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Kochupennu Kochikka Vs. Kochikka Kunjipennu and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 156 of 1959
Judge
Reported inAIR1961Ker226
ActsConstitution of India - Article 246; Kerala High Court Act, 1959; Code of Civil Procedure (CPC) , 1908 - Sections 96 and 100
AppellantKochupennu Kochikka
RespondentKochikka Kunjipennu and ors.
Appellant Advocate K. Velayudhan Nair,; V.S. Moothathu and; K. Velappan Pil
Respondent Advocate S. Narayanan Poti,; P. Karunakaran Nair and; N.K. Varkey
Cases ReferredMahendra v. Darsan
Excerpt:
constitution - rules of court - article 246 of constitution of india, kerala high court act, 1959 and sections 96 and 100 of code of civil procedure, 1908 - new act of 1959 empowers single judge to hear even those second appeals which had to be heard by division bench as per provisions of high court act in force till 09.03.1959 - provisions of new act merely regulate practice and procedure of court - new act does not affect any vested right of litigants - new act to have retrospective effect - all appeals pending at time when new act came into force as well as appeals filed subsequently to be heard and disposed of in manner prescribed by new act. - - it is a well recognised rule of construction that the items in a legislative list in a constitution should be read and understood in.....sankaran, c.j. 1. this case has, come up before the full bench for an authoritative decision on the objections raised to the competency of a single judge to hear the appeal. the suit out of which this appeal has arisen, was valued at more than rs. 1,000 and it was filed in the munsiff's court at katunnagapally. an order passed by that court in execution of the decree in the suit, was the subject-matter of an appeal in the sub-court at quilon, and it is against the appellate order of that court that the present second appeal has been filed on 5th february 1959 when the travancore-cochin high court act (act v of 1125, as amended by act i of 1952) was in force.under that act, a single judge of the high court had the power to hear only such of _ the second appeals as would come within the.....
Judgment:

Sankaran, C.J.

1. This case has, come up before the Full Bench for an authoritative decision on the objections raised to the competency of a Single Judge to hear the appeal. The suit out of which this appeal has arisen, was valued at more than Rs. 1,000 and it was filed in the Munsiff's Court at Katunnagapally. An order passed by that court in execution of the decree in the suit, was the subject-matter of an appeal in the Sub-Court at Quilon, and it is against the appellate order of that court that the present second appeal has been filed on 5th February 1959 when the Travancore-Cochin High Court Act (Act V of 1125, as amended by Act I of 1952) was in force.

Under that Act, a Single Judge of the High Court had the power to hear only such of _ the second appeals as would come within the limit prescribed by Clause (c) of Sub-section (4) of section 20 of that Act. 'Every appeal valued at Rs. 1,000 or less from an appellate decree and every appeal from an appellate order where the subject-matter of the suit is valued at Rs. 1,000 or less came under this category.

Naturally, therefore, the other second appeals which were beyond the aforesaid limitations had to be heard by a Division Bench consisting of two Judges. By Sub-section (2) of Section 11 of the Kerala Civil Courts Act (Act I of 1957), the pecuniary jurisdiction of Munsiff's Courts was raised and fixed at the limit of Rs. 5,000. Section 13 of the same Act provided that appeals from decrees and orders of a Munsiff's Court shall lie to the District Court and that appeals and orders from decrees and orders of a Subordinate Judge's Court, where the amount or value of the subject-matter of the suit does not exceed Rs. 7,500 shall also lie to the District Court,

Second appeals against decrees and orders coining under these two categories were also provided for by Section 12 of the same Act. These two sections indicated the upper limit of the valuation of a second appeal. This limit has undergone a change by the recent amendment of section 13 of the Kerala Civil Courts Act, brought about by the passing of the Kerala Civil Courts (Amendment) Act, Act XII of 1959.

By Section 4 of the amending Act, the pecuniary limit of Rs. 7,500 provided for in the main Act (Act I of 1957), was raised to Rs. 10,000. But prior to the passing of Act XII of 1959, the Kerala High Court Act (Act V of 1959) was passed. The President gave his assent to this Act on 6th February 1959. This Act was brought into force with effect from 9th March 1959 by the issue of a notification as contemplated by subsection (2) of Section 1 of the Act.

2. The provisions of the Trayancore-Cochin High Court Act (Act V of 1125) as amended by Act I of 1952, in so far as they relate to matters provided in the Kerala High Court Act, were repealed by Section 9 of the latter Act. Section 3 of this Act enumerates the powers of a single Judge. Under Clause (e) of Sub-section (13) or Section 3, a single Judge is empowered to hear an appeal against any appellate decree or order.

In other words, the new Act empowers a Single Judge to hear even those second appeals which had to be heard by a Division Bench as per the provisions of the High Court Act which was in force till 9th March 1959. By virtue of the provision in the new Act, the present second appeal was posted for hearing before a Single Judge. When the appeal came on for hearing, the learned counsel for the appellant raised an objection that a Single Judge has no jurisdiction to hear the second appeal and contended that it ought to be heard by a Division Bench, consisting of two Judges.

The learned counsel took up the position that the appellant had already obtained a vested right to have the appeal heard by a Bench of two Judges and that such right is not taken away by the Kerala High Court Act. He further contended that this Act could not have any retrospective operation. In view of the importance of the legal points raised on behalf of the appellant, the learned Single Judge before whom the appeal came on for hearing, referred the case to a larger Bench for an authoritative decision on those points. The case has accordingly been posted before this Full Bench,

Permission was also granted to the advocates appearing in second appeals coming under the same category as the one at hand, to intervene and to contribute their arguments in respect of the legal points raised on behalf of the present appellant. Notice was given to the Advocate-General also and we had the benefit of his valuable assistance in clarifying the points raised on behalf of the appellant.

3. Before the Full Bench, learned counsel for the appellant went to the extent of questioning the validity of the Kerala High Court Act and took up the extreme position that in passing the Act the State Legislature has transgressed the limits of its legislative competence, it was contended that the provisions contained in the Act deal with the constitution, organisation, jurisdiction and powers of the High Court and that Parliament alone could legislate on such topics. For this reason, it was contended that the Act is ultra vired the powers of the State Legislature. In view of the stand taken up against the validity of the Act, the position that the Act cannot have any retrospective operation so as to affect the alleged vested right of the appellant, was urged only as an alternative contention.

4. The larger question whether the impugned Act is within the competence of the State Legislature, may be considered at the outset.

Clause (1) of Article 246 of the Constitution states that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List 1 in the Seventh Schedule. This list is called the Union List.

Clause (3) of 'the same Article states that the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 2 of the Seventh Schedule. This list is called the State List. So far as the High Courts are concerned, the topics on which the exclusive power of legislation is vested in the Parliament are those indicated in items 78, 79 and 95 of List 1, while the topics on which the State Legislature has the exclusive power of legislation are those specified in items 3 and 65 of List 2. Items 78. 79 and 95 of List 1 are as follows :

'78. Constitution and organisation of the High Courts except provisions as to officers and' servants of High Courts; persons entitled to practise before the High Courts.

79. Extension of the jurisdiction of a High Court to, and exclusion of a jurisdiction of a High Court from any Union territory.

95. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list; Admiralty jurisdiction'. Items 3 and 65 of List 2 are as follows :

'3. Administration of justice, constitution and organisation of all courts, except the Supreme Court and the High Court; officers and servants of the High Court; procedure in Rent and Revenue Courts; fees taken in all courts except the Supreme Court.

65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list'.

On a scrutiny of these items in Lists 1 and 2, it is clear that the topic of constitution and organisation of the High Courts is excluded from the) State List and included in the Union List. The position is not the same in respect of the topic of jurisdiction and powers of the High Courts. The difference between items 77 and 78 of List; 1 in the Seventh Schedule, has to be particularly noted in this connection. Item 77 is in respect of the Supreme Court and it runs as follows :

'Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such court), and the fees taken thereon; persons entitled to practise before the Supreme Court'.

While this List is made all comprehensive so as to take in all topics relating to the Supreme-Court, it is seen that in item 78 dealing with the High Court the topic of jurisdiction and powers does not find a place. This appears to have been a deliberate exclusion. The topic of jurisdiction and powers in general of the High Court is not seen included in any of the other items of List 1. No doubt, item 95 of that list takes in the jurisdiction and powers of all courts except the Supreme Court.

But at the same time, it has to be noted that the jurisdiction and powers of all courts including the High Courts as referred to in this list is restricted to jurisdiction and powers with respect to any of the matters in List 1. Beyond this, it cannot be said that jurisdiction and powers as a general topic in relation to the High Court is included in list 1 so as to give Parliament the exclusive power to legislate on that topic.

Coming to list 2 the State List, it is seen that administration of justice is included in item 3 and at the same time matters relating to the constitution and organisation of the High Courts have been expressly excluded from this item. Subject to this limitation the expression 'Administration of justice' as occurring in item 3 of List 2 must be taken to include everything necessary to make up the complete picture of the concept of administration of justice. The existence of a court with the necessary jurisdiction and powers is an essential pre-requisite for giving effect to the concept of administration of justice.

There is no reason why the expression 'Administration of justice' as occurring in item 3 of List 2 should be understood in any narrow or restricted sense. It is a well recognised rule of construction that the items in a legislative list in a Constitution should be read and understood in the full sense of the terms used so as to give them the widest scope permissible by the context in which these terms have been used. In United Provinces v. Atiqa Begurn, AIR 1941 FC 16, this position was particularly emphasised by stating that --

'None of the items in the lists is to be read in a narrow Or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.'

The same position has been affirmed by the Supreme Court also. In Hans Muller v. Superintendent, Presidency Jail, Calcutta, (S) AIR 1955 SC 367, it was observed that --

'It is well settled that the language of the entries in the Seventh Schedule must be given the widest scope of which their meaning is fairly capable because they set up a machinery of Government and are not mere acts of a legislature subordinate to the Constitution.'

In State of Bombay v. Narottamdas, AIR 1951 SC 69, also the Supreme Court had occasion to consider this question while dealing with the scope of Entry 1 in the State List (list 2) of the Government of India' Act, 1935, Administration of justice and constitution and organisation of Courts were all included in that entry. But there was no express mention of jurisdiction and power in that entry. Construing the scope of this entry, Fazl AH, J., observed as follows :

'By virtue of the words used in entry 1 of List 2, the Provincial legislature can invest the courts constituted by it with power and jurisdiction to try every cause or matter that can be dealt with by a court of civil or criminal jurisdiction, and the expression 'Administration of justice' must necessarily include the power to try suits and proceedings of a civil as well as criminal nature, irrespective of who are the parties to the suit or proceeding or what its subject-matter really is. This power must necessarily include the power of defining, enlarging, altering or amending and diminishing jurisdiction or courts and defining their jurisdiction territorially and pecuniarily.'

Mahajan, J. (as, he then was), observed that

'By making administration of justice a Provincial subject and by conferring on the Provincial legislature power to legislate on 'this subject, Parliament conferred on that legislature an effective power which included within its ambit) law-making power on the subject of jurisdiction of Courts',

It is obvious that such a wide construction was put upon Entry 1 of List 2 of the Government of India Act, 1935, not because the entry took in constitution and organisation of Courts, but mainly because Administration of Justice was included in that entry. This was made clear by S.R. Das, J. (as he then was), by observing as follows :

'Where there was no separate provision authorising the making of laws with respect to jurisdiction and powers of Courts and therefore the authority to make laws with respect to the jurisdiction and powers of Courts had of necessity to be found in the words 'Administration of justice', it might be argued that jurisdiction and powers of courts have to be spelt out of thd words 'Administration of justice'.

These observations apply with greater force; in construing the expression 'Administration of justice' as occurring in item 3 of List 2 of the Seventh Schedule of the Constitution. In this entry, 'Administration of justice' is, put down as a distinct topic by itself and as distinguished from 'Constitution and Organisation' treated as a separate topic in the same entry. It is also significant to note that the topic of 'Administration of justice' does not find a place in any of the entries in List I,

Constitution, organisation, jurisdiction and power have been dealt with as different topics in Entry 77 of List 1. This entry relates to the Supreme Court. In Entry 78 relating to the High Courts, the topic of jurisdiction and powers is seen to be omitted. This significant difference between Entries 77 and 78 clearly indicates that the topic of constitution and organisation does not necessarily take within itself the concept of jurisdiction and powers also. The words, 'constitute' and organise' convey the same idea 'for all practical purposes. Similarly, the words 'jurisdiction and 'power' also, connote the same idea;

It is seen from Black's Law Dictionary that the word 'organise' means' to 'establish,' 'to arrange in order for the normal exercise of the appropriate function'. The word 'constitute' also conveys the meaning 'establish'; Similarly the meaning given for the word 'jurisdiction' in Blacks Law Dictionary makes it clear that the words 'jurisdiction' and 'power' convey the same idea. The meaning of the word 'jurisdiction' is stated to be the following.

'The power and authority constitutionally conferred upon (or constitutionally recognised as existing in) a Court or Judge ............'

In Ballentine's Law Dictionary the meaning given for the word 'organisation' is as follows:

'The process of forming and arranging into suitable disposition the parts which are to act together in. and in defining the objects of, the compound body. This process, even when completed in all its parts, does not confer the franchise ............ and something else must he done to secure the franchise.'

Such being the concept of the expression 'constitution and organisation,' it cannot be said that jurisdiction and power will automatically follow from constitution and organisation. The difference between these two concepts is also seen to be clearly maintained in the relevant entries in Lists J, 2 and 3 of the Seventh Schedule of the Constitution. So far as the High Courts are concerned, the topic of jurisdiction and powers in general is not. separately mentioned in any of the, entries. But Administration of justice' as a distinct topic, finds a place in Entry 3 of List 2, even though this Entry excludes constitution and organisation of the High Court; 'such constitution and organisation having been assigned exclusively to Parliament as per Entry 78 of List 1. Since the topic of 'Administration of justice' is included in, the State List alone, the -State Legislature is undoubtedly competent to enact a law to define and regulate the jurisdiction and power of the High Court in the matter of administration of justice.

5. If the expression, 'Administration of justice' as occurring in Entry 3 of List 2 of the Seventh Schedule is construed in its widest sense, it could be said' that everything concerning the establishment of a Court and investing it with the jurisdiction and powers necessary for the administration of justice is covered by this entry and that the State Legislature is competent to legislate on all matters relating to the administration of justice.

But this power of the State Legislature has been cut down to a large extent by the express provisions contained in the Constitution itself so far as the High Court is concerned. As already pointed out, the topic of constitution and organisation of the High Court is expressly excluded from the State List and is included in the Union List. Special provisions have also been made in Chapter V of Part VI of the Constitution, about the establishment of the High Court for the State and also about the general jurisdiction and powers of that High Court..

Articles 214 to 231 deal with these, natters. Article 214 states that there shall be a High Court for each State. Articles 216 to 224 provide for the constitution and organisation of the High Court. Article 216 states that every High Court shall consist of a Chief Justice and such other judges as the President may, from time to time, deem it necessary to appoint. Articles 217 - 224 deal with the appointment of these 'Judges, their qualifications, and their conditions of service.

Articles 315 and 225 to 228 deal with the general powers and jurisdiction of the High Court. Article 215 states that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. The jurisdiction and powers of the High Courts which were in existence on the date on which the Constitution came into force, are preserved by Article 225 subject to the conditions specified therein.

Article 226 deals with the High Court's power to issue writs, orders or directions, as specified therein, for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. Article 227 deals with the High Court's power of superintendence over all courts and tribunals functioning within its jurisdiction. Article 228 provides for the transfer of any case from a subordinate court to the High Court for the purpose of decidingany constitutional question that is involved inthat case.

Article 230 states that Parliament may by law extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any Union territory. Clause '(2) of that Article states that where the High Court of a State exercises jurisdiction in relation to a Union territory, nothing in the Constitution shall be construed _as empowering the legislature of the State to increase, restrict or abolish that jurisdiction. Article 231 states that the Parliament may by law establish a common High Court for two or more States or for two or more States and a Union territory.

The constitution and organisation Of a High Court will be in accordance with the provisions contained in the above-mentioned Articles relating to that matter. Even though the topic ot constitution and organisation of the High Court is made the subject-matter of Entry 78 of List 1 it is obvious that any law made by the Parliament regarding the constitution and organisation of the High Court can only be subject to the express provisions contained in the body of the Constitution regarding the same matter.

The general powers and jurisdiction of the High Court have also been specified in the Articles already referred to and naturally, therefore, the State legislature will not be competent to pass a law to curtail or modify the limit of such jurisdiction and powers as defined in the body of the Constitution even though 'administration of justice' finds a place in Entry 3 of List 2. Only subject to the general powers and jurisdiction of the High Court as provided in the body of the Constitution, the State legislature will be competent to enact a law defining the jurisdiction and powers to be exercised by the High Court in the matter of administration of justice.

There is still another limitation on the power of the State legislature in respect of this matter and this limitation is indicated by Entry 95 List I. As per this entry, Parliament alone can pass a law to define and regulate the jurisdiction and powers of all courts (including the High Courts) excepting, the Supreme Court, with respect to any of the matters specified in List 1.

Similarly the State legislature . has exclusive-power to pass a law defining the jurisdiction and powers of all courts (including the High Courts) excepting the Supreme Court, with respect to any of the matters under Entry 65 of List 2. Then there is Entry 46 in List 3, the Concurrent List. In respect of any of the matters in that List, Parliament or the State legislature can pass a law defining and regulating the jurisdiction and powers of all courts (including the High Court) except the Supreme Court.

When the limitations on the power of the State legislature to enact a law defining and regulating the general jurisdiction and powers of the High Court are taken into account, it can be seen that the available residual power is restricted to the enactment of laws providing for the exercise of general jurisdiction and powers of the High Court in respect of other matters relating to the administration of justice. The enactment of a law to regulate the practice and procedure in the High Court, will certainly fall within this residual power of the State legislature. Prior to the, coming into force of the Constitution, the exercise of the jurisdiction and powers of the British Indian High Courts was regulated by the rules framed by the respective High Courts by virtue of the powers granted by the letters patent pertaining to such courts. This rule-making power of the High Courts was preserved by Section 223 of the Government of India Act, 1935. So far as the State High Courts were cornered, the exercise of the jurisdiction and powers or such courts was regulated by the statutes passed by the sovereign legislature of the respective States. Article 225 of the Constitution provided for the continuance of these rules and statutes until other statutory provisions are made by the appropriate legislature. The Article runs as follows :--

'Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by this Constitution, the jurisdiction of and the law administered in any existing High Court and the respective powers of the Judges thereof in relation to administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in Division Courts, shall be the same' as immediately before the commencement of this Constitution.'

This Article makes it clear that provisionsregulating the exercise of the jurisdiction of theHigh Court and of; the powers of the Judgesthereof either sitting alone or in Division Courtshave a direct bearing on the administration ofjustice which is made a State subject by its inclusion in item 3 of List 2. It will therefore bewithin the competence of the State legislature -toenact a law governing those matters. So taras the Supreme Court is, concerned all thesematters are regulated by rules made by thatcourt in exercise of the powers conferred byArticle 145.

It is made clear by Clause (1) of that Article that the several matters enumerated therein are merely matters of practice and procedure of the Court. Clause (2) states that subject to the provisions of Clause (3), rules made under the Article may fix the minimum number of judges who are to sit for any purpose, and may provide for the powers of Single Judges and Division Courts. These rules also Will be rules governing the practice and procedure of the court.

A special provision is contained in Clause (3) which states that the minimim number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference under Article 143, shall be five. This is the only provision in the Constitution containing a mandate as to the minimum number of Judges who should sit to hear any particular matter.

But for all other purposes, the rules of the court can provide for the hearing of cases by a Single Judge or a Division Court consisting of two or more Judges and all such provisions are deemed to be rules regulating the practice and procedure of Court in the matter, of administration of justice. The same idea is indicated by Article 225 where reference is made to the rules regulating the sittings of the Court and of the members thereof sitting alone or in Division Courts and to the powers of the Judges in the matter of administration of justice in the High Court while sitting alone or in Division Courts.

Such provisions are made for the purpose of regulating the internal arrangement regarding the working of the court and they are always considered to be matters coming within the scope of the practice and procedure of the Court. Administration of Justice is the proper legislative head under which all these matters have to be dealt with and it is a subject assigned to the State legislature as per Entry 3 of List 2 in the Seventh Schedule.

6. The impugned Act, i.e., the Kerala High Court Act (Act V of 1959) may be examined In the light of the principles explained above. The purpose for which the Act was passed, is clearly indicated by the preamble of the Act which runs as follows --

'Whereas it is expedient to make provision regulating the business and the exercise of the powers of the High Court of Kerala;

Be it enacted as follows :--'

It is obvious that the constitution and organisation of the High Court is not in any way intended to be affected by the Act. On the other hand, the Act proceeds on the basis that there is a High Court in existence duly constituted and organised for the State of Kerala. Section 3 of the Act deals with the powers of a Single Judge and enumerates the matters which can be heard and disposed of by a Judge sitting alone.

Section 4 similarly enumerates the matters which are to be heard and disposed of by a Bench of two Judges. Section 5 provides for an appeal to a Bench of two Judges against a , judgment or order passed by a Single Judge in the exercise of original jurisdiction and also against the judgment or order passed by a Single Judge in the exercise of appellate jurisdiction and where the Judge declares that the case is a fit one for appeal.

Section 6 states that the Chief Justice may direct any matter to be heard by a Full Bench and Sec. 7 deals with the procedure to be followed in a case referred to a Full Bench on a question of law. Section 8 provides for the hearing of urgent matters during the vacation period of the High Court. Section 9, which is the last section of the Act, states that the provisions of the Travancore-Cochin High Court Act (Act V of Z125) in so far as they relate to matters provided in the new Act, shall stand repealed.

From these sections, it is clear that the new Act has merely provided for the internal work-Ing of the High Court by enacting a law to regulate the practice and procedure of the Court and also the power to be exercised by the Judges sitting alone or in Division Benches, consisting of two or 'more Judges. This is a law coining strictly within the ambit of the legislative head 'Administration of justice' included in Entry 3 of List 2.

Even if the Act has incidentally encroached upon the legislative field assigned to Parliament as per the several entries in List 1, the Act will still be valid if, on a consideration of its true nature, scope and character, it is found to substantially fall within the power of the legislature which has enacted it. This doctrine of Pith and substance has been recognised in a series of authoritative pronouncements. State of Bombay v. P. N. Balsara, AIR 1951 SC 318 it was ruled as follows :

'It is well-settled that the validity of an Act is not affected if it incidentally trenches on matters outside the authorised field, and therefore it is necessary to inquire in each case what is the pith and substance of the Act impugned. If the Act, when so viewed, substantially falls within the powers expressly conferred upon the legislature which enacted it, then is cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another legislature.'

This principle was again reiterated and emphasised by the Supreme Court in A. S. Krishna v. Madras State, (S) AIR 1957 SC 297. In the nature and scope of the Act impugned in this case, we do not think it necessary to invoke the doctrine of pith and substance for maintaining the validity of the Act, because the Act is seen to be wholly within the competence of the State Legislature and there is nothing in it to indicate' that it has in any way encroached upon the field of legislation exclusively assigned to Parliament. Accordingly we hold that the Kerala High Court Act (Act V of 1959) is intra vires the powers of the State Legislature and that the Act is valid.

7. The next question for consideration is whether the impugned Act has the effect of taking away any vested right which the appellant and others similarly situated, had at the time when this Act came into force. The right or appeal which these persons had was undoubtedly a vested right. The law on the subject is well settled and it is beyond all controversy. It is 'therefore unnecessary to embark upon a discussion of the case-law on the subject. It is enough to refer to the decision of the Supreme Court in G. Veeraya v. Subbiah Choudhry, (S) AIR 1957 SC 540 at p. 553 where the following principles have been enunciated : .

'(1) 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.

(2) The right of appeal is not a mere matter of procedure but is a substantive right.

(3) 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.

(4) The right of appeal is a vested right and such right to enter the superior court accrues to the litigant and exists as on and from the date the lis 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,

(5) 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.'

The appellants who have challenged the validity of the Kerala High Court Act (Act V of 1959) have no case that the vested right of appeal which they had prior to the passing of this Act, has been taken away by any of the provisions of this Act. The right which they had to prefer appeals and second appeals to the High Court had been duly exercised by them and their appeals will be duly heard and disposed of by the High Court. This right which was available to them under Ss. 96 and 100 of. the Code of Civil Procedure, has been preserved intact by the new Act.

What is provided by the new Act is that certain classes of appeals which were formerly to be heard by a Bench of two Judges are hereafter to be heard and disposed by Single Judge. What is urged on behalf of the appellants is that this provision has the effect of taking away their right to have the appeals heard by a Bench of two Judges. The question, therefore is whether any appellant has a vested right to have his appeal heard by particular number of Judges.

If the rules providing for the hearing of the appeal by a Single Judge or by a Bench of two Or more Judges are merely rules regulating the internal working of the Court, i.e., the practice and procedure of the Court then it is obvious that such rules cannot confer any right on the litigant. The rules are meant only for the convenient working of the court and the authority competent to lay down such rules will be entitled to modify the rules and to alter the procedure of the Court.

So, long as the changes thus brought about in the rules of procedure of the Court do not I affect any vested or substantive right of a litigant. the rules as modified from time to time will have retrospective effect and will be applicable I to pending actions also. As already stated, the right of the litigant is to have his cause decided by the court before whom the cause is being agitated. In the present case, the appellants have a right to have the appeals decided by the High Court.

Whether that decision is given by a Single Judge of the High Court or by two or more Judges of the High Court, or by all the Judges of the High Court sitting together, the decision will be the decision of the High Court. Hence it cannot be said that the variation in the number of Judges hearing the case and rendering the decision, will in any way prejudice the right of the appellant to have a decision by the High Court. His right was only to appeal to the High Court and not to a Bench consisting of a particular number of Judges.

This question has come up for consideration in a series of cases, one of the earliest of which is the case reported in Fateh Chand v. Muhammad Bakhsh, ILR 16 All 259 (FB). That case was decided by a Bench of six Judges. After pointing out the distinction between a right of action and the right to have an action conducted in a particular way it was ruled in that ease that the former is a vested right and the la latter is merely a question of procedure in which no litigant or intending litigant has any vested right whatever. The same principle was enunciated by the same court in another Full Bench case reported in Har Prasad v. Bool Chand, AIR 1937 All 19. In dealing with an appeal prererrea under Sec. 100 of the Code of Civil Procedure, the following observations were made in that case :

'The right was to appeal to the High Court and not to any particular Bench of this court. Under Section 108(1), Government of India Act, this High Court has made its own rules providing for the exercise of its appellate jurisdiction by One Or more Judges Or by Division Courts constituted of two or more Judges. This rule is exclusively for regulating the procedure in this court as regards the constitution of Benches. We are unable to hold that the appellant has any vested right in such a constitution. If by an amendment of the rules the constitution of the Benches is altered, the appeal still lies to the High Court and the appellant cannot claim that the appeal must be heard by a Bench as constituted before the rule' was amended.'

These and other decisions having a bearing on the subject, have all been cited with approval in Sankaranarayana Panieker v. Narayana Pam'cker, 1952 Ker LT 339: (AIR 1953 Trav-Co. 53). There also the principles already stated were affirmed.

8. A different view is seen to have been taken in Radhakisan v. Shridher, AIR 1950 Nag 177 (FB), regarding the right of an appellant to have, his appeal in the High Court heard by a Bench of two judges if the case is one which would attract the provisions of Sections 109 and 310, C. P. C. In that case the second appeal had been filed on 13th October 1945 and, under the rules of the High Court which were in force till 27th May 1949, that appeal had to be heard by a Division Bench of two Judges. But, as per the new rules brought into effect on 27th May 1919, the second appeal had to be heard by a single Judge.

A point was raised on behalf of the appelland that he had a vested right to have the second appeal heard by a Division Bench of two Judges and that the said right was not affected by the new rules brought into effect on 27th May 1949. The question was referred to a Full Bench. In the referring order passed by Bose, C. J., (as he then was), he has clearly expressed his view against the existence of a vested right as claimed by the appellant. The learned Chief Justice has observed as follows :

'As at present advised I consider that theonly vested right is the right of appeal. Thatis conferred by Clause 11, Letters Patent, readwith Ss. 96 and 100, Civil P. C. Those rightshave not been touched by the amended rule:The appellant had a right to appeal to this courtand that has not been affected, but in my judgment he had no vested right to have his appealheard either by a particular Judge or by anyspecified number of Judges. How the appealonce lodged is to be dealt with, is, in my opinion, a question of procedure.'

However, the learned Chief Justice eventuallyconcurred in the opinion of the Full Bench that

'an appellant who filed his second appeal before 27th May 1949 obtained a vested right to have the appeal heard by a Bench of two Judges, with the result that the amendment of the rules of this court effected on 27th May 1949, will not apply to him provided his case satisfies the condition of valuation prescribed in Section 109, Clauses (a) and (b) read with Section 110, Civil Procedure Code. This would not apply to those appeals which are below the mark and which are appealable only under Clause (3) of Section 109, Civil Procedure Code.'

Even though the Full Bench had readied such a conclusion the position that had been indicated in the referring order was once again emphasised in the following passage occurring in the main judgment:--

'A party cannot be heard to say that his case should be heard by so many Judges any more than by such and such Judges. No litigant has a vested right in procedure and must take tho rules in force as he finds them. In other words, the rules prescribing the number of Judges is really a matter of procedure, and all changes in the procedure of the court made even during the pendency of an action must be taken to apply to that action unless such changes and alterations touch a substantive right.'

After having said so, the court proceeded to consider the scope of Sections 109 - 111 of the Code of Civil Procedure which had then provided for appeals to the Federal Court. As a result of such consideration, the Court came to the conclusion that in respect of cases satisfying the valuation under Clauses (1) and (2) of Section 110, C. P. G., the party had a light of appeal to the Federal Court and that he had no such right, where the matter would fall under Clause (3) only of the same section.

The reason given for reaching such a conclusion is that the granting of a certificate contemplated by Clause (3) of Section 110, C. P. C., is a matter depending upon the discretion of the Court while in certifying on the question of valuation required by Clauses (1) and (2) no such discretion is involved and the matter depended on the ascertainment of the valuation which is a mere question of fact.

A question similar to the one that Was considered by the Nagpur High Court in the case just cited, arose for the consideration of the Punjab High Court also and the decision on the question was given in Gordhan Das Baldev Das v. Governor-General in Council, AIR 1952 Punj 103 (FB), by a Full Bench of that court. There also the question for decision was whether the appellant who had filed an appeal at a time when the rules provided for the appeal to be heard by a Bench of two Judges, could claim that appeal to be heard by a Bench of two Judges even after the amended rules provided for such! appeals to be heard by a Single Judge.

The answer of the Full Bench was that the appeal filed prior to the amendment of the rules, had to be heard by a Bench of two Judges in accordance with the rules in forcer at the time of filing the appeal. In this case also the consideration which weighed with the Full Bench in arriving at such a conclusion is that in respect of appeals satisfying the conditions required by Sections 109 and 110, C.P.C., the litigant had a right of appeal to the Supreme Court and that such a substantial or vested right cannot be, taken away by the new rule providing for the appeal to be heard by a Single Judge.

The Punjab High Court, however, differed from the Nagpur High Court in making a distinction between cases coming under Clauses (1) and (2) of Section 110, C. P. C., and the cases falling under Clause (3) of that section. According to the decision of the Punjab High Court, cases falling under these three Clauses have to be treated alike. To that extent only we are in respectful agreement with the view taken by the Punjab High Court.

The provisions contained in Clauses (a) to (c) of the first part of Article 133 of the Constitution are substantially the same as Clauses (1) to (3) of Section 110 of the Code of Civil Procedure. Article 133 has to be read along with sections 109and 110, C. P. C., for the purpose of determining whether there is a right of appeal to the Supreme Court in a given case. . The party seeking to file such an appeal has to get a certificate from the High Court as to whether the case falls under Clause (a), (b) or (c) of the first Part of Article 133.

If the valuation required by Clause (a) or (b) is satisfied the Court will grant a certificate to that effect. Similarly, if the court is satisfied that the conditions required by Clause (c) are satisfied, the Court will grant a certificate to that effect. The party has, a right to apply for a certificate under any of these clauses and if he 'gets a certificate, he can file the appeal to the Supreme court and hence there is no reason to treat Clause (c) differently from Clauses (a) and (b).

What really matters is the certificate that is granted by the court either in the exercise of its discretion which must be a judicial discretion under Clause (c) or after ascertaining the facts necessary under Clauses (a) and (b). Thus it the party has a right of appeal under Article 133, it must be the same right under all these three clauses.

9. But with the decision on the main point in the two Full Bench cases referred to above, we regret to state we are unable to agree. It appears to us that the learned Judges in answering the points raised in those cases have tailed to give due importance to Clause (3) of Article 133 of the Constitution in deciding the question of a right of appeal under that Article. The primary condition to be satisfied by that Article before a party can be said to have a right of appeal under that Article, is that the decree or final order is not one passed by one Judge of a High Court.

In other words, the question whether there is or is not a right of appeal to the Supreme Court, will arise only if the decree or final order sought to be appealed against has, been passed by a Bench of two or more Judges of a High Court. Only in case this primary condition is satisfied, the further question whether the requirement of Clause (a), (b) or (c) of Article 133 would call for examination. There is nothing in the Article to indicate that cases which may satisfy the conditions required by Clause (a), (b) or (c) must necessarily be heard by a Bench of two or more Judges.

On the other hand, the indication in Clause (3) of the Article is to the contrary. That clause states that 'Notwithstanding ' anything in this Article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.' This clause necessarily contemplates the possibility of an appeal satisfying the conditions required' by Sub-clauses (a) to (c) of Clause (1) being heard by a Single Judge of a High Court.

Thus it cannot be said that a party has any vested right to have an appeal satisfying the conditions under Sub-clauses (a) to (c) heard by a Bench of two or more Judges. Since such a right is non-existent, it cannot be said that a change in the procedure of the Court providing for an appeal which had to he heard by a Bench of two Judges under the existing rules, to be heard by a Single Judge affects any vested or substantive rights of the party. This is the, view taken by a Full Bench of the Patna High Court in Mahendra v. Darsan, AIR 1952 Pat 341. We are in respectful agreement with the principle enunciated in that case.

10. The only right conferred by Article 133 is the right of appeal to the Supreme Court in cases which satisfy the essential conditions prescribed by the Article, one of which is that the appeal must be heard by two or more Judges of the High Court. But the constitution does not provide for the number of Judges who should hear appeals falling under that Article, It is only in Clause (3) of Article 145 that there is a specific provision as to the minimum number of Judges who are to sit for the purpose of deciding cases specified therein. This is a special provision applicable to the Supreme Court alone and it is to the effect that

'the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143, shall be 5'. . ' .

Clause (2) of Article 145 states that subject to the provisions of Clause (3), the rules made by the Supreme Court may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of Single Judges and Division Courts. It has to be remembered that the rules contemplated by Clause (1) of Article 145 are the rules regulating generally the practice and procedure of the Supreme Court,

Thus the constitution of Benches to hear particular categories of cases' is treated as part of the practice and procedure of court. The same idea is embodied in Article 225 which refers to the High Court. That Article provides for the making of rules to regulate the powers of the Judges of the High Court in relation to the administration of justice and to regulate the sittings of the Court and of the members thereof sitting alone Or in Division Courts. It is clear that these rules are intended to regulate' the internal working of the Court and the practice and procedure to be followed by the Court in the matter of administration of justice.

That the impugned Act deals only with the practice and procedure of the High Court, is made abundantly clear by the preamble itself which states that the object of the enactment is to make provision for regulating the business and the exercise of the powers of the High Court. The different sections state how the powers of the High' Court are to be exercised by a Single Judge, by Division Courts consisting of two Judges and by Full Benches consisting of three or more Judges.

The procedure thus prescribed by the Act cannot be said to prejudice the right of any litigant to have his appeal heard and disposed o by the. High Court. Since no litigant 'as a vested right to have his appeal heard by a particular number of Judges, he has necessarily to abide by 'the procedure for the time being in force, as prescribed by the competent authority to regulate the hearing of the appeal 'by a Single Judge or by a Division Bench of two or more Judges as the case may be.

NO 'doubt, he could have obtained a right of appeal to the Supreme Court if his appeal was one satisfying the conditions prescribed by Article 133 of the Constitution and if the case was heard by a Bench of two or more Judges. But so long as there' is no statutory right to have such an appeal heard by a Bench of two or more Judges, the appellant has no reason to complain that the rule providing for the hearing of the appeal by the Single Judge has the effect of destroying any right of his .

If the rules of procedure governing the matter are found to result in hardship to any class of litigants, it is for Parliament to make law for granting the necessary relief. Clause (3) of Article 133 contemplates the enactment of such laws. The prohibition contained in that clause that no appeal shall lie to the Supreme Court from the judgment, decree or final order of a Single Judge, may not hold good when parliament by law otherwise provides.

Then again, the aggrieved party can try his chance by applying for special leave under Article 136 for preferring an appeal to the Supreme Court against any judgment, decree or final order passed by the High Court. But these possibilities have no real relevance to the question that is now before us. What we have to decide is whether the impugned Act has the effect of taking away any vested right of the appellants whose appeals were pending in the High Court at the time when this Act came into force.

We have already found that the provisions of the Act merely regulate the practice and procedure of the Court and that it does not in any way affect any vested right of these litigants. The Act being one regulating the practice and procedure of the Court, it will necessarily have retrospective effect. All appeals pending at the time when this Act came into force as well as the appeals filed subsequently will be heard and disposed of in the manner prescribed by the new Act.

11. The points referred to the Full Bench are answered as indicated above. The second appeal which gave rise to the present reference will be posted before a Single Judge for hearing and disposal on its merits.


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