relied upon a judgment of this Court in Moti Ram v. Suraj Bhan and Others( [1960]2S.C.R.896) in which following lndira Sohanlal's case ([1955] 2 S.C.R. 1117) it was held that the High Court could in exercise of jurisdiction under an Amending Act enacted after the litigation was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion whether the High Court could in exercise of its jurisdiction set aside, modify or after the decision of the appellate, court was not a matter of proce- dure. The order of the appellate court, subject to scrutiny by the High Court within the limited field permitted by S. 115 of the Code of Civil Procedure, 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. Counsel for the respondent also submitted that s. 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 S. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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