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1996 DIGILAW 1330 (RAJ)

Narendra Behari v. RSEB

1996-11-27

SHIV KUMAR SHARMA

body1996
Honble SHARMA, J. – In the light and shade of life, this is our only role, wailing we move from night to morn, from morn, some how, to eye. Even these words cannot fully describe the feelings and sufferings of those dependents whose bread earners were the victims of accidents. But, can any body imagine that prior to Au- gust, 1990, dependents of bread- earner who was crushed by a Motor Vehicle, could have instituted claim petition of any amount of compensation merely by praying Court fee of Rs. ten, Where as the dependents of another bread-eamer who was Crushed by a bullock -cart could not have instituted such a claim -petition on court fee of rupees ten but they had to pay ad-valoren fee on the amount of compensation claimed by them. (2). Court fee chargeable for an accident claim petition under the Motor Vehicles Act was Rs. 10/- whereas under the Fatal Accidents Act, it was Ad-valorem. This anomaly was cured by the Rajasthan Court Fees and Suits Valuation (Amend- ment) Act, 1990 (hereinafter referred to as the Amending Act, 1990) by inserting following proviso in Section 21 of the Old Act, 1961 : ``Provided that in an action or suit for damages under the Fatal Accidents Act, 1855, a fixed fee of rupees ten shall be payable on the plaint or memorandum of appeal. Amending Act, 1990 received assent of the Governor on 7th day of August, 1990 and was published in Rajasthan Gazette Extraordinary 4(Ka) dated 9.8.90 at page 21. It came into force at once. (3). Short question which arises for consideration in this revision is as to whether the provisions of Amending Act, 1990 are applicable to the suits pending on the date when the said Act came into force? (4). This question has emerged from the following facts : (i) The petitioners filed a suit for compensation under the Fatal Accidents Act, 1855 on 12.5.86 in the court of the District Judge Jaipur City, which was assigned to the court of the Additional District Judge No. 1 Jaipur City. In the suit the petitioners averred that due to sheer negligence and gross dereliction in duty by the defendants non-petitioner No. 1 (RSEB), No. 3 (Ex-Engineer) and No. 5, (Jr. In the suit the petitioners averred that due to sheer negligence and gross dereliction in duty by the defendants non-petitioner No. 1 (RSEB), No. 3 (Ex-Engineer) and No. 5, (Jr. Engineer) in particular, Amit, the son of the petitioners, aged about 7 years lost his life as they did not rectify the defect of following electric current in the stray wire, despite repeated reports made during two consecutive days before the fateful day. Due to this negligence, the son of the petitioner was electrocuted. (ii) The plaintiffs-petitioners, according to the advice of their counsel, paid the court fees of Rs. 300/- on the claim under the residuary sec- tion 45 of the Rajasthan Court Fees and Suits Valuation Act, 1961. (iii) On behalf of defendant non-petitioner No. 1 and No. 5, an application under Order 7 Rules 11 CPC was filed on 14.10.1986 stating therein that as the proper court fee was not paid the suit be dismissed at the threshold. The trial court rejected the application directing the defendants to take all objections in their written statements. (iv) Only the defendants No. 1, 4 and 5 file their statements and other defendants were set exparte.. As many as 8 issues were framed by the trial court on 27.8.1990. Issue No. 5 was as under : Whether insufficient court fee has been paid? The burden to prove this issue was on defendants. (v) The plaintiffs petitioners commenced to lead evidence and examined their three witnesses till 27.7.1992. On 14.10.1992 the trial court passed an order that before recording further evidence arguments on Issue No. 5 would be heard. (vi) The trial court vide order dated 8.4.1994 decided issue No. 5 against the plaintiff-petitioners holding that Amending Act of 1990 came into force after institution of the suit and for that reason it was not applicable to the pending suits. (vii) The order dated 8.4.1994 has been assailed in this revision. (5). I have given my anxious and thoughtful consideration to the arguments advanced before me by the learned counsel for the parties and perused the impugned order. (6). (vii) The order dated 8.4.1994 has been assailed in this revision. (5). I have given my anxious and thoughtful consideration to the arguments advanced before me by the learned counsel for the parties and perused the impugned order. (6). On the date of institution of suit section 21 of the Rajasthan Court Fees and Suits Valuation Act, 1961 was as under : ``In a suit for money (including a suit for damages or compensation, or arrears of maintenance, of annuities or other sums payable periodically), fee shall be computed on the amount claimed. In Section 21 of the Act of 1961 following proviso was inserted by the Amending Act, 1990 : ``Provided that in an action or suit for damages under the Fatal Accidents Act, 1855 a fixed rate of rupees ten shall be payable on the plaint or memorandum of appeal. (7). This amendment came into force on 9.8.1990, i.e. during the pendency of the suit. The statement of objects and reasons for the Amending Act, 1990, as were published therewith were these : STATEMENT OF OBJECTS AND REASONS : ``At present the court fee chargeable for an accident claim, petition under the Motor Vehicles, Act, is Rs. 10/- whereas under the Fatal Accidents Act it is advalorem which is an anomaly. It is, therefore, proposed to suitably amend the Rajasthan Court Fees and Suits Valuation Act, 1961 so as to make the fee uniform. (8). It is well settled that the Amending Act is deemed to have been written with the same pen and ink with which the original Act was written unless the amending Act take away any rights of any party. (9). Mithilesh Kumari & Anr. vs. Prem Behari Khare(1), is an important decision wherein the provisions of the Benami Transactions (Prohibition) Act (45 of 1988) have been interpreted. The facts of the case in short are, that the plaintiff filed a suit for declaration that he was the real owner of the suit house and the transaction was benami. The suit was decreed by the trial court and the decree affirmed by the appellate Court. The Act came into force during pendency of appeal before the Supreme Court. It was held that the subsequent event could be taken note of and the Act being retroactive in operation the suit could not be decreed. The suit was decreed by the trial court and the decree affirmed by the appellate Court. The Act came into force during pendency of appeal before the Supreme Court. It was held that the subsequent event could be taken note of and the Act being retroactive in operation the suit could not be decreed. The Apex Court observed that laws made justly and for the benefit of individuals and the community as a whole may relate a time antecedent to their commencement. It cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. The question is whether on a proper consideration the legislature may be said to have so expressed its intention. (10). In Sree Bank Ltd. vs. Sarkar Dutt Roy and Co(2), the Supreme Court has observed thus : ``Where however a statute is passed with the object of protecting the public against some evil or abuse, it may be allowed to operate retros- pectively, even if by such operation it will deprive some person or persons of a vested right. In para 38 of the judgment it was further observed that for the respective (sic-retrospective) operation of the provision of an Act, it is not necessary that it must be stated that its provisions would be deemed to have always existed. That is one of the modes and may be an effective mode of providing that the provisions would have retrospective effect. Retrospective effect can also be gathered from the language of the enactment and the objection and intent of the legislature in enacting it. (11). The Apex Court in Channa Singh & Anr. vs. Smt. Jai Kaur(3), while inter- preting Punjab, Pre-emption Act (1 to 1913) (as amended by Act 13 of 1964) has laid down the legal position relating to the retrospective intention of the legislature as under : ``It is well settled that if a statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions. (12). (12). Delhi High Court in C.C. Revenue Authority and Another vs. Fertilizer Corporation of India Ltd. & Ors(4), has observed that courts should put a liberal interpretation on fiscal statutes like the Court Fees Act so as to lessen and not to add to the burden of litigation. The Court Fees Act is notorious for bad drafting and it is an artificial statute showing hardly any principle in its scheme. (13). If the above discussion is kept in view there is no difficulty in attributing a retroactive intention to the legislature when the Amending Act 1990 was enacted. It appears from the perusal of the statement of object and reasons for the Amending Act, 1990, as was published therewith, that it was merely of a clarificatory or declaratory in nature. Before enactment of Amending Act, 1990 Court Fee chargeable for an accident claim petition under the Motor Vehicles Act was Rs. 10/- only whereas under the Fatal Accidents Act it was ad valorem. In order to cure this ano- maly the Amending Act, 1990 was enacted and by inserting proviso to section 21 of the earlier Court Fees Act, 1961, it was declared and clarified that fixed court fee of Rupees ten shall be chargeable on the suits for damages under the Fatal Accident Act. Thus, a remedial Act was promulgated to save a class of persons from undue heavy burden of paying Ad valorem court fees. There is a presumption of retrospec- tive effect when a statute explains or supplies an omission in an earlier enactment. It is well established as was held in REX vs. BIR WHF(5) that scores of Acts are retrospective and may without express words be taken to be retrospective, since they are passed to supply a cure to an existing evil. As held by Delhi High Court in theRevenue Authority case (supra) the courts should put a liberal interpretation on fiscal statutes like the Court Fees Act so as to amended and not to add to the burden of litigation. (14). It appears from the tenor of the impugned order that the trial courts was swayed with the idea that in the Amending Act 1990 it was not specifically mentioned that it had retrospective operation. (14). It appears from the tenor of the impugned order that the trial courts was swayed with the idea that in the Amending Act 1990 it was not specifically mentioned that it had retrospective operation. In this view of the matter, the trial court failed to exercise its jurisdiction vested in it by law in not deciding issue No. 5 in favour of the plaintiffs petitioners. The Amending Act, 1990 being retroactive in operation, is applicable to the pending suits and appeals under the Fatal Accidents Act. (15). In the result the revision is allowed and the impugned order dated 8.4.94 is set aside, issue No. 5 is decided in favour of the plaintiff petitioner. Looking to the fact that the suit is pending since 12.5.1986 it is directed that the trial court shall decide the suit within six months from today. No costs.