Daivanayaga Reddiar and Others vs Renukambal Ammal

The respondent''s vakil takes the preliminary objection that the appeal does not lie to the High Court but to the District Court. The plaintiff, a

widow, claimed maintenance at the rate of Rs. 100 a month including value of cloths, etc., and valued her claim in the plaint at ten times the amount

payable for the year u/s 7, Clause (2) of the Court-fees Act. She also claimed past maintenance and a house to reside in. The total value of her

claim according to the plaint is Rs. 14,600. The Subordinate Judge of Cuddalore gave her a decree for maintenance at Rs. 60 a month together

with past maintenance. He also decreed thatshe should be given possession of a house for her residence during her life. The defendants have

preferred this appeal against the decree of the Subordinate Judge. In their appeal they have valued the relief for maintenance at the amount allowed

for one year under the Court-fees Amendment Act, Section 5. The total value of the appeal together with the past maintenance and the value of the

house is Rs. 2,633-5-4. The respondent''s vakil contends that though the suit was valued at more than Rs. 5,000 under the law in force at the time

of the filing of the plaint, yet the valuation of the suit according to the amended Court-fees Act at the time the appeal was presented would have

been less than Rs. 3,000 and therefore the appeal to this Court is incompetent. But for the amendment of the Court-Fees Act the appeal would

have been valued at Rs. 14,600, as in the plaint. It is admitted that the monetary jurisdiction of the Court is determined by the value of the claim in

the plaint and not by the value of the relief decreed. u/s 13, Madras Civil Courts Act 3 of 1873:

when the amount or value of the subject-matter of the suit exceeds Rs. 5,000 the appeal shall lie to the High Court.

It is urged that the subsequent change in the law as to valuation makes the value of the relief in the plaint less than Rs. 5,000 and therefore the

appeal lies only to the District Court, and reliance is placed for this contention upon two recent decisions of this Court in A. S. No. 32 of 1924 and

in A. S. No. 415 of 1923.

In A. S. No. 32 of 1924 Ramesam and Jackson, JJ., held that the appeal lay to the High Court against the decree in a. suit in which the relief

claimed was valued at less than Rs. 5,000 according to the Court-fees Act before its amendment by the Madras Act 5 of 1922 but which had to

be valued at more than Rs. 5,000 under the amended Act. The learned Judges relied upon Muthammal v. Chinnana Goundan [1882] 4 Mad. 220

and the proceedings of the High Court in 5 M. H. C. R., 44. This case is converse to the present one. The point now raised was decided in A. S.

No. 415 of 1923 which was also a suit for maintenance and Phillips and Odgers, JJ., held following the decision in A. S. No. 32 of 1924 that the

appeal did not lie to the High Court as according to the valuation under the amended Court-fees Act the relief claimed in the plaint was less than

Rs. 5,000. In 4 Mad. 220 [1882] 4 Mad. 220 the plaintiff sued to recover one eighth of a mitta and obtained a decree. The defendant resisted the

execution of the decree and claimed to be in possession of the lands as purchaser at a Court sale in execution of another decree. His objection was

disallowed by the District Munsif and on appeal the District Judge upheld the decision of the District Munsif. The High Court set aside the order of

the District Munsif and the District Judge and the petition was registered as a suit under the directions of the High Court. The District Munsif gave a

judgment in favour of the defendant. The plaintiff appealed to the High Court. The first ground of appeal was that the District Munsif had no

jurisdiction because the value of the property in dispute was Rs. 9,000. A preliminary objection was taken by the respondent that no appeal lay to

the High Court. Kindersley and Muthuswami Ayyar, JJ., overruled the objection and observed:

We think that the subject-matter in appeal should be valued for the purpose of jurisdiction according to the law in force at the date of the appeal

and not of the suit which led to it.

They held that according to the law in force at the date of the appeal, the subject-matter of the suit exceeded Rs. 5,000 in value and therefore

whether the District Munsif had or had not jurisdiction the appeal lay to the High Court. By proceedings, dated the 15th November 1870, the High

Court gave this ruling:

The High Court are of opinion that the valuation of an appeal must be according to the Act in force at the time of its presentation, and that the

original valuation under a law obsolete at the period of appeal can have no influence on the decision, 5 M. H. C. R. 44.

We should have felt bound to follow the decision in 4 Mad. 220 [1882] 4 Mad. 220 and the two recent decisions in A. S. No. 32 of 1924 and

A. S. No. 415 of 1923, but for the high authority of Lord Macnaghten who delivered the judgment of their Lordships of the Privy Council in

Colonial Sugar Refining Company v. Irving [1905] A. C. 369 In that case an appeal was presented to the Privy Council against the decision of the

Supreme Court of Queensland. During the pendency of the suit in the Supreme Court, the Judiciary Act of 1903 was passed and by Section 39,

Sub-section 2, the right of appeal to the Privy Council from the decisions of the Supreme Court was taken away but a right of appeal was given

from the Supreme Court to the High Court of Australia. The respondent moved the Privy Council by a petition to have the appeal dismissed on the

ground that the appeal did not lie as of right to the King in Council. Their Lordships rejected the petition holding that the matter was not one of

procedure only but one touching a right in existence at the passing of the Act and that the Judiciary Act was not retrospective by express

enactment or by necessary intendment. Lord Macnaghten observed:

The only question is, was the appeal to His Majesty in Council a right vested in the appellant at the date of the passing of the Act, or was it a mere

matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to

a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no

difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing

rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is

manifested.

It does not appear that this decision was brought to the notice of the learned Judges who decided the two appeals in A. S. No. 415 of 1923

and A. S. No. 32 of 1924.

An appeal to a certain forum is a vested right. It cannot be denied that an appeal to the High Court on facts is considered to be a very valuable

right and it cannot be taken away except by an express statute. The present suit was valued at more than Rs. 5,000 and if the suit was decided on

the date it was filed, namely, 21st March 1921, there would have been no question as to the maintainability of the appeal in the High Court. The

Court-fees Act is only a fiscal enactment and in most cases the valuation for purposes of jurisdiction is the same as that for purposes of Court-fees.

The jurisdiction value determines the forum for the appeal and the right of appeal to the High Court, which either party to the suit had on the date

of the plaint and sometime after cannot be taken away by an enactment which amends some of the provisions of the Court- Fees Act for the

purpose of charging Court-fees. As the decisions in A. S. No. 32 of 1924 and in A. S. No. 415 of 1923 are not reconcilable with the

observations of their Lordships of the Privy Council in 1905 A. C. 369 to which the attention of the learned Judges does not seem to have been

directed and as the point is of considerable importance and is likely to arise in many cases, we refer the following question to the Full Bench:

Does the appeal against the decree in a suit in which the valuation of the relief claimed according to the law in force at the date of the plaint was

more than Rs. 5,000, but at the time of the appeal is less than Rs. 5,000 owing to the amendment of the Court Fees Act, lie to the High Court or

to the District Court.

Opinion.

The question that has been referred for decision is:

Does the appeal against the decree in a suit in which the valuation of the relief claimed according to the law in force at the date of the plaint was

more than Rs. 5,000, but at the time of the appeal is less than Rs. 5.000 owing to the amendment of the Court-fees Act, lie to the High Court or to

the District Court.

This question has been referred to us because there are two unreported decisions of this Court which hold that the valuation must be determined

according to the amended Act and, according to that valuation, the appeal will lie either in the High Court or in the District Court. In neither of

these cases was any reference made to the decision of the Privy Council in a case from Queensland, Colonial Sugar Refining v. Irving [1905] A.

C. 369 In that case in certain suits a right of appeal to the Privy Council was given by an Ordinance of 1860. Subsequently by the Judiciary Act of

1903 the decision in those suits was held to be final subject to an appeal to the High Court of Australia. The question for decision was whether in a

suit filed before the passing of the Judiciary Act of 1903 the appeal still lay to the Privy Council or to the High Court in Australia, and it was held

that the new enactment could not take away a vested right, unless in express terms it had retrospective effect. The remarks of Lord Macnaghten in

his judgment are entirely applicable to the present case:

To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating

procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal.

This clearly disposes of the point before us, for the question is whether the amendment of the Court-fees Act which came into force after the

present suit was filed would deprive the plaintiff of a right of appeal to this Court which he had when he filed the suit. u/s 13, Civil Courts Act,

appeals from subordinate Courts lie either to the District Court or to the High Court, according to whether the value of the subject-matter of the

suit is over or below Rs. 5,000. It is argued that this section does not confer any right of appeal to the High Court in definite classes of suits, but

that the right of appeal is merely given to the Court authorized to hear appeals and the question of whether that Court is the District Court or the

High Court depends on the valuation of the suit at the time of filing the appeal. It is difficult to treat this argument as in any way distinguishing the

case from that in 1905 A. C. 369 for in both cases there was, when the suit was filed, a vested right of appeal to a particular tribunal, which is

taken away by a subsequent enactment. According to the argument, when the right is taken away by a subsequent alteration in a mere fiscal

enactment, the case is not the same as when the right depends on substantive law. This is untenable. It has been held by the Privy Council that this

cannot be done and we are bound by that general expression of the law and must follow it. We may also refer to a case decided in 1869:

Ratanchand Shrichand v. Hanmantrav Shivbakas 6 B. H. C. A. C. 166 where the same principle was enunciated.

Respondent relies on some observations in Canada Cement Co. v. East Montreal (Town of) [1922] 1 A. C. 249 These observations do seem

to give some support to the contention that a right of appeal can be taken away by a subsequent enactment, but there is no decision to that effect

and no reference whatever to the previous decision of the Court in 1905 A. C. 369. The observation is obiter and can, therefore, have no force as

against the prior decision which we must follow.

The answer to the question before us may also be put upon another ground and that is that the forum of appeal from a Subordinate Judge''s

Court depends on the value of the subject-matter of, the suit. Presumably the value of the subject- matter of the suit is its value at the time of filing.

Such value has to be set forth in the plaint and Court-fees paid accordingly. It is, however, contended that the value various according to the

particular enactment in force at the time; and that, although it may have a particular value when it is filed, the value of the suit can be changed if the

law in respect of valuation is altered. This contention was distinctly negatived so long ago as 1874 in Muthusami Pillai v. Muthu Chidambara Chetti

7 M. H. C. R. 356 7 Mad. H. C. R. 356 where it was held that it is the money value of the original suit that fixes the jurisdiction throughout the

subsequent litigation in its several stages. If this is so, the value of the subject-matter of the suit is the same throughout and it cannot be altered after

the decree has been passed simply by an alteration in a fiscal enactment. To hold otherwise would lead to very great difficulties in the question of

jurisdiction. A suit which when filed was within the jurisdiction of the District Munsif might subsequently become one which must necessarily be

filed in a Subordinate Court or vice versa. For both these reasons, therefore, we hold that in the suit referred to, the appeal lies to the High Court.