GARIKAPATTI VEERAYA v. N. SUBBIAH CHOUDHURY

Citation: [1957] 1 S.C.R. 488; 1957 INSC 10

Court: Supreme Court of India

Bench: SUDHI RANJAN DAS , NATWARLAL HARILAL BHAGWATI, T.L. VENKATARAMA AIYYAR, BHUVNESHWAR PRASAD SINHA, S.K. DAS

Judgment date: 1957-02-01

Case summary

1957 INSC 10. Supreme Court of India judgment dated 1957-02-01. GARIKAPATTI VEERAYA v. N. SUBBIAH CHOUDHURY. Read the judgment and case details on LawSphereX.

Judgment text

GARIKAPA TTI VEERAYA v. N. SUBBIAH CHOUDHURY [S. R. DAS C. J. , BHAGWATI, VENKATARAMA AYYAR, B. P. SINHA and S. K. DAs J J. J Supreme Court, Appellate furisdiction of-Dea·ee in suit insti· tuted prio1· to the Constitution reversed in appeal by High Court ofter the Constitution-Value of subject-matter short of twenty-thousand- Appeal, if lies-Vested 1·ight of appeal-Constitution of India, Arts. 133, 135. This application for $pecial leave to appeal arose out of . a suit instituted on April 22, 1949, and valued at Rs. 11,400. The Trial Court dismissed the suit and the High Court in appeal reversed that decision on February IO, 1955. Application for leave to appeal to the Supreme Court was refused by the High Court on the ground that the value did not come upto Rs. 20,000.

It was contended on behalf of the applicant that he had a vested right of appeal to the Federal Court under the law as it then stood and that Court having been substituted by the Supreme Court, he was as of right entitled to appeal to that Court under Art. 135 of the Constitution. Held, (per Das C. J. , Bhagwati, B. P. Sinha and S. K. Das JJ. , Venkatarama Ayyar J. dissenting) that the contention of the applicant was well-founded, that he had a vested right of appeal to the Federal Court on and from the date of the suit and the application for special leave should be allowed. The vested right of appeal was a substantive right and, although it could be exercised only in case of an adverse decision, it was governed by the law prevailing at the time of commenttment of the suit and comprised all successive rights of appeal from court to court, which really constituted one proceeding.

Such a right could be taken away only by a subsequent enactment either cxprCssly or by necessary intendment. Colonial Sugar Refining Company Ltd. v. Irving, (1905) A. C. 369, followed. Sadar Ali v. Dalimuddin, (1929) I. L. R. 56 Cal. 512 and ln re Vasudeva Samiar, (1928) I. L. R. 52 Mad. 361, relied on. Casc~law ·reviewed. Article 133 of the Constitution had no application to such cases. It was not intended to have retrospective operation so as co tak~ a. way this vested right nor did it do so either in express terms or by necessary intendment. Correctly construed it should be read as restricted to only those judgments, decrees and final orders of a High Court in respect of which there was no such vested right of appeal, as otherwise cl. 20 of the Adaptation of 1957 Laws Order, 1950, which saves such a right, would become nuga- Garikapatti V eerqya tory. A litigant in a Princely State who could have no vested v. right of appeal to the Federal Court must, however, come under N.

Sabbiah Art. 133. Chowfhury ]anardan Reddy v. The Staie, (1950), S. C. R. 940, Keshavan Madhava Menon v. The State of Bombay, (1951) S. C. R. 228 and Dajisahib Mane v. Shankar Rao Vithal Rao, (1955) 2 S. C. R. 872, referred to. This vested right of appeal acquired under the old b w was a matter contemplated by Art. 135 of the Constitution in relation to which the jurisdiction and powers of the Federal Court were exercisable at the commencement of the Constitution and as such it was within the purview of the appellate jurisdiction of the Supreme Court, and the appeal was entertainable by it. Article 135 could not be limited to such cas~ only where the right of appeal had actually arisen in a concrete form, and was no mere potentiality, immediately before the Constitution. Ramaswami Chettiar v. The Official Receiver, A. LR. 1951 Mad. 1051, Veeranna v. Chi11a Venkanna, I. L. R. 1953 Mad. 1079, Probirendra Mohan v. Berhampore Bank Ltd. A. LR. 1954 Cal. 289, Ram Sahai v. Ram Sewak, A. LR.

1956 All. 321, Tafammul Hussain v. Mst. Qaisar /agan Begam, A. LR. 1956 All. 638 and The Indian Trade and General Insurance Co. Ltd. v. Raj Mal Pahar Chand, A. LR. 1956 Punj. 228, overruled. Canada Cement Co. Ltd. v. East Montreal (Town of), (1922) l A. C. 249 and Nathoo Lal ''- Durga Prasad, (1955) 1 S. C. R. 51, distinguished. Per Venkatarama Ayyar /. A right of appeal was undoubtedly a substantive right but it did not, therefore, follow that it vested in the parties to a suit on and from the date of its commencement and the decision in Colonial Sugar Refining Company Ltd. v. Irving on which such a theory was sought to be founded was neither supportable in principle nor warranted by the authorities it relied on.

Right to appeal to a superior court could arise only on the passing of an adverse decision and the rights of successive appeal~ provided by the law did not constitute either a single proceeding or a single right as will be apparent from the relevant provisions of the Code of Civil Procedure. Colonial Sugar Refinfog Company Ltd. v. Irving, (1905) A. C. 369, not followed. Sadar Ali v. Dalimuddin, (1929) I. L. R. 56 Cal. 512 and In re Vasudeva Samiar, (1928) LL. R. 52 Mad. 361, dissented from. Case-law disQissed. Assuming that the . petitioner had such a vested right of appeal to the Federal Court before the commencement of the Constitution, that right n1ust be held to have ceased with the repeal of the Government of India Act, 1935, and consequent abolition of the Federal Court, by the Constitution. Veeranna v. Chinna Venkanna, LL. R. 1953 Mad. 1079 and Daji Sahib Mane v. Shankar Rao Vithal Rao Mane, ( 1955) 2 S. C. R. 872, relied on. There was, therefore, nothing on \vhich cl.

20 of the Adaptation of Laws Order, 1950, could operate so as to keep it ali\•e. Nor could this Court be considered to be a successor of the Federal Court so as to attract the opera ti on of that clause. State of Seraikella v. Union of India, (1951) S. C. R. 474, relied on. Article 133 applied to all judgn1ents, decrees and final orders of I--Iigh Courts in Civil Proceedings passed after the comn1cnce-ment of the Constitution irrespective of the dates of their institution and if an appeal did nqt satisfy its reqt:iremcnt as to valuation it must be held to be incompetent. Any vested right of appeal that might have existed prior to the Constitution must be held to have been taken away by it by necessary implication. Canada Cement Co. v. East Montreal, (1922) 1 A. C. 249, DurousJeau v. United States, 3 L. Ed. 232: 6 Cranch 307 and Baltimore and Potomac Railroad Company v. J. H. Grant, 98 U. S. 231 : 25 L. Ed. 231, referred to.

Article 135 of the Constitution could have rio application to such a case as Art. 133 applied and there was no vested right to appeal to the Federal Court in relation to which jurisdiction was exercisable by that Court immediately before the commencement of the Constitution. The application for special leave must, therefore, be refused. CIVIL APPELLATE JuRJSDICTJON : Petition for Special Leave to appeal No. 170 of 1955 and Civil Miscellaneous Petition No. 579 of 1956. Petition under Article 136 of the Constitution for special leave to appeal from the judgment and decree dated March 4, 1955, of the Andhra High Court in A. S. No. 301 of 1951. M. S. K. Sastri, for the petitioner. T. V. R. Tatachary, for the respondents Nos. 1 and 2. M. C. Setalvad, Attorney-General for India, for assisting the Court. 1957. February 1. The judgment of Das C. J. , Bhagwati, B. P. Sinha and S. K. Das JJ. was delivered by Das C. J. Venkatarama Ayyar J. delivered a separate judgment. DAs C. J.

-This is an application for special leave to appeal from the judgment passed on February 10, 1955, by the High Court of Andhra. The suit out of which this application arises was instituted on April 22, 1949, in the sub-court of Bapatla, which was then within the jurisdiction of the Madras High Court. The judgment of the trial court was passed on November 14, 1950, dismissing the suit. The plaintiff appealed. On October 1, 1953, the Andhra State was formed and a new High Court was established under s. 28 of The Andhra State Act, 1953 (Act XXX of 1953), and apparently the appeal stood transferred to the High Court of Andhra under the provisions of s. 38 of the same Act. On March 4, 1955, the High Court of Andhra accepted the appeal, reversed the decree of the trial court and decreed the suit. The application for leave to appeal to this Court was dismissed on the ground, inter alia, that the value of the property was only Rs. 11,400 and did not come up to the amount of Rs. 20,000.

In this application the petitioner contends that the judgment being one of reversal and the value being above Rs. 10,000, he was entitled, as a matter of right, to come up to this Court on appeal and as that right has been denied to him by the High Court, this Court should, in exercise of its discretion, grant him special leave to appeal to this Court under Art. 136 of the Constitution. It will be convenient at this stage to refer to the statutory provisions relating to appeal from any final judgment, decree or order of a High Court in India to a superior court. This was regulated by the provisions of the Letters Patent of each particular High Court. It will suffice for our present purpose to re(er to cl. 39 of the Letters Patent, 1865 relating to the High Courts of the three Presidency towns.

Under that clause an appeal could be taken to His Majesty in Council from any· final judgment, decree or order of the High Court made on appeal or in exercise of its original jurisdiction by a majority of the full number of Judges of the said High Court or of any Division Court provided, in either case, the sum or matter at issue was of the amount or value of not less than 10,000 rupees or that such judgment, decree or order involved, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of not less than 10,000 rupees or from any other final judgment, decree or order made either on appeal or otherwise as aforesaid when the said High Court should declare that the case was a fit one for appeal to His Majesty in Council. The requirements to be fulfilled for appeal to His Majesty in Council were also set out in ss. 109 and 110 of the Code of Civil Procedure, 1908. The Government of India Act, 1935 by s.

200 established a Federal Court for India. Section 204 of that Act gave original jurisdiction to the Federal Court with respect to certain matters. Section 205 conferred appellate jurisdiction on the Federal Court from any judgment, decree or final order of a High Court in British India if the High Court certified that the case involved a substantial question of law as to the interpretation of that Act or any Order in Council made thereunder and prohibited direct appeal to His Majesty in Council either with or without special leave in those matters. When the Indian Independence Act, 1947 was passed by Parliament it became necessary to enlarge the jurisdiction of the Federal Court to enable the Federal Court to entertain appeals which previously went to His Majesty in Council. For that purpose was enacted the Federal Court (Enlargement of Jurisdiction) Act, 1947, being Act I of 1948. Section 3 of that Act provided that as from the appointed day, i. e.

, from February 1, 1948, an appeal would lie to the Federal Court from any judgment to which the Act applied. without the special leave of the Federal Court, if an appeal could have been. brought to His Majesty in Council under the provisions of the Code of Civil Procedure, 1908 or of any other law immediately in force after the appointed day and with the special . leave of the Federal Court in any other case and that no direct appeal would lie to His Majesty in Council either with or without special leave from anv such judgment. "Judgment to which this Act ~pplied" was . defined by s. 2(b) as meaning any judgment, decree or final order of a High Court in a civil case from which a direct appeal could have been brought to His Majesty in Council, either with or without special leave, if that Act had not been passed. By s.

4 all pro:eedings and steps taken in, and orders made and certificates granted by, a High Court in connection with an appeal to His Majestry in Council, unless the records had been transmitted, were to be deemed to be proceedings and steps taken and orders made and certificates granted in connection with an appeal from that judgmerlt to the Federal Court under the Act and would be concluded, or as the case may be, have effect, accordingly. Under s. 5 every application to His Majesty in Council for special leave to appeal from a ju<lgment to which the Act applied . remaining undis-posed · of immediately before the appointed day would on that day stand transferred to the Federal Court by virtue of the Act and would be disposed of by that Court as if it had been an application duly made to that Court for special leave to appeal from the said judgment.

This was followed by the Abolition of Privy Council Jurisdiction Act, 1949 (Act V of 1949), which was passed by the Constituent Assembly in September, 1949 and came into force on October 10, 1949, which was referred to as the 'appointed day'. Secti9n 2 provided that as from the· 'appointed day' the jurisdiction of His Majesty in Council to entertain appeals . and petitions from or in respect of any judgment, decree or order of any court or tribunal other than the Federal Court within the territory of India including appeals and petitions in respect of criminal matters whether such jurisdiction was exercisable by virtue of His Majesty's _prerogatives or otherwise would cease. Sec"'.

tion 5 conferred corresponding jurisdiction on the Federal Court, that is to say, as from the 'appointed day' the Federal Court was authorised, iu addition to the jurisdiction conferred on it by the Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947, to have the same jurisdiction to entertain and dispose of Indian appeals and petitions as His Majesty in Council had by virtue of His Majesty's prerogatives or otherwise immediately before the 'appointed day'. All proceedings in respect of any 2-78 S. C. India/59 Indian appeal pending before His Majesty in Council immediately before the 'appointed day' were bys. 6 to stand transferred to the Federal Court and were to be disposed of by it in the exercise of the jurisdiction conferred on it by the Act. It will be recalled that the suit out of which the present petition arises was filed 011 April 22, 1949.

The petitioner contends that as from the date of the institution of the suit he acquired a vested right to appeal to the Federal Court which has since then been replaced by the Supreme Court. In support of this contention he relies on certain judicial decisions to which reference may now be made. The leading case on the subject relied on by the petitioner is Colonial Sugar Refining Company Ltrl. 1 v. Irving( ). In that case the Collector of Customs acting under an Act called the Excise Tariff Act, 1902 required the appellants to pay £ 20,100 excise duty on 6,700 tons of sugar. The appellants disputed the claim. So they deposited the money with the Collector and then brought an action in the Supreme Court of Queensland against the Collector for recovering the sum so deposited. The writ in the action was issued on October 25, 1902.

At the date of the institution of the action the Order in Council of June 30, 1860, gave a right of appeal to His Majesty in Council from the judgment of the Supreme Court. A special case having been stated for the opinion of the Full Court, that Court on September 4, 1903, gave judgment for the Collector. In the meantime the Judiciary Act, 1903 had been passed and it received the royal assent on August 25, 1903, that is to say about IO <lays before the judgment was delivered by the Supreme Court. By s. 38 the jurisdiction of the High Court of Australia in certain specified matters was made exclusive of the jurisdiction of the several Courts of the States and by s. 39 it was made exclusive in all other matters except as therein , provided. Sub-section 2 of s. 39 provided that the several Courts of the States would be invested with Federal jurisdiction in all matters above mentioned except those specified in s. 38, subj. ect to certain (r) [1905] A. C. 369.

conditions and restrictions, one of which was that every decision of a Court of a State from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council, should be final and conclusive except ser far as an appeal might be brought to the High Court. The result of this Act was that Her Majesty in Council ceased to be a Court of Appeal from the decision of the Supreme Court and the only appeal from the Supreme Court under that Act lay to the High Court of Australia. The Supreme Court of Queensland having granted leave to the appellants under the Order in Council of 1860 the appellants filed the appe~l in the Privy Council.

The respondent filed a petition before the Privy Council praying that the appeal might be dismissed with costs on the ground that the right of appeal to His Majesty in Council given by the Order in Council of June 30, 1860, under which the leave had been granted, had been taken away by the Judiciary Act, 1903 and that the only appeal from a decision of the Supreme Court of Queensland lay to the High Court of Australia. On behalf of the appellants it was contended that the provisions of the f udiciary Act, 1903, on which the respondent relied, were not retrospective so as to defeat a right in existence at the time when the Act received the royal as~. ent. Their Lordships of the Privy Council dismissed the respondent's petition and observed as follows : . "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded.

On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a l0! '1g line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their 496 SUPREME COURT REPORTS [1957} • Lordships that the question does not admit of doubt. To deprive a suitor in a pending action 0£ an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and tra. nsferring the appeal to a new tribunal.

In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested. " This proposition of law has been firmly established in English jurisprudence and this decision is accepted as sound and cited with approval in leading text books. As will be presently seen, it has been followed an<l. applied in- numerous decisions in England and India and its correctness or authority has not been questioned by any of the learned counsel appearing before us. on the present occasion. The principle of the above decision was applied in India by Jenkins C. j. in Nana bin Aba v. Sheku bin 1 Andu ( ) and by the Privy Council itself in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi('). In Delhi Cloth and General Mills Co. Ltd. v.

Income Tax Commissioner, Delhi (supra) two assessment orders were made, one on June 12, 1923, and the other on March 23, 1924. In each case the sum in dispute exceeded Rs. 10,000. At the request of the assessee two cases were stated by the Commissioner to the High Court under s. 66 of the Indian Income Tax Act. The High Court affirmed the decisions of the Commissioner in January, 1926. The petitioner applied for leave to· appeal to the Privy Council. On April 1, 1926, came the Indian Income Tax Amendment Act, 1926 which added s. 66A to the Indian Inco~e Tax Act which gave a right of appeal. The learned Judges of the High Court were of opinion that the petitioners had a right of appeal to His Majesty in Council provided they could in effect bring their cases within the requirements of s. 109(c) of the Code of Civil Procedure but not otherwise. The High Court dealt with the applications for (1) [1908] I. L. R. 32 . Bombay 337. - (2) [1927] L. R. 541. A. 4z. ; LL. R. 9Lah. 284 . • :S. C.

R. SUPREME 'COURT REPORTS 497 ·certificates on that footing but dismissed them and as it refused to certify that the case was a fit one for . appeal to His Majesty in Council, the company applied to the Privy Council for special leave to appeal from the two orders of th.! High Court passed in January, 1926. It will be noticed that in January, 1926 when :the orders were made by the High Court under s. 66, s. 66A was not in the Act at all and it had been held by the Privy Council in Tata Iron and Steel Company Ltd. v. Chief Revenue Authority(' ), that there was no right of appeal from a judgment delivered-by the High Court under s. 66 of the Indian Income Tax Act. Therefore the orders of the High Court were final when they were made in January 1926. Such was the position until April 1, 1926, when s. 66A was added to the Act.

The question was whether this section destroyed the finality that had attached to the orders when they were made and gave any right of appeal at all from the orders of the High Court made before the Act of 1926 came into force. Their Lordships answered the question as follows : "The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in Colonial Sugar Refin- 1! 1g "Co. v. Irving('), where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that rnnstruction be textually inadmissible, have retrospective effect attributed to . them, provisions which touch a right in existence at the passing of the statute are not to be applied restrospectively in the absence of express enactment or necessary intendment.

Their Lordships can have no doubt that provisions which if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. On the contrary, they think there is a clear suggestion that a judgment of the High Court referred to in sub-s. 2 is one which under sub-s. 1 has been pronounced by "not less than two judges of the High Court'', a condition which was not itself operative· until the entire section came into force. (1) [1923] L. R. 50 LA. 212. (2) [1905] A. C. 369. In their Lordships' judgment, therefore, the petitioners in these cases have no statutory right of appeal to His Majesty in Council. Only by an exercise of the Prerogative is either appeal admissible.

" The question of finality of order was considered by this Court in the case of Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others (1 ). In that case the facts shortly stated were as follows : On October 10, 1947, the appellant had arranged with a Pakistani for the exchange of certain properties she left behind at Lahore at the time she migrated to India after the partition for certain lands in a village in the State of Delhi belonging to that Pakistani. On February 23, 1948, the appellant applied to the Additional Custodian for confirmation of the transaction under s. 5-A of the East Punjab Evacuees' (Administration of Property) Act, 1947 as amended in 1948. Section 5-B of that Act provided that if the original order under s. 5-A was passed by an Additional or Deputy Custodian of Evacuee Property, any person aggrieved by such orckr might appeal within 60 days from the date of the order to th.

e Custodian of Evacuee Property; and subject only to the decision on such appeal, if any, the order passed by the Assistant or Deputy Custodian would be final and conclusive. For some reason or other the appellant's application for confirmation was not taken up promptly, but was adjourned from time to time. In the meantime the East Punjab Evacuees' ( Administra6on of Property) Act, 1947 was repealed by ordinances, which in their turn were eventually replaced by the Administration of Evacuee Property Act, 1950 (Central Act XXXJ of 1950). Section 27(1) of the Act empowered the Custodian General, either on his own motion or on application made to him in this behalf, to call for the record of any proceeding in which any district judge or '. :ustodian had passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and to pass order in relation thereto as he thought fit. In other words s.

27 ( 1) of the new Act gave a power of revi-sion to the Custodian General. On March 20, 1952, the Additional Custodian acceded to the appellant's application and confirmed the exchange. On May 5, 1952, the appellant applied to be put in possession. Thereupon a notice was issued under s. 27(1) of the Central Act XXXI of 1950 to the appellant to show cause why the order of the Additional Custodian dated March 20, 1952, should not be set aside. On May 20, 1953, the Custodian General passed an order setting aside the order of confirmation passed by the Additional Custodian on the ground, inter alia, that notice had not been served on all parties interested and directed the Custodian to decide the case on notice to aU parties interested. The petitioner obtained special leave to appeal to this Court against the order of the Custodian General of Evacuee Property. At the hearing of the appeal the learned counsel for the :i.

ppellant contended that according to the principle laid down by the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving (supra), she had, on the filing of her application for confirm:i. tion in 1948, acquired a vested right to have to determined under s. 5-A with the attribute of finality and conclusiveness attaching to the odrer when made just as- a litigant acquired a vested right of :i. ppeal on the commencement of his suit or proceeding and that vested right could not be t:i. ken away by subsequent statute except lw express provision or by necessary intendment. There was, :i. ccording to the appellant, nothing in s. 27 of the Administration of Evacuee Property Act, 1950 (Central Act XXXI of 1950), which expressly or by necessary intendment took away th:i. t vested right. It will be noticed that at the date of the commencenknt of the Central Act XXXI of 1950 no order had actually been made to which the attribute of finalitv could attach.

In these circumstances this Court repelled the contention of the appellant with the following words : (1) [1955] 2 S. C. R, 1117. "However this may be, it appears to be clear that while a right of appeal m respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencemrnt of the action-though we tlo not so decide-no such vested right to obtain a determination with the attribnte of finality can be predicated in favour of a litigant on the institution of the ;iction. By the verv terms of section 5-B of fast l'un;ab Act XIV of 1947, finality attaches to it on the making of the order. fa·en if there be, in law, any such right at all as the right to a determination with the attribute of finalitv. it can in no sense be a vested or accrued right. .. It does not accrue until the determination is in fact made, when alone the right to finality becomes an existing right as in Delhi Cloth and General Mills 1 Co. Ltd. v.

Income Tax Commissioner( ). We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. v. Irving (supra) cannot be invoked in support of a case of the kind we are dealing \\'ith. " It is clear from the above passage that this Court, on tl1at occasion, left open the question whether a right of appeal in respect of a pending action could be treated as a substantiw right vesting in the litigant on the commencement of the action. It becomes, necessary, therefore, to go into that question m detail. In Ramakrishna Iyer v. Sithai Ammal(' ), a magistrate on August 4, 1923, granted sanction under s. 195 of the Code of Criminal Procedure to prosecute the the respondent for having preferred a false charge of daco;ty against the appellant. Sub-section 6 of s. 195, as it stood at that date, provided that the sanction might be revoked or granted by any authority to which the authority giving or refusing it was subject.

Pursuant to the sanction the complainant filed a petition of complaint. On August 22, 1923, the respondent applied for revocation of the sanction but no order was made. On September 1, 1923, s. 195 of the Code (1) [1927] l. L. R. 9 Lahore 284. (i) [1925] I. L. R. 48 Mad. 620 (F. B. ). -of Crir. 1inal Procedure was amended. The relevant portiol1 of the amended section was in these terms : . "I95. (1) No court shall take cognisance- (a) ............. . (b) of any offence punishable under any of . the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on the complaint in writing of such court or of some other court to which such court :s subordinate; or " After the amendment came into force the respondent received notice of the prosecution already in:;;tituted against her.

In 1924 she filed another petition for revocation of the sanction. The magistrate revoked the sanction. The complainant petitioner ti led this petition against this order 0£ revocation of sanction. In dismissing this application a Full Bench nf five Judges of the Madras High Court presided over by Coutts Trotter C. J. referred to the decision of the Privy Council in Colonial Sugar Refining Co. Ltd. v. lr1ii11g (supra) and quoted the passage in Lord Macnaghtcn's judgment as laying down the p:inciple in clear language. At page 629 Coutts Trotter C. J.

, who delivered the judgment of the Full Bench, stated as follows :- "The question we have to decide 1s whether this was a right of entering the Superior Court and invoking its aid and interposition to redress the erro: of the Magistrate's Court below and therefore it seems to us that, on principle and those very weighty authorities, we ought to hold that this is not a case of procedure but it is a case of a real right to invoke the aid of a higher tribunal. \Ve are also of opinion that those principles arc really involved and carried out by section 6 of the General Clauses Act X of 1887. " It will be noticed that even the peremptory language :>f the amended s. 195 quoted above was not regarded as containing anything which expressly or by necessary intendment took away the right which had vested in the respondent under old s. 195 (6) when the sanction had been granted against her on August 4, 1953, to have it revoked. In Daivanayaka Reddiyar and two others v.

Renukambal Ammal ('), a suit was filed on March 21, 1921, by a widow for maintenance. It was valued at rupees 14,600 according to the provisions of the Court Fees Act (VII of 1870) then in force. Under s. 13 of that Court Fees Act appeals lay to the district court or the High Court according as the value of the subject matter of the suit was below or over rupees 5,000. On April 18, 1922, the Madras Court Fees Amendment Act (V of 1912) came into force. Section 7(2) of the old Court Fees Act (VII of 1870) was amended. The trial court decreed the suit on March 13, 1923. On April 19, 1923 the defentbnts filed an appeal in the High Court. In the appeal the court fee was paid on Rs. 2,633-5-4 calculated according to the valuation in terms of the amended Act. An objection was taken on behalf of the plaintiff-respondent that the appeal did not iie to the High Court but should have been filed in the district court. The contention was that though the. suit was Yalued at more than Rs.

5,000 under the law in force at the time of filing of the plaint, yet the valuation of the suit according to the amended Court Fees Act at the time the appeal was presented would have been less than Rs. 3,000 ,md, therefore, the appeal to the High Court was incompetent. The following question was referred to the Full Bench : "Does the appeal against the decree in a suit m which the valuation M the relief claimed according to the law in force at the date of the plaint was more than Rs. 5,000 but at tbe time of the appeal is less than Rs. 5,000 owing to the amendment of the Court Fees Act, lie to the High Court or to the District Court? " The Full Bench consisting of three Judges held that the appeal had properly been brought before the High Court. The Full Bench observed : (t) [1927] I. L. R. 50 Mad. 857.

"It is argued that this section does not confer any right of appeal to the High Court in definite classes of suits, but that the right of appeal is merely given to the Court authorised to hear appeals and the question of whether the Court is the District Court or the High Court depends on the valuation of the suit at the time of filing the appeal. It is difficult to treat this argument as any way distinguishing the case from that 1 of Colonial Sugar Refining Companv v. Irving( ), for, in both cases there was, when the suit was filed, a vested right of appeal to a particular tribunal, which is taken away by a subsequent enactment. According to the argument, when the right is taken away by a subsequent alteration in a mere fiscal enactment, the case is not the same as \vhen the right depends on substantive law. This is untenable. It has been held by the Privy Council that this cannot be done and we are bound bv that general expression of the law and must follow it.

;, Bala Prasad and others v. Shyam Behari Lal and other:( ") which was a decision by a single judge who followed the Privy Council decision does not require any further consideration and we may pass on to Ram 3 Singha v. Shankar Daval( ) which is very important. In the last mentioned case a suit for rent was filed on July 12, 1926. At that time the North-Western Provinces Tenancy Act, 1901 (U. P. Act II of 1901) was in force. Section 177 of that Act gave a right of appeal from the decision of the Assistant Collector to the District Judge when the amount or value of the subject matter of suit exceeded Rs. 100. On September 7, 1926, Agra Tenancy Act (U. P. Act III of 1926) came into force. It repealed the old Act of 1901. Section 240 of the new Act reproduced s. 175 of the old Act providing that no appeal would lie from any decree or order passed by any court under this Act except as provided in this Act. The material portion of s. 242, which corresponded to s.

177 of the old Act provided as follows :- "242 ( l). An appeal shall lie to the district judge from the decree of an assistant collector of the first class or of a collector in any of the suits included in group A of the Fourth Sclmlule in which- (1) [1905] A. C. 369. (3) [1928) I. L. R. 50 All. g65 (F. B. ) (2) [1928] 26 A. L. J. 4o6. ( a) the amount or value of the subject-matter exceeds rupees two hundred; or (b) ,, On December 23, 1926, i. e. , after the new Act came into force, the suit was decreed by the assistant collec- -tor. The defendant presented en appeal to the district judge. The district judge returned the me1noranJu1n of appeal. The defendant presented the memorandum before the Collector of Etawah and that officer was of opinion that he had no jurisdiction to entertain the appeal and referred the case to the High Court under s. 207 of the Agra Tenancy Act.

The reference came up before a Bench of the Allahabad High Court which referred the following question to a Full Bench : "\Vhether the filing of an appeal is governed by the law obtaining at tbe date of the institution of a suit or by the bw that may prevail at the date of the decision o. f it, . or at the date of the filing of the appeal? " It will be noticed that the question definitely called for a decision as to when the right of appeal vested in the litigant. A Full Bench of three Judges presided over by Mr. Justice Sulaiman, then Acting Chief Tustice of Allahabad, expressed the following opinion : "In our opinion the point is concluded by the pronouncement of their Lordships of the Privy Council in . the case of Colonial Sugar Refining Company Ltd. v. 1 Irving( ). In that case, ordinarily an appeal lay to their Lordships of the Privy Council from an order of the Supreme Court.

While the matter was pending in that court, the law was amended so as to allow an appeal to the High Court. Their Lordships of the Privy Council held that the new Act could not deprive the party of his right to appeal to the Privy Council. Lord Macnaghten remarked at page 372 : 'To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing fwm regulating procedure'. " (r) [1905] A. C. 369. "That principle was reaffirmed by their Lordships in the case of Delhi Cloth and General Mills Co. Ltd. v. 1 Income Tax Commissioner( ). The principle has been followed by a Full Bench of the Madras High Court in the case of Daivanayaga Reddiar v. Renukambal Ammal( ). Dalal J. has taken the same view in the 3 case of Bala Prasad v. Shyam Behari Lal( ).

" The Full Bench answered the question as follows : "Our answer to the reference is that the right to appeal to the court of the District Judge was governed by the law prevailing at the date of the institution of the suit, and not by the law that prevailed at the date of its decision, or at the date of the filing of the appeal. " It will be noticed t11at the language of s. 242(1) of the new Act which came into force before the decree was passed was not regarded as containing anything which expressly or by necessary intendment took away the right of appeal which vested in the parties on the date of the institution of the suit on the mere ground that the decree had been made after the new amendment came into force.

This case clearly establishes that the right of appeal vests in the parties at the date of the suit and is governed by the law prevailing at that time and the date of the decree or of the filing of the appeal does not affect this right unless some subsequent enactment takes away this right expressly or by necessary intendment. It also establishes that the wide language of s. 242(1) of the new Act, namely "An appeal shall lie to the District Judge from the decree of an Assistant Collector .... " could not be construed as covering the decree passed after the date of the new Act in a suit instituted before its date. A Full Bench of the Lahore High Court adopted and applied the Privy Council decision in the case of Kirpa Singh v. Ajaipal Singh and others( ).

It was regarded as settled that the right of appeal was not a mere matter of procedure but was a vested right which inhered in a party from the commencement of the action in the court of first instance and that such right could not be taken away except by an express provision or by necessary implication . (1) [1927] I. L. R. g Lah. 284. (3) [1928] 26 A. L. J. 406. (2) [1927] I. L. R. 50 Mad. 857. (+) [1928] I. L. R. 10 Lah. 165 (F. B. ). The decision of a Special Bench of the Calcutta High 1 Court in Sadar Ali v. Dalimuddin ( ) is very instructive. There a suit was filed in the munsiff' s court at Alipur on October 7, 1920, for a declaration that the defendant had no right to use a certain pathway and for a permanent injunction against the defendant. On Julv 17, 1924, the trial court dismissed the suit. On July 17, 1926, the subordinate judge dismissed the plaintiff's appeal. On October 4, 1926, the plaintiff filed a second appeal in the High Court. At that time cl.

15 of the Letters Patent permitted a further appeal to the High Court from the judgment of a single judge of the High Court, except in certain cases which are not material for our present purpose, without any leave of the single judge. During the pendency of the second appeal cl. 15 of the Letters Patent was amended and the amendment came into force on January 14, 1928. The amend<;d Letters Patent imposed a condition that a further appeal would lie only "where the judge who passed the judgment declares that the case is a fit one for appeal. " It is well-known that this amendment was made in order to reduce the number of Letters Patent Appeals from the judgments of single judges which hod assumed alarming proportions in every High Court. After the Letters Patent ·were amended the second appeal was dismissed by the single judge on April 4, 1928. The learned single judge declined to grant leave under the amended Letters Patent.

On 30, 1928, the appellant filed an appeal on the strength of cl. 15 of the Letters Patent as it stood before the amendment and obtained a rule calling upon the respondent to show cause why his appeal should not be accepted and registered without the leave of the single judge. The contention of the appellant was that the amended clause could not be applied to his appeal, for to do so would be to apply it retrospectively and to impair and, indeed, to defeat his substantive right which was in existence prior to the date of the amendment. The appellant claimed that on October 7, 1920, when the suit was filed, he had ve9ted in him by the then existing law, i. e. , cl. 15 of the Letters Patent as it then stood, a substantive right of appeal from the decision of the single judge and that an intention to interfere with it, to clog it with a new condition, or to impair or imperil it, could not be presumed, unless it was clearly manifested by express words or necessary in~endment.

Reliance was placed on the judgment of Garth C. J. in (1) [1929] I. L. R. 56 Cal. 512. 1 Runjit Singh's case( ) and on other Indian decisions to the effect that the suit and all appeals from the decree made therein were to be regarded as one legal proceeding on the principle stated by West J. in Chinto Joshi v. 2 Krishnaji Narayan( ) namely "that the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of · proceedings connected by an intrinsic unity". Rankin C. J. delivering the judgment of the Special Bench consisting of five learned judges of the Calcutta High Court, adverted to the difficulty in supposing "that the amendment made by the Letters Patent, which came into force in January last, was made with any other view than to obviate un-reasonable, or unreasonably prolonged litigation : or to suppose that the date of the suit has any rational bearing upon that object or as distinguishing one case from another for this purpose.

" He was conscious that it might be "thought difficult to arrive at an opinion that the reform introduced is reasonable and necessary but that it should in effect be postponed for years. " He put the onus on the appellant by saying that the "whole weight of these considerations has to be borne by the applicant's argument that the Letters Patent as they stood on the 7th October, 1920, conferred upon him at that date an existing right. " In spite of these difficulties the Full Bench was constrained to come to the decision that the applicant had discharged that onus. At page 518 the learned Chief Justice observed : "Now the reasoning of the Judicial Committee in the Colonial Sugar Refining Company's case(~) is a conclusive authority to show that rights of appeal are not m. ltters of procedure, ap. d that the right to enter the supenor court is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior court.

If the latter proposition be accepted, I can see no intermediate point at which to resist the conclusion that the right arises at the date of the suit. It does not arise as regards Court B alone, when the suit is instituted in Court A and as regards Court C when the first appeal is lodged before Court B. A "present right of appeal" (cf. section 154 of the Code of Civil Procedure) is a different matter. The principle must, I think, involve that an admixture of different systems is not to be applied to a single case. It is quite true that the suitor cannot enter Court C without going through Court B, but neither can he enter Court B till Court A has given its decision. The right must be a right to take the matter to Court C in due course of the existing law. " (1) [1878] I. L. R. 3 Cal. 662 at page 665. (3) [1905] A. C. 369, M [1879] I. L. R. 3 Born. 214 at page 216.

Further down the Special Bench posed before them a question : "Whether it is any necessary part of the intendment of the Letters Patent that they should operate upon appeals arising out of suits instituted before 14th January, 1928, when such appeals were heard after that date? " In spite of the wide language of the amended cl. 15 of the Letters Patent, namely, that an appeal shall lie from the judgment of single judge only where the judge who passed the judgment declared that the case was a fit one ·for appeal, the Special Bench fournl nothing in that language to indi-cate that it applied to a decree passed after the amendment came into force or that it took away the vested right.

The Special Bench after saying that-" As· there is nothing in the language of the Letters Patent to evidence this intention, we must enquire whethet it is manifest from the subject-matter"-went on to deal with the subject-matter and observed : "Now in this case, I cannot say that it appears to me that there is very much material upon which to base a definite conclusion that the intention was to bring pending suits under the new system. The long postponement of a desirable reform may have been thought wise, and it would hardly be correct for a court of law to proceed merely upon its own opm1on as to the degree of respect to which the right of a third appeal is entitled. In this aspect the present case may reasonably be thought less strong than the case of Bourke v. Nutt(1894) 1 Q. B. 725, where a similar argument was ultimately negatived.

If bankrupts may continue to become members of school boards, I cannot say that litigants may not continue to have a third appeal unless it otherwise appears that this construction of the Letters Patent is not reasonably possible. Far be it from me to distinguish between such forms of excess or to divide such claims to toleration. " 1 In re Vasudeva Samiar( ) was also concerned with the effect of the amended cl. 15 of the Letters Patent on a pre-existing right of appeal. In that case the suit was filed in the District Munsif's Court on July 30, 1919. The second appeal was filed in the High Court on July 15, 1924. The amended cl. 15 of the Letters Patent came into force in Madras on January 31, 1928. On February 9, 1929, the second appeal was disposed of. An appeal was filed without any leave of the learned single judge.

The High Court office took objection to the maintainability of the appeal by reason of the amended Letters Patent and the case was placed before the Full Bench consisting of five judges under the ord•_rs of Courts Trotter C. J. for the determination of the question. Coutts Trotter C. J. entirely concurred in the reasoning of Rankin C. J. and had no answer to it. He adverted to the argument that the result would be that cl. 15 of the amended Letters Patent will remain a dead letter for many years to come and repelled it in the following sentence : "The result is regrettable, because it makes the amended Letters Patent, which were doubtless brought into being to relieve the heavy burden of Second Appeals, which in this Court have now reached the startling · figure of 5,000 cases, unable to effect any substantial relief to us for five years. " For the moment we pass over his observation in connection with the case of Canada Cement Co. v.

East Montreal (Town of) (2) and will refer to it later on. The point for our present purpose is that the Full Bench did not (1) (1928] I. L. R. 52 Mad. 361. (2) [1922] I A. G. 249. 3-78 S. C. India/59 think that the opinion expressed in that case was in conflict with the earlier decision in Colonial Surrar Refining Co. Ltd. v. Irving (supra), which ~as authoritatively adopted and reconfirmed in the later case of Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi (supra). The learned Chief Justice concluded his judgment -. vith the following words: "We must therefore hold, however reluctantly, that the institution of the suit carries with it the implication that all appeals then in torce are preserved to it through the rest of its career, unless the legisia-tion has either abolished the Court to which an appeal r11en lay or has expressly or by necessary intendment gil'en the Act a retrospective effect.

We agree with the Calcutta High Court that the words of the amended Letters Patent do not admit of such an interpretation. " The principle laid down by the Privy Councii 'n Colonial Sugar Refining Co. Ltd. v. Irving (supra) was applied by a Full Bench of the Nagpur High Court ! fl 1 Radhakishan v. Shridhar( ). The doctrine laid down by the Privy Council m Colonial Sugar Refining Co. Ltd. v. Irving (supra) has also been applied by the courts in India to cases where the subsequent legislation did not take away the entire right of appeal but imposed certain onerous conditions on such right. The case of Nagendra Nath Bose v. Mon Mohan Singh(') is a case of that type. In that case the plaintiff instituted the suit for rent valued ~t Rs. 1,306-15-0 and obtained a decree. In execution of that decree the defaulting tenure was sold on November 20, 1928, for Rs. 1,600. On December 19, 1928, an application was made under 0. 21, r.

90 of the Code of Civil Procedure by the petitioner who was one of the judgment debtors for setting aside the sale. That application hning been dismissed for default of his appearance, the petitioner preferred an appeal to the District Judge, Hooghly, who refused to admit the appeal on the ground that the amount recoverable in execution of the decree had not been deposited as required by the proviso to s. 174 ( c). of the Bengal Tenancy Act as amended by an amendmg Act of 1928. The contention of the petitioner was that the amended provi:;ion, which came into force on February 21, 1929, could not affect his right of appeal from the decision on an application _made on December 19. • 1928, for setting aside the sale. Mitter J. said : "We think the contention of the petitioner is well-founded and must prevail. That a right of appeal is a substantive right cannot now be seriously disputed. It is not a mere matter of procedure.

Prior to the amendment of 1928 there was an appeal against an order refusing to set aside a sale (for that is the effect also where the application to set aside the sale is dismissed for default) under the provisions of Order 43, rule ( 1), of the Code of Civil Procedure. That right was unhampered by any restriction of the kind now imposed by section 174(5), proviso. The Court was bound to admit the appeal whether appellant deposited the amount recoverable in execution of_ the decree or not. By requiring such deposit as a condition precedent to the admission of the appeal, a new restriction has been put on the right of appeal, the admission of which is now hedged in with a condition. There can be no doubt that the right of appeal has been affected by the new provision and in the absence of an express enactment this amendment cannot apply to proceedings pending at the date when the new amendment came into force.

It is true that the appeal was filed after the Act came into force, but that circumstance is immaterial-for the date to be looked into for this purrose is the date of the original proceeding which eventually culminated in the appeal. " (1) I. L. R. 1950 Nag. 532 (F. B. ): ~:2) 34 C. W. N. 1009; A. I. R. (ro3r) Cal. 100. That aecision was approved by a Bench of this Court in Hoosein Kasam Dada (India) Ltd. v. The 1 State of Madhya Pr(ldesh( ). In that case on November 28, 1947, the appellant submitted a return to the Sales Tax Officer. At that time s. 22(1) of the Central Provinces and Berar Sales Tax Act, 1947 provided (1) [i953] S. C. R. 987. that no appeal against the order of assessment should Vttraya be entertained unless it was shown that such amount of tax as the appellant might admit to be due. from him had been paid. Pending the assessment on the appellant's return the Act was amend.

ed on November 25, 1949, so as to provide that no appeal would be admitted unless such appeal was accompanied by satisfactory proof of payment of tax in respect of which the appeal had been preferred. The Assistant Commissioner to whom the return was transferred for disposal. made an assessment on April 8, 1950. The appellant preferred an appeal on ·May 10, 1950, without depositing the amount. of tax in respect of. which he had · appealed, The Board of Revenue was of opinion that s. 22(1) as· arnended applied to the case as the assessment was made, and the appeal was pre- . £erred, after the amendment came into force, and rejected the appeal. The Bench of this Court held, following the leading Privy Council decision and some of the other decisions referred to above, that the right of appeal was a matter of substantive right and not merely a matter of procedure, that this right became vested in a party when the pr.

oceeclings were first Initiated and that such right could not be taken away except by express enactment or necessary intendment. . Accordingly it was held that the appellant had a vested right of appeal when the assessment proceed- . ihgs were initiated in 1947, that his right of appeal . was governed by the law as it existed on that date, that the · amendment of 1950 could ·not be regarded as a mere alteration in procedure or an alteration regulating the exercise of the right of appeal, if it whittled clown the right itself, and that it had no retrospective effect as the amended Act of 1950 did not expressly or by necessary intendment give it restrospective effect and the ·'appeal could not, therefore, be rejected for · non-payment of tax in respect of which the appeal was preferred. The case of Ganpat Rai Himlal v. Aggarwal Cham- 1 . ber of Commerce Ltd.. ( ), i>. also instruc. tivec There were two windi'ng up proceedings regarding two companies, (! ) [•953] S. C. R. 752.

namely, the Marwari Chamber of Commerce Ltd. and Aggarwal Chamber of Commerce Ltd. The Official Liquidator settled the list of contributories in both cases. On June 4, 1946, payment order for Rs. 24,005-7-3 was made by the court in the case of Marwari Chamber of Commerce Ltd. At that time Patiala States Judicature Firman of 1999 was in force. Under s. 44 of that Firman a certificate of fitness was required for an appeal from a judgment of a single judge only if the judgment, decree or order sought to be appealed from was made in the exercise o[ Civil Appellate Jurisdiction. After the payment order had been made Pepsu Ordinance (X of 2005) was pronrnlgate9. Section 52 of the Ordinance required a certificate of fitness for appeal in all cases, including the winding up cases. On February 2, 1950, an application was made in respect of the Marwari Chamber of Commerce Ltd. under s. 152 of the Civil Procedure Code for amendment of the payment order by subs-tituting Rs. 21,805-7-3 for Rs.

24,005-7-3. On March 16, 1950, the above application was dismissed by the judge, who refused to grant the certificate of fitness; ·An appeal against this order refusing to amend the payment order was filed without any certificate. On May 1, 1950, that :appeal was dismissed for want of the necessary certificate. An appeal was brought to this Court on certificate qf Jitness granted by the Pepsu High Court. In tite· case of Aggarwal Chamber of Commerce Ltd. the payment order was made on January 18, 1949, by tln:> Liquidation Judge, 011.. February 19, 1949, an appeal was preferred to the High Court. At that time the Patiala States Judicature Firman 1999 was in force. Then came the Pepsu Ordinance (X of 2005). The High Court having dismissed the appeal a further appeal was filed in this Court on certificate of fitness granted by the High Court. The question for decision was whether the appellant had a vested right of appeal to this Court in either of two cases.

This Court dismissed the appeal in connectic:n with The Marwari Chamber of Commerce Ltd. , not on the ground that the appellant had no vested right of appeal but, on the ground :that the application for amendment, which was filed on February 2, 1950, was an independent proceeding and as that proceeding was instituted after the Pepsu Ordinance (X of 2005), came into operation, the vested right of appeal arising out of that proceeding was governed by that Ordinance and a certificate was necessary. It was observed that there was no warrant for the view that the amendment petition was a continuation of the suit or proceeding thereunder, that it was in the nature of an independent proceeding though connected with the order of which amendment was sought and that such a proceeding was governed by the law prevailing on its date, which admittedly was Pepsu Ordinance (X of 2005), which provided, under s. 52, for a certificate.

The court, however, allowed the · appeal in the matter of Aggarwal Chamber of Commerce Ltd. following the principle laid down in the case of Colonial Sugar Refining Co. Ltd. v. Irving (supra), for in that case there was no new proceeding and the right of appeal arising out of the proceeding resulting in the payment order had vested at the commencement of those proceedings which was prior to the date when the Pepsu Ordinance (X of 2005) came into force. Similar prin(.. iple has also been adopted in cases, where court fees were increased by subsequent amendment of the Court Fees Act. Reference may be made to the cases of R. M. Seshadri v. Province Madras (1); 2 In re Reference under section 5 of Court Fees Act( ); Sawaldas Madhavdas v. Arti Cott. on Mills Ltd. ('). There are certain other decisions which also adopted the same principle but reference will be made to them later on in connection with the question of construction of Art. 133 of the Constitution.

From the decisions cited above the following principles clearly emerge : ( i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (1) A. I. R. 1954 Mad. 543· (2) I. L. R. 1955 Born. 530. (3) A. LR 1955 Born. 332; 57 Born. L. R. 394. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to -enter the superior court accrues to the litigant and exists as on and from the date the !

is commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. ( v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. In the case before us the suit was instituted on April 22, 1949, and on the principle established by the decisions referred to above the right of appeal vested in the parties thereto at that date and is to be governed by the law as it prevailed on that date, that is to say, on that date the parties acquired the right, if unsuccessful, to go up in appeal from the sub-court to the High Court and from the High Court to the Federal Court under the Federal Court (Enlargement of Jurisdiction) Act, 1947 read with cl.

39 of the Letters Patent and ss. 109 and 110 of the Code of Civil Procedure provided the conditions thereof were satisfied. The question for our consideration is whether that right has been taken away expressly or by necessary intendment by any subsequent enactment. The respondents to the application maintain that it has been so taken away by the provisions of our Constitution. In construing the articles of the Constitution we must bear in mind certain cardinal rules of construc- 1 tion. It has been said in Hough v. Windus( ), that "statutes should be interpreted, if possible, so as to respect vested right. " The golden rule of construction is that, in the absence of anything in the enactment te> show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a daim in litigation at the time when the Act was passed(' ). The following observation of Rankin C. J. in Sadar Ali v.

Dalimuddin (supra) at page 520 is also apposite and helpful : "Unless the contrary can be . shown the provision which takes away the jurisdiction is itself subject to the implied saving of the litiganfs right. " In fanardan Reddy v. The State(•) Kania C. J. , in delivering the judgment of the Court observed that our Constitution is generally speaking prospective in its operation and is not to have retroactive operation in the absence of any express provision to that effect. The same principle was reite-rated in Keshavan Madhava Menon v. The State of (1) [1884] 12 Q B. D. 224 at 237. 3 Bombay( ) and finally in Dajisaheb Mane and Others v. Shankar Rao Vithal Rao( ') to which reference will be made in greater detail hereafter. In the next place we must take into account the ·surrounding circumstances that existed at the time when our Constitution makers framed the Constitution and for which provision had to be made by them.

In construing the Articles relating to the appellate jurisdiction of this Court it is well to remember the several ·Categories of persons who were at the date of the Constitution, interested in the right of appeal from judgments, decrees or final orders of a High Court to a superior court in one way or another. There were seven categories of persons so interested, name! y- ( i) Those who were aggrieved by a judgment of a High Court in what was British India passed before the commencement of the Constitution in a civil proceeding arising out of a suit or proceeding instituted before the Constitution and who had preferred an appeal from such judgment to the· Federal Court or· whose appeal from such judgment to the Privy Council had stood transferred to the Federal Court and whose appeal was pending in such ro,urt immediately prior to the commencement of the Constitution ; (1) Leeds and County Ji. nk Ltd. a•. W.. lker (1883) 11 Q. Jl. D. 84 at page gr ; Moon v. Durden (1848) 2 Ex:.

22-; 76'R;R. , ·479 at. p. 495. (2J (1950) S. C. R. 940 at PP· 946-947, .. . . (3) (1951f S. C. R. 228. (4) (1955 2 S. C. R. 872 at pp. 876:877- . . . .

(ii) Those who were aggrieved by a judgment passed by such a High Court before the commencement of the Constitution in such civil proceeding arising out of a suit or proceeding instituted in the court of first instance before the Constitution, but in which only an application for leave to appeal to the Federal Court had been made and such application was pending before the Federal Court immediately before the commencement of the Constitution but no appeal had actually been filed or was pending before the Federal Court at that date; (iii) Those who were aggrieved by a judgment passed by such a High Court before the Constitution in a civil proceeding arising out of a suit or proceeding instituted in the court of first instance before the Constitution and in respect of which no application for leave to appeal to the Federal Court had been made but the time for making such application had not expired at the commencement .

of the Constitution; (iv) Those who may be aggrieved by a judgment passed by such a High Court after the date of the Constitution in a civil proceeding arising out of a suit or proceeding filed in the court of first inst4nce before the Constitution; (v) Those who were aggrieved by a judgment passed by. a High Court in a Princely State before the Constitution a. nd who had appealed from such judgment to the Privy Council of that State which was pending at the commencement of the Constitution; (vi) Those who were aggrieved by such a judgment of a High Court of a Princely State and who had not actually field an appeal but whose application for leave to appeal to the Privy Council of that State was pending before such Privy Council immediately before the commencement of the Constitution; and lastly . (vii) Those who may be aggrieved by the judgment of a High Court in the territory of India passed after .

the commencement of the Constitution in a civil proceeding arising out of a suit or proceeding filed also after the Constitution would come into force. The Constitution makers knew about these several categories of persons and further that, according to a series of decisions of the highest courts, it had been firmly established that the right of appeal to the Federal Court vested in a litigant at the date of the institution of the suit or proceeding in the court of first instance and not on the date of the passing of the judgment by the trial court or the High Court or of the filing of the appeal in the High Court or the Federal Court.

In other words the Constitution makers knew that the right of appeal to the Federal Court had already vested in persons falling within categories (i) to (iv) at the date of the institution in the court of first instance of the suit or proceeding to which they were parties, no matter when the judgment of the High Court was passed or was likely to be passed in future. The Constitution makers also knew that this vested right was governed by cl. 39 of the Letters Patent read with the Federal Court (Enlargement of Jurisdiction) Act, 1947 and the Abolition of Privy Council Jurisdiction Act, 1949 and ss. 109 and 110 of the Code of Civil Procedure. The Constitution makers were also aware of the rights of persons who fell within categories (v) and (vi). With full knowledge of all these rights the Constitution makers made such provision as they thought fit.

The question is,-has the Constitution, expressly or by necessary intendment, taken away this vested right of appeal from any of these categorie, of persons? This leads us to examine the relevant provisions of the Constitution and other laws bearing on tpe question. Article 395 of the Constitution repealed the Indian Independence Act, 1947 and the Government of India Act, 1935 together with all enactments amending or supplementing the latter Act, but expressly. kept alive the Abolition of Privy Council Jurisdiction Act, 1949. The repeal of the Government of India Act, 1935 neces-sarily involved the abolition of the Federal Court which was . the creature of that Act. In its place the Constitution by Art. 124 has established this Court, which by Art. 129 is made a court of record with all the powers of such a court, including the power to punish for contempt 'ff itself. Article 131 confers original jurisdiction on this Court in certain disputes therein mentioned.

Appellate jurisdiction of this Court is dealt with in Art. 132 and the following Articles. Article 132 confers jurisdiction on this Court to entertain appeals from judgments, decrees or final orders of a High Court in the territory of India, whether in a civil or criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. The relevant portion of Art. 133 runs as follows : 133(1).

An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies- ( a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or (b) that the judgment, decree or final order involved directly or indirectly some claim or question respecting property of the like amount <? r value; or ( c) that the case is a fit one for appeal to the Supreme Court; and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law. Article 134(1).

(c) authorises this Court to entertain an appeal from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India, if the High Court issues the requisite certificate. Article 135 is in the terms following : 135. Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article; 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before · the commencement of this Constitution under any existing law. Article 136 authorises this Court in its discretion to grant special leave to appeal in certain cases. Article 137 confers power or review upon this Court to review its own judgments. Provision is made for the enlargement of the jurisdiction or conferment of additional or ancillary powers under Arts. 138 to 140.

Article 372 of the Constitution provides for the continunace in force of the existing laws and for their adaptation. The relevant portions of Art. 372 are as follows : 372. ( 1) Notwithstanding the repeal by this Constitution. of the enactments referred · to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law. In exercise of the powers conferred on him by Art. 372(2), the President promulgated the Adaptation of Laws Order, 1950, which came into force simultane-ously with the Constitution on January 26, 1950. In the first schedule dealing with the Central Acts are set out the adaptations made in the Code of Civil Procedure. It is to be noted that ss. 109 and llO of the Code of Civil Procedure were not deleted altogether but were modified only.

The sections as adapted run as follows: 109. Subject to the provisions in . Chapter IV of Part V of the Constitution and such rules as may, from . time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to ohe Supreme Court- ( a) from any judgment, decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction; (b) from any judgment decree or final order passed, by a High Court in the exercise of original civil jurisdiction; and ( c) from any judgment, decree or order, when the case, as hereinafter provided, is certified to be a fit one for appeal to the Supreme Court. llO. In each of the cases mentioned in clauses (a) and (b) of s.

109, the amount or value of the subject-matter of the suit in the Court of first instance must be twenty thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to the Supreme Court must be the same sum or upwards, or the judgment, decree or final order must involve, dim;tly or indirectly, some claim or question to or respecting property of like amount or value, and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below the Court passing such judgment, decree or final order, the appeal must involve some substantial question of law. This adaptation, however, was subject to the provisions of cl. 20 of the Order itself, which runs as follows:- 20.

Nothing in this Order shall affect the previous operation of, or anything duly done or suffered under, any existing law, or any right, privilege, obligation or liability already acquired, accrued, or incurred under any such law, or any penalty, forfeiture or punishment incurred in respect of any offence already committed against any such law. The result of the foregoing provisions may here be shortly summarised. The Constitution by Art. 395 repealed the Government of Indi:1 Act and thereby abolished the Federal Court. It, however, continued the Abolition of Privy Council Jurisdiction Act, 1949, which directed that the Federal Court in addition to the powers conferred on it by the Federal Court (Enlargement of Jurisdiction) Act, 1947, would have a!! the appellate powers exercised by the Privy Council.

Though the Federal Court (Enlargement of Jurisdiction) Act, 1947, being an Act amending or supplementing the Government of India Act, 1935, was repealed, yet notwithstanding such repeal the provisions of the Act were continued in force under Art. 372(1) subject to the other provisions of the Constitution. The Adaptation Order modified ss. 109 and 110 of the Code of Civil Procedure, inter a/ia, by raising the valuation from Rs. 10,000 to Rs. 20,000, but that provision did not, by virtue of clause 20 of the Order, affect any right, privilege, obligation or liability already acquired, accrued or incurred under any existing law.

The true implication of the above provisions is that the pre-existing right of appeal to the Federal Court continues to exist and the old Jaw, which created that right of appeal also continues to exist to support the continuation of that right and the Federal Court having been abolished the Supreme Court is substituted for the Federal Court as the machinery for the purpose of giving effect to the exercise of that right of appeal. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal the old law must govern the exercise and enforcement of that right of appeal. The continuance of the old law, however, is subject to the other provisions of the Constitution. Turning to the Constitution it will appear that Art. 374(2) provides for the removal of all suits, .

appeals and proceedings, civil or criminal, pending m the Federal Court at the commencement of this Con,,titution to this Court and invests this Court with jurisdiction to hear and determine the same. This saves the vested right of appeal of the persons falling within categories (i) and (ii) mentioned above. It is conceded that Art. 135 saves the vested right of appeal of persons falling within category (iii), i. e. , persons who are dissatisfied with the judgments passed by a High Court in what was British India before the commencement of the Constitution, in civil proceedings arising out of suits or proceedings instituted also before that date and in respect of which no application for leave to appeal had been made before the Federal Court prior to the commencement of the Constitution.

Arti-cie 374 ( 4) abolishes the jurisdiction of the authority which functioned as the Privy Council in the Princely States which under the Constitution became Part B States and provided for the transfer of all appeals and other proceedings pending before such authority at the commencement of the Constitution to the Supreme Court to be disposed of by it. This saved the right of appeal of persons falling within categories (v) and (vi). Persons falling within category (vii) m'.! y clearly avail themselves of Art. 133. The only question that remains is whether the right of appeal from the judgment of a High Court passed after the date of the Constitution in a civii proceeding arising out of a suit or proceeding instituted before the Constitution which had vested in persons falling within category (iv) is to be governed by Art. 133 or by the old law under Art. 135. In Radha Krishna v. Shridhar (supra) Nandalal v. 1 Hira Lal( ) Mahant Sidlza "Kamal Nayan v. Bira 2 3 Naik ( ), Ramaswami v.

Ramanathan ( ), Daji Saheb v. 4 5 Shankarrao( ) Mt. Murtu v. Paras Ram( ) and 6 Bhagwantrao v. Viswasrao( ), it has been held that Art. · 133 of the Constitution is not retrospective and that the vested right of appeal is governed by the conditions laid down in the Code of Civil Procedure which were in force previous to the adaptation thereof and this Court was by Art. 135 substituted for the Federal Court and invested with jurisdiction to entertain the appeals under that article. In Daji Saheb v. Shanka1-rao (supra) the suit, the value of which was between Rs. 11,000 and Rs. 13,000, was dismissed by the trial court on December 20, 1946, and the High Court reversed the decree of the trial court and passed the decree in favour of the plaintiff on November 8, (1) l. L. R. 1950 Nag. 830. (4) l. L. R. 1952 Born. 906. (2) l. L. R. 1950 Cut. 663. (. 5) A. I. R. 1952 Him. 14. (3) I. L. R. 1951 Mad. 125· (6) I. L. R. 1953 Nag. 822. 1949.

The Bombay High Court having granted a certificate of fitness, the case came up :,e:or. e this Court and will be found reported as Daji Sahcb Mane v. 1 Shankarrao. ( )On a question of the maintainability of the appeal being raised, this Court held that Art. 133 did not apply because (i) it related expressly to appeals against any judgment, decree or final order in a civil proceeding of a High Court in the territory of India and (ii) on the date of the decree of the High Court the defendant had a vested right of appeal to the Federal Court and on January 25, 1950, a certificate of fitness to appeal was bound to be granted. It was held that the appeal to the Supreme Court was competent by virtue of the provisions of Art.

135 of the Constitution as the jurisdiction and powers in relation to the matter in dispute were exercisable by the Federal Court immediately before the commencement of the Constitution under an existing law, inasmuch as the Federal Court had jurisdiction under the Code of Civil Procedure to entertain and hear appeals from a decree of a High Court which reversed the lower Court's decree concerning property of the value of Rs. 10,000 or upwards. As regards the argument urged by the respondent that Art. 133 applied, this Court observed :- "If we accede to the argument urged by the respondent, we shall be shutting out altogether a large number of appeal&, where the parties had an auto-matic right to go before the Federal Court before the Constitution and which we must hold was taken away from them for no fault of their own, merely because the Supreme Court came into existence in place of the Federal Court.

An interpretation or construction of the provisions of the Constitution which would lead to such a result should be avoided, unless inevitable. " On the other hand there are two deci

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