Ismail Ariff vs S.J. Leslie and. Sons

Maclean, C.J.—The only question to be decided in this appeal is whether the Plaintiffs are entitled to their costs of the suit. The suit is one by a firm of attorneys against their client to recover the balance of their bill of costs. The amount recovered is under 2,000 Rupees but over 1,000 Rupees. It is contended for the appellant, having regard to section 22 of the Small Cause Courts Act (XV of 1882), that the Plaintiffs'' costs ought not to be allowed. That section, so far as is material, is as follows :

If any suit cognizable by the Small Cause Court, other than a suit to which sec. 21 applies, is instituted in the High Court, and if in such suit the Plaintiff obtains, in the case of a suit founded on contract, a decree for any matter of an amount or value less than two thousand Rupees, and in the case of any other suit, a decree for any matter of an amount or value of less than three hundred Rupees, no costs shall be allowed to the Plaintiff." The foregoing rules shall not apply to any suit in which the Judge, who tries the same, certifies that it was one fit to be brought in the High Court. In the Court below the learned Judge allowed the costs, but did not certify that he suit was one fit to be brought in the High Court. He treated the matter of costs as one for the exercise of his judicial discretion.

If the matter rested only on the above section it would be clear that the plaintiff could not be allowed his costs in the absence of any such certificate.

The difficulty arises from section 11 of the Presidency Small Cause Courts Act, No. I of 1895, which camel into operation on the 1st April 1895. This substitutes the words "one thousand," for "two thousand" in Section 22, above referred to. In the opinion of the learned Judge in the Court below, as the suit had been commenced before the amending Act, the Plaintiffs could not be allowed their costs unless in his discretion he allowed them.

What is the effect of sec. II of the repealing Act upon section 22 of the Act of 1882 ? It repeals, pro tanto, the provision as to amount in the old Act, but there is no provision that it should be retrospective in its operation. It is urged for the Plaintiff that the repealing Act relates to procedure only, and does not interfere with any substantive right, and consequently that the new Act is retrospective in its operation.

I think, however, that the case comes within the third class of cases stated by Mr. Justice Wilson, in delivering the judgment of the Full Bench in Deb Narayan Dutt v. Narendra Krishna ILR 16 Cal. 267-272. He says:--"The third class of cases consists of those in which the law is changed by a mere repeal of a previously existing law, and the repealing enactment contains no special rule for its own interpretation. Such cases are governed by section 6 of the General Clauses Act."

Section 6 of the General Clauses Act says:--"The repeal of any statute shall not affect any proceedings commenced before the repealing Act shall have come into operation." This suit, the proceeding within the meaning of that section, was instituted before the repealing Act came into operation. I therefore think the provisions of the repealing Act do not apply to this case; that Sec. 22 of the Small Cause Courts Act does apply, and that, as the Plaintiff has recovered less than two thousand Rupees, and the Judge has given no certificate, the Plaintiff cannot be allowed the costs of the suit. The appeal, therefore, must be allowed. The appeal also dealt with a point as to the Statute of Limitations, but that has been abandoned by the Appellant''s Counsel.

As the Appellant therefore has failed as to part of his appeal and succeeded as to the other, there will be no costs of the appeal.

Macpherson, J.

I agree with the learned Chief Justice. I think that sec. 22 of the Small Cause Court Act, as it stood unamended by the Act of 1895, applied to this suit. The effect of the amendment was wholly to repeal sec. 22 as regards all suits in which the amount decreed was less than Rs. 2,000, and over Rs. 1,000, and by sec. 6 of the General Clauses Act the repeal did not affect the suit which was pending when the repealing Act came into operation. The learned Judge did not certify as required by sec. 22, and he had no discretion in the matter of costs.

Trevelyan, J.

The question of limitation having been abandoned by Mr. Dunne, the only question which we have to decide is as to the costs.

In my opinion section II of Act I of 1895 has no application to the present case. At the time this suit was instituted, Act I of 1895 had not been passed, so the alteration of Act XV of 1882, section 22, did not affect this suit. The matter is, I think, concluded by section 6 of the General Clauses Act; and the English cases as to the effect of an alteration in the law of Procedure upon pending proceedings have no application.

u/s 22 of Act XV of 1882, the discretion which a Judge possesses as to costs has been taken away.

In case of a decree for a sum under Rs. 2,000, the Plaintiff is expressly prevented from obtaining his costs, except the Judge who tries the suit "certifies that it was one fit to be brought in the High Court." I do not understand that in this case the learned Judge has certified in terms of the section. He has treated the case as one governed by his ordinary discretion, and has given reasons which would be equally applicable to any case, whether tried in the High Court or in the Small Cause Court. Having regard to the objects of the Act, I think that a certificate can only be given in a case where a Judge considers that the case was not one which ought to be brought in the Small Cause Court.

So strictly has this section been construed that I have never known a certificate given under it.

It is not necessary to determine in what class of cases a certificate should be given, but I doubt very much whether the Legislature by the terms of section 22 intended much to extend the powers which they gave to the Judge u/s 9 of Act XXIV of 1864, viz., that he could only certify when "by reason of the difficulty, novelty, or general importance of the case, or of some erroneous course of decisions in like case in the Court of Small Causes, the action was fit to be brought in the High Court." I would hold that the Plaintiffs were entitled to (sic) the Court below, and that each party should pay his own costs of this appeal.