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TMI Blog1948 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The plaintiff filed this suit against the defendant on September 12, 1947, to recover a sum of ₹ 1,000 with interest thereon at 6 per cent, per annum from December 20, 1945, or February 13, 1946, as the case may be until judgment, costs and interest on judgment at 4 per cent, per annum till payment. The suit was thus for the recovery of a sum over ₹ 1,000 and below ₹ 2,000. Under Section 21 of the Presidency Small Cause Courts Act as it then stood the plaintiff had the election to institute this suit in the High Court, the amount or the value of the subject-matter thereof exceeding ₹ 1,000, even though under Section 18 of the Act the Small Causes Court would have jurisdiction to try this suit, the amount or value of the subject-matter not having exceeded ₹ 2,000. The plaintiff filed this suit in the High Court in pursuance of this election which was given to him under Section 21 of the Act and the suit was thus rightly received by the High Court and the High Court would in the ordinary course have had jurisdiction to try and dispose of the same, subject of course to the provisions contained in Section 22 of the Presidency Small Causes Courts A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended read as under : Except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay, or the Bombay City Civil Court. The suits which were cognizable by the Bombay City Civil Court were prescribed in the Bombay Act XL of 1948. So far as suits falling within the jurisdiction of the Small Cause Court at Bombay were concerned, the Bombay Legislature enacted Bombay Act XLIV of 1948 called the Presidency Small Cause Courts (Bombay Amendment) Act, 1948, and by Section 2 thereof the election which was given to the plaintiff to institute in the High Court suits whereof the amount or value of the Subject-matter exceeded ₹ 1.000 was deleted and with regard to certain suits of the nature prescribed in Section 21 of the Presidency Small Cause Courts Act also the jurisdiction of the Bombay City Civil Court was substituted for that of the High Court and the election given to the plaintiff to file such suits in the High Court was substituted by the election given to him to file such suits in the Bombay City Civil Court. The result of this enactment thus was that the original jurisdiction w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt or value of the subject-matter exceeded ₹ 1,000 and to invest the same in the Small Causes Court, thus depriving the plaintiff of the election which had been given to him under Section 21 of the Presidency Small Cause Courts Act, which election it was conceived was such as when exercised would put the defendant to the unnecessary burden of incurring heavy costs in defending the litigation in the High Court. With that end in view Section 21 of the Presidency Small Cause Courts Act was amended as provided in Bombay Act XLIV of 1948, and a suitable amendment was also made in Section 22 of the Presidency Small Cause Courts Act providing for special award of costs when the plaintiff sued in the High Court or in the Bombay City Civil Court in every case cognizable by the Small Cause Court. While enacting this Act XLIV of 1948, however, the Legislature either purposely or inadvertently omitted to enact in this particular Act provisions of the type which it had already enacted in Bombay Act LVII of 1947 and Bombay Act XL of 1948, to which I will refer immediately hereafter. 8. Bombay Act LVII of 1947 was an Act to amend and consolidate the law relating to the control of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Small Cause Court as that was considered by the Legislature in the interests of the defendants to be the proper venue where the defendants would in any event not be saddled with the heavy costs of litigation which would be bound to be incurred if the litigation proceeded to its natural conclusion in the High Court. 9. When one, however, comes to the enactments which were simultaneously enacted by the Bombay Legislature in May 1948, one finds that when the Bombay Legislature came to enact Bombay Act XL of 1948 establishing the Bombay City Civil Court, and had on the anvil also simultaneously with it the enactment of Bombay Act XLI of 1948 which sought to amend Clause 12 of the Letters Patent in the appropriate manner, the Legislature enacted a similar provision for transfer of the suits which were pending in the High Court to the Bombay City Civil Court. After having laid down the jurisdiction of the Bombay City Civil Court in Section 3 of the Bombay Act XL of 1948, and having also laid down in Section 12 thereof that the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court, the Legislature proceeded to enact Section 18 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Small Cause Court. One would have naturally expected that as there was enacted Section 50 in the Bombay Act LVII of 1947 and as there was enacted Section 18 in Bombay Act XL of 1948, the Bombay Legislature would have thought it necessary or expedient also to enact a similar provision in Bombay Act XLIV of 1948 providing for such a transfer. But for reasons which it is not possible for me to divine the Legislature did not do so, and that is the reason why this question has fallen to be determined by me. 10. The legislative history and the background which I have already given is sufficient to indicate that if the Legislature really intended that suits which were cognizable by the Small Cause Court and which had been already filed in the High Court in the exercise of the election which had been given to the plaintiffs in that behalf by Section 21 of the Presidency Small Cause Court Act as it then stood should be transferred from the High Court where they had been rightly instituted to the Small Cause Court which was then considered by the Legislature to be the proper venue for the trial of such suits, the Legislature would have enacted a provision in this behalf, and in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which I have thus arrived at on a comparison of the various pieces of legislation hereinbefore referred to, by reference to the general principles of the construction of statutes. The Bombay Act XLI of 1948 which amended the Letters Patent was enacted in May 1948 and came into operation towards the middle of August 1948, Normally it would not have a retrospective operation. It has been laid down as a fundamental rule of the English law, which we have been following here, that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. (See Maxwell on the Interpretation of Statutes, 9th Edn., p. 221). There is no doubt that so far as the statutes are concerned, a distinction is broadly made between procedural statutes and statutes which affect the substantive rights of the parties. There is no vested right which a subject has in regard to procedure. But with regard to the jurisdiction of the Court in which he has a right to institute proceedings a subject can have a vested right. That this is so is amply borne out by authorities and I shall only content mysel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard be had to legislative background and the history which I have before referred to, it tends to one conclusion and one conclusion only that in the case of what may be compendiously described as Rent Suits the Legislature provided for the transfer of such suits from the High Court to the Small Cause Court, that in the case of suits or proceedings which are cognizable by the City Civil Court the Legislature also provided for a transfer of such suits or proceedings except in certain excepted cases from the High Court to the City Civil Court, whereas in the case of the suits which were falling within the jurisdiction of the Small Cause Court at Bombay by the deletion of the provisions for election contained in Section 21 of the Presidency Small Cause Courts Act as it then stood, no such provision was made by the Legislature for the transfer of those suits from the High Court to the Small Cause Court. I feel therefore fortified by these general principles which have been laid down by the authorities in the conclusion which I have arrived at that the omission in that behalf, which was either purposeful or due to inadvertence has the result of continuing the jurisdiction of this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit is an essential condition of the exercise of the jurisdiction by the Court and I cannot conceive of any jurisdiction exercised by the Court in respect of any suits which can be taken as divorced from the reception or entertainment of the suit and can only be considered in regard to the trial and determination of the issues involved in the suit filed before it at the instance of the plaintiff. I am therefore of the opinion that the words receive, try and determine should not be read disjunctively as argued by Mr. B.J. Divan but should be read conjunctively. Once the suit is received or entertained, the Court has jurisdiction to try and determine the same in spite of whatever has happened subsequently. The enactment of Bombay Act XLI of 1948 no doubt took away the jurisdiction of this Court to receive, try and determine suits which fell within the jurisdiction of the Small Cause Court. That, however, had not the effect of taking away the jurisdiction of this Court to try and determine the suits which had been already validly received or entertained by it prior to the enactment of that Act. A vested right had accrued to the plaintiff in that behalf to have the suit tried and d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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