Research › Browse › Judgment

Kerala High Court · body

1964 DIGILAW 263 (KER)

KUNHI BEAKY v. KUNHAMBU NAIR

1964-09-18

S.VELU PILLAI

body1964
Judgment :- 1. Second Appeal 869 of 1960 is by defendants 1 and 2, and Second Appeal 1045 of 1960 is by the plaintiff, in O. S.358 of 1958, a suit on a simple mortgage, which was instituted on the 15th July, 1958. The relevant part of sub-S. (2) of S.3 of the Kerala Agriculturists Debt Relief Act, Act 31 of 1958, is that "where a creditor files a suit for recovery of a debt before the expiry of six months from the commencement of this Act... the Court shall in decreeing the suit direct the plaintiffs to bear his own costs and to pay the costs of the defendant who is an agriculturist...". Defendants 1 and 2 are agriculturists. The Act came into force on the 14th July, 1958. Applying the above, the court of first instance decreed the plaintiff to bear his own costs and to pay the costs of defendants 1 and 2, but in appeal the court decreed the parties to bear their costs in the two courts. Second Appeal 869 of 1960 is directed against the decree in appeal in so far as the costs of the defendants in the first court have been disallowed to them, and second appeal 1045 of 1960 is directed in so far as the costs in the two courts have not been allowed to the plaintiff. 2. The appellate court modified the decree of the first court on the ground that the plaintiff had no information about the passing of the Act before the suit was filed, and it relied on the decisions in The Dominion of India New Delhi v. Manindra Land and Building Corporation Ltd. AIR. 1954 Calcutta 174 and C. Ganapathi Mudaliar v. N. Krishnamachari AIR. 1922 Madras 417, both of which, in my opinion, are inapplicable. In the former, the question was whether the plaintiff, a bank, was bound to follow the procedure prescribed by the High Denomination Bank Notes (Denomination) Ordinance 3 of 1946, read with Rules framed thereunder, for exchanging certain high denomination notes it possessed, at the Reserve Bank. 1922 Madras 417, both of which, in my opinion, are inapplicable. In the former, the question was whether the plaintiff, a bank, was bound to follow the procedure prescribed by the High Denomination Bank Notes (Denomination) Ordinance 3 of 1946, read with Rules framed thereunder, for exchanging certain high denomination notes it possessed, at the Reserve Bank. While holding interalia, that the bank had substantially complied with the provisions of the Ordinance and the Rules, the court observed: "Ordinances are no doubt issued because of emergencies but reasonable construction must always be applied when the question arises as to whether provisions contained in the Rules subsequently issued have been followed or not." The Ordinance prescribed the 15th of January, 1946, as the crucial date for the exchange, but the Rules were not published until the 26th January 1946; the question for consideration was only whether, in spite of the fact that the rules were published only later, the procedure followed by the Bank earlier was insubstantial compliance with them; the observations extracted were made in that context. As a principle of construction, it does not arise here. In C. Ganapathy Mudaliar v.N. Krishnamachari AIR 1922 Madras 417 the question was whether S.14 of the Indian Limitation Act as amended had retrospective operation and for deciding it, the court applied a principle which was stated in these terms: "Both on principle and on the balance of authority the new law ought not to be applied so as to kill causes of action which were alive on the date of its enactment .... one underlying principle of the cases which lean against retrospective operation, is that, if the new Act gives no days of grace for its coming into operation, but makes it law as soon as it is passed, courts should hold that the. Legislature did not intend to interfere with vested rights." 3. In this case, there is no question of the retrospective operation of 8.3 at all, because by S.1 (3), the Act had come "into force at once". Legislature did not intend to interfere with vested rights." 3. In this case, there is no question of the retrospective operation of 8.3 at all, because by S.1 (3), the Act had come "into force at once". Under S.3 of the Travancore-Cochin Interpretation and General Clauses Act, 1125, Act 7 of 1125, amended by Act 3 of 1957, as held by the bench in Iype Varkey v. Catholic Union Bank Ltd., 1960 KLT.1070, Act 31 of 1958 came into force on the termination of the previous day by midnight on the 13th July, 1958; the suit was instituted "a day later. The real question to consider if, whether the plaintiff's ignorance of the new law exonerates him. When the legislature has enacted a law and it has come into force, I do not see how the application of that law can be prevented or postponed on the ground of sheer ignorance of the law. The rule has been stated thus in Craies on Statute Law, 5th edition, at page 356: "As a British Act of Parliament does not derive its effect from promulgation or publication, it binds the lieges in many cases before it has been physically possible to ascertain its terms. In accordance with the principle of law expressed by the legal maxim, ignorantia juris neminem excusat, the moment an Act of Parliament actually comes into operation, strictly speaking every person who is amenable to the law of England is affected by it, even although it may be morally certain that he could not know that the statute in question had been passed. This was laid down by Lord Eldon in R. v. Bailey (1800), Russ. & R.1, 4, where the prisoner was indicted under an Act of which it was clear that he could not have known the existence at the time he committed the offence with which he was charged; but Lord Eldon told the jury that he was of opinion that he was, in strict law, guilty under the statute, although he could not have known that it had been passed, and that his ignorance of the fact could in no otherwise affect the case than that it might be the means of recommending him for a pardon. This ruling was subsequently upheld by all the judges." In 36 Halsbury's Laws of England, 3rd edition, page 378, Art.561, it is stated thus: "Ignorance of the law does not excuse the performance of a statutory obligation, and is therefore no defence to proceedings for a breach thereof, though it may be a matter of extenuation" and at page 485 thus: ".... there are, so far as statutory obligations are concerned, no exceptions to the principle that ignorance of the law does not excuse a failure to observe it." It must therefore follow, that S.3 sub-section (2) must have effect, notwithstanding the plaintiff's ignorance of the law, even if true. 4. Learned counsel for the plaintiff contended, that S.3 sub-section (2) must be reasonably interpreted so as to limit its operation to those agriculturists, who had paid or deposited amounts of their debts in instalments as specified in S.4; I do not think that this construction is at all possible, in view of the opening part of that Section, which relates to the institution of a suit before the expiry of six months from the commencement of the Act, and which has to be read disjunctively from the next part. I am not prepared to accept the contention, that the plaintiff had a vested right to his costs but for the enactment. The last contention, that in any event, the costs payable by the plaintiff to the defendants must be limited to the institution fee payable, as the latter had raised untenable contentions cannot prevail in view of the clear words of the Section, that the court shall direct the plaintiff to bear his own costs and to pay the costs of the defendant. 5. In the result, S. A. 869 of 1960 is allowed to the extent, that the costs of defendants 1 and 2 in the trial court shall be paid by the plaintiff who shall bear his own costs. S. A. 1045 of 1960 is dismissed. The parties shall bear their costs in this court in both appeals.