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TMI Blog1913 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... o determine the question in controversy it is necessary to explain how the point arises for decision. 2. The third Article of the third Schedule of the Bengal Tenancy Act, 1885, provides that a suit to recover possession of land claimed by the Plaintiff as an occupancy raiyat shall be instituted within two years from the date of dispossession. Sec. 184, sub-sec. 1 of the Bengal Tenancy Act provides that a suit of this description, instituted after the period of limitation so prescribed, shall be dismissed, although limitation has not been pleaded. Sec. 185, sub-sec. 2 of the Bengal Tenancy Act further makes applicable to such a suit the provisions of sec. 28 of the Indian Limitation Act, whereby at the determination of the period limited to any person for instituting a suit for possession of any property, the right to such property is declared to be extinguished. In the case of Bhagaban Chandra Sha v. Joggeswar Ghosh 2 C. W. N. cccxviii (1912), which was decided on the 25th August 1898, it was ruled by this Court that the third Article of the third Schedule of the Bengal Tenancy Act was in terms applicable only to suits by occupancy raiyats and did not govern suits by under-raiyat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conclusive upon the precise question raised; it is necessary, therefore, to examine the matter as one of principle. 3. It is well-settled, as observed by Mr. Justice Willes in Phillips v. Eyre L. R. 6 Q. B.1 (23) (1870), that retrospective laws are prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated, ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law. The maxim is familiar to every student of jurisprudence, nova constitution futuris formam imponere debet, non preateritis. A new law ought to be prospective, not retrospective, in its operation. Accordingly, the Court will not ascribe retrospective force to new laws affecting rights, unless by express words or necessary implication, it appears that such was the intention of the Legislature. A luminous exposition of this fundamental doctrine will be found in the judgment of Kent, C. J., in Dash V. Van Kleeck 7 Johnson 477 (502) (1811). The learned Chief Jus ice pointed out that the maxim of Papinian, nemo potest mutare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ams v. Smith 4 H. and N. 559 (1859), Jackson v. Wooley 8. E. and B. 787 (1858), Right v. Greenroid 1 B. and S. 758 (1861), Knight v. Lee [1893] 1 Q. B. 41, Smithies v. National Association of Plasterers [1909] 1 K. B. 310. 4. In the application of the principle that the Court will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the Legislature, the question frequently arises whether the statute does in fact take away a vested right. From this point of view, we have to bear in mind the well-settled doctrine that no suitor has a vested interest in the course of procedure or a right to complain, if during his litigation the procedure is changed, provided that no injustice be done. Costa Rica v. Erlanger L. R. 3 Ch. D. 69 (1876), Turnbull v. For man 16 Q. B. D. 234 (1885). 5. Hence, as observed by Lord Blackburn in Gardner v. Lucas L. R. 3 App. Cas. 603 (1878), alterations in the form of procedure are always retrospective, unless there be some good reason to the contrary as in Pinhorn v. Souster 8 Ex. 132 (1852). This principle has been repeatedly recognised and applied, Colonial S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and came into operation on that very date. It is contended on the one hand that the Legislature could never have intended the new provision of limitation to apply to causes of action which had accrued before the new statute became law, because the effect would be to extinguish forthwith all causes of action in existence and enforceable in a Court of Justice at the time when the statute came into operation. It is argued on the other hand that the language of the statute is explicit and covers all causes of action whether antecedent or subsequent to the commencement of the statute. To determine which of these contentions is well-founded, we must remember that the statute as amended provides that the suit to recover possession of land claimed by the Plaintiff as an under-raiyat must be brought within two years from the date of dispossession. To hold that this amended provision applies to suits in respect of dispossession which has taken place more than two years before the enactment of the new law, is to maintain the position that the Legislature intended the litigant to accomplish what is impossible in the nature of things for him to do, in other words, to prescribe that his rights a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h provided that all actions founded on judgments were to be commenced within two years next after the cause or right of action had accrued and not after. The Plaintiff contended that this statute could not apply to causes of action which had accrued more than two years before its passage, because such literal interpretation would cut them off and defeat them altogether. Mr. Justice Bradley who delivered the unanimous opinion of the nine Judges of the Supreme Court of the United States held that the statute could not be so interpretated as to affect and destroy forthwith pre-existing causes of action. The learned Judge referred at the outset to the principle enunciated in United States v. Heth 3 Cranch 413, namely, that " words in a statute ought not to have a retrospective operation, unless they are so clear, strong and imperative that no other meaning can be annexed to them or unless the intention of the Legislature cannot otherwise be satisfied," and in Harvey v. Tyler 2 Wallace 347, namely, " That all statutes are to be considered prospective, unless the language is expressed to the contrary or there is a necessary implication to that effect." The learned Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m what time is the limitation to be calculated" and the answer may well be given in the language of that learned Judge "the lime must commence when the cause of action is first subjected to the operation of the statute" by which the period for the enforcement of such cause of action has been prescribed. But whatever controversy there may be as to the particular mode of interpretation to be adopted, there is a singular uniformity of judicial opinion that statutes coming into operation immediately they become law and declaring generally that an action must be brought within a limited time after accruing will not be construed retrospectively so as to bar causes of action which accrued more than the limited time before the statute was passed [Friedman v. McGowan 1 Pennewill 443 42 Atlantic 725., Browning v. Browning 3 New Mexico 471; 9 Pacific 684.. On the other hand where a new statute of limitation reduces the time previously allowed for commencement of the suit, but does not come into operation forthwith and allows a reasonable time for the enforcement of existing causes of action, the Court will not hesitate to hold that the statute may affect causes of action alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved, since the generality of the expressions which may be found there, must be deemed governed and qualified by the particular facts of that case. These observations apply equally to the cases of Reg. v. Dorabji 11 Bom. H. C. R. 117 (1874) and Chajmal v. Jagadamba I. L. R. 11 All. 408 (1889). I further desire emphatically to repudiate the suggestion that the Court is in any way bound by isolated dicta in English cases not directly in point; the crucial teste to be applied is, are these dicta consistent with the principles of justice, equity and good conscience. Here it is useful to bear in mind the weighty observations of one of the foremost jurists of the present generation, viz., that " blind following of English precedents according to the letter can only have the effect of reducing the estimation of the Common Law by intelligent Indians to the level of its more technical and less fruitful portions and making those portions appear if possible more inscrutable to Indian than they do to English lay suitors." (Sir Frederick Pollock on the Genesis of the Common Law, page 92). No doubt, we find it frequently asserted in judicial decisions that a statute of limitation embo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following order was passed by their Lordships: The only other question raised in the appeal is whether there was an abandonment of the holding by the Plaintiffs and how far the Plaintiffs, who were minors, are bound by it. But the learned District Judge found that the Plaintiffs were dispossessed by their landlord in collusion with the other Respondents. The question of special limitation under the Bengal Tenancy Act can only arise and was raised on the finding that there was dispossession, and we discussed the question of limitation on that footing. The Plaintiffs having been dispossessed, the question of abandonment does not arise, and in fact the finding as to dispossession negatives the case of abandonment. The suit not being barred by the special limitation provided by the Bengal Tenancy Act, and having been instituted within 12 years of the dispossession, the Plaintiffs are entitled to a decree for possession. The decree of the lower Appellate Court is accordingly set aside and that of the Court of first instance restored. Each party will bear his own costs of this Court and of the lower Appellate Court. In the result the Appellants will be allowed their costs in the Court ..... 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