# SETH GULAB CHAND v. SETH KUDILAL AND ANOTHER

- **Citation:** [1959] 1 S.C.R. 313
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. • 230 of 1953
- **Bench:** S. R DAS c. J, Venkatarama Aiyar, s. K. DAS, A. K. Sarkar, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/seth-gulab-chand-v-seth-kudilal-and-another-1622
- **Pages:** 14

## Headnote

Statute,
Construction
of-Retrospective operation-Rule of
presumption-Applicability-Duty of Court-Reference to pre-existing law, if and when permissible-Right of appeal-United State of
Gwalior, Indore and Malw~(Madhya-Bharat) High Court of Judicature Act, VIII of r949, ss. 2(b), 25.
The rule that a statute is not to have retrospective operation
can apply only where it is doubtful from the language used
whether or not it was intended to have such operation.
Where
the language of the statute plainly gives it a retrospective operation, there can be no scope for applying the rule of presumption
against retrospective operation. The rule does not require that
the Ceurts should be obdurate in refusing to give a statute retrospective operation, equally it does not justify the reading of more
words than there are into the statute in order that the rule may
apply.
Delhi Cloth and General i'v!ills Co. Ltd. v. Income Tax Commissioner, Delhi, (1927) L. R. 54 I.A. 421, Smith v. Calland&r,
(1901) A.C. 297 and Reid v. Reid, L.R. (1886) 31 Ch. D. 402, considered.
The appellant brought a suit for specific performance of ;m
agreement of sale in the High Court of Indore at a time whea
Indore was a Princely State in British India. On April 22, 1948,
the Rulers of Gwalior, Indore and certain other States entered
into a Covenant to form the United State of Gwalior, Indore and
Malwa (Madhya-Bharat). The suit was heard by a single Judge
and decreed on June II, 1948.
The Ruler of Indore on June 16,
1948, made over the administration of his State to the Raj
Pramukh of the Ul!ited State in terms of the Covenant. By an
ordinance promulgated by the Raj Pramukh a High Court 1':as
established for the United State\ and the High Court of Indore
ceased to function from July 29, 1948. The respondents preferre~
an appeal to the Divisional Bench of the High Court of the
United Stah: on August 24, 1948, and the appellant preferred a
cross appeal under the provisions of that Grdina.nee.
The Divisional Bench found in favour of the respondents in both the
appeal and cross-appeal and dismissed the appellant's suit by a
judgment dated Decembei; 2, 1948. The Interim Legislative
Assembly of the United State enacted the United State of
GwaliQr, Indore and Malwa (Madhya-Bharat) High Court of Judicature Act, VIII of 1949, which came into force on January 181
1949, and repealed the Ordinance.
·
40
•
March 28.
•
314
SUPREME COURT REPORTS
[1959]
r958
By s. 2(b) of the Act it was provided :
This Act shall apply to all Criminal and Civil Proceedings
Seti~ Guiab Chand including those under testamentary,
intestate, matrimonial,
v.
·
divorce and insolvency jurisdiction, pending in the Courts in any
Seth Huditat
State on the date on which the State is included in the United
&- Another
State and to such proceedings, arising in the said States, after
those dates.
By s. 25 it was provided :
Special appeal shall lie to the Full Bench of the High Com•t
from:-
(1) a decree or an appealable e>rder passed by the Divisional Bench of two Judges of the High Court in the exercise of
extraordinary or appellate civil jurisdiction.
··································································
The appellant preferred an appeal to the Full Bench of the
High Court under s. 25 against the judgment of the Divisional
Bench. The Full Bench dismissed the appeal as incompetent
holding thats. 25 could not be given retrospective operation so as
to disturb the right that had vested in the re,pondents as to the
finality of the judgment of the Divisional Bench which was passed
before the Act came into force:
Held, thats. 25 of the Act, although not in terms retrospective, has to be read withs. 2(b) of the Act which made the Act,
and consequently s. 25, applicable to the proceedings mentioned
in it and since the appeal before the Divisional Bench, filed after
the inclusion of the State of Indore in the United State, was
beyond doubt one of such proceedings, the competency of the
appeal could not be questione

## Text

S.C.R.
SUPREME COURT REPORTS
SETH GULAB CHAND
v.
SETH KUDILAL AND ANOTHER
313
(S. R DAS c. J., VENKATARAMA AIYAR, s. K. DAS,
A. K. SARKAR and VIVIAN BosE JJ.)
Statute,
Construction
of-Retrospective operation-Rule of
presumption-Applicability-Duty of Court-Reference to pre-existing law, if and when permissible-Right of appeal-United State of
Gwalior, Indore and Malw~(Madhya-Bharat) High Court of Judicature Act, VIII of r949, ss. 2(b), 25.
The rule that a statute is not to have retrospective operation
can apply only where it is doubtful from the language used
whether or not it was intended to have such operation.
Where
the language of the statute plainly gives it a retrospective operation, there can be no scope for applying the rule of presumption
against retrospective operation. The rule does not require that
the Ceurts should be obdurate in refusing to give a statute retrospective operation, equally it does not justify the reading of more
words than there are into the statute in order that the rule may
apply.
Delhi Cloth and General i'v!ills Co. Ltd. v. Income Tax Commissioner, Delhi, (1927) L. R. 54 I.A. 421, Smith v. Calland&r,
(1901) A.C. 297 and Reid v. Reid, L.R. (1886) 31 Ch. D. 402, considered.
The appellant brought a suit for specific performance of ;m
agreement of sale in the High Court of Indore at a time whea
Indore was a Princely State in British India. On April 22, 1948,
the Rulers of Gwalior, Indore and certain other States entered
into a Covenant to form the United State of Gwalior, Indore and
Malwa (Madhya-Bharat). The suit was heard by a single Judge
and decreed on June II, 1948.
The Ruler of Indore on June 16,
1948, made over the administration of his State to the Raj
Pramukh of the Ul!ited State in terms of the Covenant. By an
ordinance promulgated by the Raj Pramukh a High Court 1':as
established for the United State\ and the High Court of Indore
ceased to function from July 29, 1948. The respondents preferre~
an appeal to the Divisional Bench of the High Court of the
United Stah: on August 24, 1948, and the appellant preferred a
cross appeal under the provisions of that Grdina.nee.
The Divisional Bench found in favour of the respondents in both the
appeal and cross-appeal and dismissed the appellant's suit by a
judgment dated Decembei; 2, 1948. The Interim Legislative
Assembly of the United State enacted the United State of
GwaliQr, Indore and Malwa (Madhya-Bharat) High Court of Judicature Act, VIII of 1949, which came into force on January 181
1949, and repealed the Ordinance.
·
40
•
March 28.
•
314
SUPREME COURT REPORTS
[1959]
r958
By s. 2(b) of the Act it was provided :
This Act shall apply to all Criminal and Civil Proceedings
Seti~ Guiab Chand including those under testamentary,
intestate, matrimonial,
v.
·
divorce and insolvency jurisdiction, pending in the Courts in any
Seth Huditat
State on the date on which the State is included in the United
&- Another
State and to such proceedings, arising in the said States, after
those dates.
By s. 25 it was provided :
Special appeal shall lie to the Full Bench of the High Com•t
from:-
(1) a decree or an appealable e>rder passed by the Divisional Bench of two Judges of the High Court in the exercise of
extraordinary or appellate civil jurisdiction.
··································································
The appellant preferred an appeal to the Full Bench of the
High Court under s. 25 against the judgment of the Divisional
Bench. The Full Bench dismissed the appeal as incompetent
holding thats. 25 could not be given retrospective operation so as
to disturb the right that had vested in the re,pondents as to the
finality of the judgment of the Divisional Bench which was passed
before the Act came into force:
Held, thats. 25 of the Act, although not in terms retrospective, has to be read withs. 2(b) of the Act which made the Act,
and consequently s. 25, applicable to the proceedings mentioned
in it and since the appeal before the Divisional Bench, filed after
the inclusion of the State of Indore in the United State, was
beyond doubt one of such proceedings, the competency of the
appeal could not be questioned.
Although there can be no hard and fast rule that in no case
should the pre-existing law be referred to for the purpose of
interpreting a new enactment, where, as in the present case, the
language is simple, free from doubt and clearly indicates that a
change in the pre-existing law is intended and no reason existed
requiring a reference to the pre-existing law, no such reference is
permissible .
• Tumahole Bereng v. The King (1949) A.C. 253, Abdur Rahim
v. Mohom<d Barkat AU, (1927) LR. 55 I.A. 96 and In re Mayfair
Property Co. (1898) 2 Ch. 28, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
•
230 of 1953. •
Appeal from the judgment and decree dated August
29, 1950, of the former Madhya.Bharat High Court at
Indore in Special Appeal No. 5 of 1949, arising out of
the judgment and decree dated December 2, 194'8, of
the said High Court in Civil First Appeal No. 61 of
1948 against the judgment and decree .elated June 11,
•
•
(
S.C.R.
SUPREME COURT REPORTS
315
1948, on its Original Side in Civil Original Suit No. 30
of 1947.
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 I. N. Shroff, for the
respondents.
1958. March 28.
The following Judgment of the
Court was delivered by
SARKAR J.-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 passed through
certain stages which may be called transitional. The
decision of this appeal depends on certain laws that
came into existence during the transitional stage
through which the Princely State of Indore passed
before it became merged in the Indian Union.
Up to April 22, 1948, Indore as one of the Princely
States of India enjoyed internal sovereign rights and
had its own laws and courts. These laws and courts
derived their authority from the Ruler of Indore _in
whom the sovereign power was vested.
Th~ 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, 194 7. It. was a suit for
the specific performance of an agreement whereby it is
said, Govindram Saksaria, 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
(Madhya-Bharat) enteyed 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 (Madhy~-Bharat) and to include in that United
•
•
Seth Guiab Cha1td
v.
Seth J{ udilal
& Another
Sarhar ].
•
•
316
SUPREME COURT REPORTS
[1959]
'958 •
State any other State the Ruler of which later agreed
5 th G 7;; Cl
d with the approv11l of the Government of India, to
'
"v~
•au merge his State in the United State. Article 3 of the
Seth Kudilat
Covenant provided for the constitution of a Council of
& Another
Rulers one of the members of which was to be its
President, such President being called the Rajpramukh.
Sarkar J.
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 ovet' the administration of
his State to the Raj Pramukh by a date not later than
J ul,x 1, 1948. This article also provided that upon
the administration of a State being made over to the
Raj Pramukh, all rights, authority and jurisdiction
belonging to its l~uler and appertaining or incidental
to its Government, would vest in the United State.
Similar provision was also made in respect of the
vesting of the rights, authority and jurisdiction of the
Ruler of a State which by a subsequent agreement
became included in the United State. Article 10 provided that as soon as practicable a Constituent
Assembly for the United State would 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 liable to be
controlled or superseded by an Act of the interim
Legislative Assembly.
As a matter of interest it may
be mentioned here, though nothing turns on that in
this appeal, 1'hat the United State later became a
Part B State as defined in the Constitution of India
and lastly, merged in the tercitories of what is now
the State of Madhya Pradesh.
The suit brought by the appellant was hearct by a
single Judge of the Indore High Comt who decreed it
by his judgment pronounced on Juoo 11, 1948. It
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•
S.C.R.
SUPREME COURT REPORTS
317
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. Sec'tion 2 of the Ordinance
provided that it wou:rd come into force on such date as
the Raj Pramukh might prescribe and the Raj Pramukh by a Notification published on July 28, 1948,
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 1!}48 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 aiw State whose
administration had been taken over by the Raj
Pramukh before the establishment of the High Court
of the United State, the High Court of the State would
cease to exist and 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 Cour.t of the United State and the appeals
•
•
Seth Guiab Chand
v.
Seth Kudilal
& Another
Sarkar].
318
SUPREME COURT REPORTS
[1959]
'958
which would have lain to the High Court of the State
h
- 1would lie to the High Court of the Unhed State.
Sot Gu ab Chand
B f
O d"
N
,
h
v.
e ore r mance I o. 14 of 1948
ad been promulSoth Kudilal
gated, the respondents on August 24, 1948, preferred
& Anoth"
an appeal to the Divisional Bench of the High Court
of the United State from the decision of the High Court
Sad'ar I
of Indore decreeing the appellant's suit on June 11,
1948, to which reference has been made earlier. A fe"•
days later, namely, on September 7, 1948, the appellant also preferred a cross-app~l to the Divisional
Bench against the same decision.
On December 2,
1948, the Divisional Bench decided the appeal and the
cross-appeal in favour of the respondents and dismissed the appellant's suit.
Now came the United State of Gwalior, Indore
and Malwa (Madhya-Bharat) High Court of Judicature
Act, VIII of 1949, hereafter referred to as the !\.ct.
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 Gwalior, Indore and Malwa
(Madhya-Bharat) established under Ordinance No. II
of 1948, it is hereby enacted as follows :
S. 4.
In this Act unless there is anything rcpugna1Jt in the subject or context:-
........................................................................
(d) "High Court" means the High Court functioning as the High Court of the United State.
S. 2( a). It shall extend to the whole of the United
State of Gwalior Indore and il'Ialwa (Madhya Bharat)
and shall apply to all persons within the said United
State over whom the Courts having jurisdiction 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,
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•
' '
.,
S.C.R.
SUPREME COURT REPORTS
319
·intestate, matrimonial, divorce and insolvency 3unsdiction, pending in the Courts in any State on the
date 011 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 extrrrordinary 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
claithed 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 h.ad
delivered its judgment before the Act had come into
force and no appeal lay from such a judgment under
this section. That view was endorsed by the judgment of the later ]foll Bench which however was larger
consisting of five Judges. In the present appeal to this
Court, the correctness of the last Full Bench judgment
is being challenged.
The appellant contends that s. 2(b) of the Act applied the Act including s. 25 to the proceedings mentioned in it ands. 25 so applied gave a right of appeal
to the Full Bench of the High Court from the decision
of a Divisional Bench of that Court passed in these
proceedings.
He then says that the judgment of the
Divisional Bench datad December 2, 1948 from which
he had appealed to the :Full Bench had been passed
in such a proceeding and therefore his appeal was
competent. The High Court does not appear to
have held that that proceeding was not of any
•
•
Seth Guiab Chand
v.
Seth K udilal
& Another
Sarkar ].
•
320
SUPREME COURT REPORTS
[1959]
z958
of the kinds mentioned in s. 2(b) and it seems to
S I G- 1-b Cl
d us that it was of one of these kinds.
Section 2(b)
et' u a
ian
t•
t
] . d . f
d"
1
fi
v..
men 10ns
wo 'm · s o
procee mgs, name y,
rst
•
Seth Kudilal
those pending in the Courts in any State on the
& Another
date on which that State was included in the United
Sarkar ].
State and secondly those which arose in the States
after those dates. Now the proceeding in which the
Divisional Bench pronounced judgment was an appeaJ.
from a decision of a Single Judge of the Indore High
Court given on June 11, 1948, •that is, before that
State became included in the United State.
The
appeal had however been filed on August 24, 1948,
that is, after Indore had been included in the United
State. The appellant contends that the fact that the
decree from which he had appealed had been passed
before the date of inclusion of Indore in the United
State while his appeal had been filed after that date
made no difference for an appeal being only a continua,tion 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. Shaina
Bi/Ji(') to which we were referred would seem to support the a ppellant;'s contention. In any case it seems
beyond doubt that the appeal in which the judgment
of the Divisional Bench, dated December 2, 1948, was
pronounced, was a proceeding of the second kind mentioned in s. 2(b ), namely, " proceedings, arising in the
said States, after those dates", i.e., the date of the
inclusion of the State in the United State. It seems
clear to us that the words " arising in the said States "
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 a'rter 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
(1) (1900) I.LR. 28 Cal. 23 .
•
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•
.
'
.
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•
S.C.R.
SUPREME COURT REPORTS
321
State. We think that to be the proper meaning to be
r958
given to these words.
So understood the appeal in
-
which the judgment of the Divisional Bench, dated Seth Guiab Chand
December 2, 1948, was given was a proceeding arising
Seth ~(,.ailal
in the areas of the erstwhile Indore State after the in-
& Another
clusion of that State in the United State for it was filed
after such inclusion. It is therefore clearly a proceedSarllar J.
itJ.g of the second kind mentioned in s. 2(b ).
The learned Judges of the High Court however did
not, as earlier stated, lLccept the appellant's contention
thats. 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 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 Tight vested in the respondents at the date of the
passing of the Act to the finality of the judgment of
the Divisonal 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, properly understood,
only gave the High Court of the United State jurisdi.ction over proceedings pending in the High Court of
a Princely State on the date on which that State was
included in the United State; in any event the language of s. 2(b} would be fully satisfied by giving retrospective operation to s. 25 only to the extent of applying it to proceedings pending on the date of inclusion
of a State in the United State and not closed by a final
judgment passed before the Act came into force.
•
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 tl.cceptance of the appella_nt's contention would
result in depriving the respondents of such a right.
41
•
•
322
SUPREME COURT REPORTS
[1959]
I95B
The only question in this appeal is whether s. 25
-
gives a right of appeal from the judgment of the
Seth Guiab Chand D' · ·
1 B
h
Th
1 '
1
th
'
· ·
·
. 1vIS10na
enc .
e rue is c ear
at ' prov1s10ns
Seth ~udilal
which touch a right in existence at the passing of the
& Another
statute are not to be applied retrospectively in the ab-.
sence of express enactment or necessary intendment" :
· Sarkar J.
Delhi Cloth and General Mills Co. Ltd. v. Income Tax
Commissioner, Delhi(').
Before proceeding further *e
wish to observe that the rule that a statute is not to
have 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(').
We may usefully read here what Bowen L. J.
said in Reid v. Reid (3):
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 well-known trite maxim ominis nova constit'lttio .futuris forman imponere debet non praeteritis, that
is, that except in special cases the new law ought to be
construed so as to interfere a:s 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 "obdur~te 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. Bnt there is s. 2 (b). That
section says that the Act shall apply to all civil and
criminal proceedings pending in the Courts in any
State on the date on which the State is included in the
(1) (1927) L.R. 54 I. A. 421, 425.
(2) (1901) •A.G. 297, 305.
•
(3) L.R. (1886) 31 j:;h. D. 402, 408.
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·.
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S.C.R.
SUPREME COURT REPORTS
323
United State, and to such proceedings arising in the
r958
said States after these dates. Section 2 (b) therefore
--
makes s. 25, and also all other sections of the Act, apS<1h Guiab Chand
plicable to the proceedings mentioned in it .. ' Now
Seth ~{udilal
what is the effect of this? What is the result if a
& Another
section giving a right of appeal is made applicable to
a proceeding? It can only be that an appeal would
li~ 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 i8 to say, irrespective of
whether it was passed before the Act or after it.
We
have here plain language which gives the statute retrospective operation. It does not seem
1to us that
there is any scope here of applying the rule of presumption against the retrospective operation of a statute.
But it is said that s. 2(b) only extends the jurisdiction of the High Court to the pending cases over which
it would not otherwise have any jurisdiction, and is
not intended to .give retrospective operation to any
part of the Act. It is said that that this is the real
effect of s. 2(b) is clear because it is put along withs. 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 8eems 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 suQstantially re-enacted Ordinance No. 2 of 1948 and as
the corresponding section of thitt Ordinance, namely,
• s. 4(b), which was practically in the same language as
s. 2(b) of the Act, was only concerned witlt jurisdiction,
s. 2(b) must be understood to do the same. This contention was accepted .by the learned Judges of the
High Court but in this they were clearly in error. We
do not wish to be understood as saying that in no case
is a reference to the old law permissible for interpreting,
a new statute, l;mt it seems to us that in the present
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case such a reference was not justified. One of the
--
cases on which the learned Judges of the High Court
Seth Guiab Ghaud based themselves is Tumahole Bereng v. The King (1 ).
Seth ~udilal
There the Judicial Committee wore dealing with a
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& Another
statute only a part of which had been amended and
Sarkar].
after reminding themselves of the wisdom of the warning given by Lord Watson in Bradlaugh v. Clarke(')
that it is "an extremely hazardous proceeding to refoc
to provisions which have been absolutely repealed, in
order to ascertain what the legiiilature meant to enact
in their room and stead," observed at p. 267 :
" ...... the circumstances of the present cuse 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 propei• 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 difticu.Jty-it 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 justi:(y a reference to the
old law have been exhaustively set out by the Judicial
Committee. It is enough for us to say that none of
those circumstances exists here.
In Abdur Rahim v .
Muhomed Barkat Ali('), which was also referred to by
the High Court, the Judicial Committee had to decide
whether a suit was within s. 92 of the Code of Civil
Procedure, 1908, and for that purpose to find out what
reliefs the exptession " further and other relief" in the
section would include. These words are plainly wide
and require•definition. The Judicial Committee referred
to'lthe earlier law on the subject to find out what that
general expression was intended to include.
Thi&' case
(1) (1949) A.C. 253.
(2) (1883) 8 App. Cas. 354.
(3) (1927) L.R 55 I.A. 96.
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325
does not justify a resort to the old law by us, for here
r95s
we have no gen~ral words as to the mea'ni~g of wh~ch Seth G.ulab Chand
difficulty has arisen. Y The last case on which the High
v.
Court based itself for this part of its judgment to which
Seth Kudilal
we wish to refer was In re Mayfair Property Go. (1).
& Another
There the contention was that a certain interpretation
would defeat the object of the Act and in order to asSarkar f.
<Jertain that object a reference to the old law was found
. necessary. No such question arises in the case before
us. It is not contended that the object of the Act
before us would be defeated· if s. 2(b) applied s. 25
retrospectively. For these reasons it seems to us that
the present is not a case where it is permissible to interpret s. 2(b) of the Act by reference to s. 4(b) of
the Ordinance. Further in our view, in any event,
s. 4 (b) of the Ordinance provides no assistance in interpreang 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 to the words "pending in the Courts in any
State on the date on which the State is included in the
United State" in s. 2(b), if they are understood as referring 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 P.,lainly see the
Legislature meant". See Reid v. Reid (2).
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 retroBpective operation of s. 25
to b@ confined to those pending cases which had not
terminated before the Act had come into force.
Such
a construction ,WOlfld require adding to the section the
(1) (1898) 2 Ch. 28.
,2) L.R. (1886) 31 Ch. D. 402, 408.•
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words "and not finally decided before the Act comes
into force".
The rule of presumption against the reSctli G11lab Chand t
t"
t•
d
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h
d
"·
rospec .1ve opera 10n
oes not reqmre t e a dition of
Seth t<udilal
any words to a section otherwise plain.
W' e recall
<~ Anoth,,
here, what we have said earlier, that the rule applies
only where the words are not plain or are capable of
Sn,kar J.
t \\'O meanings. It does not justify subtlety in adding
words to the section to make the rule applicable.
•
It is also said that though s. 2(b) applies s. 25 to
the proceedings mentioned thereil'I, it does not expressly say that in so applying it, vested rights shall also
be affected. \Ve think it enough to dispose of this
contention to say that, the necessary result of applying s. 25 to the proceedings mentioned is to disturb
vested rights and that in order that a statute may
have a retrospe.ctive operation it is not necessary to
find words in it expressly stating that it will have such
operation notwithstanding that that will disturb vested
rights_
We do not think that the words are not plain
to give a retrospective operation.
\Ve therefore think that the appellant's appeal froin
the Divisional Bench was competent under s. 25 of
the Act.
The result is that this appeal is allowed.
The decree of the Full Bench of the High Court is set
aside.
The case will now go back to the High Court
of (Madhya-Pradesh) to be decided on the merits. The
appellant will have the costs here and below.
We have here to state that there were three other
connected matters. Ji'irst, there was an application by
the appellant to this Court for special leave to appeal
•
from the Judgment of the Divisional Bench, being
Petition for Special Leave to Appeal (Civil) No. 368 of
1957. Then there was another application by the
appellant to this Court for special leave to appeal -from
the judgment of the Full Bench, being Petition for
Special Leave to Appeal (Civil) No. 242 of 1957. These
had been made by way of abundant caution. Lastly,
there was an application for lea~'e to file additional
documents in the appeal that has just been disposed
of. It was Civil Misc. Petition No. 472 of 1956. None
of these applications were pressed and we therefore
dismiss them but without any order for costs.
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Appeal aJ,lowed, case remitted .
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