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1958 (3) TMI 81

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..... re 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 the respondents. On April 22, 1948, the Rulers of Gwalior, Indore and certain other States in the region known as Malwa (Madhva-Bharat) entered into a Covenant to unite and integrate their territories in one State with a common executive, legislature and judiciary, by the name of the -United State of Gwalior, Indore and Malwa (Madhya-Bharat) and to include in that United State any other State the Ruler of which later agreed with the approval of the Government of India, to merge his State in the United 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 Gwalio .....

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..... , prescribed July 29, 1948, as such date. On Ordinance No. 2 of 1948 so coming into force on July 29, 1948, the High Court of the State of Indore ceased to function from that date. Section 35 of the Ordinance provided that on the taking over of the administration of any State by the Raj Pramukh its High Court would cease to exist and all cases pending before it would be 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 not then come into existence. To remedy this anomaly, on October 16, 1948, the Raj Pramukh promulgated Ordinance No. 14 of 1948. This Ordinance replaced s. 35 in Ordinance 2 of 1948 by a new section and provided that it would be deemed to have always been so replaced. The new section provided that in the case of any State whos .....

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..... d 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 decree or an appealable order passed by the Divisional Bench of two Judges of the High Court in the exercise of extraordinary or appellate civil jurisdiction. On March 31, 1949, the appellant filed an appeal to the Full Bench of the High Court from the judgment of the -Divisional Bench dismissing his suit. He claimed to be entitled to file this appeal under s. 25 of the Act. The Full Bench dismissed the appeal on the ground that s. 25 was not available to the appellant and in this view of the matter 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 ho .....

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..... do not refer to proceeding arising in a Princely State for the Princely State had ceased to exist after its inclusion in the United State and no proceeding could arise therein 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 proceeding arising in the areas of the erstwhile Indore State after the inclusion of that State in the United State for it was filed after such inclusion. It is therefore clearly a proceeding of the second kind mentioned in s. 2(b). The learned Judges of the High Court however did not, as earlier stated, accept the appellant s contention that s. 25 gave a right of appeal to the Full Bench from the judgment of the Divisional Bench passed in a proceeding mentioned in s. 2(b). Their reasons for this view would appear broadly .....

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..... nder (1901) A.C. 297). We may usefully read here what Bowen L. J. said in Reid v. Reid (L.R. (1886) 31 Ch. D. 402.408.): 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 wellknown trite maxim ominis nova constitution futuris forman 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.- We wish to emphasise that it is not as if all 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 the Act has come into force. But there is s. 2 (b). That section says that the Act shall apply to all civil and criminal proceedings pending i .....

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..... 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 ascertain what the legislature meant to enact in their room and stead, observed at p. 267: ...... the circumstances of the present case put it beyond the mischief Lord Watson was minded to discourage, and that for two reasons. In the first place, the terms of the section as it now stands are sufficiently difficult and ambiguous to justify the consideration of its evolution in the statute-book as a proper and logical course; and secondly, the object of the instant enquiry is to ascertain 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 an .....

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..... rring to the cases which were -pending on that day and which had not been finally decided and determined before the Act had come into force. This contention is sought to be justified on the principle 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 . 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 Act comes into force . The rule of presumption against the retrospective operation does not require the addition of any words to a section otherwise plain. We recall here, what we have said earlier, that the rule applies only where the words are not plain or are capable of two meanings. It does not justify subtlety in adding words to the section to make the rule applicable. It .....

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