K.T. Koshi, C.J.
1. These three appeals have been placed before us for orders as to whether their proper venue is this Court, or the respective District Courts to which the courts which passed the judgments and decrees appealed against are subordinate. The question has arisen on account of the provision in Section 13 of the Kerala Civil Courts Act, 1957 (President's Act No. 1 of 1957) that
'where the amount or value of the subject matter of the suit does not exceed seven thousand and five hundred Rupees, from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court'.
The Kerala Civil Courts Act repealed the Madras Civil Courts Act, 1873 (Madras Act 111 of 1873), as in force in the Malabar District referred to in Sub-Section (2) of Section 5 of the States Reorganisation Act, 1956 (XXXVII of 1956), and the Travancore-Cochin Civil Courts Act, 1951 (XXII of 1951). The Kerala Civil Courts Act was enacted by the President on 10-1-1957, and a Kerala Gazette, Extra-ordinary, dated 12-1-1957 published it.
Under Section 1 (3) thereof the Act was to come into force on such date as the Government may by notification in the Gazette, appoint and by a Gazette Extra-ordinary published on 7-2-1957 the Government of Kerala appointed 15th day of February, 1957 as the date on which the Act shall come into force. These three appeals have been filed in this Court after the date so appointed, A. S. Nos. 104 and 105 on 18-2-1957 and A. S. No. 125 on 2-3-1957.
2. The decree appealed against in A. S. No. 104 of 1957 was passed by the Subordinate Judge of Attingai on 6-7-1956 and the suit in which it was made was instituted before the Trivandrum District Court in 1953. Therefrom that suit was transferred to the Attingai Subordinate Judge's Court when that court was established in November 1954. Likewise the decree appealed against in A. S. No. 105 of 1957 was passed by the Subordinate Judge of Attingai on 11-10-1956 in a suit instituted before the Trivandrum District Court in 1953 &transferred; to the Subordinate Judge's Court, Attingai in November 1954.
The third appeal, A. S. No. 125 of 1957, arises from a decree passed by the Subordinate Judge of Ottappalam on 31-8-1956 in a suit instituted before that court in 1952. In each of the suits giving rise to the appeals the valuation of the subject matter exceeded Rs. 5,000/-, but was below Rs. 7,500/-. In this Court each, appeal is valued as the suit wherefrom it arises was valued before the court of first instance. Under the Travancore-Cochin Civil Courts Act, 1951, the pecuniary limit of the Munsiffs jurisdiction was Rs. 3,000/-, all suits whose valuation exceeded that limit had to be filed in the Dist. Court or the Subordinate Judge's Court, as the case may be and appeals against the decrees & orders passed by those courts lay to the High Court.
When the suits giving rise to A. S. Nos. 104 of 1957 and 105 of 1957 were instituted-and when the decrees in those cases were passed the law which governed those suits and appeals therefrom was the Travancore-Cochin Civil Courts Act, 1951. Under the Madras Civil Courts Act, 1873 appeals exceeding the valuation of Rs. 5,000/- had to be filed in the High Court and judged by the law in force in the Malabar District on the date the suit giving rise to A. S. No. 125 of 1957 was instituted (as also on the date the decree in that suit was passed) the appeal lay to the High Court.
By an amendment of the Madras Civil Courts Act, by Act VII of 1956, the figure Rs. 5,000/- occurring in Section 13 of the main Act was substituted by the figure Rs. 10,000/- but that Amending Act was brought into force only from 1-4-1957, five months after the States Reorganisation and we are not therefore concerned with that change.
3. The question that arises for our decision now is whether the venue for appeals against the three decrees appealed against should be determined with reference to the provisions of the Kerala Civil Courts Act, 1957 or with respect to the corresponding provisions in the Travancore-Cochin and the Madras Civil Courts Acts. If the former law applies the proper forum for appeals against the decrees concerned in A. S. Nos. 104 of 1957 and 105 of 1957 is the District Court of Trivandrum and that for the decree concerned in A. S. No. 125, the District Court of Palghat. If the latter Acts applied all three appeals have to be held to be properly laid in this Court.
4. It is settled law that a right of appeal is a vested right and not a matter relating to practice or procedure. It is equally well settled that a party in whose favour a vested right has accrued cannot be deprived of that right. by supervening legislation unless the legislation; by express words or by necessary intendment took away that right. It might, however, be asked when a suitor gets his right of appeal, that is, whether it is when the suit is instituted or when the first Court gives its judgment?
The leading case on the subject relied upon by the appellants is the Privy Council decision in Colonial Sugar Refining Co. v. Irving, 1905 AC 369 (A), which the Privy Council itself affirmed in Delhi Cloth and General Mills Co. v. Income-tax Commissioner, Delhi, AIR 1927 PC 242 (B). In the earlier case Colonial Sugar Refining Co. v. Irving (A), pending an action before the Supreme Court of Queensland, the right of appeal from the decisions of that Court to the Privy Council was taken away by the Australian Commonwealth Judiciary Act, 1903 and an appeal was substituted instead to the High Court of Australia.
The defendant in that case, however, after obtaining a certificate from the Queensland Supreme Court preferred an appeal to the Privy Council and preliminary objection was raised before the Board that the appeal was incompetent. In disposing of the objection Lord Macnaghten, who pronounced the opinion of the Board stated 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 long 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 Lordships that the question does not admit of doubt. 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 from regulating procedure. In principle their Lord-ships see no difference between abolishing an appeal altogether and transferring 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.' In a recent case before the Supreme Court Garikapathi v. Subbiah Choudhry, (S) AIR 1957 SC 540 (C), in pronouncing the judgment of the Constitution Bench which heard that matter (Venkatarama Ayyar, J. dissenting) the learned Chief Justice of India quoted the above passage with approval and after reviewing the subsequent Privy Council decision and various decisions of the Indian High Courts bearing on the question, followed Lord Macnaghten's decision and granted leave to the petitioner before the Supreme Court to appeal to that Court from the decision of the Andhra High Court where the valuation of the suit, though above Rs. 10,000/- was below Rs. 20,000/-.
There the suit giving rise to the petition before the Supreme Court was instituted on April 22, 1949 at a time when the valuation of the suit being above Rs. 10,000/- the unsuccessful party would have had a right o appeal to the Federal Court of India from the decision of the High Court. The Andhra High Court's decision reversing the trial Court's judgment and decree was pronounced on February 10, 1955 and the question was whether in view of the enhancement of the valuation for appeals to the Supreme Court by the Constitution, the appeal was entertainable by the Supreme Court.
In granting special leave to appeal it was held that where the suit was instituted on April 22, 1949 the right of appeal vested in the parties thereto on that date and that right 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 in appeal from the Sub-Court to the High Court and from the High Court to the Federal Court and that right inhered in them unless it had been taken away expressly or by necessary intendment by any subsequent enactment. It would here be instructive to quote a few passages from the majority judgment of the Supreme Court in that case. After quoting the passage extracted above from the decision in Colonial Sugar Refining Co. v. Irving (A), the learned Chief Justice observed:
'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 and 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 learned Chief Justice then reviewed various decisions and went on to say:--
'From the decisions cited above the following principles clearly emerge :
(1) 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.
(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 a 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.'
It is needless to observe that the circumstances here are similar to those in the Colonial Sugar Refining Co.'s case (A) and in the case in Garikapathi v. Subbiah Choudhry (C), particularly the former. Had it not been for a recent decision of the Madras High Court reported in Parthasarathi Naidu, In re 70 Mad LW 595 : (AIR 1958 Mad 94) (D), we would not have attempted to write any long order at all in these cases, especially when the learned Advocate General to whom notice was issued by us to be present at the hearing and assist us with his arguments, conceded that in view of the Supreme Court decision referred to above, it has to be said that these appeals were properly laid before this Court and that this Court alone was competent to entertain such appeals. The Madras decision was referred to during the course of the arguments and while counsel for the various appellants attacked it, the learned Advocate General stated that notwithstanding the respect he had for and he owed to, the learned Judges who decided the case, he was unable to support it. We fully share that view, but it is also possible to distinguish it, as the circumstance which the learned Chief Justice of Madras depended upon to give retrospective operation to the Madras Civil Courts Amendment Act, VII of 1956, is not present here.
5. As stated earlier under the Madras Civil Courts Act, 1873 an appeal lay to the High Court if the valuation was Rs. 5,000/-and above, but the Amending Act VII of 1956 substituted the figure Rs. 5,000/- occurring in Section 13 of the main Act by the figure Rs. 10,000/-, with the result that after the coming into force of the Amending Act appeals exceeding a valuation of Rs. 5,000/- and which were below Rs. 10,000/- had to be filed before the District Courts and not in the High Court as previously. The Amending Act received the assent of the Governor on 10th October, 1956, but Section 1, Sub-section (2) provided that it shall come into force only on such date as the State Government may, by notification appoint. By a notification dated, 3rd January, 1957, the appointed day for the Act to come into force was 1st April, 1957. The appeals that were before the learned Chief Justice and Panchapakesa Ayyar, J. were filed after the said appointed day and in both the valuation was over Rs. 5,000/- and less than Rs. 10,000/-. Learned counsel for the appellants in one of those appeals contended that there was a vested right in the parties to the suit out of which the appeal arose to have a regular appeal to the High Court from the time of the institution of the suit, which, of course, was considerably before the passing of the Amending Act and that the Amending Act cannot take away the vested right unless it was' made retrospective, expressly or by necessary intendment. The Privy Council decision in Colonial Sugar Refining Company v. Irving (A) was referred toand the learned Chief Justice held that the cases that were before him and his learned colleague were analogous to the Privy Council decision and that the principle of that decision applied to the cases before them. It was also pointed out that the Supreme Court had in a recent case (Civil Misc. Petn. No. 596 of 1957) followed the Privy Council case and applied it to the right of appeal to the Supreme Court in cases in which the value of the subject-matter was above Rs. 10,000/-, but below Rs. 20,000/-. That apparently is a different case from the Supreme Court case we have referred to, for the decision we referred to was given in Petition for Special Leave to Appeal No. 170 of 1955: ((S) AIR 1957 SG 540) (C). Rajamannar, C. J., however, went on to say that the case of Colonial Sugar Refining Co. v. Irving (A), had laid down that if there was clear intention that the amending statute should be retrospective and that intention was manifested either expressly or by necessary intendment, then vested rights could be effected.
So saying the learned Chief Justice referred to the provision in Section 1 Sub-section (2) of the Amending Act that it would not come into force forthwith on receiving the assent of the Governor but would only come into force on a date to be notified and said 'when we take into consideration the fact that on 3rd January, 1957 it was notified that the Act would cornel into force only on and from 1st April, 1957, we are of opinion that by necessary intendment the Act should be retrospective.' Reference is then made to certain passages in Maxwell and Craies and to certain observations of Pollock, C. B. in Wright v. Hale (1860) 30 LJ Ex. 40 (E), to support that view.
We shall presently refer to the authorities cited there, but it may here be pointed out that the Gazette Extra-ordinary appointing 15th February, 1957 as the date on which the Kerala Civil Courts Act shall come into force bears the Date 7th February, 1957. This is why we stated earlier that the circumstance which the learned Chief Justice of Madras found to give retrospective intendment to the Amending Act in Madras was not present here. While the Amending Act in Madras was to come into force almost three months after the appointed day was notified, in Kerala the interval of time was just eight days, that is, between the date which the Gazette bears and the date of the appointed day.
6. Further, the authorities cited in the Madras decision dealt with matters of practice and procedure and not with vested rights. The passage quoted there from Craies on Statute Law (Fifth Edition) p. 363 reads:
'A postponement clause in an Act has been sometimes said to be an indication against the presumption that a retrospective intent is not to be inferred.'
This sentence is taken from a paragraph entitled 'Effect of a postponing clause' and that paragraph also contains the following (quoted from Wright, J., in In re Anthlumney, (1898) 2 QB 547, at p. 552 (F)) :--
'But this exception seems never to have been suggested except in relation to enactments such as Statutes of Limitation, and even in relation to these it is questioned in Moon v. Durden, (1848) 2 Ex. 22 (G).'
The learned author then refers to various cases, in some of which the suspensory clause has been understood as indicative of an intention to give retrospective operation to the concerned statute and to others where no such intention was attributed, An analysis of the cases would bear out the observation in the opening sentence of this paragraph that retrospective operation was given only to statutes affecting practice and procedure and not to enactments affecting vested rights. In Craies the discussion as to the effect of a postponing clause is concluded at p. 364 thus :--
'The result of these decisions seems to be that the suggested exception is rarely if ever applicable, and cannot be accepted as an undoubted rule of construction.'
We have carefully read through the cases referred to on pp. 363 and 364 of Craies and we are inclined to agree with the comment quoted above.
7. The passage which Rajamannar, C. J. quotes from Maxwell (Tenth Edition p. 223) is in these terms :--
'But some stress is also to be laid on the circumstances that the Act did not come into operation until 8 months after its passing for the concession of this interval seemed to show that the hardship in question had been in the contemplation or the legislature and had been thus provided for.'
This is based on the decision in Towler v. Chatterton, (1829) 6 Bing 258 (H), one of the cases reviewed in Craies at pp. 363 and 364. The case related to a question of limitation and the facts are summarised as follows on p. 363 of Craies:--
'In that case, to an action of indebitatus assumpsit there was a plea of the Statute of Limitations. The plaintiff proved a verbal promise to pay made by the defendant in February, 1828; the action was, commenced in January, 1829, and the question was whether the verbal promise made in February, 1828, was sufficient to take the case out of Lord Tenterdon's Act, passed in May, 1828, which enacted in Section 1, that no promise by words only, and not in writing, should be sufficient to take a case out of the operation of the Statute of Limitations. By Section 10 it was enacted that the Act should not come into operation until January 1, 1829. It was held that the verbal promise in February, 1828, was of no avail, for that the statute after it had once come into operation, applied to past as well as to future transactions.'
Likewise the case in Wright v. Hale (E) cited in the Madras case had also nothing to do with vested rights and the passage quoted there from the judgment of Pollock, C. B., is quoted by Craies at p. 364. The comment quoted above (from Craies) immediately follows that quotation. The quotation reads :--
'I think that where an Act of Parliament alters the proceedings which are to obtain in the administration of justice, and does not specially say that it shall not apply to any action already brought, but merely causing the operation to pause for a certain time, and giving an opportunity for parties to retire from suits, it applies to actions already brought.'
All the learned Judges (Pollock, C. B., Bram-well, B. Channel B. and Wilde, B.) who took part in the decision in Wright v. Hale (E), made it clear in their judgments that they were concerned there with a mere rule of procedure enacted pending an action and not with any vested right. The earlier part of the judgment of Pollock, C. B., may with advantage be quoted here:
'I do not think that pur decision in this case will at all interfere with those great constitutional principles that Mr, Chambers (counsel supporting the rule) has called in aid of his argument. I have always understood that there is a considerable difference between laws which affect the vested rights and interests of parties, and those laws which merely affect the proceedings of Courts; as, for instance, declaring what shall be deemed good service, what shall be the criterion of the right to costs, how much costs shall be asked, the manner in which witnesses shall be paid, or what witnesses the party shall be entitled to, and so on. For instance, if an act of parliament were to say that in matters of mere opinion and judgment, no person shall be allowed to call more than three witnesses, I think that would apply to all actions, whether then pending or thereafter to be brought. It would be a matter regulating the practice; and I think you could not with any propriety say, 'I had the right to call as many witnesses as 1 thought necessary to establish my case, and I wished to have called ten surveyors, ten brokers, ten ship's husbands, and so on.' I do not think that a matter of that sort can be called a right, nor do I think the title to costs can be called a right in any sense in which Lord Coke in his Institutes, or my Lord Chief Justice Truro, in the case referred to by Mr. Chambers, has spoken of rights.'
The case related to a rule to set aside a certificate of Bramwell, B. The passage quoted by Rajamannar, C. J. from that judgment (quoted above) comes immediately after the passages quoted above. The judgment of Channell, B., in that case contains the following observations:
'When an act of parliament is made from the time of its operation, whenever that time-shall be, will have the effect of taking away a right of action that had actually vested before the act passed, then I agree in the argumentof Mr. Chambers that the Court ought to seeclearly that the legislature intended the act tohave a retrospective operation. To make myself understood, I will put this case that where the act, supposing it Has a retrospective operation, would enable the defendant by plea to put an end to the further maintenance of the action or to come to the Court to stop proceedings, then the Court ought to see clearly that that act was intended to have that retrospective operation. But I do not think the rule applies to the case where what we have to deal with is a matter of practice. The words of the statute point to an action in which the plaintiff shall recover damages, the amount of which is uncertain, and to an act to be done at the trial. I think the case is concluded by the authorities cited On the statutes whichregulate costs.'
In that case Wilde, B., stated:
'And the principle that seems to be applicable to the case is this, that where you are dealing with a right of action, and an act of parliament passes, unless something express is contained in that act, the right of action is not taken away; but where you are dealing with mere procedure, unless something is said to the contrary, and the language in its terms applies to all actions, whether before or after the act, there I think the principle is, that theact does apply without reference to the former law or procedure.
Now that that is the principle, appearsfrom the cases that have been cited on both sides. Because the cases cited by Mr. Chambers are cases of rights of action not interfered with, and the cases on the other side are cases of procedure or evidence in which the acts were held to be retrospective.'
Bramwell, B., who issued the certificate also took part in the proceedings to set aside the certificate and He also agreed with hiscolleagues.
7a. To repeat what we have stated earlier, the authorities depended upon in the Madras case to give retrospective operation to the Madras Civil Courts Amendment Act, 1956 (Act 7 of 1956) related to the cases of practice and procedure in Courts. Indeed those authorities themselves point out that no deprivation of any vested right was involved in those cases.
8. Sufficient interval of time between the date of the enactment of a law and the date on which it is to come into force, would, no doubt, enable litigants whose cases have been decided before the enactment or immediately after it, to have resort to the old law before the new law comes into force, but litigants whose cases happen to be pending on the date the new law comes into force and decisions therein are given only afterwards would go even without such an opportunity if the postponing clause is understood to carry a retrospective intendment. To extend the application of it to the domain of vested rights would be to annihilate the right altogether.
9. A Canadian case relevant to the question may at this stage be referred to : that is, Fleming v. Atkinson, (1956) SCR 761 (I). A Bench of three Judges decided that case and the relevant facts as also the principle underlying the decision can be found in the following paragraph of the judgment Kerwin, C. J. (Cartwright and Nolan, JJ. concurring) delivered there :
'On August 14, 1956, an amendment to the Supreme Court Act was assented to (1956 (Can.), c. 48, s. 2, repealing and re-enacting R. S. C. 1952, c. 259 s. 36 (a)) whereby an appeal to this Court lies from a final judgment pronounced in a judicial proceeding where the amount or value of the matter in controversy in the appeal exceeds 10,000, instead of 2,000 as formerly. It is clear that, as the judgment of the Court of Appeal was given before the coming into force of the amendment, the defendant's right to appeal has not been lost; but as this is the first case in which the question has arisen, it should also be pointed out that the amendment does not apply to a case in which the action was pending when the amendment came into force, even though the judgment directly appealed from was not pronounced until afterwards : Hyde v. Lindsay, (1898) 29 SCR 99 (J).'
Unfortunately the report of the case referred to in the above quotation is not available here.
10. Reference may here usefully be made to the dissenting judgment of Venkatarama Ayyar, J. in Carikanati v. Subbiah Choudhri (C). We are of course bound by the majority decision and have to follow it. We refer to the dissenting judgment to point out that even according to the view taken by the learned dissenting Judge these appeals have to be held to have been properly laid in this Court.
According to Venkatarama Ayyar, J. the substantive right to prefer an appeal arises only when the decision which is to be appealed against is rendered and not when the suit is instituted as held by the majority of his colleagues or as held in Colonial Sugar Refining Co. v. Irving (A). As noticed earlier, the decisions giving rise to the appeals before us were all passed before the Kerala Civil Courts Act, 1957 was enacted, not to speak of the date when it was brought into force. The relevant paragraph in the judgment of Venkatarama Ayyar, J. is numbered as paragraph 62 in the All India Reporter and that is quoted below:
'It may be taken on these authorities that a right of appeal is a substantive right and not a mere matter of procedure, and that a legislation subsequent to the accrual of such a right must not be construed as taking it away, unless it does so expressly or by necessary implication. But the question still remains when that right accrues or vests; and that did not arise for determination in the authorities cited above, and indeed, does not appear to have been the subject-matter of any pronouncement prior to Colonial Sugar Refining Co. v. Irving (A),and the decision therein that a right of appeal vests when the action is commenced would accordingly appear to be a deduction made from the character of the right as a substantive one.
But is it a right deduction to make? It isone thing to say that right of appeal is a substantive right, and quite a different thing to hold that it vests at the commencement of the proceedings. It would be perfectly logical to hold that the right of appeal is a substantive light and at the same time that it arises onlywhen the decision which is to be appealed against is rendered.
The result of that view will be that a right of appeal which arises when a judgment is given, would stand unimpaired by a subsequent legislation altering or abridging it, unless that is made retrospective, expressly or by necessary implication. On this reasoning the conclusion that because a right of appeal is a substantive right it must be held to vest at thecommencement of the action would be non-sequitur. Whether we consider the question, therefore, on the principle of it or on the basis of authorities, the decision in Colonial Sugar Refining Co. v. Irving (A), does not appear to be sound.'
We should not, however, be taken as resting our decision on this narrow ground, but on the broad proposition enunciated in the leading cases referred to earlier and reaffirmed by the Supreme Court by an overwhelming majority in Garikapati v. Subbiah Choudhri (C).
11. On the whole, with respect, we differ from the view taken in Parthasarathi Naidu, In re (D), and we are unable to find our way to hold that the Kerala Civil Courts Act was intended to be retrospective in its operation.
12. The necessary result of the view taken by us is riot only that these appeals have been properly laid here, but also that if appeals in like cases have already been preferred before the District Courts, they will have to be returned for presentation to this Court. Appeals arising from decisions of the Subordinate Judge's Courts in suits instituted before the Kerala Civil Courts Act was enacted, where the valuation is below Rs. 7,500/- will have to be filed in this Court irrespective of the date on which the judgment is pronounced.
We are not now called upon to decide whether the same rule would apply to suits instituted after the enactment of the Act and before it was brought into force. The provision as to appeals to the District Courts from the decisions of Subordinate Judge's Courts will remain a dead-letter for some years to come unless the Legislature thinks it proper to make the provision retrospective. It is however not a novel thing for such provisions in similar enactments to remain dead-letters for some considerable period see the judgment of Coutts Trotter, C. J. in Vasudeva Samiar, In re, AIR 1929 Mad 381 (SB) (K).
13. In conclusion we hold that theseappeals have been properly laid before thisCourt.