Authored By : Herbert Carnduff, Nalini Ranjan Chatterjee,Asutosh Mookerjee, Herbert Carnduff, Nalini Ranjan Chatterjee

Herbert Carnduff, Kt., J.

1. This appeal is preferred by the plaintiffs against adecree dismissing their suit for the recovery of possession on an under-raiyatiholding in the District of Rungpore from the landlord and those with whom thelands comprised in the holding had been subsequently settled by the landlord.The decision of the lower Appellate Court proceeds on various grounds; but thatwith which alone I think it will be found necessary to deal, is the ground oflimitation.

2. The appellants possession admittedly came to an end in1898; and their action, which was brought on the 25th August 1908, has beenheld to have been barred by the special rule of two years limitation prescribedby the third Article in the third Schedule to the Bengal Tenancy Act, 1885, asamended by section 61, clause (3), of the Eastern Bengal and Assam Tenancy(Amendment) Act, 1908; which came into force on the 10th June 1908. In supportof the appeal on this point, it is contended, first, that the ouster was not bythe landlord, whence it follows that the special rule of limitation is no bar,and secondly, that in any event the amendment of the law in 1908 cannot beapplied retrospectively so as to bar the present suit.

3. As regards the first contention, the finding of factarrived at by the Appellate Court below, is, I think, conclusive on secondappeal; for that finding amounts to this, that the landlord, in collusion withthe other respondents, put the latter in possession to the exclusion of theappellants. This is, in my opinion, sufficient to bring the case within thepurview of the Tenancy Act.

4. In pressing the second contention the learned Vakil forthe appellants has taken his stand primarily on the broad ground that theshorter period of limitation introduced in Eastern Bengal by the Amending Actof 1908 can be applied only to suits for dispossession occurring after thepassing of that enactment. This argument may be disposed of at once by areference to the oases of Saraswati Dasi v. Horitarun Chuckerbutti 16 C. 741and Ramdhan Bhadra v. Ram Kumar Dey 17 C. 926, in both of which it was held bythis Court that the special rule of limitation laid down by the Bengal TenancyAct, 1885, as originally enacted in respect of suits instituted byoccupancy-raiyats was not restricted to suits in which the cause of actionarose after that enactment became law. Those decisions have, so far as I know,never been questioned, much less overruled; they are clearly binding on us; andI venture to say that I entirely agree with them.

5. But the cases referred to may, it is next argued, bedistinguished because in them the dispossessions complained of had occurredonly five months and eleven months, respectively, before the enactment of themore stringent rule of limitation. Consequently, in neither could it he saidthat the application of the new rule would have had the result of depriving theplaintiff of his right of action altogether: for he could very well havebrought his action; had he so chosen, within the shorter period of two yearsprescribed. In other words, his remedy remained; and all that happened was thatless time was left to him to move with a view to its enforcement. Regarded inthis light, the new law of limitation was clearly a law relating to nothing butprocedure, pure and simple, and there could be no possible objection to theadoption of the principle that enactments regulating mere procedure are, in asense, retroactive. Here, on the other hand, the application of the amendedrule of limitation put the plaintiffs out of Court at once, since the shorterperiod prescribed had expired long before the enactment prescribing it had comeinto force; and the further argument that, in these circumstances, the Act of1903 did much more than alter the course of procedure in that its applicationhad the effect of taking away the appellants right of action, is certainlyattractive and, perhaps, less readily met.

6. In support of this argument our attention has beeninvited to a number of reported cases, both English and Indian, and I haveexamined them and the authorities on the subject at length. But it issurprising to find how few are exactly in point, that is to say, how few dealwith alterations in the law of limitation. There are, no doubt, numerouspassages in the reports, and also in the test books, which can be accepted andquoted to establish the proposition that retrospective effect should not begiven to an Act so as to work injustice by taking away vested rights of action.But the precise question whether any person can be said to have a vested rightto bring an action within a particular period is hardly touched; and that isthe question on which turns the applicability to Statutes of Limitation of thebroad proposition stated above. The cases which seem to me to be reallyrelevant, and to which alone, therefore, I propose to refer, are the following.

"The most helpful to the appellants of the Indian casesis that of Khusalbhai v. Kabhai 6 B. 26, which has, curiously enough, not beencited before us on their behalf. In it the plaintiffs applied, apparently in orabout the month of August 1879, to have the legal representative of theoriginal defendant who had died some six months earlier, substituted in hisstead. But, on the 29th July 1879, Act XII of that year had been passed andbrought into operation at once; and by it an Article was inserted in theSchedule to the Limitation Act of 1877 fixing sixty days from the death of adeceased defendant as the period of limitation for such an application. Underthe new Article the plaintiffs application would, obviously, have been at oncebarred; and Melvill and Kemball, JJ., held that in these circumstances, regardbeing had also to the fact that there was no postponement of the operation ofthe Act, to put a retrospective construction upon the Article would be todeprive the plaintiffs absolutely of the right which they previously had, andwhich all plaintiffs subsequently had, to revive their suit; and this would bean injustice which cannot be presumed to have been within the intention of theLegislature."

7. This case is on all fours with that before us; but we arenot bound by the ruling in it, and, with all respect I doubt its soundness. Init the learned Judges refused to follow the earlier decision of their Court inReg. v. Dorabji Balabhai 11 B.H.C.R. 117, where it was held by West andLarpent, JJ., that "an Act of Limitation, being a law of procedure,governs all proceedings to which its terms are applicable from the moment ofits enactment, except in so far as its operation is expressly excluded orpostponed." They disposed of that emphatic decision with the remark thatthe rule laid down thereby "must admit of the qualification that, when theretrospective application of a statute of limitation would destroy vestedrights, or inflict such hardship or injustice as could not have been within thecontemplation of the Legislature, then the statute is not, any more than anyother law, to he construed retrospectively." They seem to me to have beeninfluenced too much by a consideration of the hardship of the particular casebefore them; whereas Judges ought, as was said by Lord Campbell, L.C., in TheEast India Company v. Oditchurn Paul 5 M.I.A. 43 at p. 69 : 18 Eng. Rep. 810"to take care for the general good of the community, that hard cases donot make had law." The judgment speaks, no doubt, of the right "ofwhich the plaintiff would have been deprived by the new enactment; but it doesso loosely, and it fails to inquire into the precise nature of thatright." It was a right to go to law; but the exercise of that right wassubject always to the rules of procedure for the time being in force, and firstand foremost amongst such rules are Statutes of Limitation. To these, above allthings, suitors must have constant regard; and, if they delay in seeking toenforce their claims, the risk as it seems to me is theirs.

8. In The Delhi and London Bank v. Orchard 4 I.A. 127 : 3 C.47, the Judicial Committee, no doubt, preferred that one of two constructionscapable of being placed on the provisions of sections 20 and 21 of Act XIV of1859, the first of the Limitation Acts passed in India; which avoided theimposition of a hardship such as that before us in the present case. But whattheir Lordships were there construing and applying was a saving clause framedfor the protection of rights under subsisting judgments and decrees; whereasthe initial, and to my mind, the fatal difficulty which the appellant is faceto face with here, lies in the fact that there is not, when there might havebeen, any such saving clause to construe and apply. Their Lordships acceptedthe view of this Court that sections 20 and 21 of the Act of 1859, should beread together so as to enact that no process of execution should issue upon anyjudgments more than three years old, unless some proceeding should have beentaken to enforce it or keep it in force within three years of the applicationfor execution: provided "that process of execution in respect of a decreeobtained before the passing of Act XIV" of 1859 might be issued eitherwithin the time limited by that Act or within three years after itscommencement, whichever should first expire." And that in the languagewhich has since been adopted by the Indian Legislature in this connection, as areference to the last clause of section 2 of Act XV of 1877 and section 30 ofAct IX of 1908 will show. Had there been no saving clause in Act XIV of 1859,the decision might have been different, and I think that it cannot be regardedas an authority on the point before us now.

9. The only other case which bears upon an Indian enactmentrelating to limitation and seems to be at all apposite, is that of Chajmal Dosv. Jagdamba Prasad 11 A. 408, and it appears to me to tell rather against theappellants, although it is, as will be shown, distinguishable to some extent.In it, the plaintiff-respondent, Jagdamba, had died on the 17th September 1885.Under the law, as it then stood, his legal representative had three years, thatis to say, till the 17th September 1888 for applying to be brought on therecord in his place, but the Civil Procedure Code Amendment Act, which cameinto force on the 1st July 1888, had reduced the period of limitation to sismonths. An application was made by one claiming to be Jagdambas adopted son onthe 24th July 1888, and it was held by Edge, C.J., and Straight and Mahmood,JJ., to be barred by the Act which had just been passed. There had, as a matterof fact, been an interval of over three months from the 23rd March to the 1stJuly between the passing and the commencement of the amending enactment; butthat circumstance was not even mentioned by the learned Judges, who appear tohave decided the case on general principles, pointing out that the terms of theenactment distinctly applied, and that there was no saving clause to protectapplications with reference to rights and incidents that had accrued inconnection with prior litigation.

10. Turning now to the English cases and putting on one sideobiter dicta and generalisations, I can find none more in favour of theappellants contention than Doe Dem Evans v. Page (1844) 5 Q.B.D. 767 : D.& M. 601 : 13 L.J.Q.B. 153 : 8 Jur. 999 : 114 Eng. Rep. 1439 which has thehigh authority of Lord Denman. In it Evans, the fictitious plaintiffs lessor,under the old form of pleading, sued to eject the defendant, Page, who, it wasalleged, had wrongfully taken possession after the death of the tenant-at-will,to whose tenancy the right of Evans was subject; and Page could, under theStatute of Limitation, bring his action in ejectment at any time within twentyyears of the determination of the tenancy at-will. Prior to 1833 this meantthat he could sue within twenty years of the tenant-at-wills death which hadoccurred in 1832; but by a Statute of 1833 it was enacted that atenancy-at-will was, for the purposes of such an action, to be deemed to havedetermined on the expiration of one year after its commencement. In this instance,the tenancy-at-will had commenced in 1816; and, therefore, by virtue of the newAct, if it was to be applied, time had begun to run against Evans in 1817, andhis action, which was not brought till after 1837, was time-barred: Lord Denmanheld that the Statute of 1833 could not be construed retrospectively, and heobserved that a different construction would cause the greatest hardship; for aperson, who, as the law stood before the passing of the Act, was in ample timeto bring his ejectment and recover property which, undoubtedly, was his, would,by the operation of the statute, be suddenly deprived of the means or assertinghis right. But that very learned Judge based his decision primarily on thelanguage of the statute, which was couched throughout in the future tense, andhe held that the words used themselves precluded its application to atenancy-at-will not in existence at the time when it was passed nor createdsubsequently. Moreover, the enactment which his Lordship was construing, was nota Limitation Act; and his ruling was cited in argument in Cornill v. Hudson(1857) 8 E. & B. 429, 27 L.J.Q.B. 8 : 3 Jur. (N.S.) 1257 : 6 W.R. 37 : 112R.R. 636, 120 Eng. Rep. 160, but, as will appear presently without effect.

11. In Cornill v. Hudson (1857) 8 E. & B. 429, 27L.J.Q.B. 8 : 3 Jur. (N.S.) 1257 : 6 W.R. 37 : 112 R.R. 636, 120 Eng. Rep. 160it was held by Campbell, L.C.J., and Coleridge Wightman and Erle, JJ., thatretrospective effect must be given to section 10 of the Mercantile Law AmendmentAct, 1353 (19 and 20 Victoria c. 97), which came into force on the 29th July1856 and altered the Statute of Limitations (21 Ja. 1, c. 16) by providing thata person imprisoned when his cause of action accrued should no longer have thebenefit of computing the period of limitation, prescribed by law from thedetermination of his imprisonment. The result was that the plaintiff, who, asthe report indicates, was in prison in 1844, when his cause of action arose,and remained there for more than sis years after that, was deprived of allremedy, because six years was the period of limitation prescribed, and he hadbeen unable to bring his suit within that period. Lord Campbell observed thatthe plaintiff was clearly within the scope of the enactment of 1856 according:to its grammatical and natural construction, and that it carried out what wasthe probable intention of the Legislature, namely to prevent the vexatiousprolongations of rights of action, an intention in which his Lordships saw noinjustice. And Erle, J., referred to Thompson v. Waithman (1856) 3 Drew. 628 :26 L.J. Ch. 134 : 2 Jur. (N.S.) 1080 : 5 W.R. 30 : 106 R.R. 471 : 61 Eng. Rep.1043 as being in exact analogy, adding that "the Legislature appears tohave considered the Statutes of Limitations to be enactments in furtherance ofjustice," and had "intended to take away absolutely every impedimentto the operation of these enactments in every case."

12. In the Queen v. Leeds and Bradford Railway Company(1852) 21 L.J.M.C. 193 : 16 Jur. 817 : 118 Eng. Rep. 129 : 18 Q.B. 343retrospective effect was likewise given to the Summary Jurisdiction Act of 1848(11 and 12 Vict., c 43), which came into force on the 2nd October 1848 andenacted that awards under the Lands Clauses Consolidation Act, 1845 (8 and 9Vict., c. 18), must be applied for and obtained within six months from thistime when the damage complained of was done. Here the damage had been donebefore the end of 1847; six months had elapsed before the passing of theStatute of 1848, and the claim based upon the award was nevertheless heldbarred, because the latter had not been obtained till 1850. No doubt, LordCampbell, then referred to the circumstance that the coming into force of theStatute of 1848 had been suspended for six weeks after its enactment; and heremarked that, "if the Act had come into operation immediately after thetime of its being passed, the hardship would have been so great that they mighthave inferred an intention on the part of the Legislature not to give it a retrospectiveoperation." But there is nothing definite in this observation, and it doesnot follow that the inference would have been made had there been no suchinterval as that alluded to. Everything, indeed, would have depended on thefacts and circumstances connected with the particular act under consideration,and the conclusion might have been that the intention of the Legislature in1848 was to put a stop, there and then, to all stale claims under the Statuteof 1845.

13. Again in The Ydun (1899) P. 236 : 68 L.J.P. 101 : 81L.T. 10 : 15 T.L.R. 361 : 8 Asp. M.C. 551 the Court of Appeal gaveretrospective effect to the Public Authorities Protection Act, 1893 (56 and 57Vict. c. 61), which fixed six months as the limit of time within which a publicauthority could be sued for damages in respect of neglect or default in theexecution of its duties. In this case the damage complained of had been causedon the 13th September 1893, the statute, which was passed on the 5th December,1893, came into force on the 1st January 1894, and the suit, which was againsta port and harbour authority, was not brought till the 14th November 1898. Indisposing of it and holding it time-barred Lord Justice A.L. Smith observedthat "when a new enactment deals with rights of action, unless it is soexpressed in the Act, an existing right of action is not taken away. But wherethe enactment deals with procedure only, unless the contrary is expressed, theenactment applies to all actions." Here, no doubt, the bringing of the suitwas not at once rendered impossible by the new Act, for the six monthsprescribed by it did not expire till the 13th March 1894, so that the plaintiffcould have brought it in time. And it is true that the learned President, SirFrancis Jeune, had in the Court of first instance expressed himself asinfluenced to some extent by the fact that there was an interval of almost amonth between the passing of the enactment and its coming into operation. Butthe principle in the main acted upon was the principle that Limitation Acts aremere laws of procedure, and that such laws have retrospective effect in thesense that they apply to all actions brought after they are placed in thestatute book; and have come into force.

14. There remains another English case which relates to thecriminal law, but is perhaps not the less relevant on that account; for theview most favourable to the accused would surely have been taken in it, hadthat been possible. We refer to R. v. Chandra Dharma (1905) 2 K.B. 335 : 74L.J.K.B. 450 : 69 J.P. 198 : 53 W.R. 431 : 92 L.T. 700 : 27 T.L.R. 353 in whichthe accused had been charged with having, on the 5th July 1904, committed anoffence against the Criminal Law Amendment Act of 1885. At that time the lawforbade any such prosecution after the lapse of three months from the date ofthe crime charged, and the accused would by that provision have been safe fromany proceeding after the 15th October 1904. He was in fact not prosecuted tilllater; but, by an Amending Act, which came into force on the 1st October 1904,the period of limitation had been extended to six months: and the Court ofCrown Cases Reserved held that he had lost the benefit of the former law oflimitation. Lord Chief Justice Alverstone there lays it down without anyqualification that a law of limitation is a law of procedure and must be givenretrospective effect, and though Mr. Justice Channell added that it "wouldhave been entirely different" if the time under the old Act had expiredbefore the new Act came into force, that obiter dictum of the learned Judge wasnot noticed or endorsed by the other Judges, all of whom contented themselveswith expressing their concurrence with the Lord Chief Justice.

15. The result of my consideration of the reported cases isthat the preponderance of authority seems to me to be against the contention ofthe learned Vakil who has argued this appeal; and the general principles alsoare, I think, against him. A Limitation Act, of course, gives no right ofaction whatever; and as was remarked by the Chief Justice of the Common Pleas(Sir John Jervis) in Ruckmaboyee v. Lulloobhoy Mottichund 5 M.I.A. 234 at p.265 : 18 Eng. Rep. 884, it has become almost an axiom of jurisprudence thatsuch an enactment is a law relating to procedure. It is further wellestablished that a law which merely regulates procedure is an exception to therule that statutes ought not to be given retrospective operation, because noone can be said to have a vested right in any particular form or mode ofprocedure. A persons right of action is one thing: The means open to him forenforcing it are another, and the latter may be, and are, varied from time totime. Provisions as to the period within which a right of action must beenforced, if at all, do not create a right to bring an action within that time,they merely regulate the proceeding for enforcing the remedy, and, as I havealready said, suitors must have regard to such as are for the time being inforce, and, if they delay, they do so at their peril. Prima facie, then, theamending legislation of 1908 reducing the period of limitation in the case ofsuits by under-raiyats for the recovery of possession of their holdings appliesto every such suit instituted on or after the 10th June of that year, no matterwhen the cause of action arose, unless it is clear that the Legislatureintended, or cannot but have intended, to limit its application. For, afterall, as Lord Campbell put it in Cornill v. Hudson (1857) 8 E. & B. 429, 27L.J.Q.B. 8, 3 Jur. (N.S.) 1257 : 6 W.R. 37 : 112 R.R. 636, 120 Eng. Rep. 160,the cases show no more than this, that we are to find out the intention of theLegislature in each particular Act.

16. Now section 184 of the Bengal Tenancy Act, 1885, readwith the third Article in the third Schedule thereto, as amended in 1908,provides that every suit to recover possession of land claimed by the plaintiffas an under-raiyat shall be dismissed if instituted after two years from thedate of dispossession. The words used are clear, and there can be no doubt butthat, according to their grammatical, natural and ordinary, construction, theyembrace all suits of the kind described, instituted after the words became law,irrespectively of when the causes of action may have arisen. They standunqualified by any saving in the Amending Act of 1908, and they areunaccompanied by any such transitory provision as is to be found in, forexample, section 30 of the Indian Limitation Act of 1908, which provides thatany suit for which the new period of limitation prescribed is shorter than thatformerly prescribed, may be instituted within two years of the enactment of thenew period or within the period formerly prescribed, whichever period firstexpires. What is the inference to be drawn from the circumstance that the localLegislature included no such provision in connection with this particularamendment What is the inference to he drawn from the fact that the onlyreported cases on the point--I refer again to Saraswati Dasi v. HoritarunChuckerbutti 16 C. 741, and Ramdhan Bhadra v. Ram Kumar Dey 17 C. 926, alreadycited--had decided that the two years rule of limitation in question appliedwhere the cause of action had preceded its enactment What is the inference tobe drawn from the fact that Western Bengal had already, through Bengal Act I of1907, set the example of amending the third Article in the third Schedule Ifthe two years rule of limitation was not to be applied at once, the onlyalternative was the continuance of the application of the 12 years rule andwhat, in all the circumstances is the legitimate inference from this To mymind, the answer must, in each instance, be that the intention cannot but havebeen to apply the new rule indiscriminately. Can it, indeed, be conceived thatthe Legislature, having made up its mind that ordinary raiyats andunder-raiyats ought, like occupancy-raiyats, to be required to assert theirrights to recover possession within the comparatively short period of twoyears, should have deliberately meant to postpone the operation of the amendinglegislation for something like ten years I think not; and I find it much lessdifficult to believe that the Legislature meant to place ordinary raiyats andunder-raiyats on the same footing in this connection as occupancy-raiyats withoutany delay whatsoever, even at the sacrifice of the interests of such of the twoformer classes as might have been sleeping on their rights. And, reverting oncemore to the question of hardship, it should be borne in mind that in thisparticular case there was ample warning and further, that, even where Acts oflocal Legislatures in India are enacted so as to come into force at once. Thelitigating public have practically always notice of what is contemplated. Inthis instance, the two years rule of limitation had been extended tounder-raiyats in Western Bengal in 1907; and that there would be, as soon aspossible, a similar extension in Eastern Bengal was much more than probable.The Amending Bill for Eastern Bengal which became the Act with which we are nowconcerned was, in fact, published in the local official Gazette on the 7thNovember 1907, was introduced into the Local Legislative Council on the 27thidem, was referred to, and reported upon by, a Select Committee in the usualcourse, was passed by the Council on the 13th May 1908, and did not becomeoperative until it was published in the local official Gazette, with the assentof the Governor-General, on the 10th June 1908. The present appellants,therefore, ran a great risk in delaying for over 10 years before enforcingtheir remedy, and it seems to me that they must suffer for it. I hold, then,agreeing with the learned District Judge in the Court of Appeal below, that therule of special limitation extended to under-raiyats in Eastern Bengal by theamendment, with effect from the 10th June 1908, of the third Article in thethird Schedule to the Benal Tenancy Act, 1885, applies to all suits of the kindthere indicated, instituted on or after the said date, without regard to whenthe cause of action arose. That being so, this appeal ought, in my opinion, tobe dismissed with costs.

Nalini Ranjan Chatterjee, J.

17. This appeal arises out of a suit for declaration oftitle to and recovery of possession of the lands in dispute, which were held bythe plaintiffs as under-riayats, against the landlord, and certain otherpersons with whom the lands had been subsequently settled by the landlord.

18. Various pleas were taken in defence, one of them beingthat the suit was barred by special law of limitation prescribed by Article 3,Schedule III of the Bengal Tenancy Act as amended by section 61 clause (3) ofthe Eastern Bengal and Assam Tenancy Amendment Act of 1908 which came intoforce on the 10th June 1908. The plaintiffs possession came to an end in 1898and the suit was brought on the 25th August 1908 but they were minors and ifthe general law of limitation applied they would be in time.

19. The facts found by the lower Appellate Court constitutedispossession of the plaintiffs by the landlord, and the dispossessionadmittedly took place more than two years before the suit was instituted. Thelower Appellate Court being of opinion that an alteration in the law oflimitation in the absence of any express enactment to the contrary comes intooperation as soon as the amending Act comes into force, in respect of all suitsinstituted after that date, regardless of the date on which the cause of actionmay have arisen held that the suit was barred by limitation. If the principlestated above is applicable to the present case the suit has been properlydismissed and it will be unnecessary to consider the other questions raised indefence.

20. The general principles relating to retrospectiveoperation of statutes are clear. The general rule is that Acts are prospective;not retrospective in their operation. See Moon v. Durden (1848) 2 Ex. 22 at p.33 : 12 Jur. 138 : 76 R.R. 479 and Doolubdass Pittamberdas v. Ram LalThakoorseydass 7 M.P.C.C. 239 : 5 M.I.A. 109 : 15 Jur. 257 : 18 Eng. Rep. 836 :13 Eng. Rep. 873. It is a fundamental rule of English Law that no statute shallbe construed so as to have a retrospective operation unless its language issuch as plainly to require such a construction. To this rule, however, thereare two exceptions (i) when Acts are expressly declared to be retrospective and(ii) when they only affect the procedure of the Court. As observed by Mellish,L.J. in Republic of Costa Rica v. Erlanger (1876) L.B. 3 Ch. D. 62 at p. 69 :45 L.J. Ch. 743, no one has any vested interest in the course of procedure. Nowstatutes of limitation are generally regarded as Acts regulating procedure. SeeRuckmaboyee v. Lalloobhoy Motichund 5 M.I.A. 234 at p. 265 : 18 Eng. Rep. 884.And as a general rule an Act of Limitation being a law of procedure governs allproceedings from the time of its enactment, except so far as its operation isexpressly excluded or postponed. But the question is whether even such anenactment should be retrospectively construed so as altogether to deprive aplaintiff of the means of asserting his right and where such a constructionwould inflict such hardship or injustice as could not have been within thecontemplation of the Legislature.

21. Where a statute does not come into force at once, butits operation is postponed for some time the hardships of a retrospective lawmay be considered to have been contemplated and provided for by the Legislatureand such a postponement may induce the Courts to hold the statute to beretrospective.

22. In re Athlumney, Ex parte Wilson (1898) 2 Q.B. 547 : 67L.J.Q.B. 935 : 79 L.T. 303 : 47 W.R. 144 : 5 Manson 322 Wright, J., observedthat this exception seems never to have been suggested except in relation tostatutes affecting procedure such as Statutes or Limitation and even inrelation to them, it is questioned in Moon v. Durden (1848) 2 Ex. 22 at p. 33 :12 Jur. 138 : 76 R.R. 479.

23. That a Statute of Limitation should not be construed insuch a way as would cause hardship or injustice was laid down by the JudicialCommittee of the Privy Council in the case of Delhi and London Bank v. Orchard4 I.A. 127 : 3 C. 47, where their Lordships in construing sections 20 and 21 ofthis Limitation Act, XIV of 1859 observed as follows: "it cannot bedisputed that the construction put upon the Act by the High Court at Calcutta,if permissible, was equitable, and prevented what must be admitted to be aninconvenience and injustice. Indeed, if the construction put upon the Act bythe High Court at Bombay, and by the Chief Court in the Punjab is correct, a judgment-creditorcould not, after the three years have enforced a judgment which was in force inthe Regulation Provinces when Act XIV of 1859 was passed for a judgment whichwas in force in the Punjab at the time when the Act was extended to that Province,however diligent, he might have been in endeavouring to enforce his judgment,and however unable, with the use of the utmost diligence, to get at theproperty of his debtor. Such a construction would cause great inconvenience andinjustice, and give the Act an operation which would retrospectively deprivethe creditor of a right which he had under the law as it existed in theRegulation Provinces at the time of the passing of the Act, and in the Punjabat the time of the introduction of it. Their Lordships are of opinion that sucha construction would be contrary to the intention of the Legislature."

24. Before the Bengal Tenancy Act VIII of 1885 was passedsuits to recover occupancy of any land, farm or tenure from which a raiyat,farmer or tenant had been illegally ejected were governed by the one yearsrule of limitation as provided for by section 27, Act VIII of 1869 (B.C.), andit was held in various cases that section 27 referred only to possessoryactions against the landlord and not to actions where the title of the tenantwas in dispute, and to which the general limitation of 12 years was applicable.Article 3, Schedule III of Act VIII of 1885, introduced a change in the law oflimitation only so far as occupancy-raiyats were concerned by prescribing aperiod of two years for a suit to recover possession of land claimed by anoccupancy-raiyat. And it has been held that the Article contemplates suits torecover possession of land claimed by a plaintiff as an occupancy ryot, i.e.,where by the very nature of the action the ryot has to set out his title to theland claimed. Such suits by non-occupancy ryots and under-raiyats, however,continued to be governed by the 12 years rule of limitation under the generalLimitation Act.

25. The question whether Article 3, Schedule III, of theBengal Tenancy Act (as originally enacted) has retrospective operation wasraised in two cases in this Court. Saraswati Dasi v. Horitarun Chuckerbutti 16C. 741 and Ramdhan Bhadra v. Ram Kumar Dey 17 C. 926. It was held that as therewas no saving clause for suits in which the cause of action had arisen beforethat Act was passed, they were governed by the period of limitation prescribedby Article 3 of Schedule 3 of the Bengal Tenancy Act. But Act VIII of 1885 didnot come into force at once. It received the assent of the Governor-General inCouncil on the 14th March 1885, but did not come into operation until the 1stNovember 1885. Moreover, the period of two years had not run out from the dateof dispossession when the Bengal Tenancy Act came into force. The plaintiff inthese two oases bad more than a year after the passing of the new Actprescribing the shorter period of limitation within which to institute thesuit. There is no hardship or injustice when the plaintiff whose cause ofaction is not barred when the period of limitation is altered by a new Act, andwho has time even after the passing of the new Act will not institute the suitwithin the shorter time prescribed by the new Act.

26. These two cases, therefore, are not authorities upon thequestion whether retrospective operation should be given to a new enactmentwhere the effect of that would be to deprive a person altogether of the righthe had, and which was not barred under the old Act.

27. The retrospective operation of section 310A of the CivilProcedure Code to proceedings in execution of a decree which had been passedbefore that section came into operation was considered by the Full Court in thecase of Jogodanund Singh v. Amrita Lal Sarkar 22 C. 767 (F.B.), Banerji, J., indelivering the judgment of the Court said that no new right was created in thejudgment-debtor interfering with any vested right of the judgment-creditor, andas the sale took place after the new law came into operation, the auction-purchasermust be taken to have made his bid with full knowledge of the law, and itcannot be said that any vested right of his was affected by the provisions ofthat section, and secondly, that the section did not create any new substantiveright in the judgment-debtor, and that it embodied in substance a rule ofprocedure. The learned Judge then observed as follows:--

"It being thus really a matter of procedure there canbe no objection to its having effect immediately, even though it should affectpast transactions and the mode of enforcement of vested rights, see JamesGardner v. Lucas (1878) 3 App. Cas. 582 at p. 603 provided, of course asMellish, L.J., said in the case of the Republic of Costa Rica v. Erlanger(1876) L.B. 3 Ch. D. 62 at p. 69 : 45 L.J. Ch. 743, that no injustice isdone. And I have shown above that this condition is here fullysatisfied". It will thus appear that the fact that no injustice would bedone, was taken into consideration in giving a retrospective effect to the section.

28. In the Bombay High Court in the case of Reg. v. DorabjiBalabhai 11 B.H.C.R. 117, an appeal against a judgment of acquittal waspresented by Government six months after the date of the judgment. Section 272of the Criminal Procedure Code was amended by Act XI of 1874 which prescribedthat no appeal under that Act shall be presented more than six months after thedate of the judgment complained of. It was held that the appeal was barredthough the six months expired on the day the amending Act came into force. Thelearned Judges said: "But an Act of Limitation being a law of proceduregoverns all proceedings to which its terms are applicable from the moment ofits enactment, except so far as its operation is expressly excluded orpostponed." No question of hardship or injustice, however, could arise ina case like that, and as pointed out in the case of Khusalbhai v. Kabhai 6 B.26 the Court was there dealing with a statutory provision which was beneficialto the liberty of the subject.

29. In a later case in that Court. In the matter of thepetition of Ratansi Kalianji 2 B. 148 (F.B.), the question raised was whether ajudgment-debtor imprisoned in satisfaction of decree against him under Act VIIIof 1859, was entitled under Act X of 1877, to be released on the coming intooperation of the later Act if he had then been imprisoned for more than sixmonths but less than two years, and it was held by the majority of the FallBench that he was not. The cases relating to questions of mere procedurewhereby a retroactive force had been given to enactments were exhaustivelyreviewed by some of the learned Judges in that case. Westropp, C.J., indiscussing the authorities on the point said: "But when such aconstruction even of Limitation Act would divest such a right, thatconstruction will be avoided, as it lately was in Sitaram Vasudeb v. KhanderavBalkrishna 1 B. 286 and this was so held in that and many other cases therementioned, and although statutes of limitation are regarded as Acts regulatingprocedure: H.H. Ruckmaboyee v. Lulloobhoy Mottichund 5 M.I.A. 234 at p. 265 :18 Eng. Rep. 884. That such a statute ought not, if possible, to beretrospectively construed, was so recently as the 14th May 1877 decided by thetribunal to which we especially owe allegiance" and reference was made tothe case of Delhi and London Bank v. Orchard 4 I.A. 127 : 3 C. 47 noticedabove. The opinion of Westropp, C.J., in the above case was cited with approvalby this Court in Behary Lal v. Goberdhun Lal 9 C. 446 : 12 C.L.R. 431.

30. In a still later case in the Bombay Court, Khusal Bhaiv. Kabhai 6 B. 26, the question of retrospective operation of Statutes ofLimitation was directly raised. In that case an application for substitution ofthe legal representatives of a deceased defendant was made within six months ofhis death under Act X of 1877. The amending Act XII of 1879 received the assentof the Governor-General on the 25th July 1879, when the defendant was dead sixmonths. That Act amended section 068 of the Civil Procedure Code (Act X of1877) and added section 171B to the Limitation Act (Act XV of 1877). The effectof the amendments was to require a plaintiff to apply within 60 days of thedefendants death to have his legal representative made a defendant. The Actcame into operation at once, and if section 171B had retrospective operation,the application for substitution would certainly have been barred but it washeld that the provisions of that section should not be given retrospectiveeffect, and that the application was not time-barred. Referring to the rulelaid down in Reg. v. Dorabji 11 B.H.C.R. 117, the learned Judges said that itwas somewhat too broadly stated in that case. They held that the general rulemust admit of the qualification that when the retrospective application of aStatute of Limitation would destroy vested rights or inflict such hardship orinjustice as could not have been within the contemplation of Legislature, thenthe statute is not, any more than any other law to be construed retrospectively,and after referring to the case of London and Delhi Bank v. Orchard 4 I.A. 127: 3 C. 47 said: "Similarly in the present case, we think that Article171B, Schedule II, of Act XV of 1877, ought not, if possible, to beretrospectively construed. When that Article was introduced into the Statute ofLimitation by Act XII of 1879, the deceased defendant had been dead for sixmonths and it was, therefore, impossible for the plaintiffs to comply with therequirements of the Article, namely that an application to have therepresentative of a deceased defendant made a defendant should be presentedwithin 60 days from the date of defendants death. Consequently to put aretrospective construction upon the Article would be to deprive the plaintiffsabsolutely of the right which they previously had, and which all plaintiffssubsequently had, to revive their suit; and this would be an injustice whichcannot be presumed to have been within the intention of the Legislature.Another consideration, tending to the same conclusion, is that there was nopostponement of the operation of Act XII of 1879 but the Act came into force atthe moment at which it received the assent of the Governor-General. Theplaintiffs, therefore, and others similarly situated had no such notice asmight have enabled them to anticipate the divestiture of their right ofrevival. This is a consideration which has weighed much with Courts in Englandand in this country when dealing with similar questions," and referred toa number of English and Indian decisions.

31. In that case, the principle, that questions of hardshipand injustice and the fact that the operation of the enactment was notpostponed are to be considered in dealing-with the question of retrospectiveoperation of Statutes of Limitation, was distinctly recognized.

32. In the Allahabad High Court in the case of Chajmal Dasv. Jagdamba Prasad 11 A. 408 the plaintiff-respondent died on the 17thSeptember 1885. Application for substitution of the legal representative of thedeceased which was made on the 24th July 1888 would have been in time under theCivil Procedure Code (Act XIV of 1882) as it stood at the time of the death ofthe respondent. The Code, however, was amended by Act VII of 1888 which cameinto force on the 1st July 1888 and which provided six months limitation forsuch an application. The Court held that the amending Act had retrospectiveoperation and the application was barred. But the case may be distinguished onthe same ground as the cases in 16 and 17 Calcutta series referred to above asthe Act did not come into operation at once and the appellant had sufficienttime for making the application for substitution, even after the amending Actcame into operation though these circumstances were not noticed in the judgmentof the Court. Turning to the English cases we also find that the principle thatin giving a retrospective operation to a Statute of Limitation where there isno postponement of its operation, the hardship or injustice it would causeshould be taken into consideration, is recognised in many of the cases.

33. Thus in Towler v. Chatterton (1829) 6 Bing. 258 : 31R.R. 411 : 8 L.J.C.P. (O.S.) 30 : 130 Eng. Rep. 1280 an action was brought in1829 for a debt which was at that time more than six years standing, but theplaintiff relied upon an oral promise to pay the debt made by the defendant inFebruary 1828. By 9 Geo. 4, c. 14, which was passed on the 9th May 1828, butwhich was to commence and take effect on the 1st January 1829 it was enactedthat in an action of debt, an acknowledgment or promise in order to take anycase out of the operation of the Statute of Limitation, 21 Ja. 1, c. 16 must bein writing to be signed by the party chargeable thereby. It was held that theAct had retrospective operation but reliance was placed upon the fact thathardship was obviated by declaring that the Act should not take effect till the1st January-following thereby giving all persons in possession of such parolpromises seven months and more in which to bring their action founded on suchpromises if they should be so minded and referring to the case of Gilmore v.Shuter (1679) Joness Rep. 108 : 1 Lev. 227 : 2 Modern 310 : 2 Show. 17 : 1Ventr. 330, which was pressed upon the Court to show that an Act of Parliament,viz., the statute of frauds, should not have a retrospective operation, thelearned Judge Park, J., said that that case could not govern the case beforethem because "the statute under review prevents all the mischief which theJudges in the case in Jones contemplated by giving due notice that this lawshould have no operation till the 1st January, nearly eight months after itsenactment."

34. In Doe Bern Evans v. Page (1844) 5 Q.B.D. 767 : D. &M. 601 : 13 L.J.Q.B. 153 : 8 Jur. 999 : 114 Eng. Rep. 1439, it was held thatsection 7 of the Limitation Act 3 and 4 W. 4, c. 27, which enacted that theright of action where any person "shall be in possession of land astenant-at-will shall be deemed to have first accrued either at thedetermination of such tenancy or at the expiration of one year from itscommencement, was not retrospective and did not apply where the tenancy-at-willceased before the statute and that in such a case the limitation runs from thetime when the tenancy determines without the intervention of the Act. No doubt,the words of the 7th section "shall be in possession" etc., in termswere only applicable to the case of a future or at most of an existingtenancy-at-will and not to the case of a tenancy-at-will which had beendetermined, and was not existing when the Act was passed, but Lord Denman,C.J., observed: "A different construction, even if the words permitted it,would cause the greatest hardship; for a person, who, as the law stood beforethe passing of the Act, was in ample time to bring his ejectment and recoverproperty that undoubtedly was his, would, by the operation of the statute, besuddenly deprived of the means of asserting his right, there being no clausefor the postponement of the operation of the statute for such a period as wouldenable persons who would be otherwise affected by it, to assert theirrights." In the Queen v. Leeds and Bradford Railway Company (1852) 21L.J.M.C. 193 : 16 Jur. 817 : 118 Eng. Rep. 129 : 18 Q.B. 343, retrospectiveeffect was given to Statute 11 and 12 Vict. c. 43 which enacted that awardsunder 8 and 9 Vict. c. 18 must be obtained within six months from the time thedamage complained of was done. The damage complained of occurred in 1847, andsix months had expired before the Act was passed and the order of the justiceswas not obtained until 1850. The statute, however, did not come into operationuntil sis weeks after it was passed. In holding that retrospective operationshould be given to the statute Lord Campbell, C.J., referred to that fact andsaid: "if the Act had come into operation immediately after the time ofits being passed, the hardship would have been so great that we might haveinferred an intention on the part of the Legislature not to give it aretrospective operation, but when we see that it contains a provisionsuspending its operation for six weeks, that must be taken as an intimationthat the Legislature has provided that as the period of time within whichproceedings respecting antecedent damages or injuries might be taken before thetribunal. . . . . A certain time was allowed before the Act was to come intooperation and that removes all difficulty." Wightman, J., who also was ofthe same opinion, referring to the argument based upon hardship occasioned bythe suddenness with which the Act operated said: But here the Legislature hasexpressly provided six weeks as a reasonable time within which a party mightproceed and the case, therefore, is clearly within the distinction pointed outin the decided cases, Towler v. Chatterton (1829) 6 Bing. 258 : 31 R.R. 411 : 8L.J.C.P. (O.S.) 30 : 130 Eng. Rep. 1280 seems to me precisely in point."Erle, J., and Crompton, J., concurred.

35. In the case of Cornill v. Hudson (1857) 8 E. & B.429, 27 L.J.Q.B. 8, 3 Jur. (N.S.) 1257 : 6 W.R. 37 : 112 R.R. 636, 120 Eng.Rep. 160, retrospective operation was given to section 10 of the Mercantile LawAmendment Act 1856, (19 and 20 Vict. c. 97) which enacted that a party whoshall be entitled to bring an action limited by the Statutes of Limitations thereinmentioned shall not be entitled to any time beyond the period so limited byreason of his having been abroad or imprisoned at the time when the cause ofaction accrued. The plaintiff in that case was in prison when his cause ofaction arose and the period of six years provided by section 10 of the Actexpired before be was released from prison. Lord Campbell, C.J., after statingthat the decided cases merely showed that the proper way of construing an Actof Parliament is to try and find out the intention of the Legislature said:"Now, I act on that principle and it appears to me that it was theintention of the Legislature to prevent actions being brought for past as wellas future transactions. Does this construction tend to any absurdity If it does,that would be strongly against such a construction. But I can see no suchconsequences. It appears to me to be strongly in furtherance of justice thatpersons residing abroad should not be able to keep an action hanging over aperson for an unlimited period of time. And as to the other class, viz.,persons in prison, it is an exceedingly rare occurrence now for a person to belong in prison except for crime. It might also be in the contemplation of theLegislature that it sometimes does happen that a person remains in prison forthe very purpose of keeping a right of action alive. I do not, therefore, seeany absurdity or injustice in holding that the Legislature intended that thisshould be the construction to be put upon this enactment, being, as it is, theconstruction which the language fairly and legitimately deserves." Underthe Statute of Limitation 21 Ja. c. 16, section 7, the period of six years wasto run from a time which was indefinite and the judgment proceeded upon theground that the intention of the Legislature was to make section 10 of theAmending Act retrospective and that there was no injustice in holding it to beso.

36. The case of Wright v. Hale (1860) 6 H. & N. 227 : 30L.J. Ex. 40 : 6 Jur. (N.S.) 1212 : 3 L.T. 444 : 9 W.R. 157 : 123 E.S. 477 dealtwith a statute relating to costs. 23 and 24 Vic. c. 26, section 34, providedthat when the plaintiff in any action for an alleged wrong recovers by theverdict of the Jury less than 5 he shall not be entitled to any costs if theJudge certifies to deprive him of them. It was held in that case that there isa considerable difference between new enactments which affect vested rights andthose which merely affect the procedure in the Courts of Justice, that rules asto costs to be awarded in an action were of the latter description, and thatthe Act enabled a Judge to certify in an action commenced before the passing ofit. But Pollock, C.B., pointed out that the plaintiff bad in that case anopportunity of discontinuing the suit, that the Act was passed on the 28thAugust and contained a provision that it should come into operation on the 10thOctober, and the certificate to be given by the Judge was an Act to be done atthe trial which was after the passing of the Act so that they were not givingto the Act any retrospective operation and the wrong supposed to be done by anex post facto law did not arise.

37. In The Ydun (1899) P. 236 : 68 L.J.P. 101 : 81 L.T. 10 :15 T.L.R. 361 : 8 Asp. M.C. 551 where an action was brought against a port andharbour authority more than six months after earning into force of the PublicAuthorities Protection Act (56 and 57 Vict. c. 61) which provided that anaction in respect of any alleged neglect or default in the execution of anypublic duty or authority must be commenced within six months of the act,neglect, or default complained of, it was held by the Court of Appeal that theAct had retrospective operation. A.L. Smith, L.J., said: "The ruleapplicable to cases of this sort is well stated by Wilde, B, in Wright v. Hale(1860) 6 H. & N. 227 : 30 L.J. Ex. 40 : 6 Jur. (N.S.) 1212 : 3 L.T. 444 : 9W.R. 157 : 123 E.S. 477, namely, that when a new enactment deals with rights ofaction, unless it is so expressed in the Act, an existing right of action is nottaken away, But where the enactment deals with procedure only unless thecontrary is expressed, the enactment applies to all actions, whether commencedbefore or after the passing of the Act. The Act of 1893 is an Act dealing withprocedure only" and Vaughan Williams, J, said that "there wasabundant authority that the presumption against a retrospective constructionhad no application to enactments which affect only the procedure and practiceof Courts."

38. Statute 56 and 57 Vict. c. 61 was passed on the 5thDecember 1893 but came into force on the 1st January 1894, so that theoperation of the Act was postponed for sometime. The damage complained of wascaused on the 13th September 1893, the action, therefore, could have beenbrought before the Act came into force and Sir Francis Jeune in the Court offirst instance relied to some extent upon that fact but in the Court of Appealno argument appears to have been based upon it and the learned Judges do notappear to have referred to it in the judgment.

39. In the recent case of R. v. Chandra Dharma (1905) 2 K.B.335 : 74 L.J.K.B. 450 : 69 J.P. 198 : 53 W.R. 431 : 92 L.T. 700 : 27 T.L.R. 353the period of limitation (three months) under the old Act had not expired whenthe new Act which prescribed a period of six: months for prosecution of anoffence (committed against the Criminal Law Amendment Act of 1885) came intoforce, and it was held that the Act had retrospective effect, and that thedefendant had lost the benefit of the former law of limitation Lord Alverstone,C.J., based his judgment on the ground that a law of limitation is a law ofprocedure and must be given a retrospective operation and the other learnedJudges concurred with the Lord Chief Justice. Channel, J., however, added thatit would have been entirely different if the time under the old Act had expiredbefore the new Act came into operation. In that case only the period oflimitation was extended for an unbarred cause of action which accrued beforethe new Act came into operation. The defendant had not acquired any right totreat the proceeding as barred before the amending Act came into force and theresult was not to give such an ex post facto construction to that enactment, aswould have taken away from the defendant a right already acquired under theformer Act. It is true that when once time has commenced to run under a law oflimitation it cannot be stopped but that rule is dependent on the continuancein force of that enactment under which time has been running and if before thetime has run out under the Act the new Act extends the period of limitation thedefendant cannot complain of it. The result of the authorities appears to bethat Statutes of Limitation or other statutes relating to procedure are to beconstrued retrospectively, but the principle that even such statutes should notbe so construed where such a construction would cause hardship or injustice isrecognised in the majority of the decided cases on the subject. The principleis recognized in Delhi and London Bank v. Orchard 4 I.A. 127 : 3 C. 47,Jagadanunda Singh v. Amrita Lal Sircar 22 C. 767 (F.B.), Behary Lal v.Goberdhan Lal 9 C. 446 : 12 C.L.R. 431; In the matter of the petition ofRatansi Kalianji 2 B. 148 (F.B.); Khusalbhai v. Kabhai 6 B. 26, Republic ofCosta Rica v. Erlanger (1876) L.B. 3 Ch. D. 62 at p. 69 : 45 L.J. Ch. 743,Queen v. Leed and Bradford Railway Company (1852) 21 L.J.M.C. 193 : 16 Jur. 817: 118 Eng. Rep. 129 : 18 Q.B. 343, and Evans v. Page (1844) 5 Q.B.D. 767 : D.& M. 601 : 13 L.J.Q.B. 153 : 8 Jur. 999 : 114 Eng. Rep. 1439, though notacted upon in all of them for other reasons.

40. The rule, however, is not given effect to where theoperation of the statute is postponed for sometime after it is passed as inTowler v. Chatterton (1829) 6 Bing. 258 : 31 R.R. 411 : 8 L.J.C.P. (O.S.) 30 :130 Eng. Rep. 1280, Queen v. Leeds and Bradford Railway Company (1852) 21L.J.M.C. 193 : 16 Jur. 817 : 118 Eng. Rep. 129 : 18 Q.B. 343. The aboveprinciples were not recognized in (1) Cornill v. Hudson (1857) 8 E. & B.429, 27 L.J.Q.B. 8, 3 Jur. (N.S.) 1257 : 6 W.R. 37 : 112 R.R. 636, 120 Eng.Rep. 160. The Ydun (1899) P. 236 : 68 L.J.P. 101 : 81 L.T. 10 : 15 T.L.R. 361 :8 Asp. M.C. 551, R. v. Chandra Dharma (1905) 2 K.B. 335 : 74 L.J.K.B. 450 : 69J.P. 198 : 53 W.R. 431 : 92 L.T. 700 : 27 T.L.R. 353, Wright v. Hale (1860) 6H. & N. 227 : 30 L.J. Ex. 40 : 6 Jur. (N.S.) 1212 : 3 L.T. 444 : 9 W.R. 157: 123 E.S. 477, Reg. v. Dorabji 11 B.H.C.R. 117. But in the first case theperiod from which limitation was to run under the old Act was indefinite andthe intention of the Legislature was clearly to give a retrospective operationto the amending Act, in the second case the operation of the new Act waspostponed for some time and that fact was relied on by the first Court thoughnot by the Court of Appeal, in the third there was merely an extension of theperiod of limitation for an unbarred cause of action, in the fourth noretrospective operation was in fact given and in the last case the statutedealt with the liberty of the subject. In Saraswati Dasi v. HoritarunChuckerbutti 16 C. 741, Ramdhan Bhadra v. Ram Kumar Dey 17 C. 926 and ChhajmalDas v. Jagadamba Prasad 11 A. 408 the statutes did not come into force at onceand the plaintiff had sufficient time even after the passing of the statutes toinstitute the suits though the period was reduced by the new or amending Actand the result of giving a retrospective operation was thus not to deprive theplaintiff of his remedy altogether.

41. But principles of construction must give way to theintention of the Legislature if it is expressed clearly and we are therefore tosee whether that is done in the present case. No doubt, section 184 of theBengal Tenancy Act read with Article 3, Schedule III, of that Act as amended in1908, provides that a suit to recover possession of land claimed by theplaintiff as a raiyat or an under-raiyat shall be instituted within two yearsof the date of dispossession, but having regard to the fact that the operationof the amending Act was not postponed for even a abort time, the question iswhether the Legislature intended that the Act should apply not only to causesof action which accrued after the Act was passed, but also to existing causesof action in respect of which a suit would have been in time under the old law.The amending Act having come into force at once, a person who was dispossessedmore than two years before the Act was passed could not possibly bring hisaction within the period fixed by the amending Act and the question is whetherit was intended to make the Act applicable to such cases. Article 3, ScheduleIII, of Act VIII of 1885, as it stood before the amendment, applied tooccupancy-raiyats only, and it was held in the two cases noticed above that thetwo years rule of limitation was applicable to causes of action which accruedbefore the Act was passed. It is true occupancy-raiyats have higher rights thannon-occupancy-raiyats or under-raiyats and it may be said that if theLegislature intended that the limitation of two years shall be applicable tosuits by occupancy-raiyits, regardless of whether they were dispossessed beforeor after the passing of the Act, there was no reason to think that theLegislature did not intend to give a retrospective operation to the amending Actwhich placed non occupancy-raiyts and under-raiyats on the same footing asoccupancy-raiyats.

42. The question of limitation with regard tooccupancy-raiyats is no longer of any practical importance more than 12 yearshaving passed since the passing of the Act But as already pointed out, althoughAct VIII of 1885 received the assent of the Governor-General in Council on the14th March 1885 it was provided in section 1(2) that it shall come into forceon such date as the Local Government with the previous sanction of the GovernorGeneral in Council may by notification in the Local Official Gazette appoint inthis behalf, and the Local Government by a notification dated the 4th September1885 published in the Calcutta Gazette of the 9th September 1885, declared thatthe Act was to come into force on the 1st November 1835. The Act, therefore,did not come into force at once, and an occupancy-raiyat who had beendispossessed more than two years before the passing of the Act, could,therefore, have brought his suit after the passing of the Act and before itcame into operation, with respect to such a cause of action. Consequently, evenif Act VIII of 1885 (as it stood before the amendment) be held to beretrospective, the result would be not to deprive the plaintiff of the means ofasserting his rights altogether, though the period within which he could havebrought his action was shortened. On the other hand, the amending Act of 1908came into force at once and there was no saving clause nor postponement of itsoperation. It is true the rights of under-raiyats are not a very substantialcharacter. But non-occupancy raiyats are placed on the same footing asunder-raiyats so far as limitation is concerned. Non-occupancy-raiyats are avery large class of raiyats in this country and there are various provisions inthe Bengal Tenancy Act for the benefit of each raiyats. Before the passing ofthe amending Act a non-occupancy-raiyats had a period of 12 years within whichto institute a suit against his landlord to recover possession where his titlewas in dispute, just as he had against any other person. Was it the intentionof the Legislature without any warning and without postponing the operation ofthe Act, at once to cut down the period for instituting suits by non-occupancyraiyats dispossessed by their landlords, from twelve years to two and thusdeprive altogether a very large class of tenants dispossessed two years beforethe Act was passed of the remedy they had before the Act Various provisionswere made in the Act for protecting such raiyats from contracting themselvesout of their rights by entering into contracts with their landlords and I findit difficult to hold that the Legislature intended to give a retrospectiveoperation to Article 3 and thus suddenly deprive a class of tenants whom it wasso anxious to protect against their landlords, of any means to recoverpossession of lands of which they had been dispossessed two years before theAct was passed. I do not think any argument can be based upon the fact thatbefore an Act is passed, the matter is before the Legislature and is discussedfor some time before it is passed. Although every person is presumed to knowthe law after it is passed, there can be no presumption that he knows theproceedings or debates in Council before the law is passed, and I do not thinkit would be reasonable to expect that a non-occupancy raiyat has notice of anykind at all of an impending change in the period of limitation while the matteris being discussed in the Legislative Council.

43. If, therefore, the intention of the Legislature was notto give a retrospective operation to Article 3 Schedule 3, so far asnon-occupancy raiyats are concerned, as I think it had not, there is no reasonto hold that it should have retrospective effect with regard to suits byunder-raiyats, who are governed by the same Article and the result of whichwould be suddenly to deprive them of the means of asserting their rights, wherethey had been dispossessed by their landlords and were in ample time under theold Act to bring their actions for recovery of their property.

44. It may be said that the Legislature by the amending Actof 1908 while putting non-occupancy raiyats and under-raiyats on the samefooting as occupancy-raiyats could not have intended to postpone the operationof the Act for 10 years in cases where the dispossession occurred before thepassing of the Act, but it must be remembered that suits by non-occupancyraiyats and under-raiyats continued to be governed by the 12 years rule oflimitation for about 23 years, i.e., from 1885 to 1903 while similar suits byoccupancy-raiyats were governed for the same period by the two years rule oflimitation provided by Article 3, Schedule III of Act VIII of 1885.

45. The question is a difficult one, but after a carefulconsideration of the question I am of opinion that section 61 of the amendingAct should not be retrospectively construed and that the suit is not barred bythe special period of limitation prescribed in Article 3, Schedule III of theBengal Tenancy Act.

46. In the above view, it will be necessary to consider theother questions raised in the case.

47. As we differ in opinion on the point of law, whether thespecial rule of limitation extended to under-raiyats in Eastern Bengal by theamendment in 1908 of the third Article in the third Schedule to the BengalTenancy Act, 1885, applies to all suits of the kind there indicated institutedafter the commencement of the amending Act without regard to where the cause ofaction arose, the case must be laid before the Chief Justice that the point inquestion may be referred to a third Judge under section 98 of the Code of CivilProcedure, 1908.

48. Jenkins, C.J. (26th August 1912) The learned Judgescomposing the Bench which heard the above appeal having differed in opinion ona point of law, and having stated the point of law on which they differ, letthe said appeal be heard under sections 98 and 108, Civil Procedure Code, bythe Honble Mr. Justice Mookerjee on that point only.

Asutosh Mookerjee, J.

49. This is a reference under section 98 of the CivilProcedure Code of 1908, and the point of law upon which the learned Judges whoheard the case in the first instance have differed has been formulated in thefollowing terms:--

"Whether the special rule of limitation extended tounder-ryots in Eastern Bengal by the amendment in 1908 of the third Article inthe third Schedule to the Bengal Tenancy Act, 1885, applies to all suits of thekind there indicated instituted after the commencement of the amending Actwithout regard to when the cause of action arose."

50. Mr. Justice Carnduff was of opinion that the questionought to be answered in the affirmative, while Mr. Justice Chatterjee was ofopinion that the question ought to be answered in the negative. To determinethe question in controversy, it is necessary to explain how the point arisesfor decision.

51. The third Article of the third Schedule of the BengalTenancy Act, 1885, provides that a suit to recover possession of land claimedby the plaintiff as an occupancy-ryot shall be instituted within two years fromthe date of dispossession. Section 134, sub-section 1, of the Bengal TenancyAct, provides that a suit of this description, instituted after the period oflimitation so prescribed, shall be dismissed, although limitation has not beenpleaded. Section 185, sub-section 2, of the Bengal Tenancy Act, further makesapplicable to such a suit the provisions of section 28 of the Indian LimitationAct, whereby, at the determination of the period limited to any person forinstituting a suit for possession of any property, the right to such propertyis declared to be extinguished. In the case of Bhagaban Chander Shaha v.Jaggeshar Ghose 2 C.W.N. cccxviii Short Notes, which was decided on the 25thAugust 1898, it was ruled by this Court that the third Article of the thirdSchedule of the Bengal Tenancy Act was in terms applicable only to suits byoccupancy-ryots and did not govern suits by under-ryots. It was held insubstance that in so far as under-ryots were concerned, a suit for possessionwas governed by Article 142 of the second Schedule of the Indian LimitationAct, which requires that a suit for possession of immoveable property, when theplaintiff, while in possession of the property, has been dispossessed, must bebrought within twelve years of the date of dispossession. In the case nowbefore the Court, the plaintiffs, who are under-ryots, were dispossessed in1898, and they were consequently entitled to institute a suit for recovery ofpossession within 1910. The present action was commenced on the 25th August1908; prima facie, therefore, the suit is not barred by limitation. But on the10th June 1908, the third Article of the third Schedule of the Bengal TenancyAct, 1885, was amended by section 61, clause (3) of the Eastern Bengal andAssam Tenancy Amendment Act, 1908. The effect of this amendment was tosubstitute the words a ryot or an under-ryot" for the words an occupancyryot" in the third Article. To put the matter briefly, on the 10th June1908, the Legislature enacted that a suit to recover possession of the landclaimed by the plaintiff as an under-ryot, must be instituted within two yearsfrom the date of dispossession. The consequence was that the general rule oflaw as embodied in Article 142 of the second Schedule of the Indian LimitationAct was repealed by implication to the extent that it ceased to be applicableto suits for recovery of possession of land by under-ryots. Theplaintiffs-appellants contend that the new rule of limitation applicable tounder-ryots as embodied in section 61, clause 3, of the Eastern Bengal andAssam Tenancy Amendment Act, 1908, is not applicable to causes of action whicharose before the commencement of the Act. The defendants-respondents contendthat the new rule of limitation applies to all suits instituted after thecommencement of the Act, independently of the date when the cause of actionarose. The question appears to have been elaborately argued before the learnedJudges who heard the appeal in the first instance, and reference was made to alarge number of judicial decisions which are analysed and examined in theirrecorded opinions. The matter has been re-argued before me with great care onboth, sides, but my attention has not been drawn to any judicial decision whichis conclusive upon the precise question raised; it is necessary, therefore, toexamine the matter as one of principle.

52. It is well settled, as observed by Mr. Justice Willes inPhillips v. Eyre (1870) L.R. 6 Q.B. 1 at p. 23 : 10 B. & S. 1004 : 40L.J.Q.B. 28 : 22 L.T. 869 : 17 W.R. 375, that retrospective laws are primafacie of questionable policy, and contrary to the general principle thatlegislation by which the conduct of mankind is to be regulated, ought, whenintroduced for the first time, to deal with future acts, and ought not tochange the character of past transactions carried on upon the faith of the thenexisting law. The maxim is familiar to every student of jurisprudence, novaconstitutio futuris formam imponere debet non praeteritis, a new law ought tobe prospective, not retrospective, in its operation. Accordingly, the Courtwill not ascribe retrospective force to new laws affecting rights, unless byexpress words or necessary implication it appears that such was the intentionof the Legislature. A luminous exposition of this fundamental doctrine will befound in the judgment of Kent, C.J., in Dash v. Vankleeck (1811) 7 Johnson 477at p. 502. The learned Chief Justice pointed out that the maxim of Papiuian,nemo potest mutare consilutm suum in alierius in juriam (Digest, 50, 17, 75)was familiar to Roman Jurists and had been accepted as a fundamental principleof English Law by Braoton, Coke and Bacon. A similar exposition will be foundin the judgment of Mr. Justice Story in Society for the Propagation of theGospel v. Wheeler (1814) 2 Gallison 105 : 22 Fed. Cas. 756. It must,consequently, be now deemed indisputably settled that every statute which takesaway or impairs a vested right acquired under existing laws, or creates a newobligation or imposes a new duty, or attaches a new disability, in respect oftransactions or considerations already passed, must be deemed retrospective inits operation. In re Pulborough School Board Election, Bourke v. Nutt (1894) 1Q.B. 725 at p. 737 : 63 L.J.Q.B. 497 : 9 R. 395 : 70 L.T. 639 : 42 W.R. 388 :58 J.P. 592 : 1 Manson 172. It is also firmly settled that no statute shall beconstrued so as to have a retrospective operation, unless its language is such asplainly to require that construction, and this involves the subordinate rulethat a statute is not to be construed so as to have a greater retrospectiveoperation than its language renders necessary. [Lauri v. Renad (1892) 3 Ch. 402: 67 L.T. 275 : 40 W.R. 679 : 61 L.J. Ch. 679, Reid v. Reid (1886) 31 Ch. D.102 : 55 L.J. Ch. 294 : 54 L.T. 100 : 34 W.R. 333, In re Norman (1893) 2 Q.B.369 : 63 L.J.Q.B. 84 : 4 R 584 : 69 L.T. 675, and Allhusen v. Brooking (1883)26 Ch. D. 564 : 53 L.J. Ch. 520 : 51 L.T. 57 : 32 W.R. 657]. As Baron Parkeobserved in Moon v. Duroden (1848) 2 Ex. 22 at p. 33 : 12 Jur. 138 : 76 R.R.479, followed in Pitambardas v. Thahursidas 7 M.P.C.C. 239 : 5 M.I.A. 109 : 15Jur. 257 : 18 Eng. Rep. 836 : 13 Eng. Rep. 873, the rule that enactments in astatute are generally to be construed to be prospective and intended toregulate the future conduct of persons, is deeply founded in good sense andstrict justice and has been acted upon in many cases, amongst which may bementioned Edmunds v. Lawley (1840) 6 M. & W. 285, Moore v. Phillips (1841)7 M. & W. 536, Midland Railway Company v. Pye (1861) 10 C.B. (N.S.) 179 :30 L.J.C.P. 314 : 4 L.T. (N.S.) 510 : 9 W.R. 658 : 128 R.R. 666, Marsh v.Higgins (1850) 9 C.B. 551 : 1 L.M. & P. 253 : 19 L.J.C.P. 297 : 82 R.R.436, Chappel v. Purday (1843) 12 M. & W. 303 : 67 R.R. 357 : 1 Dowl. &L. 458 : 13 L.J. Ex. 7, Hitchcock v. Way (1837) 6 A. & E. 943 : 2 N. &P. 72 : W.W. & D. 491 : 6 L.J. (N.S.) K.B. 215 : 45 R.R. 653 : 112 Eng. Rep.360, Padon v. Bartlett (1835) 3 A. & H. 884 : 5 N. & M. 384 : 1 H.& W. 286 : 111 Eng. Rep. 648, Young v. Rughes (1859) 4 H. & N. 76 : 28L.J. Ex. 161 : 118 R.E. 337, Barton Regis Union v. Liverpool Overseers (1878) 3Q.B.D. 295 : 47 L.J.M.C. 62 : 47 L.T. 713 : 26 W.E. 282, Hough v. Windus (1884)12 Q.B.D. 229 : 53 L.J.Q. 165 : 50 L.T. 312 : 32 W.R. 452 : 1 Morrell 1,Turnbull v. Forman (1885) 15 Q.B.D. 234 : 54 L.J.Q. 489 : 53 I.T. 128 : 33 W.R.768 : 49 J.P. 708. This principle is so well recognised that it has been repeatedlylaid down that in the absence of clear words to that effect, a statute will notbe construed as taking away a vested right of action acquired before it waspassed. Larpent v. Bibby (1855) 5 H.L.C. 481 : 24 L.J.Q.B. 301 : 101 R.R. 252,10 Eng. Rep. 988, Waugh v. Middleton (1853) 8 Ex. 352 : 22 L.J. Ex. 109 : 20L.T. (O.S.) 262 : 91 R.R. 533, Williams v. Smith (1859) 4 H. & N. 559 : 28L.J. Ex. 286 : 6 Jur. (N.S.) 1107 : 7 W.R. 503 : 118 R.R. 611, Jackson v.Woolley (1858) 8 E. & B. 784 at p. 787 : 27 L.J.Q.B. 448 : 4 Jur (N.S.)656, 6 W.R. 686 : 120 Eng. Rep. 292 : 112 R.R. 777, Wright v. Greenroyd (1861)1 B. & S. 758 : 31 L.J.Q.B. 4 : 8 Jur. (N.S.) 98 : 5 L.T. 347 : 121 Eng.Rep. 896 : 124 R.R. 735, Knight v. Lee (1893) 1 Q.B. 41 : 62 L.J.Q.B. 28 : 5 R.54 : 67 L.T. 688 : 41 W.R. 125, Smithies v. National Association of Plasterers(1909) 1 K.B. 310 : 78 L.J.K.B. 259 : 100 L.T. 172 : 25 T.L.R. 205.

53. In the application of the principle that the Court willnot ascribe retrospective force to new laws affecting rights, unless by expresswords or necessary implication it appears that such was the intention of theLegislature the question frequently arises whether the statute does in facttake away a vested right, from this point of view, we have to bear in mind thewell settled doctrine that no suitor has a vested interest in the course ofprocedure or a right to complain, if during his litigation, the procedure ischanged, provided that no injustice be done, Republic of Costa Rica v.Erlanger (1876) L.B. 3 Ch. D. 62 at p. 69 : 45 L.J. Ch. 743 : Turnbull v.Gorman (1885) 15 Q.B.D. 234 : 54 L.J.Q. 489 : 53 I.T. 128 : 33 W.R. 768 : 49J.P. 708. Hence, as observed by Lord Blackburn in Gardner v. Lucas (1878) 3App. Cas. 582 at p. 603 alterations in the form of procedure are alwaysretrospective, unless there be some good reason to the contrary, as in Pinhornv. Souster (1852) 8 Ex. 138 : 21 L.J. Ex. 336 : 16 Jur. (N.S.) 1001 : 91 R.R.397. This principle has been repeatedly recognised and applied. Colonial Sugar RefiningCompany v. Irving (1905) A.C. 369 : 74 L.J.P.C. 77 : 92 L.T. 738 : 21 T.L.R.513; A.G. v. Bittern (1864) 10 H.L.C. 704 : 4 N.R. 29 : 10 Jur. (N.S.) 446, 10L.T. 434 : 12 W.R. 541 : 33 L.J. Ex. 209 : 11 Eng. Rep. 1200; Wright v. Hale(1860) 6 H. & N. 227 : 30 L.J. Ex. 40 : 6 Jur. (N.S.) 1212 : 3 L.T. 444 : 9W.R. 157 : 123 E.S. 477; Kimbray v. Draper (1868) 3 Q.B. 160 : 37 L.J.Q.B. 80 :18 L.T. 540 : 16 W.R. 539, Curtis v. Stovin (1889) 22 Q.B.D. 513 : 58 L.J.Q.B.174 : 60 L.T. 772 : 37 W.R. 315; The Ydun (1899) P. 236 : 68 L.J.P. 101 : 81L.T. 10 : 15 T.L.R. 361 : 8 Asp. M.C. 551, R. v. Chandra Dharma (1905) 2 K.B.335 : 74 L.J.K.B. 450 : 69 J.P. 198 : 53 W.R. 431 : 92 L.T. 700 : 27 T.L.R.353. On this principle Statutes of Limitation have been construed as affectingexisting claims where an interval of time was allowed for their enforcement.Pardo v. Bingham (1869) 4 Ch. Ap. 735 : 39 L.J. Ch. 170 : 20 L.T. 464 : 17 W.R.419 : Cornill v. Hudson (1857) 8 E. & B. 429, 27 L.J.Q.B. 8, 3 Jur. (N.S.)1257 : 6 W.R. 37 : 112 R.R. 636, 120 Eng. Rep. 160, R. v. Leeds Railway andCompany (1852) 21 L.J.M.C. 193 : 16 Jur. 817 : 118 Eng. Rep. 129 : 18 Q.B. 343the case last mentioned follows the authority of Towler v. Chatterton (1829) 6Bing. 258 : 31 R.R. 411 : 8 L.J.C.P. (O.S.) 30 : 130 Eng. Rep. 1280 which wascommented upon by Baron Rolfe in Moon v. Durden (1848) 2 Ex. 22 at p. 33 : 12Jur. 138 : 76 R.R. 479 and by Mr. Justice Oresswell in Marsh v. Higgins (1850)9 C.B. 551 : 1 L.M. & P. 253 : 19 L.J.C.P. 297 : 82 R.R. 436.

54. We thus start with two fundamental principles in view.In the first place, no statute shall be construed so as to have a retrospectiveoperation, unless such a construction appears very clearly in the terms of theAct, or arises by necessary and distinct implication. West v. Gwynne (1911) 2Ch. 1 at p. 15 : 80 L.J. Ch. 578 : 104 T.T. 759 : 55 S.J. 519 : 27 T.L.R. 444;Smith v. Callander (1901) App. Cas. 297 : 70 L.J.P.C. 53 : 84 L.T. 801 Young v.Adams (1898) App. Gas. 469 : 67 L.J.P.C. 75 : 78 L.J. 506 : 14 T.L.R. 373; andeven in construing a section, which is to a certain extent retrospective, themaxim must be borne in mind as applicable whenever the line is reached at whichthe words of the section cease to be plain. Main v. Stark (1890) 15 App. Cas.384 at p. 388 : 59 L.J.P.C. 68 : 63 L.T. 10; Reynolds v. Att. Gen. for NovaScotia (1896) App. Cas. 240 : 65 L.J.P.C. 16 : 74 L.T. 108. In the secondplace, the presumption against a retrospective construction has no applicationto enactments which affect only the procedure and practice of the Courts, evenwhere the alteration which the statute makes has been disadvantageous to one ofthe parties. Wright v. Hale (1860) 6 H. & N. 227 : 30 L.J. Ex. 40 : 6 Jur.(N.S.) 1212 : 3 L.T. 444 : 9 W.R. 157 : 123 E.S. 477. The Ydun (1899) P. 236 :68 L.J.P. 101 : 81 L.T. 10 : 15 T.L.R. 361 : 8 Asp. M.C. 551, Cornill v. Hudson(1857) 8 E. & B. 429, 27 L.J.Q.B. 8, 3 Jur. (N.S.) 1257 : 6 W.R. 37 : 112R.R. 636, 120 Eng. Rep. 160 Pardo v. Bingham (1869) 4 Ch. Ap. 735 : 39 L.J. Ch.170 : 20 L.T. 464 : 17 W.R. 419 but, the new procedure would be presumablyinapplicable where its application would prejudice rights established under theold. Ex parte Phoenix Bessemer Steel Company (1876) 45 L.J. Ch. 11. We shallnow proceed to examine which of these two principles is applicable to the casebefore us.

55. In the present case, the Eastern Bengal and AssamTenancy Amendment Act of 1908 be came law on the 10th June 1908 and came intooperation on that very date. It is contended on the one hand that theLegislature could never have intended the new provision of limitation to applyto causes of action which had accrued before the new statute became law,because the effect would be to extinguish forthwith all causes of action inexistence and enforceable in a Court of Justice at the time when the statutecame into operation. It is argued, on the other hand, that the language of thestatute is explicit and covers all causes of action whether antecedent orsubsequent to the commencement of the statute. To determine which of thesecontentions is well-founded, we must remember that the statute as amendedprovides that the suit to recover possession of land claimed by the plaintiffas an under-ryot must be brought within two years from the date ofdispossession. To hold that this amended provision applies to suits in respectof dispossession which has taken place more than two years before the enactmentof the new law, is to maintain the position that the Legislature intended thelitigant to accomplish what is impossible in the nature of things for him todo, in other words, to prescribe that his rights are forthwith extinguished,without previous notice and without opportunity afforded to him to escape theoperation of the new law. To put the matter briefly, if this view is to besupported, we must hold that the Legislature acted in a most unreasonablemanner, i.e., that the Legislature intended to penalise all under-ryots who hadbeen dispossessed by their landlords more than two years before thecommencement of the new statute, merely because they had waited to enforcetheir rights in a Court of Justice within the period of limitation allowed atthat time by the Legislature. There is, in my opinion, considerable force inthe contention that the Legislature may be deemed to act as a body ofreasonable men and that the presumption is that they did not intend to inflictneedless and unjustifiable hardship upon a large body of innocent litigants. AsLord Campbell, C.J., observed in Cornill v. Hudson (1857) 8 E. & B. 429, 27L.J.Q.B. 8, 3 Jur. (N.S.) 1257 : 6 W.R. 37 : 112 R.R. 636, 120 Eng. Rep. 160the proper way to construe an Act of Parliament is to try and find out theintention of the Legislature; if there is any room for doubt, we must assumethat the Legislature did not intend to give the statute a retrospectiveoperation, where such retrospective operation upon pre-existing causes ofaction would result in hardship to the litigant. In my opinion, the cardinaland fundamental point in the case before me is that the Eastern Bengal andAssam Tenancy Amendment Act of 1908 came into operation the very moment itbecame law, consequently, if it were taken to effect pre-existing causes ofaction, the effect could be absolutely to bar at once all actions where thecause of action had accrued more than the limited time before the statute waspassed. In a case of this description, the Statute of Limitation ceases to be astatute of mere procedure and operates to the destruction of existing andenforceable rights. This point of view is well-illustrated by a remarkablejudgment of the Supreme Court of the United States in the case of Sohn v.Waterson (1873) 17 Wallace 596 : 21 Law. Ed. 737. In that case, the plaintiff,a citizen of Ohio, commenced an action in August 1870 against the defendant, acitizen of Kansas, to recover the amount of a judgment-debt under a judgmentobtained by him in 1851. The defendant pleaded the Statute of Limitations,passed in 1859, more than four years after the judgment had been obtained,which provided that all actions founded on judgments were to be commencedwithin two years next after the cause or right of action had accrued and notafter. The plaintiff contended that this statute could not apply to causes of actionwhich had accrued more than two years before its passage, because such literalinterpretation would cut them off and defeat them altogether. Mr. JusticeBradley, who delivered the unanimous opinion of the nine Judges of the SupremeCourt of the United States, held that the statute could not be so interpretatedas to effect and destroy forthwith preexisting causes of action. The learnedJudge referred at the outset to the principle enunciated in United States v.Heth (1806) 3 Cranch. 399 at p. 413 : 2 Law. Ed. 479, namely, that words in astatute 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 unlessthe intention of the Legislature cannot otherwise be satisfied, and in Harveyv. Tyler (1864) 2 Wallace 328 at p. 347 : 17 Law. Ed. 871 at p. 875, namely,that all statutes are to be considered prospective, unless the language isexpressed to the contrary or there is a necessary implication to that effect.The learned Judge then went on to make the following observations: "AStatute of Limitation may, undoubtedly, have effect upon actions which havealready accrued as well as upon actions which accrue after its passage. Whetherit does so or not will depend upon the language of the Act, and the apparentintent of the Legislature to be gathered therefrom. When a statute declaresgenerally that no action, or no action of a certain class shall be brought,except within a certain limited time after it shall have accrued, the languageof the statute would make it apply to past actions as well as to those arisingin future. But if an action accrued more than the limited time before thestatute was passed a literal interpretation of the statute would have theeffect of absolutely barring such action at once. It would be presumed thatsuch was not the intention of the Legislature. Such an intent would beunconstitutional. To avoid such a result and to give the statute a constructionthat will enable it to stand, Courts have given it a prospectiveoperation." Upon a review of the decisions of the American Courts, as Mr.Justice Bradley points out, it appears that in cases of this description, theCourts have adopted one or other of three different modes of interpretation, viz.,first to make the statute apply only to causes of action arising after itspassage; secondly, to apply the statute to such existing causes of action only,as have already run out a portion of the statutory time, but which still have areasonable time left for prosecution before the statutory time expires, theCourt to determine what is reasonable time for this purpose and thirdly, toapply the new period of limitation to all suits instituted after thecommencement of the statute, the period to run from the date when the statutecame into operation. It is plain that the language of the statute mustdetermine the particular canon of construction applicable to the case beforethe Court; the first of these rules was adopted in Murray v. Gibson (1853) 15Howard 421 : 14 Law. Ed. 755 and the third in Boss v. Duval (1839) 13 Peter 45at p. 62 : 10 Law. Ed. 51, Lewis v. Lewis (1849) 7 Howard 776 : 12 Law. Ed. 909and Sohn v. Waterson (1873) 17 Wallace 596 : 21 Law. Ed. 737. Where the statuteuses the expression cause of action" and fixes the period of limitationwith reference thereto, the problem, in the words of Chief Justice Taney inLewis v. Lewis (1849) 7 Howard 776 : 12 Law. Ed. 909 may be deemed to be"from what time is the limitation to be calculated" and the answermay well be given in the language of that learned Judge, the time must commencewhen the cause of action is first subjected to the operation of the statute bywhich the period for the enforcement of such cause of action has beenprescribed. But whatever controversy there may be as to the particular mode ofinterpretation to be adopted, there is a singular uniformity of judicialopinion that statutes coming into operation immediately they become law anddeclaring generally that an action must be brought within a limited time afteraccruing, will not be construed retrospectively so as to bar causes of actionwhich accrued more than the limited time before the statute was passed,[Friedman v. MacGown (1898) 1 Pennewill 443 : 42 Atlantic 725; Browning v. Browning(1886) 3 New Mexico 471 : 9 Pacific 684.] On the other hand, where a newStatute of Limitation reduces the time previously allowed for commencement ofthe suit but does not come into operation forthwith and allows a reasonabletime for the enforcement of existing causes of action, the Court will nothesitate to hold that the statute may affect causes of action already accruedin the same manner as those accruing after its passage: [Terry v. Anderson(1877) 95 U.S. 633 : 5 Otto 628 : 24 Law. Ed. 365; Kosh Konong v. Burton (1881)104 U.S. 675 : 14 Otto 668 : 26 Law. Ed. 886; Vance v. Vance (1882) 108 U.S.521 : Reporters Ed. 514 : 27 Law. Ed. 808 and In re Brown (1889) 135 U.S. 705: Reporters Ed. 662 : 34 Law. Ed. 304.] The distinction to which I haveadverted and which is so emphatically brought out and developed in thedecisions of the Supreme Court of the United States has been indicated fromtime to time in judicial decisions both in England and India. Amongst decisionsin England, may be mentioned Gilmour v. Skuter Jones (1679) Joness Rep. 108 :1 Lev. 227 : 2 Modern 310 : 2 Show. 17 : 1 Ventr. 330; Towler v. Chatterton(1829) 6 Bing. 258 : 31 R.R. 411 : 8 L.J.C.P. (O.S.) 30 : 130 Eng. Rep. 1280;Deo Dem Evans v. Page (1844) 5 Q.B.D. 767 : D. & M. 601 : 13 L.J.Q.B. 153 :8 Jur. 999 : 114 Eng. Rep. 1439; Queen v. Leeds and Bradford Railway Co. (1852)21 L.J.M.C. 193 : 16 Jur. 817 : 118 Eng. Rep. 129 : 18 Q.B. 343; Cornill v.Hudson (1857) 8 E. & B. 429, 27 L.J.Q.B. 8, 3 Jur. (N.S.) 1257 : 6 W.R. 37: 112 R.R. 636, 120 Eng. Rep. 160; Wright v. Hale (1860) 6 H. & N. 227 : 30L.J. Ex. 40 : 6 Jur. (N.S.) 1212 : 3 L.T. 444 : 9 W.R. 157 : 123 E.S. 477, R.v. Chandra Dharma (1905) 2 K.B. 335 : 74 L.J.K.B. 450 : 69 J.P. 198 : 53 W.R.431 : 92 L.T. 700 : 27 T.L.R. 353. Amongst decisions in Indian cases, may bementioned Delhi and London Sank v. Orchard 4 I.A. 127 : 3 C. 47, In re RattansiKalianji 2 B. 148 (F.B.); Sitaram v. Khanderav 1 B. 286; Ruckmaboyee v.Lallubhoy 5 M.I.A. 234 at p. 265 : 18 Eng. Rep. 884 and Khusalbhoy v. Kabhai 17C. 726. It is suggested, however, that this distinction was not recognised intwo cases under the Bengal Tenancy Act, viz., Saraswati v. Horitarun 16 G. 741and Ramdhan v. Ramhamar 17 C. 926. In my opinion, the cases mentioned areclearly distinguishable. The Bengal Tenancy Act, as is well known, came intooperation many months after, it had become law, and the question of theapplicability of rules of limitation contained in that statute stands on anobviously different footing. But it is urged that the two cases mentioned donot at all advert to the fundamental distinction I have explained; the obviousanswer is that it was not necessary to do so; at any rate, the mere fact thatreference is not made in these cases to the principle now in controversy doesnot show that the principle itself is not well-founded on reason and goodsense. In this connection, we cannot afford to forget that, as Lord Mansfieldsaid in Fisher v. Prince (1763) 3 Bur. 1363 : 97 Eng. Rep. 876, the reason andspirit of cases make law, not the letter of particular precedents; and as LordHalsbury said in Quinn v. Leathern (1901) A.C. 495 : 70 L.J.P.C. 76 : 66 J.P.708 : 50 W.R. 139 : 85 L.T. 289 : 17 T.L.R. 749, every judgment must be read asapplicable to the particular facts proved or assumed to be proved. Since thegenerality of the expressions which may be found there, must be deemed governedand qualified by the particular facts of that cage. These observations applyequally to the cases of Beg. v. Dorabji 11 B.H.C.R. 117 and Chajmal v. Jagdamba11 A. 408. I further desire emphatically to repudiate the suggestion that theCourt is in any way bound by isolated dicta in English cases not directly inpoint; the crucial test to be applied is, are these dicta consistent with theprinciple of justice, equity and good consience Here it is useful to bear inmind the weighty observations of one of the foremost jurists of the presentgeneration, viz., that "blind following of English precedents according tothe letter can only have the effect of reducing the estimation of the commonlaw by intelligent Indians to the level of its more technical and less fruitfulportions and making those portions appear if possible more inscrutable toIndian than they do to English lay suitors" (Sir Frederick Pollock on theGenius of the Common Law page 92). No doubt, we find it frequently asserted injudicial decisions that a Statute of Limitation embodies merely a rule ofprocedure but this statement is only generally and not universally true. Theessence of the matter is that when a new Statute of Limitation which shortensthe period for institution of suits and comes into force the moment it becomeslaw is sought to be made retrospectively applicable to causes of action which haveaccrued earlier than the length of time prescribed, it ceases to be a statuteof mere procedure and serves to destroy pre-existing and enforceable rights.Under circumstances like these, the Court, when invited to hold that the newstatute has retrospective operation, will struggle against the acceptance ofsuch an interpretation, unless there is the clearest indication that theLegislature intended to destroy existing rights without notice and thus topenalise innocent litigants. There is no force in the suggestion that suchlitigants may be expected to watch the proceedings of legislative assembliesand take steps in advance for self-protection lest the Legislature should passa new law and take away existing rights. No doubt, "all men are presumedcognisant of the law," but knowledge of the law is imputed to every persononly because, as Lord Ellen borough observed in Bilbie v. Lumley (1802) 2 East469 : 6 R.R. 479 : 102 Eng. Rep. 448, there is no saying to what extent theexcuse of ignorance might be carried if the presumption were not applied. Noauthority, however, has been shown to me in support of the position thatpersons are not only presumed to know the law but are also expected at theirperil to anticipate the possible action of Legislative assemblies.

56. After the most anxious consideration of the argumentswhich have been addressed to me I have arrived at the conclusion that thespecial rule of limitation extended to under-ryots in Eastern Bengal by theamendment in 1908 of the third Article in the third schedule of the BengalTenancy Act, 1885, does not apply to suits instituted after the commence meatof the amending Act in respect of causes of action which arose before theamending Act came into force, and I agree with Mr. Justice Chatterjee thatsection 61, clause 3, of the Eastern Bengal and Assam Tenancy Amendment Act of1908 has not retrospective operation.

57. Let the case be returned to the Division Bench fordisposal.

Herbert Carnduff and Nalini Ranjan Chatterjee, JJ.

58. The only other question raised in the appeal is whetherthere was an abandonment of the holding by the plaintiffs and how far theplaintiffs, who were minors, are bound by it. But the learned District Judgefound that the plaintiffs were dispossessed by their landlord in collusion withthe other respondents. The question of special limitation under the BengalTenancy Act can only arise, and was raised, on the finding that there wasdispossession, and we discussed the question of limitation on that footing. Theplaintiffs having been dispossessed, the question of abandonment does notarise, and in fact the finding as to dispossession negatives the case ofabandonment.

59. The suit not being barred by the special limitationprovided by the Bengal Tenancy Act, and having been instituted within 12 yearsof the dispossession, the plaintiffs are entitled to a decree for possession.The decree of the lower Appellate Court is accordingly set aside and that ofthe Court of first instance restored.

60. Bach party will bear his own costs of this Court and ofthe lower Appellate Court. In the result the appellants will be allowed theircosts in the Court of first instance.

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Manjuri Bibi vs.Akeel Mahmud (14.03.1913 - CALHC)