Sri Lanka Law Reports
 2 Sri L.R.
WADOOD AND ANOTHER
, COURT OF APPEAL.
L. H. DE ALWIS. J. AND G. P. S. DE SILVA, J,C.A. APPLICATION 590/83-D.C. GALLE L/8307.MARCH 1, 1984.
Interpretation Ordinance, section 6(3)-Retrospective operation of legislation-SecondSchedule to Civil Procedure Code amended by section 21 of Act 53 of 1980-Whetheramendment retrospective.
Hussain v Wadood
The plaintiff instituted action against the 1 st and 2nd defendants for ejectment from thepremises in suit in 1974 and judgment was entered in his favour with costs in 1978 In1982 the bill of costs was prepared by the plaintiff's Attorney-at-law according to therates specified In the Second Schedule to the Civil Procedure Code (Chapter 101) asamended by Act No 53 of 1980 This was objected to on the ground that the actionwas filed and concluded prior to the enactment of the amending Act
In terms of section 6(3) of the Interpretation Ordinance, a repealing Act, unless itexpressly so provides, does not affect "any penalty incurred" under the earlier lawThere is no such express provision in the Civil Procedure Code (Amendment) Act, No.53 of 1980.
The presumption against a retrospective construction has no application to enactmentswhich affect only the procedure and practice of the courts. Section 21 of Act No. 53 of1980 is not a provision which relates merely to a matter of procedure but is one whichhas enhanced the quantum of liability in respect of costs of action. This section has noretrospective operation and is not applicable in the instance case to the costs payableby the 1st defendant.
Cases refered to •
Akilandanayaki v. Sothinagaratnam, (1952) 53 N.L.R. 385, 393.
APPLICATION for Revision of an Order of the District Court. Galle.
M. S. A Hassan for 1st defendant-petitionerMuhammed Ghazzah for plaintiff-respondent
Cur adv vult
March 30. 1984.
G. P. S. DE SILVA, J.
The plaintiff instituted this action in May, 1978, against the 1st and2nd defendants for ejectment from the premises in suit. Judgmentwas entered in favour of the t laintiff with costs of action in 1973. The1st defendant did not appeal against the judgment. On 27.2.82, theAttorney-at law for the plaintiff, prepared a bill of costs payable by the1st defendant, according to the rates specified in the SecondSchedule to the Civil Procedure Code (Chapter 101) as amended bythe Civil Procedure (Amendment) Act, No. 53 of 1 980 This wasobjected to on the ground that the action was instituted andconcluded prior to the enactment of the Civil Procedure (Amendment)
Sri Lanka Law Reports
[1984/ 2 Sn L R
Act, No 53 of 1980. The contention of the 1st defendant was thatthe relevant scale of costs was that specified in the Second Scheduleto the Civil Procedure Code prior to the amending Act, No. 53 of1980
Admittedly, the action was filed and concluded as against the 1stdefendant prior to the enactment of the amending Act, No. 53 of1 980 The District Judge after hearing the parties, made Order thatthe relevant scale of costs is as set out in the Second Schedule to theCivil Procedure Code as amended by Act, No 53 of 1 980, and thatthe bill of costs should be taxed accordingly. The 1st defendant hasnow made an application to this Court to revise the said Order of theDistrict Judge.
Section 21 of the Civil Procedure Code (Amendment) Act., No. 53of 1980, reads thus
"The Second Schedule to the principal enactment is herebyrepealed and the following new Schedule substituted therefor." (Theemphasis is mine ). As observed by Gratiaen, J. in Akilandanayaki v.Sothmagaratnam (1).
"Section 6(3) of the Interpretation Ordinance, in a sense, controlsthe operation of all repealing enactments."
The relevant part of section 6(3) of the Interpretation Ordinance,reads thus
"Whenever any written law repeals either in whole or part a formerwritten law, such repeal shall not, in the absence of expressprovision to that effect, affect or deemed to have affected-
(b)any right, liberty, or penalty acquired or incurred under
the repealed written law ;
Thus, a repealing Act, unless it expressly so provides, does not affect"any penalty incurred" under the earlier law There is no such expressprovision in the Civil Procedure Code (Amendment) Act, No 53 of
Hussain v Wadood (G P. S de Silva. J.)
1 980 The important point is that liability to pay costs was incurred bythe 1 st defendant when judgment was entered against him with costsin 1978. The subsequent amending Act, No. 53 of 1980, does notaffect that liability in view of the provisions of section 6 (3) (b) of theInterpretation Ordinance.
This provision of the Interpretation Ordinance (section 6 (3) ) isbased on the well-settled rule of interpretatron that generally a statuteoperates prospectively, that is, in respect of facts and situations whichcome into existence after the enactment of the statute. The underlyingprinciple is succinctly stated in Maxwell on Interpretation of Statutes(11 th Edition), thus
"Upon the presumption that the legislature does not intend what isunjust, rests the leaning against giving certain statutes a
retrospective operationIt is a fundamental rule of English law
that no statute shall be construed to have a retrospective operationunless such a construction appears very clearly in terms of the Actor arises by necessary and distinct implication …. Every statute,
it has been said, whichcreates a new obligation, or imposes
a new duty or attaches a new disability in respect of
transactions …. already past, must be presumed, out of respectto the legislature, to be intended not to have a restrospectiveoperation." (Pages 204 and 206).
This principle deeply founded on good sense and strict justice is ofancient origin. "It is certain further that laws give shape to affairs of thefuture, and are not applied retrospectively to acts of the past." Voet1. 3. 17.
It is true that "the presumption against a retrospective construction,has no application to enactments which affect only the procedure and
practice of the courtsMaxwell Interpretation of Statutes
11th Edition, page 216. But it must be noted that the amending Act,No. 53 of 1980, has considerably increased the scale of costs andcharges set out in the Second Schedule to the Civil Procedure Code. Inmy view, section 21 of the amending Act, No. 53 of 1980, is not aprovision which relates merely to a matter of procedure. It is aprovision which has enhanced the quantum of the liability in respect ofcosts of action.
Sri Lanka Law Reports
 2 SriL.R
I accordingly hold that section 21 of the amending Act. No. 53 of1980, has no retrospective operation and is not applicable in theinstant case to the costs payable by the 1 st defendant The Order ofthe District Judge, dated 29.4.81, is set aside and we direct that thebill of costs payable by the 1 st defendant, be taxed according to therates specified in the Second Schedule to the Civil Procedure Codeprior to its amendment by Act, No. 53 of 1980. In all thecircumstances, we make no order as to costs.
L. H. DE ALWIS, J.-l agree.
Application in revision allowed.
HUSSAIN v. WADOOD AND ANOTHER