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Gulab Chand Versus Kudilal

C.A. 230 O 1953 - Dated:- 28-3-1958 - Das Sudhi Ranjan , aiyyar t.l. Venkatarama, Das S.K., Sarkar A.K. And Bose Vivian, JJ. JUDGMENT: N.C Chatterjee, S. C. Isaacs, J. D. Patel, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant. M. P. Amin, C. B. Sanghi and 1. N. Shroff, for the respondents. Sarkar T.- The Princely States that existed in British India, merged themselves in the Union of India not very long after India became independent. Before the merger some of these States p .....

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as vested. The highest court in Indore was called the High Court. The suit out of which this appeal arises was filed by the appellant against the respondents in the Indore High Court on November 6, 1947. It, was a suit for the specific performance of an agreement whereby it is said, Govindram Sakstria, whose heirs and legal representatives the respondents are, agreed to sell to the appellant a share in a business. The said Govindram Saksaria having died prior to the suit it was brought against t .....

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nited State. Article 3 of the Covenant provided for the constitution of a Council of Rulers one of the members of which was to be its President, such President being called the Rajpramukh. It also provided that the Ruler of Gwalior would be the first Raj Pramukh of the United State. Under art. 6 of the Covenant, the Ruler of each covenanting State was required to make over the administration of his State to the Raj Pramukh by a date not later than July 1, 1948. This article also provided that up .....

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uld be formed in the manner indicated, for framing its Constitution and that the Raj Pramukh would by August 1, 1948, constitute an interim Legislative Assembly. It also provided that until the Constitution framed by the Constituent Assembly came into operation, the Raj Pramukh would have the power to make and promulgate Ordinances for the peace and good Government of the United State but such Ordinances would have force for a period not longer than six months from its promulgation and would be .....

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t was five days after this judgment had been pronounced, namely, on June 16, 1948, that the Ruler of Indore made over the administration of his State to the Raj Pramukh of the United State in terms of the Covenant. It appears, however, that the High Court of Indore continued functioning even thereafter. On June 19, 1948, the Raj Pramukh promulgated Ordinance No. 2 of 1948 to provide for the establishment of a -High Court for the United State. Section. 2 of the Ordinance provided that it would co .....

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transferred to the High Court of the United State established by the Ordinance. The provisions of this section were found to be anomalous in the cases of States like Indore, where the administration had been taken over sometime before the Ordinance had come into force and the High Court under it established, for in regard to these States the cases pending in the State High Courts could not on the dates their administration was taken over, be transferred to the United State High Court as it had n .....

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function from the date of such establishment and thereupon all cases pending before the High Court of the State would be transferred to the High Court of the United State and the appeals which would have lain to the High Court of the State would lie to the High Court of the United State. Before Ordinance No. 14 of 1948 had been promulgated, the respondents on August 24, 1948, preferred an appeal to the -Divisional bench of the High Court of the United State from the decision of the High Court of .....

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949, hereafter referred to as the Act. It was enacted by the Interim Legislative Assembly of the United State which had earlier come into existence. The Act came into force on January 18, 1949. Section 40 of this Act repealed Ordinance No. 2 of 1948. The question that arises in this appeal depends on the construction of some of the provisions of this Act which are now set out. Preamble: Whereas it is necessary to provide for the continuance of the High Court of Judicature for the United State of .....

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ion in the Covenanting States forming part of the said United State had jurisdiction. (b) This Act shall apply to all Criminal and Civil Proceedings including those under testamentary, intestate, matrimonial, divorce and insolvency jurisdiction, pending in the Courts in any State on the (late on which the State is included in the United State and to such proceedings, arising in the said States,after those dates. S.25. Special appeal shall lie to the Full Bench of the High Court from :- (1) a dec .....

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r it did not go into the merits of the appellant s case. It appears that another Full Bench of the High Court consisting of three Judges had held on an earlier occasion that s. 25 did not apply where the Divisional Bench had delivered its judgment before the Act had come into force and no appeal Jay from such a judgment under this section. That view was endorsed by the judgment of the later Full Bench which however was larger consisting of five Judges. In the present appeal to this Court, the co .....

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ng and therefore his appeal was competent. The High Court does not appear to have held that that proceeding was not of any of the kinds mentioned in s. 2(b) and it seems to us that it was of one of these kinds. Section 2(b) mentions two kinds of proceedings, namely, first those pending in the Courts in any State on the date on which that State was included in the United, State and secondly those which arose in the States after those dates. Now the proceeding in which the Divisional Bench pronoun .....

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difference for an appeal being only a continuation of the proceedings in a suit, the proceedings must be deemed to have been pending all along since the filing of the suit and therefore on the date when Indore was included in the United State though the appeal was filed later. Dinonath Ghose v. Shama Bibi (1900) I.L.R. 28 Cal. 23) to which we were referred would seem to support the appellant s contention. In any case it seems beyond doubt that the appeal in which the judgment of the Divisional B .....

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erein after such inclusion. So to understand these would result in this part of s. 2(b) being rendered nugatory. We do not think,. however such a result is inevitable. These words can well be taken to refer to a proceeding arising in the areas of an erstwhile Princely State subsequently included in the United State. We think that to be the proper meaning to be given to these words. So understood the appeal in which the judgment of the Divisional Bench, dated December 2, 1948, was given was a pro .....

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iew would appear broadly to be these: To accede to the appellant s contention a retrospective operation would have to be given to the Act and thereby affect the right vested in the respondents at the date of the passing of the Act to the finality of the judgment of the Divisional Bench delivered before that date; the rules of construction of a statute required that only such retrospective operation should be given to it as its language compelled; there was no such language used in s. 2(b), which .....

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. It may be conceded that the judgment of the Divisional Bench was final under the law as it stood at the date it was passed and no appeal lay from it before the Act came into force. The respondents had therefore at the date of the Act a vested right to the finality of this judgment. It is also clear that a right to the finality of a judgment is a substantive right and that the acceptance of the appellant s contention would result in depriving the respondents of such a right. The only question i .....

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ve retrospective operation is only applicable where it is doubtful from the language used whether or not, it was intended to have such operation. Where the language of a statute plainly gives it a retrospective operation, the rule has no application, for, " Of course, it is obviously competent for the Legislature, if it pleases, in its wisdom to make the provisions of an Act of Parliament retrospective ": Smith v. Callander (1901) A.C. 297). We may usefully read here what Bowen L. J. s .....

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ll efforts should be made so as not to give a statute a retrospective operation whatever its language is. The rule does not require of the courts an " obdurate persistence " in refusing to give a statute retrospective operation. Now, what is the language of the Act before us Section 25 does not contain any words to show that it was intended to have retrospective operation. It only provides for the future. It gives a new right of appeal and such appeal can of course only be filed after .....

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right of appeal is made applicable to a proceeding ? It can only be that an appeal would lie under that section from a judgment passed in that proceeding. It is, in our view, clear that the language of s. 2(b) applies s. 25 to a proceeding which was pending on a date before the Act came into force, and therefore gives a right of appeal from a judgment of a Divisional Bench passed in that proceeding, whenever it may have been passed, that is to say, irrespective of whether it was passed before t .....

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eal effect of s. 2(b) is clear because it is put along with 2(a) which only specifies the territories and the persons over whom the High Court having authority under the Act is to have jurisdiction. It seems to us, however, that whether a section only creates jurisdiction or not will depend on its language and not on its proximity to another section of the same statute defining jurisdiction. Then it is said that the Act repealed and substantially re-enacted Ordinance No. 2 of 1948 and as the cor .....

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was not justified. One of the cases on which the learned Judges of the High Court based themselves is Tumahole Bereng v. The King ((1949) A.C. 253). There the Judicial Committee were dealing with a statute only a part of which had been amended and after reminding themselves of the wisdom of the warning given by Lord Watson in Bradlaugh v. Clarke (1883) 8 App. Cas. 354) that it is " an extremely hazardous proceeding to refer to provisions which have been absolutely repealed, in order to asc .....

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the true meaning of that part of the section which remains as it was, and which there is no ground for thinking the substitution of a new proviso was intended to alter. " In the case before us the language admits of no difficultyit is simple and it applies all the sections of the Act to certain proceedings and as one of these sections at least, namely, s. 25, is new, clearly a change in the law was intended. We do not wish to suggest that the circumstances which would justify a reference t .....

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s are plainly wide and require definition. The Judicial Committee referred to the earlier law on the subject to find out what that general expression was intended to include. This case does not justify a resort to the old law by us, for here we have no general words as to the meaning of which difficulty has arisen. The last case on which the High Court based itself for this part of it,-, judgment to which we wish to refer was In re Mayfair Property Co. There the contention was that a certain int .....

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(b) of the Ordinance provides no assistance in interpreting s. 2(b) of the Act. Section 4(b) of the Ordinance was not concerned with applying to any case another provision in it giving a right of appeal which s. 2(b) of the Act clearly is What we have to decide is, in what cases that right of appeal was given and for that purpose plainly s. 4(b) of the Ordinance can afford no assistance as it was not concerned with any such right of appeal. It is then said that sufficient meaning would be given .....

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trospective, than you can plainly see the Legislature meant ". See Reid v. Reid (L.R. (1886) 31 Ch. D- 402,408). Now it seems to us that the principle has no application here. There is nothing in the section to indicate that the legislature intended the retrospective operation of s. 25 to be confined to those pending cases which had not terminated before the Act had come into force. Such a construction would require adding to the section the words " and not finally decided before the A .....

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