K.S. Hegde, J.
(1) To pronounce on the question of law debated before us, it is necessary to State the relevant facts. The suit which has given rise to this appeal was instituted on 5-11-1950. The matter was taken up in second appeal to the Hon'ble High Court of Hyderabad in S.A. 334/1951-52. It went up before a Division Bench consisting of Qamar Hasan and Manohar Pershad, JJ. The question that had to be considered by the Bench was one of fact.
The learned Judges differed in their conclusions as to the correct conclusions to be arrived at and therefore referred the matter to a third Judge, but before the matter could be decided by the third Judge the States Reorganisation Act came into force and the area from which this litigation arose came within the jurisdiction of this High Court. Consequently the appeal was transferred to the file of this Court.
(2) When the appeal was taken up for hearing by my learned brother Iqbal Hussian. J., the learned counsel for respondent contended that as the two Judge constituting the Bench had differed in their conclusion on a question of fact the judgment of the first appellate fu stood affirmed under section 98 of the Civil Procedure Code. In other words it was contended that the appeal is governed by section 98 of the Civil Procedure Code and not by section 8 of the Hyderabad High Court Act. As this contention raised an important question of law, the matter was referred to a Division Bench. We have heard Sri V. Krishnamurthy, the learned counsel for appellant, and Sri Appa Rao for the respondent on this point.
(3) In our judgment the question under consideration is governed by section 8 of the Hyderabad High Court Act. As mentioned already, the two learned Judges have differed in their conclusion as to the correct conclusion to be arrived at on the facts of the case. Section 8 of the Hyderabad High Court Act says:
'In cases in which there is a difference of opinion between the Judges of the Division Bench, each Judge shall record his opinion with reasons therefore and the case shall be referred to a third Judge whom the Chief Justice may appoint for this work; the decision shall be enforced in accordance with the opinion with which that Judge might concur. If the third Judge differs from both the opinions the case shall be heard by the Full Bench. Nothing contained in this section shall affect the provisions of section 354 of the Hyderabad Code of Criminal Procedure.'
(4) The Indian Civil Procedure Code was extended to the Hyderabad State on 1.4.1951 i.e., long after the suit under appeal was instituted. Under that Code if the Judges constituting the Bench differ an a question of fact, then the decree of the Court below stood affirmed. Does that section apply to the facts of the case? To decide this point, it is necessary to decide whether the right claimed by the appellant is a substantive right or is merely a procedural right.
If it is a substantive right, then the right that he had on the date of the institution of the suit under the Hyderabad High Court Act is still saved for him as decided by the Supreme Court in G. Veerayya v. Subbiah Choudhury, (S) : 1SCR488 and in State of Bombay v. Supreme General Films Exchange Ltd., : 3SCR640 . S. K. Das, J. speaking for the Bench in the letter case observed:
'An impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says to expressly or by necessary intendment.'
We are clear in our mind that the right asserted on behalf of the appellant is a substantive right and not a procedural one. If the contention advanced by the learned counsel for the respondent is accepted, then the appellant loses his right to place his case before a third Judge with some chance of succeeding before him. In effect a valuable right which he possessed at the time of the institution of the suit would be lost to him. As seen above the two Judges constituting the Bench have differed. Hence if the appellant looses his right of placing his case before the third Judge, it means the judgment of the first appellate Court stands confirmed. This cannot be said to be a matter of procedure.
(5) In support of his contention Sri Appa Rao placed strong reliance on the decision of the Andhra Pradesh High Court in Re Sridhar Rao, AIR 1958 Andhra Pradesh 60. That was a second appeal from Telangana area. Under the Hyderabad High Court Act all second appeals had to be heard by a Division Bench, but the appeal in question had been heard by the single Judge. As against that appeal a Letters Patent Appeal was taken under Clause 15 of the letters Patent of the Madras High Court.
Two questions came up for consideration before the Bench of Andhra Pradesh High Court. They are: (1) Was a Letters Patent appeal maintainable? and (2) Was a single Judge competent to hear the appeal? It was urged therein that as the appeal came from Telangana area the appeal had to be heard by a Bench of two Judges and further no Letters Patent Appeal lay. The Bench repelled both these contentions.
It was observed that while the right of appeal was a substantive right, the manner and method of hearing it is only a matter of procedure : the question whether it should be heard by a single Judge or by a Bench is a matter of procedure cannot be a vested right. The Bench further observed that so far as the Letters Patent appeal is concerned the Andhra Pradesh High Court being a limb of the Madras High Court, the decision in question having been given by that High Court the rights conferred under section 15 of the Letters Patent automatically came into play. This decision, in our judgment, cannot be of any assistance to the respondent.
Quite clearly an additional right of appeal does not come within the mischief of the decision of the Supreme Court in G. Veerayya's case, (S) : 1SCR488 . What is decided in that case is that an existing right of appeal cannot be or by necessary intendment. There is no bar on conferring additional right of appeal. The true effect of the decision in Sridhar Rao's case, AIR 1958 Andhra Pradesh 60 was explained by the very Bench which decided it. In re, Pitla Kangaram's case, 1958-1 Andh WR 116. In this case also the judgment of the Bench was delivered by the Hon'ble Chief Justice. Dealing with Sridhar Rao's case, AIR 1958 Andhra Pradesh 60 the learned Chief Justice observed:
'Reliance is then placed upon a decision of a Division Bench of this Court in S.R. Nos. 5046, 5047 and 5048 of 1957, Shridhar Rao in re, Bench held that a Letters Patent appeal lies against the judgment of a single Judge of Andhra Pradesh High Court disposing of a second appeal arising out of the Telangana area, with the leave of the Judge. It was also argued that a party in Telangana area, had a vested right not only to prefer a second appeal to the High Court, but the manner prescribed by the law then in force. In rejecting that argument, we observed:
' We think there is an essential distinction between a substantive right of appeal and the procedure prescribed for disposing of that appeal. The second appeal filed in the Hyderabad High Court was transferred to the Andhra Pradesh High Court and was disposed of by the said High Court in accordance with the procedure prescribed by the High Court of disposing of such appeals. Whether the appeal is disposed of by a single Judge or by a Bench of two Judges, it is a disposal by the High Court itself. The internal distribution and allocation of work between and among the Judges of High Court is a matter of procedure and the change of the procedure does not affect the vested right of a party as it does not deprive him of the right of appeal to the High Court.' It is clear from the aforesaid observations that in that case, one of the questions raised dealt with the procedure to be followed in the High Court in disposing of second appeals and it has no bearing on the vested right of a party to prefer an appeal to the Andhra Pradesh High Court from the decree of an appellate Court in the Telengana area.'
(6) In our judgment, there is no substance in the contention that the present appeal should be disposed of under section 98 of the Civil Procedure Code. The difference of opinion between the two Judges referred to above his to be resolved by the decision of a third Judge as provided in section 8 of the Hyderabad High Court Act. Hence this appeal will be placed before Hon'ble the Chief Justice to place the same before a single Judge. Costs will abide the final result.
Mir Iqbal Hussain, J.
(7) I agree.
(8) Order accordingly.