1. These are applications that I should declare the cases as being fit for appeal from judgments of mine passed in second appeal.
2. The learned advocate, who appears in Civil Application No. 937 of 1931, relies upon the facts that in the case concerned an important question of law was involved; that I reversed the decree of the lower Court; that I characterised the questions of law involved as being complicated, and I considered them with some care and detail in my judgment. I notice with surprise and admire the restraint which has caused the omission of the ground that my decision is wrong. But I could not have allowed myself to be misled, or the party to be prejudiced, by this large-hearted omission : even if the omission had not been made up for by the almost irresistibly tactful suggestion that Courts are apt on such questions to take divergent views-leaving me to infer that another Court might take a view different from mine.
3. In other cases, the ground of application is the very reverse that I have not considered it necessary to deliver any detailed judgment for refusing to interfere with the decision of the lower Court: and thus overlooked the importance of the question before me. I appreciate that the error may be greatest where one fails to see that there are difficulties: and the failure to have doubts may itself vitiate the decision.
4. In one case (C.A. No. 938 of 1931) I have the assurance of Mr. Coltman that he has come across more perniciously litigious clients than those he represented before me. He has no doubt great experience. But even if he had not been able to give me such an assurance, he could have left the Court without a blot on his reputation: as the applicants had three judgments against them ; had changed their case; had attempted to bid good morrow to the allegations in their written statement, hoping to leave them far away behind; had tutored their witnesses; had colluded with the original second plaintiff; had made it necessary for him to be made a defendant. When the case was first argued before me, I despaired of writing a better judgment than the judgments already written by the Court of first instance and the lower appellate Court-which were, both of them, exceptionally able. The trial Court's judgment was in itself exhaustive. I had failed to see that any question of law was involved. I had consequently dismissed the appeal in the shortest form of judgment possible: which I was unable to reduce to less than two syllables,
5. I was not quite able to appreciate on what ground the present application was made in this case.
6. Then again it was pointed out to me in some cases that there are questions of law lurking under what my unaided vision has considered as mere questions of fact dependent upon the appreciation of evidence and not subject to the rectifying influences of second appeal.
7. In view of all these allurements held out to me, as inducements to declare that the cases are fit for appeal, it seems desirable to examine the question on what principles leave to appeal under the Letters Patent should be granted.
8. The right to appeal from a decision of a single Judge arises under Clause 15 of the amended Letters Patent. That clause itself refers to Section 108 of the Government of India Act 1915, which in effect re-enacts Section 13 of the Act of 1861 for establishing High Courts of Judicature in India (24 & 25 Vic. c. 104),
9. It is necessary to turn to Section 108 of the Government of India Act and the connected sections in the first instance.
10. The High Courts (which are to consist, under the Government of India Act, Section 101, of a Chief Justice and other Judges) are invested with their jurisdiction by Section 106 of the said Act (s. 9 of the Act of 1861). They are to have such jurisdiction, powers and authority over and in relation to the administration of justice as are vested in them by the Letters Patent.
11. Then Section 108, Sub-section (1), authorises the High Court to provide, by its own rules, for the exercise of its original and appellate jurisdiction,-by (1) one Judge, or (2) more Judges, or (3) by Division Courts constituted by two or more Judges of the Court. Section 108, Sub-section (2), authorises the Chief Justice to determine (1) what Judge shall sit alone, and (2) what Judges shall constitute Division Courts of two or more Judges.
12. It is in this manner that the jurisdiction originally vested in the High Court as a whole-as one integral body-is made capable of being exercised either by a single Judge, or by a Division Court constituted by two or more Judges of the Court. In each case it is the High Court that exercises the jurisdiction. No distinction is made, so far, in the effect of the exercise of its jurisdiction by the High Court: whether it is for the time being represented by all the Judges constituting it, or by one Judge, or more Judges.
13. The provision for appeals from the High Court was not contained in the High Courts Act, 1861. Appeals from decisions of the High Court-whether the High Court for the time being exercises its jurisdiction through a single Judge, or through a Division Court constituted of two or more Judges-are regulated by Clause 15 of the amended Letters Patent. The clause falls under four main heads:
(A) An appeal lies, to the High Court, from the judgment of one Judge of the High Court or one Judge of any Division Court pursuant to Section 108 of theGovernment of India Act, except in the cases falling under head (B) below.
(B) No appeal lies in the following cases:-
(1) from judgments passed by one Judge in second appeal (i.e., in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court): this provision is itself subject to (C) below;
(2) from a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or
(3) from a sentence or order passed or made in the exercise of criminal jurisdiction.
(C) Notwithstanding (B)(1) above, an appeal lies to the High Court, from a judgment of one Judge in second appeal, when the Judge, who passed the judgment, declares that the case is a fit one for appeal,
(D) The right of appeal from other judgments of the Judges of the High Court or such Division Court shall be to the Privy Council.
14. It will be observed that (A) and (D) together cover the whole ground : there is always an appeal from the High Court either to the Privy Council or to the High Court itself : but (B) introduces an exception to (A) or (D) as the case may be, and (C) again, by partially relaxing (B), restores (A) to that extent.
15. To be more explicit: (D) provides for appeals from the High Court to the Privy Council; while (A) provides for appeals from one Judge's judgment to the High Court itself. (B) excludes three cases. In these three cases there shall not be any appeals the first of these exceptions refers to a single Judge's judgments in second appeal. Then (c) restores the unrestricted right of appeal in regard to such judgments; but makes the appeal subject to a declaration of fitness by the Judge. Finally (D) deals with appeals from other judgments of the High Court.
16. Keeping in mind only the provisions of (D) for the present, it will be observed that the right of appeal to the Privy Council from the High Court is unrestricted. Restrictions are, however, introduced by Clause 39 of the Letters Patent which corresponds to as. 109 and 110 of the Civil Procedure Code. I need not refer to these provisions in detail, and need not mention Clause 39 any further: its effect is reproduced in Section 109. It is enough to state that the restrictions I have mentioned are themselves relaxed by the provision of Section 109(c). The effect of Clause (c) is to restore an unlimited right of appeal to the Privy Council where the case is certified to be a fit one for appeal to the Privy Council: thus Section 109, Clause (c), brings the right of appeal to the Privy Council back to the unrestricted provisions of Clause (D) above. Neither the limitations imposed by cls. (a) and (b) of Section 109, nor any other limitations affect the unrestricted right of appeal to the Privy Council that is thus created. Nor is this right of appeal (under Clause (c) of Section 109) subjected to any further provisos by Section 110. That section affects only the provisions of Cls. (a) and (6). Thus, the only limitation to an unrestricted appeal to the Privy Conncil from the High Court is a certificate that the case is a fit one for appeal to the Privy Council.
17. The parallel between:
(1) the right of appeal from the decision of one Judge in Second appeal, to the High Court; and
(2) the right of appeal from the decision of more Judges than one to the Privy Council in the other cases referred to in (D), above,
becomes obvious on a consideration of the provisions mentioned above. In each case restrictions on appeal are first imposed ; and then they are relaxed, provided that the case is certified to be a fit one for appeal. In the one case the appeal is to the High Court itself; and in the other, to the Privy Council.
18. If, therefore, the development of law is to be on principles of co-ordination and synthesis, similar principles must, with the necessary modifications, be taken for guidance when the question arises for granting leave to appeal under either of these analogous provisions. The provision for obtaining a declaration that the case is a fit one for appeal from the decision of a single Judge in second appeal, to the High Court, is a new one ; but the other provision under which the case may be certified to be a fit one for appeal to His Majesty in Council, is of long standing. It has been the subject of judicial decision and has often been explained.
19. I need not re-state the principles laid down for granting certificates under Clause (c), Section 109, and Section 110 of the Civil Procedure Code. I must, however, add one or two more considerations in regard to the right to appeal to the High Court from a single Judge's judgment in second appeal.
20. The single Judge sitting in second appeal does so by reason of the administrative directions of the Chief Justice under Section 108, Sub-section (2), of the Government of India Act. The Judge hearing second appeals has himself the power (unless the rules framed by the High Court itself restrict this power) to refer the matter to a bench of more Judges than one, so soon as he considers it desirable to do so. The advocates who are concerned can, before the case comes on for hearing, apply to the Chief Justice, in his administrative capacity, to have any particular second appeal placed before a bench of two or more Judges.
21. These are considerations of a remedial nature, by way of alternatives, which one ought to bear in mind, when leave under Clause 15 is applied for. Declaring that the case is a fit one for appeal is not to be converted into an engine for prolonging litigation. The existence of this provision is not meant to lessen the responsibility of delivering a decision which is otherwise intended to be final Administrative orders made with the intention of saving the time of the Judges, and of bringing about a speedy adjudication upon the total work before the Court, are not to be utilised for providing litigants with a third appeal, or of requiring that three Judges should hear the case when two could certainly have heard it adequately and finally; and when it is legitimately directed that one should do so.
22. I do not overlook that the private or public importance, or importance as precedents and similar considerations must exist in a greater measure when a decision is requested from the highest tribunal of the Empire, than when a decision is invited from a bench of this Court.
23. When the applications before me are considered on the principles that I have reached, there is no doubt left in my mind that none of the cases ought to be declared as being fit for appeal. It is not alleged that any point in dispute is such that in the exercise of my judicial discretion I could certify it as being of great public or private importance: Banarsi Parshad v. Kashi Krishna Narain or that there are involved questions of public importance, or which may be important precedents governing numerous other cases: Jivangiri v. Gajanan Narayan I.L.R. (1926) Bom. 753 : 28 Bom. L.R. 437 Hirjibhai v. Jamshedji(1913) 15 Bom. L.R. 1021 Alagappa Chetty v. Nachiappan : AIR1923Mad125 and Ruchcha saithwar v. Hansrani I.L.R. (1928) All. 640
24. I, therefore, refuse to declare that any of these cases is fit for appeal.