TMI Blog1957 (1) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government have framed a rule authorising the imposition of a tax on circumstances and property by a District Board, provided that the total amount of this tax does not exceed a sum of Rs. 2,000/-. Acting under the said rule, the District Board, Muzaffarnagar, assessed the plaintiff to a tax of Rs. 2,000/- for the years 1942-43, 1943-44 and 1944-45. Rs. 2,000/-. is the maximum amount of tax leviable under the said rule. The taxes for these years were paid by the plaintiff under protest. Subsequently, on the 18th of August, 1945, the plaintiff filed the present suit for declaration and injunction. The case of the plaintiff as set out in the plaint, was that in order to implement the provisions of Section 142 of the Government of India Act, the Central Legislature had passed the Professions Tax Limitation Act (Act No. 20 of 1941). By Section 2 of the said Act the District Board was prohibited from realising any tax on professions, trades, callings or employments exceeding a sum of Rs. 50/- per annum after the commencement of the said Act. The Professions Tax Limitation Act, 1941 (Act No. 20 of 1941) came into force on the 26th November, 1941, The case of the plaintiff was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of a tax on circumstances and property imposed under the U. P. Municipalities Act U. P. Act No. II of 1916). Further, Section 3 of the Amending Act gave retrospective effect to this amendment and provided as follows:-- Notwithstanding anything to the contrary in any other law for the time being in force,-- (i) no tax on circumstances and property imposed before the commencement of this Act under Clause (ix) of Sub-section (1) of Section 128 of the United Provinces Municipalities Act, 1916 (U. P. Act II of 1916), or Clause (b) of Section 108 of the United Provinces District Boards Act, 1922, (U. P. Act X of 1922), shall be deemed to be, or ever to have been invalid merely on the ground that the tax imposed exceeded the limit of fifty rupees per annum prescribed by the said Act and the validity of the imposition of any such tax shall not be called in question in any Court; and (ii) no Court shall entertain any claim for the refund of any portion of the tax referred to in Clause (1), merely on ground that such portion is in excess of the limit referred to therein or enforce any decree or order directing the refund on that ground of any portion of such tax, Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent. He has, however, argued that because a decree has been passed by the trial court, therefore, the appellate court has no jurisdiction to fake note of an event that happened subsequently, and give effect to the modification in law that has been brought about after the passing of the decree. I find if it difficult to accept this argument. The learned counsel for the respondent has been unable to point any provision in the Code of Civil Procedure which would prohibit the appellate court from taking note of subsequent events in a situation like this. On the other hand, there are provisions in the Code of Civil Procedure which would indicate that the powers of the appellate court are of the widest possible character. Section 107 of the Code of Civil Procedure lays down that subject to the restrictions laid down therein, the appellate court would have the same powers and perform as nearly as may be, the same duties as are conferred and imposed by that Code on Courts of original jurisdiction in respect of suits instituted therein. Order 41, Rule 33, C. P. C. further provides as follows:-- The Appellate Court shall have power to pass any decree and make any order which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The effect of what may be termed as this deeming provision is to engraft the amendments in the original Act itself, and to make them a part and parcel of the same. Their Lordships of the Supreme Court had occasion to comment on the effect of such a provision of law in State of Bombay v. Pandurang Vinayak 1953CriLJ1049 . In that case it was held that: When statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be Carried to its logical conclusions . (head-note). If the Legislature enacted that the amendment should become a part of the original Act, it necessarily follows that the Legislature wanted that the retrospective effect of the Amending Act should begin from the date of the original Act itself. The result, therefore, of not applying it to the pending proceedings would be to exempt from the operation of the original Act, as amended by the Amending Act, cases in which proceedings were pending in a court of law. To ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... municipal or district boards from the operation of Section 2 of that Act and to validate the imposition thereof before the commencement of this Act ; It is hereby enacted as follows:--It is, therefore, clear that the very purpose of the Amending Act was to get over interpretation which had been placed on Section 2 of the main Act by courts of law in cases decided by them. After reciting, the said object, the Amending Act states that its provisions shall be deemed to have been inserted in the original Act so as to have retrospective effect. It appears, therefore, that the object of the Act cannot be fully carried out unless it is applied to all cases whether proceedings in respect of them were pending in a court of law at the trial stage or at the appellate stage. 8. In this connection the observation made by their Lordships of the Supreme Court in a case reported in Shyabuddinsab Mohidinsabakki v. Gadag-Betgeri Municipal Borough [1955]1SCR1268 , are strictly relevant. In that case also the Amending Act contained a clause which may be described as a deeming clause. This deeming clause gave retrospective effect to the Amending Act, It was, however argued before their Lordships ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral orders governing the procedure of appellate Courts in England, a proceeding by way of appeal is in the nature of a re-hearing. The same principle seems to have been accepted in America also in the case of Gulf, Colorado and Santa Fe Ry. Co. v. W. R. Dennis (1911) 56 LEd. 860 (I). The following observations of Chief Justice Marshall were cited with approval in the said case:-- It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the Jaw must be obeyed or its obligation denied. .......... .In such a case the court must decide according to existing law; and if it be necessary to Bet aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside. (P. 862) 11. In an Australian case reported in The Victorian Stevedoring and General Contracting Co. Proprietary Ltd. v. Dignan 1931 W LR 73 (J), a contrary view appears to have been taken. That was a case in which an accused had been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same. The decree marks the culmination of the entire proceedings in a case, and a challenge of a decree by party embraces within its range not merely, the judgment on which the decree is founded, but the entire gamut of proceedings which have led up to it. The grounds of appeal may thus relate not only to the findings in the judgment, but also to any interlocutory order passed in the case or any proceedings taken therein. It may, for example, relate to an interlocutory order refusing to frame an issue, or rejecting a prayer to admit additional evidence, or to amend the plaint, or to implead a party or to adjourn the case and so on. Section 105(1) C. P. Code bars appeals from orders unless expressly provided otherwise, and lays down that where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Section 99, C. P., Code is not in conflict with Section 105, as the latter relates to matters not affecting the merits of the case, and the former relates to matters affecting the merits of the case, or the jurisdiction of the Court. Under Section 96, C. P. Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Part VII would govern second appeals as well and Section 100, therefore, provides a restriction to the general power. It is also significant in this connection to note that Order 41, Rule 2, provides that the appellate court may give leave to the appellant to urge before it points not taken in the memorandum of appeal, and that, so far as its own powers are concerned, in deciding the appeal it is not confined to the points set forth in the memorandum of appeal. 14. An appellate court possesses power to transpose and substitute parties (vide Order 1, Rule 10, and Order 22, Rules 3, 4, and 11). Under the old Code it was doubtful whether its provisions corresponding to Order 1, Rule 10 of the present Code were applicable to appeals. The amendment made under the new Code has, however, clarified this position with a view to make it applicable to appeals. The appellate court has also power to pass all such interlocutory orders as are necessary, in the ends of justice. It can issue an order of temporary injunction. It can pass an order appointing a reliver. It can stay proceedings in the lower court and so on. An appellate court also possesses the power to allow withdrawal of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case, and further direct what issue or issues shall be tried in the suit so remanded, where the case has been disposed o on a preliminary point by the lower court. Order 41, Rule 24 lays down that where the evidence upon the record is sufficient to enable the appellate court to pronounce judgment the appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate court proceeds. Order 41, Rule 25 empowers the Appellate Court to frame issues, if necessary, for the determination of such question of facts as the lower court has omitted to determine. It also enables the Appellate Court to direct the lower Court to take additional evidence and to send it along with its findings to the Appellate Court. Order 41, Rule 26 provides that the findings of the lower court and the evidence taken by it shall form part of the record in the suit, and either party may, within a time to be fixed by the Appellate Court, file objections to it. Order 41, Rule 27, specifies the circumstances in which the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of revision, the powers can only be exercised by the High Court, and the power of interference is confined to the limited question of jurisdiction. The power can be exercised only over the courts subordinate to the High Court. The relief cannot be claimed as of right by a party, and its grant is discretionary with the court The strictly limited nature of the scope of these proceeding stands in marked contrast with wide scope of the proceeding styled as appeal in Indian Law. 17. On behalf of the respondent reliance is also placed on Clause 14 of the Letters Patent which lays down that the law of equity and the rule of good conscience to be applied by the High Court of Judicature at Allahabad to a case coming before it in exercise of its appellate jurisdiction shall be the law or equity and rule of good conscience which the Court in which the proceedings in such case were originally instituted ought to have applied to such case . In my opinion, this provision does not bar the High Court from giving effect to a subsequent modification of law. It merely says that the law to be applied by the High Court is to be the, law which to original court ought to have applied, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court reported in District Board of Farrukhabad v. Prag Dutt AIR1948All382 . I, however, find myself unable to accept this argument. This argument seems to ignore the proviso which is appended to Article 276 of the Constitution. According to this proviso, the limit of Rs. 250/-per annum imposed under the main para of Article 276(2) can be exceeded, provided that in the financial year immediately preceding the commencement of the Constitution there was in force in the case of any Board a tax of such a nature which exceeded Rs. 250/- per annum. This proviso would apply to the present case. The effect of the present case falling within the proviso would be that it would be saved from the bar which is imposed by the main para of Article 276. 20. Lastly, it was argued on behalf of the respondent that the rule authorising the imposition of tax on circumstances and property up to the maximum amount of Rs. 2,000/- is an infringement of Article 19(d) of the Constitution of India. In this connection it was argued that the imposition of this tax constitutes an unreasonable restriction on the right to carry on a trade or business. Whether a restriction of this nature is unreasonable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat though it was passed on 28-12-1949 it may be deemed to have been passed in 1941, but it does not follow that all transactions closed and all decrees passed prior to its enactment on the basis of the law in force in 1941 are to be reopened and re-decided in the light of its provisions. If the old law. had already been applied, with the necessary result that no question of applying it arises any more, its repeal and substitution by a new law even with effect from the date on which the old law was passed does not nullify the result of its application. The results of its application would have been nullified only if the new law contained a provision not only that it was deemed to have always been in force but also that all decrees and closed transactions would be liable to be reopened. A law affecting substantive rights is not presumed to have retrospective effect, and as a corollary, a law cannot be presumed to be more retrospective than it expressly or impliedly purports to be. If a suit is dismissed on the ground that the plaintiff is not tinder the law entitled to the relief asked for and he prefers an appeal, during the pendency of which the law is amended and now confers u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1949. If the trial court had dismissed the suit (erroneously), in the face of the Amendment Act it would have been open to us to decree it because when we read the Act of 1941 at the time of deciding the appeal, we would be bound to read it as if the limit of Rs. 50/- never existed there. But we are being asked not to decree the suit but to set aside the decree already passed correctly. There is nothing in the Amendment Act to suggest that we can do this. It may be that the decree cannot be executed, now, but this does not amount to the Legislature's intending that the appellate court must amend the decree so as to be in conformity with the Amendment Act even though it was passed correctly prior to 28-12-1949. 23. As regards the jurisdiction of an appellate court I find that Clause 14 of the Letters Patent lays down that the law to be applied by this Court in the exercise of its appellate jurisdiction shall be the law....... which the Court in which the proceedings in such case were originally instituted ought to have applied to such case. The law that was required to be applied by the trial Court was the law that was in force prior to the enactment of the Amendment Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree shall not be reversed merely on account of any misjoinder of parties or causes of action or of any error, defect or irregularity in the proceedings suggests that the nature of the proceeding before an appellate Court is not the same as that of a proceeding before a trial Court. A trial Court is bound to correct the error of defect in the proceeding. If the proceeding before an Appellate Court were in the nature of a fresh or second hearing, it would also have been bound to correct the defect or error in the procedure and then re-decide the matter. But since it is forbidden to reverse a decree merely on the ground of such an error or defect as is mentioned in Section 99, it means that what it has to see is the correctness or legality of the decree and is not so much concerned with the procedure as the trial Court would have been. There is nothing in the provision of Section 107 describing the powers of an appellate Court to suggest that it has to re-hear the whole matter and not merely to see whether that decree of the lower Court was correct and legal. The provisions of Sub-section (2) lend no support whatsoever to the contention that an appellate Court can reverse a decree ..... X X X X Extracts X X X X X X X X Extracts X X X X
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