NAWADUN KORALE CO-OPERATIVE STORES UNION, LTD., Appellant, and W. M. PREMARAT

142-NLR-NLR-V-55-NAWADUN-KORALE-CO-OPERATIVE-STORES-UNION-LTD.-Appellant-and-W.-M.-PREMARAT.pdf

505
GAAT^AEN J.—Nauadun Korale Co-operative Stores Union, Ltd. v.
Premaratne
1954* Present: Gratiaen J. and Sansoni J.XAWADUN KORALE CO-OPERATIVE STORES UNION, LTD.,Appellant, and W. M. PREMARATNE, Respondent
’S. C. 496—D. G. Ratnapura, 391 S
Co-operative Societies Ordinance (Cap. 107)—Section 45—Dispute between co-operative■society and past officer—Act No. 21 of 1949—Act No. 17 of 1952—Retroactive
effect—Appeal—Power of Appellate Court to re-hear case—InterpretationOrdinance (Cap. 2), s. 6 (3) (c)—Courts Ordinance (Cap. 6), s. 37.
tt*
The provisions of neither the Co-operative Societies (Amendment) Act, No. 21of 1949, nor the Co-operative Societies (Special Provisions) Act, No. 17 of 1952,are applicable to a dispute which had originated between a co-operative societyand one of its “ past officers ” prior to 24th May, 1949, and which was pendingin appeal to the Supreme Court at the time when Act No. 17 of 1952 came intoforce.
Section 2 of the Co-operative Societies (Special Provisions) Act, read withsection 6 (3) (c) of the Interpretation Ordinance, does not interfere with therights of the jarties in a’j action which had already commenced before the Actwas passed, or in a pending appeal filed before that date.
Quaere : Does the Supreme Court, when hearing appeals, sit as a Court ofrehearing, with unqualified power to make such order as the Judge of firstinstance could have made if the case had been heard by him at the date onwhich the appeal was heard ? Does its power extend to the re-examinationof substantive rights in the light of fresh legislation passed in the interval betweenthe judgment of the Court of first instance and the hearing of an appeal againstit ? Silva v. Swaris (1904) 1 Bal. Rep. 61, considered.
A *
XaPPEAU from a judgment of the District Court, Ratnapura.
H. V. Perera, Q.G., with E. R. S. R. Coomaraswamy and E. B.Vannithamby, for the plaintiff appellant.
V »
Us Thiagalingam, Q.C., with H. W. Jayewardene and E. A. D. Atukorale,for the defendant respondent.
,Cur. adv. vult.
June 24, 1954. Gratiaen J.—
This is an appeal against a judgment pronounced by the learnedDistrict Judge of Ratnapura on 25th July, 1951, refusing to enforce apurported award dated 14th February, 1951, in favour of a co-operativesociety under the provisions of the Co-operative Societies Ordinance(Cap. 107).
The respondent had been the manager of the society from March-1946until his services were discontinued on 1st November, 1947. – In June1948 .the society purported to refer an existing dispute between itselfand the respondent under section 45 concerning the respondent’s alleged22—iv
23. N. B 37328-1,590 (1/54)
506
GRATIAEN J.—Nawadun Korale Co-operative Stores Uniotf-, Lth. v.
Premaratne
accountability for certain sums "which, he had received durifig his periodof office. The Registrar, however, upheld the respondent’s objectionthat section 45 (in its original form) had no application to a disputebetween the society and one of its “ past officers So matters stooduntil the Co-operative Societies (Amendment) Act, No. 21 of 19^.9, passedinto law on 24th May, 1949. In consequence of this new legislation,section 45 in its new form for the first time authorised a dispute which“ arises ” between a society and a “ past officer ” to he referred to thedecision of a statutory tribunal under the special machinery set up by theOrdinance.
In spite of objection by the respondent, the society purported on 8thFebruary, 1950, to refer to the Registrar under section 45 (as amended)the present dispute which had admittedly originated before the amendingAct passed into law. An award upon this reference was made againstthe respondent (as a “ past officer ”) in favour of the society on 18thAugust, 1950, and was filed in Court on 14th February, 1951, with anapplication for its enforcement. It directed the respondent to pay to thesociety a sum of Rs. 8,844/35 and accrued interest. ( <
The learned District Judge refused to enforce the award because,although the amending Act of 1949 had enlarged the category of disputeswhich fall within the scope of section 45, this particular dispute had inhis. opinion “ arisen ” before the relevant amendment became applicable.
In my opinion the learned Judge’s judgment was perfectly correct.A dispute “ arises ” between two persons when one of them has for thefirst time unequivocally repudiated a claim made upon him by the other ;so long as the claim continues to be repudiated, the dispute which hasarisen still exists ; but it certainly cannot continue to* “ arise ”. Theamending Act has accordingly no application to a dispute which hadoriginated between a society and one of its past officers before 24th May,1949 ; it merely legalised the reference of a new class of dispute (whichhad not previously been capable of a valid reference under section 45in its original form) provided however that it first “ arose ” after the dateof the amending Act.
Mr. H. V. Perera suggested for our consideration an interesting alterna-tive argument based on the provisions of a further amendment rio section45 which passed into law on 21st March, 1952—that is, several monthsafter the judgment under appeal was pronounced. He submitted that,even if the learned Judge’s rejection of the award was justified by thestate of the law then in force, this Court (as an appellate Court of“ rehearing ”) ought now to declare the award to be capable of enforcementin view of the provisions of the Co-operative Societies (Special Provisions)Act, No. 17 of 1952.
The argument may be summarised as. follows :
(1) that m view of section 2 (1) of the amending Act, section 45 appliesto every dispute of any description contemplated by the 1949amendment notwithstanding that the dispute may have arisenprior to 24th May, 1949 ;
607
GRATIAEN J.—Nawadun Kordle Co-operative Stores Union, Ltd. v.
'1Premaratne
that section 2 (2) gives retrospective validity to a previous
purported reference of such a “ past dispute ” ;
that the jurisdiction of the Supreme Court, not being “ strictly
appellate ” in its nature, requires us to take into account forthe purposes of our decision all new legislation enacted pending?he final decision of an appeal from the court of first instance.
(I shall later examine in this context the scope of the proviso to section2*(2) of the 1952 amendment.)
It will be convenient first to discuss the true nature of the civilappollate jurisdiction of the Supreme Court. In Silva v. Stoaris1a Bench of two Judges decided that the function of the Court was todecide appeals “ by way of re-hearing ” and not merely to correct errorsof law or fact made by the Court below ; accordingly, there was alwayspower to re-examine the issues in the light of fresh legislation passed inthe interval between the judgment of the Court of first instance and thehearing of an appeal against it. The Privy Council found it unnecessaryto decide whether this proposition was correct—Ponncvmah v. Arumugam1 2.A Collective Bench of this Court considered the question afresh,however, in Guneratne v. Appuhamy 3. Middleton J. thought that theCourt was bound to determine an appeal “ according to the law existingat the time when the action was begun ”, and that Silva v. Swaris (supra)had been wrongly decided. Lascelles A.C.J. decided the case on some-what different grounds, and Wood Renton J. expressed no independentopinion on the subject.
I am content to say that, whether or not the appellate jurisdictionof this Court is one of “ re-hearing ”, the propositions laid down in Silva v.Stoaris (supra)* cannot be accepted without qualification. Even inEngland, where the Court of Appeal (as a court of “ re-hearing ”) isprima facie able and bound to give effect to “ new procedure ” and“ new remedies ” introduced by statute after an order appealed fromwas made by the court of first instance, it must generally, in regard tosubstantive rights, t,pply the same law as that which was in force duringthe earlier proceedings. ' The only exception is where the new legislationclearly and in unambiguous terms has retrospectively altered the earlierlaw—vide In re a Debtor 4, explaining the earlier judgments of Jessell
M.R. in Quilter v. Mapleson5 and in re Suche <& Co. 6. These are theprinciples which are embodied in every subsection of section 6 (3) of ourown Interpretation Ordinance (Cap. 2).
Let us apply the correct rules to the problem now before us. At thetime when the judgment under appeal was pronounced, the respondentenjoyed a substantive right to have the merits of the particular disputewhich had previously arisen between him and the society adjudicatedupon only by the regular courts of justice. Can it now be contendedthat subsequent legislation has retrospectively ousted the jurisdictionof the courts in favour of the jurisdictionof a statutory tribunal ? It
1{1904) 1 Bal. Rep. 61.*(1936) 1 Ch. 237.
2(1905) 8 N. L. if. 223.2(1882) 9 Q. B. D. 672.
3(1906) 9 N. L. R. 90.«(1875) 1 Ch. D 48.
608
SANSONI J.—Nawadun Korale Co-operative Stores Union, Ltd. v.
Premaratne,<
would indeed have been startling if any legislature had thought fit tobring about such a result in regard to the rights of partita in pendingactions. It is therefore our clear duty to refuse to infer such an intentionin the absence of express words to that effect in the new enactment.
There is no language in the Act of 1952 which convinces me thatParliament intended to interfere with the substantive rights of the partiesin an action which had commenced long before the Act was passed, orin a pending appeal filed before that date. We must therefore decidethis appeal as if the earlier law had not been repealed—see section 6 (3) (t)of the Interpretation Ordinance. Indeed, the indications are that this wasprecisely what Parliament required to be done in the present case. Therelevant words of the proviso to section 2 of the 1952 Act are as follows :
“ Provided, however, that in any case where any court of competentjurisdiction has prior to the date of the commencement of this Actmade order or entered judgment holding that any dispute was notduly referred …. nothing in the preceding provisions of thissub-section shaU be construed to affect the validity of the order or decreemade or entered in that case.”
°< * c
I do not consider these words as applying only to cases where a court hasmade an order on the basis of the earlier law which has reached finality (inthe sense that no appeal was pending against it when the amending Actwas passed) ; the proviso also precludes the Court, sitting in appeal,from applying the new law so as to disturb the validity of the order of theCourt of first instance, provided of course that the original decision wascorrect at the time when it was pronounced. The judgment under appealhas properly interpreted the law in force on 25th July, 1951 ; our duty istherefore to pronounce that it remains “ valid ” in ■spite of the subsequentchanges in legislation.
For these reasons, I would dismiss the appeal with costs.
Sansoni J.—* *
I agree. I should like to add my own reasons in view of the interestingargument addressed to us by learned Counsel for the appellant. Inorder to succeed in this appeal, the Society must establish : (1J that thisCourt when hearing appeals sits as a Court of rehearing, with the power tomake such order as the Judge of first instance could have made if thecase had been heard by him at the date on which the appeal was heard ;(2) that the amending Act No. 17 of 1952 (which I shall refer to as theamending Act), is retrospective, and (3) that there is no saving clausewhich restricts the retrospective action of the amending ^Act in any way.
On the first question I am of opinion that this Court is a Courtof rehearing and not merely a Court of error. I rely for this view on thedecision in Attorney General v. Birmingham, Tame, & Rea District DrainageBoard 1. Ford Gorell there points out, at page 801, that the Court ofAppeal in England is a Court of rehearing and has power to make.any
1 (1912) A. C. 788.'
J.—Nawadun Korols Co-operative Stores Union, Ltd. v,
Premaratne
609
order whicffpught to have been made, and to make such further or otherorder as the Court may think fit (Order LV 111, Re 1 and 4). The Courtalso has the power to take evidence of matters which have occurred_ after the date of the decision from which the appeal is brought (OrderT/V111 R 24). Section 37 of the Courts Ordinance, Cap. 6, makes itcompetent for this Court on the hearing of an appeal to pass suchjudgment, sentence, decree or order therein as it shall think fit. ThisCourt also has the power under that section to receive and admit newevidence touching the matter at issue in any original cause, suit, prosecu-tion or action as justice may require. The absence of a statutory declara-tiomthat the hearing of an appeal is by way of rehearing does not, to mymind, conclude the matter. In India it has always been held that anappeal to the High Court is, under the processual law of that country,in the nature of a rehearing of the cause. The provisions of O 41 R 33of the Civil Procedure Code of 1908, and the conferment of the power to-allow further evidence to be adduced have invariably been relied on insupport of that position, and it was so held by the Federal Court inShuhul v. Chaudhuri1. Varadaehariar J. in his judgment said that it.makes no lifferJttee that ft is not explicitly stated in the Indian Statutethat an appeal is by way of rehearing. As the learned Judge has pointedout in that judgment: “ The practice of the Judicial Committee in thisrespect does not appear to have been uniform. In Ponnamma v.Arumugam2, Lord Davey, delivering the judgment of the Board,observed that: ‘ Their Lordships have only to say whether that judgment(of the Supreme Court) was right when it was given ’…. In
the recent case of Mukherjee v. Ram, Ratan 3, it would appear from thereport of the arguments in 63 I. A. 47 that Quitter v. Maples on 4 wasreferred to, and^it was observed by Lord Thankerton in the course of theargument that the duty of a Court is to administer the law of the landat the date when the Court is administering it. This adds significanceto the fact that their Lordships in that case did not deal with the judgmentof the Patna High Court on its merits, but dismissed the appeal on thestrength of a precision contained in an enactment which was passed,only during the pendency of the appeal before His Majesty in CouncilsIn the circumstances I am of opinion that we should follow the law aslaid down in the latter case ”. With respect, therefore, I would agreewith the decision in Silva v. Swaris 5.'
On the question whether the amending Act is retrospective, section 2(1) of the Act expressly makes section 45 of the Co-operative SocietiesOrdinance, Cap. 107, applicable to every dispute “ notwithstanding thatthe dispute may have arisen prior to the date on which (Act No. 21 of1949) came into operation ” and section 2 (2) makes section 45 applicableto every reference “ which may heretofore have been made in purportedpursuance of the provisions of (section 45) H the amending Act hadstopped there nothing could have been clearer than that it was intendedto have retroactive effect.»
– 1 (1940) 20 Patna 429.3 A. I. R. (1936) P. C. 49-2 (1905) 8 N. L. R*. 223.« (1882) 9 Q. B. D. 672.
(1904) 1 Balasingham 61.
2*-
'. TS. B 37328 (8/54)
610SANSON! J.—Nawadun Korale Co-operative Stores Union, T.td. tv.
Premaratne*
But here one has to consider the effect of section 6 (3) (c) @f the Inter-pretation Ordinance, Cap. 2. Since this appeal was pending when theamending Act came into operation, the appeal would have to be decidedregardless of the amending Act since there is no express provision makingthe amending Act applicable to this particular appeal.(
Apart from this objection, it seems clear to me that the provisos tosection 2 (1) and (2) prevent the amending Act having retroactiveTeffect in two respects. Firstly, if the dispute was a matter in issue in anaction which was pending at the date of the commencement of the Actin any Court of competent jurisdiction, the Court was empowered tohear and determine that matter, and section'2 (1) is specifically madeinapplicable either to affect the jurisdiction of the Court or “ the validityor operation of the order or decree made or entered in the action ”. Iwould only observe at this point that whatever the word “ action ” maymean in this context, this provision cannot apply to the case underconsideration because the proceeding in the lower Court was not pendingat the date of the commencement of the amending Act. ^ I have no doubtthat the phrase “ in any Court of competent jurisdiction ” can only applyto a Court of first instance. Secondly, if any Court of competent jurisdic-tion has prior to the date of commencement of the amending Act madeorder or entered judgment holding that any dispute was not duly referredfor decision under section 45, again section 2 (1) is specifically madeinapplicable to affect “ the validity of the order or decree made or enteredin that case ”.
Mr. H. V. Perera submitted that in seeking to make the amending Actapply to this case he was not attacking the validity of the order of theDistrict Court. While conceding that it was valid, his submission, as Iunderstood it, was that it was open to him to show that it was renderedincorrect by the operation of the amending Act, and since it was underappeal when the amending Act was passed it was not a final order ; inother words, the order ceased to be res judicata and was rendered subjudice and became at large, and its correctness has to he determined inthe light of the amending Act. I agree- that there may well be easeswhere an order which was correct when it was made can be reversed bythis Court— a course taken by the Court of Appeal in England in the caseof Quilter v. Mapleson (supra) where that Court gave effect jho an Actwhich came into operation with retrospective effect after an appealhad been filed against the order of the lower Court. But this is not oneof those cases. There is, as I have pointed out, the obstacle created bysection 6 (3) (c) of the Interpretation Ordinance. The second obstacleis the proviso to section 2 (2) of the amending Act. Beading the amendingAct as a whole, as I think one should, and bearing in ipind the purposeunderlying the proviso to section 2 (1), I think it is clear that the provisoto section 2 (2) was also enacted in order to preserve unaffected theoperation of all orders or decrees entered before the amending Act cameinto operation so long as they had been entered by a competent Court offirst instance. It would not be surprising if the framers of the amendingAct felt that it would be a grave thing to deprive* a suitor of his vestedrights either in a pending action or in a decided case.
>
GXJNfASEKARA J.—In re Wickremasinghe
511
The Concise Oxford Dictionary defines the word “ Valid ” as meaning“ sound anddsuffieient The appellant is seeking to get the order of theDistrict Judge entirely out of the way and to render it of no effect. Theclear purpose of the proviso to section 2 (2) was to protect a party whohad obtained an order such as the respondent had obtained, and to preventthe soundness and sufficiency of this order being questioned by reason ofthe provisions of the amending Act.
Appeal dismisssed-.